MG-v-Department for Social Development (ESA) [2013] NICom 359

Decision No:  C1/12-13(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 4 January 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal which sat at Belfast on 4 January 2012.  Leave to appeal was granted by the legally qualified member of the tribunal.

2.	For the reasons I give below, I find that the decision of the appeal tribunal is erroneous in point of law.  Under Article 15(8)(a)(i) of the Social Security (NI) Order 1998, I set aside the decision of the appeal tribunal and I give the decision I consider the tribunal should have given without making fresh or further findings of fact.  I allow the appeal, and find that the appellant satisfies the limited capability for work assessment from and including 8 October 2011.

REASONS

	Background

3.	The appellant had been awarded incapacity benefit (IB) by the Department for Social Development (the Department) from and including 26 January 2002.  He had sustained injuries in a road traffic accident in July 2001 which included two fractures to his right femur, leading to the surgical insertion of a long steel pin from knee to hip.  He was left with a shortening of his right femur by about three centimetres, and continues to complain of pain in his lower back and right hip.  He now mobilises with the aid of a walking stick.  He further complains of left side elbow and wrist pain due to his use of the stick.

4.	On 1 June 2011 the appellant was notified by the Department that his existing IB claim was to be converted into a claim for employment and support allowance (ESA) under the regulations implementing the Welfare Reform Act (Northern Ireland) 2007.  The appellant was issued with and completed the Departmental questionnaire, form ESA50.  He was examined by a healthcare professional on 6 September 2011, who prepared a report for the Department.

5.	The appellant was assessed under the limited capability for work assessment (LCWA) as amended from 28 March 2011.  The Department decided that the appellant scored six points for the physical activity of “Mobilising”.  However, as he scored fewer than 15 points, the Department decided that the appellant did not have limited capability for work.  Accordingly his award of IB did not qualify for conversion into an award of ESA with effect from 8 October 2011, leaving him with no entitlement to IB or ESA.  This decision was notified to the appellant on 14 September 2011 and he appealed.

6.	The tribunal which heard the appeal decided that the appellant scored nine points on the LCWA for the physical activity of “Standing and sitting”.  However, contrary to the assessment of the Department, the tribunal decided that the appellant should not score any points for “Mobilising”. The heading to the relevant activity reads “Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used”.  The tribunal’s reason for not awarding points for mobilising was its view that the appellant could reasonably use a wheelchair.

7.	Having obtained the tribunal’s statement of reasons the appellant made an in time application for leave to appeal.  Leave was granted by the legally qualified member of the tribunal (the LQM) in relation to the question of whether the tribunal correctly applied the “Mobilising” descriptor.  This determination was issued to the appellant on 30 April 2012.

	The tribunal decision

8.	The tribunal statement of reasons addresses the issue of mobilising over several paragraphs but the key passages are as follows:

“13.  The activity refers to walking with a stick or other aid if such aid is normally used.  This means it is normally used by people acting reasonably.  We reflected on what this could mean.  A simple example of the appropriate use of aids is someone with defective vision which can be corrected with glasses.  In such a situation, it would be reasonable to assess a person based upon their corrected vision.  A similar consideration can be applied to a person with poor hearing who would benefit from a hearing aid.  The person may not wish to use such aids but we must consider the reasonableness of use of aids if they improve function.

14.  The appellant has a shortened right leg.  He told us he uses his crutch in his left hand.  Generally, the advice would be to use the crutch to support the damaged site, namely the right side.  However, the appellant says that he prefers to use the left side and it may be this is what works for him.  However, he did say he had a problem using the crutch in his left hand because of his left wrist injury.  The Department had formed the view that he could manage more than 100m but less than 200m with a crutch.  We would agree with this rather than the shorter distances mentioned by the appellant.  However, it was our view given that the descriptor refers to using such aids as can reasonably be used his mobility would be unrestricted if he resorted to using a wheelchair.  We can appreciate that the appellant may not wish to use a wheelchair or he may feel it is not necessary.  However, the question is one of reasonableness.  We can see no reason why a wheelchair could not be used by him as he has adequate upper body function notwithstanding his wrist and shoulder problem.  The latter was not presenting such restrictions as would not compromise locomotion affected through turning the wheels on the wheelchair by hand.  Consequently, we removed the six points which had been awarded”.

	Submissions

9.	Now represented by Ms Loughrey of Law Centre (NI), the appellant submitted his grounds of appeal on 18 May 2012.  These are that the tribunal had erred in law in finding that the appellant does not satisfy any of the “Mobilising” descriptors on the basis that he could reasonably use a wheelchair as:

	(i)	he does not actually use or possess a wheelchair;

	(ii)	he has not been recommended or assessed for wheelchair provision under the National Health Service (NHS) by an occupational therapist (OT);

	(iii)	he has significant physical problems with his wrist and shoulder which mean that he cannot reasonably be expected to use a wheelchair.

