Decision No: C18/02-03(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from the decision of the Appeal Tribunal
dated 24 January 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant against a decision dated 24 January 2002 of an Appeal Tribunal sitting at Londonderry.  That Tribunal had disallowed the claimant’s appeal in relation to the mobility component of Disability Living Allowance (there was no issue before the Tribunal that the claimant might be entitled to the care component) from and including 24 May 2001.  As it is relevant to the appeal I set out below the Tribunal’s reasoning:
  
“The appeal is made in respect of higher rate mobility component.

He attended Mr B… in 99 in relation to this when his walking ability was given as 50 yards.  He was told that further treatment would not take place until he ceased smoking.  No further treatment has been offered.  The appellant has peripheral vascular disease but does not suffer pain at rest or at night.

We accept that this would restrict his mobility however his medical management is not in keeping with the severity with which he claims his walking ability is restricted.  The Tribunal took into account the available evidence and reply upon the finding of the Examining Medical Practitioner who examined the appellant for the purpose of this claim.  We accept the finding that the appellant has slight impairment of his left lower limb and his walking would be 100 metres before severe discomfort as [sic] a normal to slow pace in 1-2 minutes with no halts, normal gait and good balance.

We were satisfied that the restrictions in the appellant’s walking ability did not amount to a virtual inability to walk.”

2.	The claimant’s grounds of appeal as recited in the OSSC1 form dated 18 July 2002 and in subsequent correspondence and observations from the claimant and his representative Mrs Kearns of the Citizens Advice Bureau (letters dated 24 October 2002 and 25 October 2002) were as follows:

i.	The Tribunal’s reasoning was inadequate in that it did not explain why the medical evidence on behalf of the claimant was rejected (this related to evidence from the claimant’s general practitioner and from Mr B…, consultant surgeon), did not explain why the Examining Medical Practitioner’s evidence was accepted in preference to the other evidence, did not explain why the previous award was not renewed.

ii.	The decision was supported by insufficient evidence.  The Examining Medical Practitioner only saw the claimant walk 30 yards.  The Tribunal’s findings were therefore based on opinion not fact.  Citing C40/99-00(DLA), a decision of the Chief Commissioner in Northern Ireland, Mrs Kearns submitted that the Tribunal had failed to make appropriate findings of fact to decide the question in issue.  She submitted also that the Tribunal had erred in law in so far as its decision was based on opinion and not on fact.

iii.	That there was a factual inaccuracy in the decision in that the Tribunal described Dr. W…, who had compiled the report dated 23 March 2001, as the claimant’s doctor while in fact Dr. W… was not his doctor.  His doctor was a Dr. MacL… who had retired about the time the report was compiled and Dr. McE… then became his doctor and he wrote a later letter dated 21 January 2002 at the claimant’s request.

iv.	That the claimant gave more weight to the report from Dr. W… and to the Examining Medical Practitioner’s report than to the letter from Dr. McE… dated 21 January 2002 and a note which he had written dated 22 June 2001.

v.	That the Tribunal’s decision was contradictory of itself in that it accepted that the claimant had walking restrictions but said that he could walk 100 metres in 1 to 2 minutes without restriction.

vi.	The claimant added one further ground in relation to the inadequacy of the reasons when he submitted that the Tribunal had reasoned that the medical management of the claimant was not in keeping with the stated severity of his complaints.  The claimant stated that this in his view was meaningless and asked if he was to be deprived of the benefit because he had not stopped smoking.  Although this is really a part of the ground relating to adequacy of reasons, I deal with it as a separate ground.

3.	The Department opposed the appeal.  Mr Toner of the Decision Making and Appeals Unit made observations by letter dated 3 September 2002.  Mr Toner submitted that an examination of the decision showed that the Tribunal considered the claimant’s doctor’s records, the scheduled documents (which included the report dated 23 March 2001 from the claimant’s doctor and the report dated 18 April 2001 from the Examining Medical Practitioner), a letter dated 21 January 2002 from the claimant’s doctor and a note from the claimant’s doctor written on a copy of the fourth page of the report completed on 23 March 2001.  Mr Toner stated that in its reasons for the decision the Tribunal had referred to the claimant having attended Mr B… in December 1999.  Mr B… was quoted as saying “he can only walk 50 yards before getting cramp”.   The Tribunal accepted that the claimant was restricted in his walking but taking into account his medical management and all the available evidence the Tribunal accepted the finding of the examining doctor who examined the claimant for the purposes of the claim.  It made findings that the claimant could walk 100 metres before the onset of severe discomfort at a slow to normal pace in one to two minutes with no halts, normal gait and good balance.  Mr Toner submitted that the Tribunal was entitled to accept the findings of the examining doctor (EMP) and that the Tribunal’s reasons for decision clearly explained why it decided as it did.

