Decision No: C44/97(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from the decision of
Newtownards Disability Appeal Tribunal
dated 11 December 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with leave of the Chairman of the Tribunal, against the decision of the Disability Appeal Tribunal to the effect that (1) the claimant is not entitled to either of the rates of the mobility component of Disability Living Allowance from and including 10 October 1996, and (2) the claimant is entitled to the low rate care component of Disability Living Allowance from 10 October 1996 until 9 October 1998.

2.	The claimant originally made a claim for Disability Living Allowance on 10 October 1994.  On 16 November 1994 an Adjudication Officer awarded the lower rate mobility component and lowest rate care component from 10 October 1994 until 9 October 1995.  On renewal another Adjudication Officer awarded the higher rate 
	mobility and lowest rate care component from 10 October 1995 until 9 October 1996.  The claimant requested a review of that award but, on 17 August 1995, an Adjudication Officer did not establish any grounds to review it.  However on 15 May 1996 another renewal claim was received.  On 10 July 1996 an Adjudication Officer disallowed the claim from and including 10 October 1996.  After another request for review a different Adjudication Officer on 25 September 1996 reviewed the decision of 10 July 1996 but did not revise it.  The claimant then appealed on 2 October 1996 to an Appeal Tribunal.

3.	On appeal the unanimous decision of the Tribunal in relation to the mobility component was as follows:
		"Appeal disallowed".

	The Tribunal made the following findings of fact material to its decision in relation to the mobility component:-

		"The Tribunal accept the estimate of 200 yards given by the General
		Practitioner and confirmed by the claimant as being correct as of
		that day.  They accept that her condition may fluctuate but do not
		consider that on the majority of days she is unable or virtually
		unable to walk.  They note that she was able to enter and leave 
		the room - a distance of approximately 20 yards at a reasonable
		speed, with a reasonable gait and without any appearance of 
		discomfort.
	
		They consider that the claimant is able to walk a reasonable
		distance with a reasonable gait at a reasonable speed on the
		majority of days and that she has not demonstrated a need for
		guidance and supervision."

	The Tribunal gave the following reasons for its decision in relation to the mobility component:-

		"The Tribunal accept that the claimant is able to walk a reasonable
		distance.  She is aware all traffic hazards and although on occasions
		she may have some loss of concentration she does not require guidance
		or supervision.  On occasions when the claimant suffers from 
		migraine her concentration may be affected but these attacks are
		infrequent.

		The Tribunal do not consider that the claimant satisfies the criteria
		to justify an award of Disability Living Allowance."

4.	On appeal the unanimous decision of the Tribunal in relation to the care component was as follows:-

		"Award low rate care from 10.10.96 until 9.10.98."

	The Tribunal made the following findings of fact material to its decision on the care component:-

		"The claimant suffers from Chronic Fatigue Syndrome and arthritis.
		She also suffers from Reynauds disease.  The Tribunal accept that
		she may be depressed but not that so that she required supervision
		in connection therewith.

		The Tribunal accept that the claimant who has stiffness and pain in
		her hands may not be able to make a main meal and that she has 
		needs for assistance in getting up, dressing and bathing.  These
		needs fluctuate but are present on the majority of days and amount
		to attention for a significant part of the day.

		The claimant's night needs are for assistance in getting up to go
		to the toilet once nightly and do not amount to a fulfilment of the
		requirements for night time care."

	The Tribunal gave the following reasons for its decision in relation to the care component:-

		"The Tribunal accept that the claimant suffers from a fluctuating 
		condition which leads to a need for attention for a significant
		part of the day on majority of days.  The Tribunal accept that 
		there may be days when the claimant's condition may be such that 
		she is unable to get out of bed throughout the day but note that 
		there may also be days when her condition is better than average.

		They consider that she requires attention from another person in
		connection with her care needs on the majority of days for a 
		significant period."

	The Chairman's Record of Proceedings, common to both components, was in the following terms:-

		"Documents amended.  File of documents General Practitioner
		notes and records leaflets regarding Myalgic Encephomyelitis.

