[2007] UKSSCSC CDLA_2715_2006 (14 March 2007)

CDLA/2715/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the claimant’s appeal against the decision of the Durham appeal tribunal dated 6 June 2006.

REASONS

2.	The claimant claimed disability living allowance with effect from 26 May 2005.  She was aged 60 at the time and had fractured her left hip in an accident on 10 May 2005.  She had also recently been unsuccessful in an appeal against a supersession decision terminating an award of the lowest rate of the care component of disability living allowance.  In addition to her hip fracture, she suffered from arthritis, diabetes and asthma but, in her claim form, she dated her mobility problems from the date of her accident.  The Secretary of State obtained a report from Mr A. Gower F.R.C.S., the consultant orthopaedic surgeon treating the claimant, who wrote, following her attendance at a fracture clinic on 29 June 2005 –

“I reviewed this patient in the clinic today.  She is doing well, and can now walk about the house using one stick but she seems to have lost confidence outside the house.  She is struggling at the moment since she changed GP with her painkillers, preferring to use one particular type of analgesic gel and dispersible Co-Codamol.

“I have arranged to see her again in two months’ time at Bishop Aukland General hospital.  In the meantime she can progress to full weight bearing and we will get an X-ray on arrival at her next attendance.”

Her claim was rejected on 21 September 2005 on the basis that much of her disablement was temporary.  She appealed on 12 January 2006 and her late appeal was accepted by the tribunal.

3.	The appeal had been lodged by Mr Mick Guy of Durham Welfare Rights.  Another representative from Durham Welfare Rights obtained a letter dated 17 May 2006 from the claimant’s general practitioner, Dr H. Cowell, in which he stated –

“…  She has been registered at the practice for the past 11 months however in that time I have only seen her on 2 occasions.

“She did fracture her left hip in May 2005 which required surgery in the form of internal fixation on the 11th May 2005.  This surgery will have affected her walking ability outdoors though unfortunately I am unsure as to how far she is currently able to walk before experiencing pain though I would expect that this is less than 50 yards.

…”

4.	Notice of the hearing had been given on 20 April 2006.  The claimant asked Durham Welfare Rights to represent her but declined to attend the hearing herself.  Her reason was that her hip was too painful and she was in a wheelchair and could not get anywhere.  Mr Guy appeared on her behalf at the hearing.  It appears that he had been informed by his office that the claimant would not be attending but had not been told why.  However, it also appears that the claimant’s reason had been sent to the tribunal.  Mr Guy had not met the claimant and, upon being shown the claimant’s reason for not attending, he applied for an adjournment so that the need for a domiciliary hearing could be investigated and so that the claimant’s instructions could be taken as to whether she objected to either the medically qualified panel member or the disability qualified panel member sitting on the tribunal, who had both been members of the tribunal that had dismissed her earlier appeal against the supersession decision.  That application was rejected.  No point in relation to it is pursued before me.

5.	The tribunal then dismissed the appeal.  In relation to the mobility component, the statement of reasons records –

“6.	In respect of the mobility component we found as a fact that the appellant can, before the onset of severe discomfort, walk a distance of 100 metres at a slow pace with normal gait and balance.  She may need to use a stick.  Time taken to walk this distance is likely to be slightly slower than normal for a woman of the age of the appellant.  Walking speeds found by the Road Research Laboratory equate to walking 100 metres in 1 minute 16.9 seconds.  The tribunal consider that the appellant is likely to be able to walk 100 metres in 2 minutes.

“7.	…

“8.	The evidence before the tribunal is that contained in the claim pack.  The claim form was completed on 03 06 05, that is within a month of an accident which took place on 10 05 05.  The tribunal accept that the appellant would have mobility problems immediately following a fractured hip and there would also be care needs.  The appellant, however, indicates that her care and mobility needs date from 10 05 05, the date of the accident.  By the end of June 2005 the tribunal are satisfied that the appellant had made some improvement.  Mr Gower, Consultant Orthopaedic Surgeon, writes that the appellant is then doing well and that she can walk about the house using one stick, “but she seems to have lost confidence outside the house”.  The letter indicated that Mr Gower was to see the appellant in 2 months.  Meanwhile it was anticipated that the appellant would “progress to full weight bearing”.  There is nothing before the tribunal to indicate that the appellant had any difficulty with care or mobility prior to 10 05 05.  The appellant’s own GP Dr Cowell was unable to comment on this (page 58).  

“9.	The tribunal consider the appellant’s own estimate of her walking ability which was contained in the claim form (2 metres in 45-60 minutes) could be so slow as to be inherently improbable.  The appellant indicates in the form completed by her and received by Durham Welfare Rights on 22 May that she was in a wheelchair.  That is not consistent with the anticipated recovery expressed by Mr Gower (page 46).  The tribunal have no information as to whether or not there are new circumstances which might have resulted in the worsening of the appellant’s condition.  However if this were to be the explanation then the tribunal are precluded by section 12(8) of the Social Security Act 1988 from taking these into account.  The tribunal have not overlooked the letter from Dr Cowell.  Although he is not certain how far the appellant can walk he writes “I would expect that this is less than 50 yards”.  A woman of 60 would normally recover from a hip operation within 3 months and the tribunal reject that evidence which is in any event not based on a medical examination.  The onus is on the appellant to prove her case.  The tribunal cannot find that on the balance of probabilities that the appellant is unable to exercise the faculty of walking out of doors in such a manner that she is rendered totally or virtually unable to walk having regard to the distance, speed and manner of walking.

