[2007] UKSSCSC CDLA_2084_2007 (13 December 2007)

CDLA/2084/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The claimant's appeal is allowed.  The decision of the Basildon appeal tribunal dated 3 October 2006 is erroneous in law.  I set it aside and remit the case to a differently constituted appeal tribunal for determination.   

REASONS

1.	In my judgment the appeal tribunal’s decision is erroneous in law for reasons identified by Mr Commissioner Mesher in granting leave to appeal.  I am not in a  position to give the decision that the appeal tribunal ought to have given, since that would involve making findings of fact about medical and disability issues which I am not in  a position to make.  I must therefore remit the case to a differently constituted appeal tribunal.  
2.	The claimant has asked for an oral hearing before the commissioner.  I have decided not to grant that application since I have been able to allow her appeal without the need to hear from her.  Though it is over a year since the appeal tribunal’s decision, and any further delay in the appeal is unsatisfactory, I do not consider that I could safely have tried to make findings of fact about the effect of the claimant’s disabilities on her care and mobility needs even if I had heard evidence from the claimant myself.
3.	It is strongly in the claimant’s interest to attend the hearing by the new tribunal.  The question for the new tribunal will be whether her disabilities entitled her to the care or mobility components of a disability living allowance (DLA) at the time the Department decided her claim.  In a case where an appeal tribunal only has written evidence and reports to go on, all that the tribunal can do is use its specialist knowledge to interpret that evidence, as the tribunal did here.  The conclusion that the tribunal came to in this case was a tenable interpretation (though I do not say the only possible interpretation) of the evidence before them.  If the claimant wishes to persuade the new tribunal that her disabilities did entitle her to the care or mobility components of DLA, it will help her if she is able to tell the tribunal about her needs and disabilities herself.  
4.	The claimant is a woman born in 1965 who suffers mainly from osteoarthritis of the right hip.  She claimed a disability living allowance (‘DLA’) in January 2004; the claim was initially rejected but in February 2004 but the claimant appealed and as a result the decision was reconsidered by a decision-maker in April 2004.  The revised decision was that the claimant was entitled to the higher rate of the mobility component of DLA and the highest rate of the care component.  The award was for two years from March 2004.  In January 2006 the claimant completed a renewal claim form; in it she said that she could not walk very far (she estimated 300 metres), used a stick and was accompanied by her daughter as she lost her balance and tended to trip over.  She also referred to various problems indoors.
5.	In February 2006 a decision-maker made a fresh award with effect from March 2006, at the lower rate of the mobility component and the middle rate of the care component.  On 6 March 2006 the claimant appealed (page 1K).  As a result the award was reconsidered but not changed (page 84).  The claimant wrote giving further information about her claim (pages 84b–84c; it seems that page 84a of the papers refers to a different claimant and must have been included in error).
6.	The appeal first came before an appeal tribunal in July 2006; the claimant did not attend.  The Department’s submission to the tribunal wrongly stated on page 1C that the decision under appeal was a decision that the claimant was not entitled to either component of DLA, though the submission gave the page reference of the decision (page 81) awarding the lower rate of the mobility component and the middle rate of the care component.  The July tribunal do not appear to have been misled by that mistake in the submission, but decided to adjourn the case so that an examining medical practitioner’s report could be obtained.  The notice of the decision to adjourn (page 86) says “NB The tribunal could re-examine the current level of award”.  A person who was knowledgeable about tribunal procedure would be likely to understand from this that the July tribunal thought there was a possibility of the existing award being cancelled or reduced, but the claimant could not be expected to have understood that.
7.	The examining medical practitioner (EMP) concluded that the claimant could walk 250 metres before the onset of severe discomfort but this would involve five stops for 15-30 seconds due to pain (page 102); the EMP did not consider that the claimant needed guidance or supervision out of doors (page 103) but concluded that she could not safely cope with hot pans or use a cooker or use stairs, the bath or toilet without help (page 105) and needed help as a result of incontinence (page 107).
8.	The appeal came before a differently constituted appeal tribunal in October 2006; the claimant again did not attend.  A complete copy of their statement of reasons is at pages 146-149; other copies in the file have the pages in the wrong order.  The October tribunal were plainly muddled by the mistake in the Secretary of State’s submission to them (which I have referred to in paragraph 5 above).  Paragraph 1 of the statement of reasons says (incorrectly) that the appeal was against a decision that the claimant was not entitled to either component of DLA; paragraph 6 then says (correctly) that on the renewal claim an award of the lower rate of the mobility component and the middle rate of the care component had been made and that the July tribunal had doubted that the award was correct, but paragraph 30 says that “the decision of the Secretary of State that the appellant was not entitled to a component of the allowance was correct as a matter of law and was confirmed”.  There is then added in handwriting the sentence “On the basis of the documentation before us we infer that the previous award was wrong in law”.
9.	The October tribunal decided that the claimant was not virtually unable to walk, did not need guidance or supervision out of doors and did not satisfy the criteria for any rate of the care component of DLA.  These conclusions were largely but not entirely in accordance with the conclusions of the EMP.  They concluded that the claimant’s problems with continence, referred to by the EMP, had arisen since the Secretary of State’s decision, as they were not referred to in the claim form.