		Introduction Main problem tiredness.  Pain and difficulty in
		getting about.

		Migraines in February this year.  Things had started to improve.
		I thought that I was well.  In middle January thought coping
		quite well.

		Reviewed by rheumatologist on 15.11.96.  Bone scan done and no
		results yet.

		Mobility - 2 days a week can walk 2-3 days a week can get up
		with help - 2 days a week can get up with help - 2 days stay
		in bed.  2-3 days a week may need help with walking and
		dressing.  Hands stiff and score in mornings May get a bit
		of use in them.

		Can lift knife - manage own food - cutting up food.  Bathroom
		upstairs - use commode during the day  Shape of kettle makes
		it awkward.  Co-ordination poor.  Hands sore at times.  Would
		if try to use them.  Taking Co-drydamol and Feldene and Voltoral
		rub.

		Can grip pen.

		On majority of days husband puts arm round back of me and 
		pushes me up.  Pulls legs round.  When standing helps to
		bathroom.  Links me.  Can toilet myself.  Can wash.  Helps
		me into bath and washes back and hair.  Helps me up and out
		of bath.  Dries me.  Needs help with bra, socks or tights,
		zips or button.  Can get downstairs slowly.  Rest and then
		can move from room to room.  Emptying commode - help needed.
		Husband helps upstairs at night.  Help undress.  Give tablets.
		Have wet the bed twice - before bladder repair.  Before
		bladder repair 2 + per night - now once per night.

		Would always need help to cook, to check on tablets.  Help
		upstairs   Hands got worse recently.  Migraines last 1-2 days
		but had 'blackout' two months ago.  Migraine once a fortnight.
		Husband takes me in car to do shopping - husband pushes me
		round in wheelchair.  Don't walk round normally.  Have 
		sometimes but have been exhausted when going home.  Aware of
		traffic dangers.  May forget things when out.  Would only
		walk from home to car - car into shopping centre.  Walked
		in from door this morning.  I consider that I am virtually
		unable to walk."

5.	I have set out at length in the previous paragraphs the actual decisions along with the findings of fact and reasons in relation to each component because the appeal file made available to me enclosing the typed copies of these documents is clearly inconsistent with the handwritten decision drawn up by the Chairman.  In the circumstances both the claimant's representative and the Adjudication Officer in attendance before me both agreed that the decision, findings of fact and reasons are as set out in the previous paragraphs.

6.	The claimant sought the leave of the Chairman to appeal to a Commissioner on the following grounds:-

		"I respectfully submit that the decision of the Tribunal was 
		erroneous in law as follows:

		The Tribunal failed to properly address and failed to provide
		adequate reasons on how they reached their decision not to award
		the higher rate of the mobility component.

		Evidence was available to the Tribunal that I am virtually unable to walk.  This was provided by myself in my oral evidence at the Tribunal and by a letter handed to the Tribunal from my GP, Dr D H G….

		In evidence I stated that 2 days a week I stay in bed and 2-3 days
		a week I need help with walking.  The Tribunal failed to give 
		adequate reasons why they refused to accept that on the majority
		of days I am virtually unable to walk, despite this evidence.
		
		In addition the Tribunal erred in law by failing to take into
		account all the relevant medical evidence available to it.

		-	They placed undue weight on a letter from my GP
			estimating the distance I could walk at 200 yards after
			accepting that this was only correct as of that day.

		-	They failed to take into account at all further medical
			evidence from my GP which stated my mobility was almost
			nil.

		The Tribunal also inappropriately made their decision not to
		award the higher rate based on their observations that I was able
		to enter and leave the room - a distance of approximately 20 yards -
		at a reasonable speed, with a reasonable gait and without any
		appearance of discomfort.  I submit that this observation was
		paramount (sic) to a medical examination, which the Tribunal is
		expressly prevented from doing by virtue of Section 53(2) Social
		Security Administration (Northern Ireland) Act 1992.