4.	As regards the claimant’s contention that the Tribunal had erred in not giving a reason why the previous award was not renewed, Mr Toner referred to decision C12/99(DLA) where the Chief Commissioner quoted the words of a Great Britain Commissioner in decision R(M)1/96.  Mr Toner quoted that paragraph but for purposes of this decision I feel that I need only indicate a small part of that paragraph:

“The need to give reasons to explain the outcome of the case to the claimant means either that it must be reasonably obvious from the tribunal’s findings why they are not renewing the previous award, or that some brief explanation must be given for what the claimant will perceive as unfair”.

5.	In this connection Mr Toner submitted that while the Tribunal did not expressly deal with the fact that the claimant had been in receipt of the higher rate mobility component from 1999 to 2001, its reasons for decision nevertheless clearly explained why the decision was made.

6.	I will deal later in this decision with the grounds relating to the treatment of the medical evidence.  With relation to the weight given to the evidence, that is a matter for the Tribunal.  I can find no error in the decision in relation to this matter.  The Tribunal was entitled to rely upon the finding of the Examining Medical Practitioner.  It has not erred in law in so doing.  Similarly it was entitled to rely on the report dated 23 March 2001 from  Dr. W….  Dr. W… was a doctor in the practice which the claimant attended.  He has clearly referred in his report to the records which the practice holds in relation to the claimant.   There is no reason to suppose and indeed it was not asserted that the records were inaccurate.  Therefore the Tribunal was entitled to rely on the report.

7.	As regards the contention that the decision was contradictory in that it accepted that the claimant had restrictions in walking but found that he could walk 100 metres in 1 to 2 minutes, etc., I can find no contradiction in this and no error in law therein.  The Tribunal has clearly made findings that the appellant had slight impairment in his left lower limb and that he could walk 100 metres before severe discomfort at a normal to slow pace in 1 to 2 minutes with no halts, normal gait and good balance.  This is far from saying that he had no restrictions in his walking and indeed the Tribunal accepted that the claimant did have peripheral vascular disease which would restrict his mobility.  A person being able to walk 100 metres before severe discomfort at a normal to slow pace in 1 to 2 minutes with no halts, normal gait and good balance does not mean the person had no restrictions in walking.  For a start there appears to be some slight restriction in relation to pace.  Secondly the distance is only 100 metres.  This is not a vast distance.  It does not mean that a person would have no restrictions in walking a greater distance.  I can ascertain no inconsistency in the Tribunal’s findings in this respect.  

8.	I also find no error in the sufficiency of the Tribunal’s findings of fact.  These are clear and on the basis of them the Tribunal was entitled to its conclusion that the claimant was not virtually unable to walk.  

9.	While I would have preferred the Tribunal to have made a comment on the fact that the claimant had a previous award, the existence of the previous award did not entitle the claimant to any preferential treatment.  He still had to prove his entitlement.  Applying the standard set out in R(M)1/96,  paragraph 15, it appears to me obvious from the Tribunal’s findings why it did not renew the previous award.  It is also quite obvious from the findings and from the other reasons that the Tribunal did not accept as accurate the claimant’s contentions as to his walking ability.  The Tribunal has made clear findings as to the extent of the claimant’s walking ability before the onset of severe discomfort and has reached a conclusion that that is too great for him to be classed as virtually unable to walk.  This appears to me to make it quite clear why the award was not being renewed.  I can find no error of law in that respect.

10.	As regards the grounds of appeal based on decision C40/99(DLA), i.e. that the decision was supported by insufficient evidence, the EMP not having seen the claimant walk in excess of 30 yards, I consider that this ground is based on a misunderstanding of the requirement for decisions to be based on evidence.  The onus of proof in this case was on the claimant.  It is quite obvious that the Tribunal did not accept the claimant’s evidence.  This was because, in the Tribunal’s view, it was at variance with the evidence of a doctor who examined the claimant for purposes of a claim (the EMP) and was also thrown into doubt by the medical management of the claimant’s complaints.  The examining doctor only saw the claimant walk 30-40 metres.  However, the doctor expressed the opinion, as he was entitled to do, that the claimant could walk 100 yards before severe discomfort.  He also expressed the opinion that the stated level of disability was greater than would be expected given the clinical examination and observations.  He recited those clinical findings and observations.  It is correct that the claimant was not observed to walk 100 yards.  That, however, is not the end of the matter.  If it was, any claimant could refuse to walk at all then say:   “You did not see me walk, I must therefore be entitled to the benefit”.  This is patently absurd.  A Tribunal does not err in law by adopting as fact the opinion of a doctor.  On appeal the fact finding body is the Tribunal.  It is entitled to rely on such evidence as it sees fit.  The report of the doctor, which includes his opinion, is evidence.  

