Decision No: C2/00-01(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 4 March 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against a decision dated 4th March 1999 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Ballymena.  That Tribunal had disallowed the claimant's appeal in connection with Disability Living Allowance.  The appeal appeared to concern only the mobility component of that allowance as did the grounds of appeal to me.  I have been unable to ascertain from my own consideration of the case any arguable issue in relation to the care component of that allowance.

2.	I held a hearing of the application which was attended by the claimant and by Mrs Gunning of the Decision Making Appeals Unit.

3.	I grant leave to appeal and with the consent of both parties I treat the application as an appeal and proceed to determine all questions arising thereon as though they arose on appeal.

4.	My decision is that the Tribunal did not err in law and that the appeal is therefore dismissed.  

5.	The grounds of appeal both in correspondence and before me were that the claimant had tried to point out to the Appeal Tribunal that he had misunderstood the phrase "severe discomfort" when filling in his application form.  He stated that he always suffered severe discomfort from the moment he left the house to walk and after 100 yards at a slow pace this became severe pain and he had to stop for medication.  He also stated that the General Practitioner who had prepared the factual report for the Adjudication Officer was not his doctor although he was a doctor in the practice and he did not see how the doctor could give an opinion on what shape he was in.

6.	Mrs Gunning initially supported the appeal on the grounds that there were inconsistencies in the claimant's evidence and the evidence of his General Practitioner and she was of the view that the Tribunal should have exercised its inquisitorial role to establish how far the claimant could walk before the onset of severe discomfort.  She considered that it had not done so and accordingly supported the application.

7.	At hearing Mrs Gunning resiled somewhat from this position though she still considered that the Tribunal had failed in its inquisitorial role because it could have done more to clarify the issue of the claimant's walking ability before the onset of severe discomfort.  She did, however, resile from her former position that there had been an inconsistency in the General Practitioner's report and said that that report was understandable as saying that the claimant could walk for 100 to 150 yards in 3 to 4 minutes without severe discomfort.  She also indicated that the deterioration mentioned by the claimant in the document dated 16th February 1998 and tabbed 2 would have been present when the claimant filled in the claim form on 6th December 1997 and when the General Practitioner prepared his report on 3rd March 1998. 

8.	The Tribunal record is somewhat brief in this case and it is not of course, required to be verbatim.  In its entirety the record of proceedings as regards the claimant's evidence is as follows:

		"Long standing back pain - could live with it.  Trouble now 
		is heart - walking.  I get discomfort in my chest when I start 
		to walk.  Heaviness across chest.  Have to slow down and stop.  

		Used to use spray, but gave me a headache.  Use capsules, 
		wouldn't need them if I don't walk.  Town Centre is a mile 
		away - couldn't walk that far.  Drive.  

		Care component is not an issue.  No-one had anything 
		to add."

9.	As part of the reasons for its decision the Tribunal has recorded:

		"The claimant's mobility is limited by back pain and a heart 
		condition which causes chest discomfort on exertion, but he 
		has indicated today that it is in fact the heart condition 
		which significantly affects his mobility.  

		He was unable to state in his evidence today 
		exactly how far he can walk before the onset of 
		severe discomfort, but it is clear that he would 
		not feel able to walk as far as the town centre, 
		a mile away.

		In his self-assessment form he had stated that he could walk 
		200 yards in about 10 minutes, before the onset of severe 
		discomfort, and his General Practitioner in his report of 
		8.6.98 indicates that in his opinion the claimant could walk 
		100-150 yards on the flat in 3-4 minutes.  This would not 
		amount to virtual inability to walk and there is no medical 
		evidence before the Tribunal which would provide justification 
		for not accepting the General Practitioner's opinion.  We have 
		perused the General Practitioner's notes, which are not 
		inconsistent.  We therefore conclude that the claimant can walk 
		a reasonable distance out of doors in a reasonable time, at a 
		reasonable speed and in a reasonable manner without severe 
		discomfort.  There is no evidence that the exertion required to 
		walk would be likely to lead to a deterioration in his health.

		There is no evidence of need for guidance. or 
		supervision, whether on familiar or unfamiliar 
		routes."