		The Tribunal erred completely in law by failing to record adequate
		findings and reasons with regard to the material question of how
		far I am limited in my ability to walk any distance without 
		suffering severe discomfort.  The findings that I could walk 20
		yards without any "appearance of discomfort" are totally 
		insufficient to support their conclusion that I am not virtually
		unable to walk.  This observation is totally irrelevant, 
		inconclusive and insufficient.  The Tribunal should have considered
		my walking ability out of doors as required by Section 73 Social
		Security Administration (Northern Ireland) Act 1992 and not in a
		Tribunal setting."

	It is accepted by the claimant's representative that the word "paramount" is a mistranscription of the word intended, namely, "tantamount"
7.	The Chairman granted leave to appeal on 7 April 1997.  

8.	The requisite notice of appeal was not served on the Commissioner within the statutory time limit but on 4 June 1998 I accepted the late appeal for special reasons.  I had originally accepted the late appeal for special reasons on 14 November 1997 but as the Independent Tribunal Service had provided the wrong date for the original Disability Appeal Tribunal to the Office of the Social Security Commissioners, the amended acceptance for special reasons was dated 4 June 1998.

9.	Mr G L Shaw by letter dated 11 December 1997 made the following written comments on the claimant's grounds of appeal:-

		"The appeal raises a number of points:

		inadequate reasons I submit that the reasons are not obviously
		inadequate.  The tribunal was entitled to reject Mrs M...'s
		evidence.  It is clear that the tribunal preferred certain 
		medical evidence, and that they were influenced by their
		observations at the hearing.

		failing to take relevant medical evidence into account  This
		point relates to further medical evidence from the general
		practitioner, apparently stating that Mrs M...'s mobility
		was almost nil.  I cannot identify this letter in my papers.
		If it was before the tribunal, I submit that there is nothing 
		to indicate that they did not take account of this letter.
		The same applies to the factual report (care) dated 2 July 1996
		which appears to describe the claimant as "housefast".  This 
		appears to be devalued in the light of the mobility report of
		the same date which states that Mrs M... can walk 200 yards.

		carrying out a medical examination at the hearing I submit that
		while observation must be an essential part of an oral hearing,
		it cannot be said to amount to a medical examination.  The
		tribunal must be entitled to take account of observed walking
		ability.  I note that in decision number C1/96(IB) (an incapacity
		benefit case) the tribunal chairman recorded his observations
		on the ability of the claimant to sit in reasonable comfort during
		the tribunal hearing.  The Chief Commissioner made no adverse
		comment.  I have some reservations, however, about the extent of
		the tribunal observations which were said to be over a distance
		of 20 yards entering and leaving the room.

		adequacy of findings and reasons as to walking ability  The
		tribunal findings as to walking ability without severe discomfort
		are not specific, the chairperson having recorded merely "...
		a reasonable distance with a reasonable gait at a reasonable
		speed ...".  In the past Commissioners have insisted on tribunals
		making specific findings where, as here, the issue is relevant.
		The Commissioner may wish to consider whether in this instance
		the tribunal has erred in this respect.  I would also have
		preferred more detailed findings in view of the variable nature
		of the claimant's condition.  I have dealt with reasons above."

10.	I arranged an oral hearing of the appeal, at which the claimant, who was not present, was represented by Miss M Wilson of Disability Action and the Adjudication Officer was represented by Mrs P Swann.

11.	In so far as it is relevant to the facts of this case, the provisions of section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 state that a person will be entitled to mobility component of Disability Living Allowance at the higher rate if he satisfies the following conditions:

		(i)	he is suffering from a physical disablement such that
			he is unable to walk; or

		(ii)	his physical condition is such that his ability to
			walk out of doors is so limited, as regards the 
			distance, speed or length of time, or manner in which
			he can progress on foot without severe discomfort, 
			that he is virtually unable to walk.

12.	Miss Wilson confirmed that she was only taking issue with the Tribunal's decision in relation to the mobility component.  Otherwise she expanded on the points set out in the grounds of appeal.  Mrs Swann adopted Mr Shaw's submissions and in addition made the additional submission, with some diffidence, that the Tribunal might not have applied the appropriate test when assessing the claimant's apparently fluctuating condition, by taking a purely arithmetical approach to the question whether or not the claimant was virtually unable to walk.  Miss Wilson associated herself with this additional submission.

