[2008] UKSSCSC CDLA_3301_2007 (25 January 2008)
CDLA/3301/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant’s appeal is allowed.  The decision of the Newcastle tribunal given on 17 July 2007 (the tribunal) is erroneous in point of law.  I am unable to substitute my own decision for that given by the tribunal and accordingly the claimant’s appeal against the decision given on 5 October 2006 is remitted to a differently constituted tribunal for rehearing in accordance with the directions given in this decision.  However, the claimant should be aware that the conclusions of fact arrived at by the tribunal were consistent with the evidence before it and the fact that this matter is remitted to a different tribunal does not preclude the next tribunal from reaching a decision which is no more favourable to her, and she should be prepared for the possibility that another tribunal might reach a decision which is less favourable to her.  The claimant might benefit from seeking advice from a welfare rights adviser before the new hearing takes place. I direct the Secretary of State to consider the points identified in paragraphs 3,4, and 8 below.

2.	The tribunal was no doubt hindered by the absence of a proper chronology and it is only with some difficulty that I have constructed a tentative chronology.  It appears that the claimant, who is now 44 years old, first claimed disability living allowance (DLA) in 2004.  It appears that she was probably given an award of the lowest rate care component.  There is no record of the decision given at that point.  However the papers contain the record of a  decision superseding one dated 3 May 2005  This decision was that given on 9 May 2006 which awarded her higher rate mobility component and middle rate care component for the period 3 March 2006 to 2 March 2007.  This decision was made on the basis of a worsening which had occurred some months earlier, with the decision maker concluding that the qualifying period would be satisfied by that date.

3.	Before I move on to the events that were directly at issue before the tribunal, it is worth mentioning that on 15 March 2004 the claimant was seen by an examining medical practitioner (EMP), and presumably this was at the instance of the Secretary of State in connection with a DLA application made in that year.  This report found that the claimant had no functional impairment of either upper or lower limbs which was rated at any more than a slight impairment, expressed the view that the claimant could safely attend to all of her own bodily functions without assistance from another person, other than needing some help dressing or undressing, and could prepare for herself a main cooked meal.  This report was unfavourable to the claimant and it is not clear from it why there should have been an award.  It may well be that there was some further evidence produced.  If this is the case, then it would be helpful if the Secretary of State could say whether this is still available and if so produce it to the new tribunal to which this appeal is remitted, together with an adjudication history.

4.	No sooner had the Secretary of State made the supersession decision set out above on 9 May 2006 than the claimant was called for an incapacity benefit medical examination which took place on 30 May 2006.  Before the claimant underwent that examination, she would have been sent a questionnaire in the form IB50.  This would set out her own responses to a series of questions about functional ability.  It has not been reproduced in the evidence here and again, if it is available, it would be helpful for the new tribunal to see this.  What is included in the papers, and led the Secretary of State on 13 September 2006 to apply for supersession, was the medical report in the form IB85.  The examining doctor found that the claimant could not sit for more than half an hour before she needed to move from the seat (which gave her 7 points), could not stand for more than half an hour before she needed to move around (which gave her 3 points) and could not walk more than 400 metres before she had to stop or suffered severe discomfort (which gave her a further 3 points).  Though the examining doctor carried out the mental health assessment, no points were obtained from this. The  resulting total of 13 points was insufficient to satisfy the incapacity for work test.  

5.	In the reasons given for the supersession decision (page 145 of the bundle) the Secretary of State suggests that the claimant agreed that she could not walk more than 400 metres.  As the Secretary of State does not refer to the IB50, which is not in the papers, and seems to refer to the IB85, I must point out that is incorrect.  The examining doctor disagreed with whatever it was that the claimant’s own assessment was.  It was his assessment that she could not walk for more than 400 metres without stopping or suffering severe discomfort, not the claimant’s self assessment.  In fact for the physical activities standing, walking, walking up and down the stairs, sitting, rising from sitting, bending or kneeling, manual dexterity, reaching and lifting and carrying, the examining doctor disagreed on each occasion with whatever descriptor it was that the claimant herself had selected.  Accordingly, the IB85 medical report does not amount to evidence that the claimant admitted some greater level of ability.  It does however amount to evidence that on examination the claimed level of disability was not accepted.  