10.	The Department was directed to provide written observations on the appellant’s grounds.  On 10 July 2012 Mr McKendry responded on behalf of the Department.  Mr McKendry referred to the decision of Upper Tribunal Judge Levenson in RP v Secretary of State for Work and Pensions [2011] UKUT 449 (AAC).  In the light of this decision, he submits that the tribunal failed in its inquisitorial role in terms of assessing the reasonableness of the appellant using a wheelchair, but that there was enough evidence to assess that the appellant was physically capable of using a manual wheelchair.  He nevertheless submitted that the tribunal should have made further enquiries into practical issues such as whether the appellant would be able to afford a wheelchair, whether the appellant’s home would have to be adapted and whether he would have suitable space to store a wheelchair in his home.  He therefore submitted that the tribunal erred in law.

11.	I directed an oral hearing of the appeal and directed the parties to provide summaries of the case which they intended to present at hearing.  Shortly before the hearing I became aware of the decision of Upper Tribunal Judge Gamble in DM v SSWP [2012] UKUT 376 (AAC) and I directed that the parties should be made aware of the decision for the purpose of their oral submissions.

	Relevant legislation

12.	ESA was established by the Welfare Reform (NI) Act 2007.  By section 1:

‘ 1—(1) An allowance, to be known as an employment and support allowance, shall be payable in accordance with the provisions of this Part.

(2) …

(3) The basic conditions are that the claimant— 

	(a) has limited capability for work,

…

(4) For the purposes of this Part, a person has limited capability for work if—

	(a) his capability for work is limited by his physical or mental condition, and 

	(b) the limitation is such that it is not reasonable to require him to work.’

	By regulation 19 of the Employment and Support Allowance Regulations (NI) 2008:

‘19.—(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—

	(a) 15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;

	(b) 15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or

	(c) 15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.

(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

…’

	The activity in issue in this appeal was brought into operation from 28 March 2011. It reads:

‘SCHEDULE 2 Regulation 19(2) and (3)
Assessment of whether a claimant has limited capability for work
PART 1
PHYSICAL DISABILITIES

(1)	(2)	(3)
Activity	Descriptors	Points

1. Mobilising unaided by	(a) Cannot either— 	15
another person with or without	(i) mobilise more than 50
a walking stick, manual	metres on level ground
wheelchair or other aid if such	without stopping in order to
aid can reasonably be used.	avoid significant discomfort
	or exhaustion, or

	(ii) repeatedly mobilise 50
	metres within a reasonable
	because of significant
	discomfort timescale or 
	exhaustion.

	(b) Cannot mount or descend	9
	two steps unaided by another
	person even with the support
	of a handrail.

	(c) Cannot either—	9

	(i) mobilise more than 100
	metres on level ground without
	stopping in order to avoid
	significant discomfort or 
	exhaustion, or

	(ii) repeatedly mobilise 100 
	metres within a reasonable 
	timescale because of 
	significant discomfort or 
	exhaustion.

	(d) Cannot either—	6

	(i) mobilise more than 200 
	metres on level ground without 
	stopping in order to avoid 
	significant discomfort or 
	exhaustion, or

	(ii) repeatedly mobilise 200 
	metres within a reasonable 
	timescale because of 
	significant discomfort or 
	exhaustion.

	(e) None of the above apply.	0’

	The Hearing

13.	At the hearing of the appeal, Ms Loughrey appeared on behalf of the appellant, while Mr McKendry appeared on behalf of the Department.  I am grateful to the representatives for their helpful submissions.

14.	Ms Loughrey submitted that the tribunal had erred in law in its application of the “Mobilising” activity and in its approach to the issue of whether the appellant could reasonably use a wheelchair.  She relied on the decision of Upper Tribunal Judge Levenson in RP v SSWP and referred to the Departmental guidance in the DMG Memo Vol 8/44.  This indicated that, while not binding in Northern Ireland, the guidance given in the decision of Judge Levenson should be followed.  I understand that there is equivalent guidance issued by the Department for Work and Pensions in Great Britain in Memo DMG 24/12.

15.	Ms Loughrey further referred to NHS Regional Eligibility Criteria applying in Northern Ireland for the provision of wheelchairs.  The Regional Eligibility Criteria provide that wheelchairs would only be supplied to service users who needed them for permanent use, being longer than six months.  They further provide that the wheelchair user’s home environment or other essential environments must be suitable, or have the potential to be made suitable, for wheelchair use.  Suitability is expressed in terms of service user safety and of accessibility to the intended environment.  The service user must also have the potential to be able to use the equipment safely and effectively in the intended environment, a matter to be assessed comprehensively in each case by an OT.  In the case of a standard self-propelling wheelchair, the wheelchair user is required to have limited or no walking ability.  The wheelchair user must also be physically able to self-propel the wheelchair independently and safely.