10.	The claimant applied unsuccessfully for the decision to be set aside (on the grounds that she had been prevented from attending by illness) and for leave to appeal to the commissioner.  There was some delay in her application because she wished to produce further evidence from her consultant.  In July 2007 a commissioner granted her leave to appeal.  The commissioner found it arguable that the statement of reasons failed to show that the tribunal had consciously exercised its discretion to consider whether DLA had been awarded incorrectly by the Department, that the claimant had not been adequately warned of the risk of the tribunal reducing or cancelling the award and that the tribunal had failed to consider whether the walking distance of 250 metres mentioned by the EMP was only achieved at the cost of severe discomfort.  
11.	In my judgment the tribunal did err in law in the first two of those respects.  The Secretary of State also supports the appeal (pages 159-162).
12.	As I have pointed out in paragraph 8 above, it is unclear from the statement of reasons whether the tribunal appreciated that their decision to award the claimant no DLA amounted to cancelling the award made by the Department.  This is important because of section 12(8)(a) of the Social Security Act 1998, which provides that an appeal tribunal “need not consider any issue that is not raised by the appeal” before it.
13.	The claimant was appealing against the Secretary of State’s decision of February 2006, which had awarded the claimant some DLA, but not as much as had been awarded to her in 2004.  The issue raised by the appeal was whether the February 2006 award was too low, not whether it was too high.  
14.	This meant that the tribunal were not obliged to consider whether the February award was too high, but had power to do so.  However, R(IB) 2/04, which is referred to in the commissioner’s reasons for granting leave and in the Secretary of State’ submission to the commissioner, makes it clear (a) that a tribunal must reach a conscious decision to make use of its power under section 12(8)(a) to consider whether an award is too high and (b) that in order to comply with the claimant’s right to natural justice and a fair hearing, the tribunal must warn the claimant that they are thinking of considering whether the award should be cancelled or reduced; that is in order to give the claimant an opportunity to prepare his or her case and also an opportunity to consider whether to withdraw the appeal and at least keep the award that the Department gave.  
15.	There is no indication in the statement of reasons that the tribunal reached a conscious decision to use its power under section 12(8)(a) here; the first and last paragraphs of the statement of reasons make it much more likely that they overlooked the fact that that is what they were doing.  My interpretation of the handwritten addition to the last paragraph is that the tribunal were saying that the 2004 award had been wrong, rather than referring to the February 2006 award. 
16.	Nor is there any evidence that the claimant was warned of the possibility that the tribunal might cancel the February 2006 award.  The statement in the July 2006 notice of adjournment that the tribunal “could re-examine the current level of award” would suggest to someone knowledgeable about tribunal practice that the tribunal envisaged taking the comparatively unusual step of considering whether the award was too high, but did not clearly mean any more than that the tribunal did have power to decide, as the claimant wanted them to, that the award was too low. 
17.	The tribunal’s conclusion that the claimant was not virtually unable to walk was based on a combination of the claimant’s statement in the claim form that she could walk 300 metres and the report of the EMP.  The EMP’s conclusion that the claimant could walk 250 metres before the onset of severe discomfort was qualified by the EMP’s finding that pain would cause her to stop five times over this distance for 15-30 seconds.  The claimant had also qualified her statement about walking 300 yards by the statement at page 84b, accompanied by a photograph (page 154), to the effect that she had to stop after crossing the width of her street.  The statement of reasons does not refer to the need for these stops.  The commissioner who granted leave to appeal found it arguable that the tribunal had not properly considered whether the claimant’s ability to walk 250 metres was only achieved at the cost of severe discomfort.  The Secretary of State has submitted that the tribunal made insufficient findings of fact.
18.	Whether a claimant is virtually unable to walk is a matter for broad assessment by a tribunal, and there is no arbitrary achievable walking distance that separates people who are virtually unable to walk from those who are not.  Regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991 requires a tribunal to have regard to distance, speed and manner of walking before the onset of severe discomfort.  The thrust of the EMP’s conclusion was that claimant could manage 250 metres with the stops, with decreasing speed and increasing pain, but could not go further than 250 metres without severe discomfort.  
19.	In a case where a claimant has to make stops of this sort, the issue potentially arises of whether the stops are simply necessary in order to forestall severe discomfort or are necessary because severe discomfort has already begun.  Pain is not synonymous with severe discomfort, and a low level of pain will not necessarily amount to severe discomfort.  The EMP seemed implicitly to have concluded that, with the stops, the claimant’s level of pain would not reach the level of severe discomfort before 250 metres, and the claimant’s evidence of having to stop after crossing the width of her street did not really help on the question of when severe discomfort would begin.  
20.	It would have been desirable for the tribunal to address the evidence about stops in their statement of reasons, and the new tribunal should consider that evidence.  I do not, however, feel able to conclude that the tribunal erred in law by not doing so since it is not self-evident to me that the tribunal had any basis for concluding that the claimant would experience severe discomfort after walking a distance less than 250 metres.  Since I have set the decision aside on other grounds, it is unnecessary to reach a concluded view on this point.  The new tribunal will no doubt apply their medical and disability expertise to this question.  They will also, of course, need to examine the claimant’s entitlement to the care component.
21.	The Secretary of State has said (page 162) that he will not be submitting that the February 2006 decision should be revised or superseded.  I take it from that that he will not be submitting that the award was too high.  Revision or supersession of that decision by the tribunal are not strictly in point; the position is simply that that decision is under appeal to the tribunal and they have the power but not the obligation to consider whether it was too high.  

	(signed on the original)	Nicholas Paines QC
		Deputy Commissioner
		13 December 2007