13.	Considerable assistance can be obtained from the Great Britain Decision CSDLA/246/96 where Mr Commissioner May QC at paragraph 11 stated as follows:-

		"11.  In approaching the question as to whether the tribunal applied
		the correct test I note what was said by the Commissioner in 
		CM/47/86, which is quoted in paragraph 6 of the adjudication
		officer's submission to the Commissioner.  The Commissioner in
		that case went on to say in the context of a statutory change
		to regulation 31(a)(ii) (sic) of the Social Security (Mobility
		Allowance) Regulations 1975, which are in the same terms as
		regulation 12(1)(a)(ii) of the Social Security (Disability
		Living Allowance) Regulations 1991, in paragraphs 8 and 9
		of that decision.  He said:-

			"All that the change in the statutory provision has done
			is to ensure that in considering whether a person should
			be regarded as virtually unable to walk certain specific
			considerations now have to be taken into account.  But
			"virtually unable to walk" still means "unable to walk
			to any appreciable extent or practically unable to walk".

			9.  What constitutes an inability to walk to any appreciable
			extent is a matter of fact and is for the tribunal to 
			determine.  They must apply their own judgment, and so long
			as their decision is not perverse, it is not open to the
			Commissioner to interfere.  In the present case the tribunal
			decided that, as the claimant could walk without discomfort
			within regulation 3(1)(b) for 50 yards, he had taken himself
			out of the category of one who was unable to walk or virtually
			unable to walk.  I consider that the tribunal were entitled
			to reach this conclusion."

		12.	In this case I am of the view that the tribunal applied their
		own judgment to the question as to whether the claimant was unable
		to walk to an appreciable extent or practically unable to walk
		which is the long established and accepted explanation of the 
		phrase "virtually unable to walk" by the Commissioner in CM/47/86.
		It is quite apparent to me from reading the reasons given for 
		their decision that they made their decision in the context of the
		definition of virtually unable to walk set out in regulation
		12(1)(a)(ii) of the regulations as explained by the Commissioner.
		It is abundantly clear to me that they appreciated the test.
		They set out their findings in fact and gave their reasons.  Their
		decision can in no way be described as perverse and I consider 
		that it is not open to me to interfere.  The factual foundation
		presented by the tribunal in my view is sufficient to enable
		them to reach the decision which they did.  Accordingly I consider
		that there is no merit in the claimant's grounds of appeal in
		relation to the higher rate of the mobility component."

	The reference to "regulation 31(a)(ii)" appears to be a mistaken reference and it is apparent that the correct reference is "regulation 3(1)(a)(ii)".  Also the regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 is identical to the equivalent Northern Ireland Regulations, namely the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992.
14.	It seems to me that the Tribunal in the present case also appreciated the regulation 12(1)(a)(ii) test and, in the context, the finding that the claimant is able to walk a reasonable distance with a reasonable gait at a reasonable speed is a proper finding and one that it perfectly acceptable on the evidence before the Tribunal.  

15.	Helpful guidance is also available from Chief Commissioner Chambers in C3/87(MOB), a case concerning mobility allowance which is directly relevant to the present case.  In that case at paragraph 7 Chief Commissioner Chambers stated as follows:-

		"... In my view the decision of the Court of Appeal should not be
		interpreted as requiring the Tribunal to provide answers to the
		four questions raised by the Regulation in terms of a distance,
		a speed, a time and a description of the child's manner of walking.
		Undoubtedly, those questions must be specifically addressed and
		answers given; but to require the Tribunal to attempt to quantify
		distances, speeds, etc. would be to impose an impossible burden
		upon them.  It is, moreover, difficult to see what purpose it would
		serve to provide such answers; as it would remain for the Tribunal 
		to decide whether or not the child was unable or virtually unable
		to walk.  If there are to be limits of distance, speed, etc 
		marking the level below which claimants qualify for mobility 
		allowance, it is for Parliament or the Rule-making authority 
		to set them; not the Medical Appeal Tribunal. ..."