11.	Where a report is mere opinion, unsupported by any clinical findings or any observations, it may be given little weight.  However, in this case, the report included clinical findings and observations.  It is true that the observations were not of the claimant walking more than 30 to 40 metres (though I do note that he denied any discomfort thereafter) but they were nonetheless observations of the claimant walking and it is quite obvious that the doctor based on his clinical findings and on those observations opined that the claimant could walk further than he was seen to walk.  I find no error in reliance on that report, including the opinion.

12.	With regard to decision C40/99-00(DLA), a decision of the Northern Ireland Chief Commissioner, this decision must be approached with caution in light of the change of legislation.  The decision was made against the background of the protection given to those in receipt of awards of Disability Living Allowance during the currency of the awards by section 31(6) of the Social Security Administration (Northern Ireland) Act 1992.  That provision was repealed by the Social Security (Northern Ireland) Order 1998 and the protection no longer existed at the time of the decision under appeal.  The protection would not, in any event, have applied to the claimant as he was not claiming during the currency of an award but after the expiry of a time limited award.  In addition, and more relevantly from the viewpoint of this case, the Chief Commissioner found that the Tribunal, in that case, had erred by not making appropriate findings of fact.  The ratio of the decision is given at paragraph 19.  It relates to the failure to make appropriate findings of fact.  It does not relate to the evidence upon which those findings were to be based.  It is not therefore authority for any proposition that a Tribunal is not entitled to rely on medical opinion in making its findings fact.  I consider that there is no merit in this ground.

13.	I come now to deal with the Tribunal’s assessment of the medical evidence.  It is quite apparent that the Tribunal placed considerable reliance on the Examining Medical Practitioner’s report.  It is also quite apparent that it did this because the examination was conducted and the report prepared with particular relevance to and focus on the conditions for entitlement to the mobility component of Disability Living Allowance.  I have no fault to find with the Tribunal’s reliance on the EMP’s report.  The claimant makes reference to his walking ability having been reported as 50 yards when he attended Mr B….  This was in 1999, some two years prior to the date when the Tribunal was considering the matter.  The Tribunal has quite obviously taken this into account.  Indeed it has obviously taken into account all the medical evidence.  It has reached, as it was obliged to do, its own assessment of the claimant’s walking ability.  It in no way disputes the presence of peripheral vascular disease but it prefers to rely on the Examining Medical Practitioner’s report and observations in reaching its assessment of the fact situation.  I can find no error of law in it so doing.  This examination was conducted with reference to the mobility component and therefore addressed the requirements there for.  It was a report done for the purposes of reaching an assessment of the claimant’s walking ability.  I do not find that the Tribunal’s reliance on that report unreasonable nor do I find unreasonable the weight given to the other medical evidence.  Dr. McE…’s letter of 21 January 2002 adds nothing to the existing medical evidence and the clinical findings as recited in the note of 22 June 2001 are consistent with the findings of the Examining Medical Practitioner.  There is no indication that the Tribunal rejected these findings and indeed it would have been curious if it had done so.  There is no indication in his note or letter that Dr. McE… had tested the claimant’s walking or made observations of his walking. Nor is there any indication of whether there was any walking test carried out by Mr B… or who estimated the 50 yards – the claimant or Mr B….  In addition Mr B… is reported as mentioning walking 50 yards before getting cramp.  He does not mention severe discomfort nor does Dr McE….  Dr W… does but in relation to 1999 and it appears based on the reference to Mr B….  It was the distance at which severe discomfort came on that the Tribunal had to decide.  I do not therefore consider that the Tribunal rejected any medical evidence, rather it relied on the medical evidence which addressed the statutory criteria and which was supported by the clinical findings.  I do not consider that it was unreasonable in so doing and I consider that its reasons clearly explain the decision. 

14.	I can ascertain no error of law in the Tribunal’s decision either as indicated by the claimant or otherwise and I therefore dismiss the appeal.  

(Signed):  M F Brown

COMMISSIONER

22 January 2003