“10.	…

“11.	The tribunal considered the evidence from Dr Cowell in relation to the use by the appellant of an inhaler on a regular basis.  There is no evidence before the tribunal to indicate that the appellant’s breathing problems are causing any difficulty and indeed Dr Cowell indicates that he was unable to comment on whether this would impact on the appellant (page 58).”

6.	The claimant now appeals, with the leave of a salaried legally qualified panel member who was not the chairman of the tribunal, on the ground that there was no evidence to support the finding as to the distance the claimant could walk.  It is argued that the Road Research Laboratory research did not amount to evidence and that, if it did, it should not have been given greater weight than the general practitioner’s evidence.  The appeal is resisted by the Secretary of State. 

7.	It seems to me that the grounds of appeal show a misunderstanding of the tribunal’s decision.  The Road Research Laboratory research was not evidence that could be, or was, weighed against the general practitioner’s evidence and in that sense it played no part in the findings of the tribunal, but it was evidence as to what a “normal” walking speed would be.  It is plain that reference was made to it only for the purpose of explaining by how much the tribunal considered the claimant’s walking speed to have been reduced.  The quoted figure provided a benchmark of a “normal” speed against which the tribunal’s view of the expected speed of the claimant’s walking, expressed in an easily understood form, could be compared.

8.	I agree with the Secretary of State that, in its context, the tribunal’s finding that the claimant could walk 100 metres may well have been a finding that she could walk at least that distance.  It is unnecessary for a tribunal to make any specific finding as to the distance a claimant can walk if it is able to find that it is at least too far for the claimant to be considered virtually unable to walk given the way in which his or her ability to walk is restricted by other factors.  Tribunals (and examining medical practitioners) may wish to consider making their estimates of walking ability clearer by using the phrase “at least”, if that is what they mean.  

9.	In any event, the tribunal was entitled to make the finding it did.  It is perfectly obvious that the finding was made on the basis that the tribunal would have expected the claimant substantially to recover from a hip operation in the absence of complicating features, particularly in the light of the consultant’s observation of her progress at the fracture clinic on 29 June 2005.  In the absence of any better evidence that it was prepared to accept, the tribunal was entitled to rely upon its own experience in that way and it is quite wrong to say that the tribunal made its decision without any evidence.  The tribunal drew a permissible inference from the evidence that the claimant had fractured her hip and the consultant’s prognosis.  It gave adequate reasons for rejecting the general practitioner’s unexplained estimate of the claimant’s walking ability.  It rejected what the claimant herself had said in her claim form as inherently improbable, as it was entitled to do, although it could equally have said that it was of little value in determining what the claimant’s abilities were likely to be several months later.  It was also not prepared to place any weight on the evidence that the claimant was in a wheelchair when that appeared inconsistent with the consultant’s earlier prognosis and no further evidence as to the circumstances in which she came to be using a wheelchair was forthcoming.  Again, the tribunal was entitled to take that view and has adequately explained it, one reason being that, if she really did need a wheelchair, that might well have been for reasons that could not reasonably have been anticipated when the Secretary of State’s decision was made.

10.	Apart from the point that it would have been better had the tribunal made it clear whether its finding of the distance the claimant could walk was a minimum, the only criticism I would make of the statement of reasons is that it is expressed as though the question before the tribunal was whether the claimant was virtually unable to walk at the time of the hearing before the tribunal.  As the tribunal indicated, it was unable, by virtue of section 12(8)(b) of the Social Security Act 1998, to take into account any circumstances not obtaining at the date of the Secretary of State’s decision.  It is a condition of entitlement to disability living allowance that the claimant have been sufficiently disabled for three months and that he or she be likely to remain sufficiently disabled for six months (see section 73(9) of the Social Security Contributions and Benefits Act 1992 in relation to the mobility component).  Technically, therefore, the issue for the tribunal was whether the claimant had been virtually unable to walk at the date of the Secretary of State’s decision on 21 September 2005, and whether she had been in that condition since 10 May 2005 and, on 21 September 2005, was likely to continue to be in that condition until at least 10 February 2006.  However, I do not consider that the technical error in the way the tribunal expressed itself had any bearing on the outcome.  The whole burden of the reasoning was that, if what would have been expected had not come to pass, it was due to circumstances that were not obtaining at the date of the Secretary of State’s decision.

11.	Accordingly, I am satisfied that the tribunal’s decision is not erroneous in point of law.

(signed on the original)	MARK ROWLAND
Commissioner
14 March 2007