CDLA/3098/2009

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision and Hearing

1. I grant permission to appeal. In accordance with the provisions of regulation 22(2)(c) of The Tribunal Procedure (Upper Tribunal) Rules 2008 I do not require any further submissions or responses and effectively treat this hearing of the application as the hearing of the appeal. The parties have agreed to this course of action.

2. This appeal by the claimant succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal (Social Entitlement Chamber) sitting at Norwich and made on 27th July 2009 under reference 142/09/00751. I refer the matter to a completely differently constituted tribunal in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below. 

3. I held an oral hearing of this matter on 7th June 2010. The claimant did not attend in person but was represented by her husband, Mr K. The Secretary of State was represented by Ms Chan from the office of the Solicitor to the Department for Work and Pensions. I am grateful to them for their assistance.

Directions 

4. The claimant should consider requesting the First-tier Tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written medical or other evidence. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course. The tribunal is not required to consider complaints about the process whereby the Secretary of State reached the original decision, or about inconsistencies or misleading information in literature published by the Department for Work and Pensions, or about the proceedings at the earlier hearing before the First-tier Tribunal. I understand that the care component of DLA is not in issue. The task of the tribunal is to make its own decision on whether the claimant was, at the time of the decision of the Secretary of State which was under appeal (19th January 2009) virtually unable to walk within the meaning of section 73 of the Social Security Contributions and Benefits Act 1992 and, if so, whether she was entitled to higher rate mobility component of DLA in respect of her claim made on or about 12th November 2008. I have advised Mr K to consider whether a fresh claim should be made in respect of deterioration or change of circumstances subsequent to 19th January 2009. 

Background and Procedure

5. The claimant, Mrs K, is a woman who was born on 14th January 1956. She has arthritis in her knees and other difficulties which affect her ability to walk. On 12th November 2008 she claimed DLA. On 19th January 2009 the Secretary of State refused to make any award. On 16th March 2009 the claimant appealed to the First-tier Tribunal against that decision of the Secretary of State. That tribunal considered the matter on 27th July 2009. The claimant attended with Mr K but was otherwise unrepresented. The Secretary of State was not represented. The tribunal confirmed the decision of the Secretary of State. On 3rd November 2009 the District Tribunal Judge refused to grant permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal. The application was renewed before the Upper Tribunal and on 8th and 13th March 2010 I directed that there be an oral hearing of the application. The Secretary of State supports the application and the appeal.
 
Higher Rate Mobility Component

6. For the purposes of my decision it is only necessary to deal with entitlement to the higher rate mobility component of DLA. Insofar as it is relevant, section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 provides entitlement to higher rate mobility component of DLA if a person:

73(1)(a)  … is suffering from such physical disablement that [s]he is either unable to walk or virtually unable to do so.

7. Regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 provides, so far as is relevant, that:

12(1) A person is to be taken to [be] … virtually unable to walk only in the following circumstances –

(a)	[her] physical condition as a whole is such that … -
(i)	…
(ii)	[her] ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which [s]he can make progress on foot without severe discomfort, that [s]he is virtually unable to walk.

It is well established that any walking that is accompanied by severe discomfort must be disregarded.

8. Subject to exceptions which do not apply in this case, regulation 12(4) provides:

12(4) … a person is to be taken not to satisfy the conditions mentioned in section 73(1)(a) of the Act if [s]he
(a)	is not unable or virtually unable to walk with a prosthesis or an artificial aid which [s]he habitually wears or uses, or
(b)	would not be unable or virtually unable to walk if [s]he wore or used a prosthesis or an artificial aid which is suitable in [her] case.

9. Entitlement depends on the above provisions. It does not depend on what the Department for Work and Pensions or any other organisation has stated in its leaflets or other publications (apart from decisions of the Social Security Commissioners, the Upper Tribunal or the higher courts). 

10. Section 12(8) (b) of the Social Security Act 1998 provides as follows:

	12(8) In deciding an appeal under this section, First-tier Tribunal  - 
		(a) …
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.

11. It must be noted that section 12(8)(b) does not exclude consideration of later evidence (such as a medical report prepared at a later date) that deals with circumstances obtaining at the time of the decision under appeal.

The Literature

12. Mr K reviewed the history of the claim but it is not necessary to for me to repeat that. However, this did include reference to a number of documents from the Department. For example, one leaflet states:

You may get Disability Living Allowance if you are under 65 when you make your claim, and your disability means that
•	…
•	you cannot walk, or find it very hard to walk, or you need help to get around ….
…
You may get the higher mobility rate of Disability Living Allowance if, even when you use an aid (like a stick or a false leg), you
•	cannot walk at all
•	can only walk or a short way without being in severe discomfort, or
•	could become very ill if you try to walk ../

13. Mr K complained that the first time they came across the point that a person had to be unable or virtually unable to walk to qualify for higher rate mobility component was on the notification of the refusal of the claim on 19th January 2009 (page 54 of the file). He suggested that this was not really conveyed by the notions of finding it “very hard to walk” or “can only walk a short way”.