6.	The claimant successfully appealed to a tribunal against the disallowance of her incapacity benefit and seemed to think that this was good evidence that the DLA supersession decision was wrong.  As the tribunal which allowed her incapacity benefit appeal did not have the opportunity of examining the claimant, the tribunal’s decision in her favour does not of itself suggest that any of the examination findings recorded by the doctor in the IB85 are unreliable, mistaken or erroneous.  The new tribunal to which this matter is remitted will draw its own conclusions from the evidence, which now includes also the report of a further EMP who saw the claimant on 27 April 2007.  Like the EMP in March 2004, this EMP did not find any significant impairment of either upper or lower limbs.  The functional impairment was never rated at more than slight and an absence of muscle wasting was noted.  So also was a thickening of the skin on the soles of the feet.  Normal muscle tone was noted as was the presence of some inconsistent signs on examination.  The conclusion of the doctor who conducted this examination was that the claimant was able to walk 100 metres or more before she suffered severe discomfort and on examination he found no significant impairment of lower limb function.  He considered that the claimant should be able to attend to all her own bodily functions without assistance from another person and should be able to prepare for herself a main cooked meal.  

7.	Despite the claimant’s attacks on the probity of the doctor conducting this report (an assertion which I hasten to add is unsupported by any evidence of weight) she must be aware that on each of the three occasions set out above when she has been examined, objectively little has been found to be wrong.  The only evidence against this, other than what the claimant herself says, is in the form of two GP letters.  At document 4 is a GP letter dated 25 October 2006.  It is supportive, but as the tribunal noted, it contains no clinical findings.  There is a further letter at page 184 to 184c which is from the same doctor, and is dated 1 June 2007.  This letter is simply a series of assertions about the claimant’s needs.  It is not said to be based on the doctor’s own observations and no clinical findings are given.  Although the GP’s earlier letter was accompanied by evidence that she had been seen at the hospital for musculo skeletal problems, none of this evidence indicated that the claimant satisfied or was likely to satisfy the conditions for an award of DLA.  Put at best, the evidence was neutral because it was not looking at the conditions which have to be satisfied for an award of DLA.

8.	Leave to appeal was granted in this case because the tribunal had not identified the distance which the claimant was able to walk before she suffered severe discomfort.  The Secretary of State supported the appeal on that basis.  However, I do not think that the tribunal can be criticised for its findings in this respect.  Looking at the available evidence, and given the claimant’s assertions that she did not walk, I think it did the best that it could.  Further, there is no rule that a tribunal must say how far a claimant can walk.  It must simply decide the statutory questions which arise on the appeal.  The reason that the tribunal’s decision must be set aside is not because of the supposed fault identified in the grant of leave.  It is because the tribunal made two errors of law which require me to set aside its decision.  These were:

	(i)	The tribunal failed to deal adequately with the supersession question.  The Secretary of State made the decision, and therefore the burden of showing it was rightly made rested on the Secretary of State.  The ground on which the award was superseded was not identified by the Secretary of State and it was not identified by the tribunal.  I think the tribunal was saying that it did not believe that the claimant had ever been accurate in her description of her disablement.  If that is the case, then it should have identified that the award superseded was made in mistake of a material fact.  It did not do so.  There are other grounds on which an award can be superseded.  It is for the Secretary of State in the first place to identify the ground on which it is asserted that supersession is made out, and to list the evidence which in his view supports that conclusion.

	(ii)	The tribunal’s decision both on the decision notice and in the statement of reasons for the tribunal's decision disagree with the corrected decision notice which was subsequently issued.  This is a fundamental flaw.  The decision notice itself, in the standard format – which is very ill‑suited to recording accurately decisions made on supersession – simply stated that the claimant was not entitled to either component of DLA from 5 October 2006.  The statement of reasons for the tribunal’s decision made it clear that it had considered the lowest rate care component and did not accept that the claimant satisfied the conditions for this award.  The decision under appeal was the Secretary of State’s supersession. It removed the award of middle rate care component and substituted lowest rate care.  Therefore the tribunal, in addition to dealing with the supersession question identified above, also needed to identify the grounds for its own supersession.  It did not do this.  When the DWP raised a query about the decision notice, the tribunal chairman purported to correct it to say that the claimant remained entitled to the lowest rate care component, but only ‘because no warning was recorded that she might lose her award’.  The facility of correcting a decision notice does not enable the tribunal to change the decision.  It allows accidental errors, and slips of the pen to be corrected.  It does not enable a completely different decision to be substituted. In changing the decision notice in this way the tribunal chairman was unilaterally replacing the unanimous decision of the tribunal with a decision made by him alone.

9.	As set out above, the fact that her appeal has succeeded here should not lead the claimant to expect that the new tribunal to which this matter is remitted will come to a conclusion which is any more favourable to her than was the decision which I have set aside.  I repeat my suggestion that she obtains advice on the continuation of her appeal from a suitably experienced welfare rights adviser. 

					(Signed on the Original)	Mrs A Ramsay
									Deputy Commissioner 

					 Date                                       25 January 2008