	The Court of Appeal decision referred to by the Chief Commissioner is the unreported case of Raymond Murray (a minor) v DHSS (1987) in which Kelly LJ gave the judgment of the Court.

16.	Applying this approach to the present case I conclude that it is not necessary for the Tribunal to attempt to quantify distances, speeds, manner of gait or level of discomfort.  The Tribunal has directed its mind to the statutory test and has come to a conclusion and a decision that could not be described as perverse and in the circumstances it is not open to me to interfere with it.  

17.	In her oral submissions Miss Wilson submitted that the Tribunal had not taken into account properly a letter from the claimant's General Practitioner.  This communication turns out to  have been little more than a short note to the effect that the claimant's mobility is reduced to nil and that the claimant's case is genuine.  However, because the note has not been mentioned by the Tribunal does not mean  that it has not been taken into account and the presence of the note in the appeal file would certainly corroborate to some extent that it was taken into account.  In any event I do not consider that I am entitled to conclude that the evidence was ignored.

18.	Miss Wilson at the oral hearing also conceded that, in light of decision C1/96(IB) that the Tribunal was entitled to note and take into account the walking ability of the claimant as observed by the members of the Tribunal.  It seems to me that the observations, said to be over a distance of 20 yards, were not crucial in this case but the finding was merely noted by the Tribunal as some support to its conclusion that the claimant was not virtually unable to walk.  

19.	Accordingly I conclude that the Tribunal's reasons were not inadequate in the circumstances; that it is not established that the Tribunal failed to take relevant medical evidence into account; that there is not an arguable case that the Tribunal carried out anything tantamount to a medical examination of the claimant at the hearing.  Also in light of my conclusions at paragraphs 13 to 15 I find that the Tribunal's findings of fact in relation to walking ability are sufficient findings on the evidence of this case to support a proper decision that the claimant is not virtually unable to walk.

20.	Mrs Swann, in her additional submission to the effect that the Tribunal perhaps had not applied the appropriate test in relation to the claimant's fluctuating condition, drew my attention to two Great Britain Commissioners' decisions, namely R(A) 2/74 and R(A) 4/78.  It is noteworthy that these decisions concern Attendance Allowance where the Commissioner in each case was specifically considering whether a claimant required attention or supervision by day or by night or throughout the day or during the night.  Similar issues have to be decided by adjudicating authorities when deciding care component cases.  It is clear from these decisions that relevant conditions do not have to be satisfied on each and every day, or night, and that the adjudicating authorities ought not to approach their decision on an arithmetical basis.  

21.	The only suggestion that the Tribunal in the present case has decided the matter on a arithmetical basis is its reference to the fact that the claimant was able to carry out the relevant functions "on the majority of days".  In my view the Tribunal was merely coming to a conclusion that because the claimant was able to "walk" most of the time that in the circumstances she could not be considered to be virtually unable to walk.  If this is an arithmetical approach, which I doubt, in my view it does not offend any principle of law set out in the decisions mentioned by Mrs Swann.  I consider that a Tribunal is entitled to conclude that a person is not virtually unable to walk, taking into account regulation 12(1) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, if she is reasonably mobile on the majority of days in any week.  Such a conclusion can in no way be considered, in my opinion, to be perverse.  

22.	Miss Wilson did not suggest that the Tribunal ought to have considered awarding the lower rate of the mobility component.  In the circumstances I consider that she was correct not to do so.  

23.	As stated earlier only the mobility component of Disability Living Allowance was an issue in this case.  Therefore the care award is not affected by this decision.  
24.	However, in light of my conclusions on the points raised by Mrs Swann and Miss Wilson I am satisfied that the decision of the Tribunal is not erroneous in point of law.  Accordingly I dismiss this appeal.

(Signed):  J A H Martin

CHIEF COMMISSIONER

17 February 1999