14. He also suggested that the references to aids like a stick in the leaflet(s) were not consistent with what they later discovered are the provisions of regulation 12(4) (see above).

15. The other principal matter that concerned him in this context was the repeated references to a duty to inform the Department of any changes in circumstances.  When Mr K informed the Depatrment that his wife’s other knee had become very arthritic and was causing a greater degree of disablement, they were told that this could not be taken into account (in effect because of the provisions of regulation 12(8)(b) – see above).
16. I have some sympathy with the complaints on all of these points, and they should be considered by those responsible for drafting the Department’s literature, but they do not alter the fact that entitlement depends on the provisions of the legislation and regulations and not on what is contained in the leaflets. However, I appreciate that there is a danger that the evidence produced by an unrepresented claimant might focus on what is stated in the leaflets rather than on the statutory test. Decision makers and tribunals should be alert to this point, and this is partly why tribunals operating in this field have an inquisitorial jurisdiction.

Conduct of the First-tier Tribunal 

17. Mr K has a number of criticisms of the conduct of the First-tier Tribunal and in fact made a formal complaint to the Regional Tribunal Judge of that tribunal. Some of his complaints, such as a lack of eye contact at appropriate times, and a failure to acknowledge properly his role as his wife’s representative, are matters of less than desirable practice, rather than errors of law. Some of his complaints simply indicate that he did not appreciate the relevance of some of the questions asked. However, I do wish to comment on the following matters. 

18. Mr K wished to address the First-tier Tribunal, as he has addressed me, on the whole history of the claim and the Department’s response to it. The presiding judge stopped him from doing this on the basis that the tribunal had to start from scratch and make its own mind up and did not need to consider faults in the Secretary of State’s own decision making. That is correct as matter of law and, having chaired tribunals at that level myself for more that 10 years, I am aware of the time pressure during a day’s hearing (especially when compared with the time available to the Upper Tribunal to consider a case). However, it can be a matter of good practice and enable a party to settle into the proceedings, to allow some leeway on this. Nevertheless it will not be necessary for the new tribunal to go into those matters.

19. Mr K complained at the hearing that the Secretary of State was not represented “as I believe that there should be some accountability from that Department for the errors, anomalies and contradictions that are evident throughout their correspondence” (page 86 of the file). Perhaps it is a pity that Departmental resources do not allow it to be represented in most cases before the Social Entitlement Chamber (and by my calculations it would cost somewhere between £20 million and £40 million for it to be represented in every case) but a representative would not be a witness, would not be a senior policy maker, would probably not be the decision maker in the case, and could not really be held accountable in the way suggested. The presiding Judge told Mr and Mrs K that he did not think that attendance by a representative of the Secretary of State would make any difference. Mr K states (page 86): “I find this type of comment astonishing in its arrogance and contempt for my wife and me”. I am sure that that was not intended by the presiding judge and I am equally sure (based on my own experience) that the presiding judge’s assessment of the situation was correct.

20. More serious (and this is undisputed) is that when Mr K told the tribunal that there were matters that he wanted to raise, one member (not the presiding judge) said “If you are good”. Replying to the formal complaint, the Deputy Regional Tribunal Judge acknowledged that this comment was “inappropriate” and said that the tribunal member had “tried to introduce humour to diffuse [sic] what he perceived to be a tense atmosphere” and wished to apologise. The Deputy Regional Tribunal Judge did not regard this as misconduct and I make no comment on that conclusion, but I do find it hard to understand how the tribunal member thought that the comment could help a tense situation. It is also possible that as a result of this interchange the claimant did not have the opportunity to have her case put fully, or at least might have had the not unreasonable impression that she was being deprived of that opportunity.

The First-tier Tribunal’s Reasons

21. The Secretary of State supports this application and appeal because of inadequate reasoning by the First-tier Tribunal. In particular, in its statement of reasons (the last paragraph of page 82 of the file) the tribunal stated:

“The tribunal had no doubt that Mrs K’s mobility was restricted by arthritic pain, but in the light of her evidence that she could walk round a supermarket and her assertion in her letter of appeal – ‘I have not at any point in the claim procedure claimed to be unable or virtually unable to walk’, the tribunal found that [her] walking ability of probably about 50m before needing to stop and rest put her outside the category of unable or virtually unable to walk”.

22. As Ms Chan pointed out, the tribunal did not consider the claimant’s ability to walk without severe discomfort (which, I observe, is not necessarily the same thing as pain). Also, I agree with Mr K’s point that walking around a supermarket, stopping and starting, picking things off shelves and putting them back again, is not necessarily an indication of a claimant’s ability to walk out of doors. 

23. Further, the claimant’s statement about what she did not state in the claim procedure was given too much weight in view of what has been said above about the potentially misleading information in the literature and also because whether a given situation amounts to a virtual inability to walk within the meaning of the legislation is a conclusion for the tribunal to consider from the basic facts that it finds. A claimant 

does not necessarily know what “virtually unable to walk” means to a DLA decision maker or tribunal.

24. For the above reasons the application and the appeal by the claimant succeed.

H. Levenson
Judge of the Upper Tribunal 

9th June 2010