[2006] UKSSCSC CDLA_2363_2005 (09 January 2006)

CDLA/2363/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Middlesbrough appeal tribunal dated 13 May 2005 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2.	It is common ground before me that the tribunal failed adequately to deal with the care needs claimed to arise out of the claimant’s somnambulism.  The tribunal simply said that it “was not satisfied on the basis of the evidence that this was a real problem” because there “was no evidence of injuries or actual harm”.  The fact that there have been no injuries or actual harm may be powerful evidence that there is no significant risk of harm, although it may not be conclusive.  However, in this case, there was evidence that the claimant had once drunk a bottle of body lotion while asleep and had woken up vomiting over the bathroom sink and that, on other occasions, she had woken up with a black-eye or bruises on her forehead or on her body, which, it appears, she attributed to bumping into things while sleep-walking.  As the Secretary of State’s representative points out, the claimant appeared at the hearing before the tribunal and the tribunal found her to be a truthful witness.  I agree with both parties that the statement of the tribunal’s reasoning is inadequate and that the decision is therefore erroneous in point of law.  It is unclear whether the tribunal overlooked the evidence of harm and, if it did not, it is unclear why it did not conclude that the claimant required attention or watching over from time-to-time at night.  I am far from saying that acceptance of the evidence would necessarily have led to the conclusion that the night-time condition for disability living allowance would have been satisfied but, if the tribunal did not reach that conclusion, the claimant, having asked for a statement of reasons, was entitled to know why.

3.	I do not consider it necessary to deal with the other points raised in the grounds of appeal, save to indicate that I do not accept either of the two points reiterated in the claimant’s representative’s final submission.

4.	I do not accept that the tribunal applied the wrong test in respect of the night-time conditions and I would not have done so even if the tribunal had referred to the extent to which the claimant “managed”.  An ability to manage without assistance is the antithesis of having a requirement for assistance.  However, from whichever angle the question is approached, a tribunal must have regard to what is reasonable.  The claimant’s representative cited three unreported decisions but did not supply copies.  I have not been able to find the earlier two cases but I do not consider that CDLA/660/2004 supports the representative’s proposition.  It seems to me that the comments of the Deputy Commissioner can be explained by his being of the view that the tribunal in that case had only considered whether the claimant could literally manage to dress without assistance, rather than considering the extent to which she could reasonably have been expected to manage without assistance.

5.	Nor do I consider that, in the context of this case, the tribunal erred in not recording a precise finding as to how far the claimant could walk without severe discomfort or as to the speed, time and manner of her walking.  The legislation does not prescribe precise parameters, no doubt because precise measurement is impossible.  In Baron v. Secretary of State for Social Services (reported as an appendix to R(M) 6/86), May LJ, with whom the other members of the Court of Appeal agreed, said:

“It would be an almost intolerable burden on Medical Appeal Tribunals, in deciding cases of this nature as distinct from other types of cases, if they had to make specific findings of distances which people could walk and the extent to which breathlessness and pain caused them to stop.”

The Court held that what was necessary in a statement of reasons was that a party should know that the tribunal had applied the correct legal test and should know why his or her case had failed.  In the present case, it is not suggested that the tribunal did not have the correct test in mind.  The only argument raised before the tribunal was that the claimant could not walk far enough without severe discomfort to satisfy the test.  The examining medical practitioner expressed the view that the claimant could walk 250 metres before the onset of severe discomfort.  She told the tribunal that she could probably walk that distance but not without severe discomfort and she also told the tribunal that her condition varied.  The tribunal took the view that she could “probably walk for a reasonable distance with increasing discomfort but not severe discomfort” and that they could not consider her to be virtually unable to walk.  That was sufficient to show that the correct statutory test had been applied and, in particular, that the tribunal had excluded from consideration any ability to walk only with severe discomfort.  The use of the word “probably” was not inappropriate, as the fact had to be found on the balance of probabilities.  The use of the word “reasonable” showed that the tribunal had had in mind an ability to walk a not insignificant distance.  Given the lack of any statutory parameter, that was, in my judgment, all that the tribunal had to do by way of making findings of fact, in the particular circumstances of this case.

6.	I must make clear that what I have said in paragraph 5 should not be interpreted as suggesting that the tribunal to whom I now refer the case should find the claimant not to be virtually unable to walk.  I express no view one way or the other.  Indeed, all issues on both components will be at large before the new tribunal.

	(signed on the original)	MARK ROWLAND
		Commissioner
		9 January 2006