10.	The Tribunal found as a fact that the claimant could walk a distance of at least 100 yards out of doors in 3 to 4 minutes with normal gait.

11.	It is quite clear that the claimant accepted the General Practitioner's opinion and based its finding of fact on that.  The conclusion drawn from the findings of fact that the claimant was not virtually unable to walk was sustainable on those findings.  That is not the issue in this case.  The issue is whether or not the Tribunal should have explored the question of how far the claimant could walk without severe discomfort.

12.	At hearing before me the claimant indicated that the Tribunal had asked him about walking distances to a wall etc and he gave a somewhat confused and contradictory account of his response and indicated that he could not recall accurately what the Tribunal's questioning had been.  I fully accept this.  I have no reason to doubt and I do not doubt that the Tribunal did attempt to ascertain how far the claimant could walk before the onset of severe discomfort.  I have also no doubt that it had difficulty in obtaining a definite response to its questions and that it was for that reason that the Tribunal turned to the medical evidence.  I have no quarrel with the Tribunal's approach and indeed it is difficult, as Mrs Gunning acknowledged, to ascertain what else the Tribunal could have done.

13.	Mrs Gunning stated that on the self assessment form the claimant did say he could walk 200 yards before the onset of severe discomfort and when asked about pain said he had pain in his back and pain all the time.  He again stated that he had pain all the time in an undated letter contained at Tab 8 in the papers before me.  Mrs Gunning thought that the Tribunal could have "teased out" what the claimant meant in his replies to their questions on how far he could walk.

14.	While I accept completely that the Tribunal has an inquisitorial role there are limits to this role.  The primary duty of making his case lies on the appellant but the Tribunal must explore any obvious issue.  There does not appear to me to have been any clear issue raised in this case which the Tribunal did not adequately explore.  

15.	It is quite apparent that the Tribunal did endeavour at hearing to ascertain from the claimant his walking distance before the onset of severe discomfort.  It is also apparent that it found his evidence in this respect unclear.  It is also not in dispute that the claimant had in written evidence stated that he could walk 200 yards before the onset of severe discomfort and that he later said in his appeal letter that he had great pain and was very slow in so doing.  There were undoubted inconsistencies in the claimant's evidence and it appears quite evident to me that the Tribunal having explored the matter at hearing and not having been able to obtain clear oral evidence of how far the claimant could walk without severe discomfort, turned to the medical evidence.  I have no fault to find with this approach and as Mrs Gunning acknowledged it is hard to know what else the Tribunal could have done.  

16.	As Mrs Gunning acknowledges, there no inconsistency in the General Practitioner's report and in any event the Tribunal has also perused the claimant's medical records.  Having done so the Tribunal was of the view that the records revealed nothing which would justify it in rejecting the General Practitioner's opinion.  It is quite clear that the General Practitioner was aware of the problem which the claimant had in relation to walking.  These appear to be recorded in the medical records and the General Practitioner does mention pain in his report.

17.	It is correct that severe pain would be more than severe discomfort but mild to moderate pain may be less than severe discomfort as may other forms of discomfort.  It is all a question of degree.  In any event the General Practitioner was obviously aware of the claimant's walking difficulties or he would not have made the replies which he did.  I can find no inconsistency in his report and it does appear that the Tribunal considered and concluded that there was no inconsistency in the report and the medical records.  

18.	That being the case, against a background of somewhat vague evidence from the claimant (and I would wish to make it clear that I do not in any way cast any doubt on the claimant's honesty in this matter) it is difficult to see what other route the Tribunal could have pursued than to rely on the medical evidence.  This it did and I consider that there was no failure of the Tribunals inquisitorial role in this respect.

19.	I also consider, that the Tribunal's conclusions were open to it on the evidence.  I can find no error of law in the matters alleged by the claimant.  He is essentially disputing the claimant's findings of fact and, these were sustainable on the evidence.  The issue of the exercise of the inquisitorial role, I have dealt with above.  I can find no error in that respect nor in any other.  I therefore dismiss the appeal.

	(Signed):  M F Brown

	COMMISSIONER

	15 May 2000