[2007] NISSCSC C7_07_08(DLA) (1 August 2007)

Decision No:  C7/07-08 (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 13 December 2006

DECISION BY THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against the decision, dated 13 December 2006, of an appeal tribunal (the tribunal) sitting at Armagh.  I granted leave, although the Department opposed the application.  However, the Department consented to the Commissioner treating its observations as observations under Regulation 18(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999.  The Department’s observations were sent to the representative on behalf of the appellant (the representative), giving him the opportunity to comment thereon if he so wished.  I have taken all the observations into account.  The representative also agreed to the Commissioner treating the application as an appeal.  I am satisfied that both the application and the appeal can properly be determined without a hearing.
	
2.	The decision of the tribunal is wrong in law.  I therefore set the tribunal’s decision aside and return the appeal for a new hearing.  
	
	Error of law
	
	Inadequate reasons
	
3.	In issue was a renewal claim for disability living allowance (DLA).  So far as the mobility component of DLA is concerned, the issue before the Commissioner, the appellant was in receipt of the higher rate (higher mobility) from 7 February 2005 to 6 February 2006.  On his renewal claim, he was, however, awarded only the lower rate mobility component of DLA (lower mobility).  The tribunal confirmed lower mobility as correct.  
	
4.	I judge that the tribunal’s reasons are quite inadequate to deal properly with the renewal claim.  The correct approach is set out by a Great Britain Commissioner in R(M)1/96.  A previous award does not raise any presumption in the appellant’s favour and the onus of proof on all matters lies on him as in a new claim, but the requirement for a tribunal to give reasons for its decision means that it must explain why it is not renewing a previous award unless this is obvious from its findings.  
	
5.	However, the tribunal makes insufficient findings of primary fact so as to underpin its award of lower rather than higher mobility, even were this a new claim.  The appellant’s general practitioner (GP) on 24 February 2006, said that the appellant has residual weakness in the right arm and leg, resulting in a risk of falls, asthma, and vision which is sometimes blurred.  In that report, the GP opined that the appellant could walk 200 metres before the onset of severe discomfort.  That estimate was revised, in a letter from the GP dated 14 April 2006, to 40 metres before the onset of severe discomfort.  
	
6.	At the hearing, the claimant said that “low back pain would stop walking”.  The tribunal’s reasons for refusing higher mobility were simply these:
	
“Appellant has limited function right sided limbs, and limited speech.  He is at risk of falls and requires to be accompanied out of doors… We are not, however, satisfied that Appellant is virtually unable to walk.  He uses a stick, has been attending the gym and walked from the car today.  We believe he could walk with impaired, [sic] speed, gait and manner, with a stick for 50 yards.”
	
7.	There are no expressed findings about the existence or effect of asthma and back pain.  There is no estimate of what is the distance walking from the car to the tribunal venue.  There is no mention of the time taken to walk 50 yards and, critically, there is no finding with respect to walking ability before severe discomfort.

8.	I agree with the submission now made on behalf of the Department that a tribunal is not required to make exact quantifications of distance, speed, manner and time; it has already been pointed out that this would impose an impossible burden upon tribunals.  Nevertheless, where these matters are put in contention, a tribunal must make clear that it has considered them in its overall evaluation of the quality of a claimant’s walking.

9.	I likewise accept that it is legitimate to infer reasoning from relevant findings.  However, I am unable to agree that the issue of speed and, more particularly, severe discomfort, can be sufficiently implied in the present case.  From the one sentence, “we believe he could walk with impaired speed, gait and manner, with a stick for 50 yards”, it seems to me rather that the tribunal has fallen into the error pointed out by Mr Commissioner Rowland in the unreported Great Britain decision, CDLA/4388/1999:
	
“Too much weight tends to be put on the distance a person can walk when that is but one of four criteria.”
	
10.	I said the following in R(DLA)4/03:
	
“17.	‘Severe discomfort’ is the statutory phrase. But its application to the circumstances of a claimant’s case is an issue of fact, provided the tribunal’s judgement is rationally exercised having regard to the evidence and is thereafter adequately explained.
…
22.	All the aspects of a claimant’s walking are to be considered which result from physical disablement and an evaluation of its quality is then made. This is on the basis that firstly, walking achieved only with severe discomfort is discounted and secondly, that a tribunal must pay appropriate regard to manner, speed, distance and time. This exercise is carried out with the purpose of determining whether, taken overall, the claimant’s walking out of doors is properly described as ‘virtually unable to walk’.”
	
11.	I also commented in that case that all matters are for the good sense of tribunals.  However, in the context of a renewal claim, and of the particular requirements of the test for virtual inability to walk, set out in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, the present reasons are woefully inadequate; they do not make it apparent that the correct statutory test has been applied nor sufficiently explain why, having regard to a renewal claim where the appellant previously qualified for higher mobility, on the evidence applicable at the renewal date he does not do so.  The tribunal’s decision must therefore be set aside.  
	
	Summary
	
12.	The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remains open.

(signed):  L T Parker

NI Deputy Commissioner

1 August 2007