16.	Ms Loughrey submitted that there was no evidence that an OT would consider a wheelchair appropriate for use by the appellant.  She submitted that the tribunal had insufficient evidence to consider whether the appellant had sufficient upper arm function to use a manual wheelchair and whether his home environment was suitable, relating her instructions that there were five steps to the appellant’s front door.

17.	Ms Loughrey submitted that none of the evidence before the tribunal, such as that of the healthcare professional in relation to upper arm functions in Activity 3, 4 and 5 in the Schedule of Physical Disabilities, was directly relevant to the actions involved in propelling a manual wheelchair.  Therefore the tribunal decided the question of whether the appellant could mobilise using a manual wheelchair without sufficient evidence.

18.	Mr McKendry referred to the Departmental guidance in DMG Memo Vol 8/44.  He confirmed that this was still in effect from 28 March 2011, having been introduced in June 2012 following Judge Levenson’s decision in RP v SSWP.  He submitted that the approach taken by Judge Gamble in DM v SSWP was entirely consistent with the Department’s guidance and submitted that the tribunal had erred in law.  He again submitted that the nature of a particular appellant’s home environment could have an effect on whether using a wheelchair to mobilise was reasonable, having regard to the practicalities.

	Assessment

19.	Prior to 28 March 2011, the first activity in Schedule 2 was headed “Walking with a walking stick or other aid if such aid is normally used”.  The first activity, from that date, reads “Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used”.

20.	One difference between the two headings is the shift from a consideration of ability to “walk” to ability to “mobilise”.  Arising from this, there is a requirement to consider the possible use of a manual wheelchair.  Whereas an aid such as a walking stick would have been taken into consideration under the previous form of the first activity, the term “walk” precluded consideration of wheelchairs.  Now, claimants who normally use a wheelchair will not necessarily satisfy the new descriptors.

21.	A second difference is the requirement to consider a manual wheelchair or other aid which “can reasonably be used”.  Commissioner and Upper Tribunal decisions on the previous IB and ESA regimes, such as CIB/14499/1996 and RP v SSWP, have implied a condition of reasonableness into the consideration of the use of an aid or appliance.  Therefore, the extent to which this new feature of the legislative scheme might represent a difference from previous interpretations needs to be addressed.

22.	The core question which I have to decide is whether the tribunal in the present case has erred in law by finding that the appellant had no relevant restriction when his reasonable ability to use a wheelchair was taken into account.

	Regulation 19(4) ESA Regulations and RP v SSWP

23.	The requirement to conduct the assessment of an appellant’s ability or inability to perform specific activities prescribed in Schedule 2 arises from regulation 19 of the ESA Regulations.  Regulation 19(4) of the ESA Regulations requires a claimant to be assessed as if “using any aid or appliance which is normally worn or used”.  This is different from the previous IB scheme at regulation 25(2) of the Social Security (Incapacity for Work) (General) Regulations (NI) 1995, which from 1997 required the claimant to be assessed as if wearing “any aid or appliance which he normally wears or uses”.

24.	The Schedule 2 descriptors for ESA have to be approached on the basis of aids or appliances which the claimant might not personally use, but are normally worn or used by persons with the same or a similar disablement.  This means that the potential use of an aid or appliance must be addressed even if a claimant does not actually use one.

25.	It was in this context that Judge Levenson considered the operation of regulation 19(4) in RP v SSWP.  That case concerned a claimant who did not normally use a crutch or a stick, but was assessed by the First-tier Tribunal as if he did when it was considering the “Standing” descriptor.  Judge Levenson said:

“16. It seems to me that the correct approach to regulation 19(4) is as follows.  If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it.  If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it.  If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same.  However, I do not agree with the Secretary of State that in this latter case there does not have to be any explanation of how the aid or appliance could help the particular claimant and that the advantages are obvious.  The degree of detail is a matter for the tribunal on the facts of each particular case, but in my view, in the absence of actual use or prescription, there does need to be some explanation.”

26.	Both the appellant and the respondent submit that I should take guidance from the principles set out in RP v SSWP.

27.	From the discussion in RP v SSWP of his earlier decision in CIB/14499/ 1996, it seems to me that Judge Levenson was concerned with the mischief which would result if a claimant could wilfully choose not to use a suitable aid in order to satisfy a particular descriptor when that aid had been prescribed.  Yet he was also clear that it was open to a tribunal in a suitable case, based upon sufficient evidence and giving appropriate reasons, to find that an aid which had not been prescribed could be taken into account.  In the context of regulation 19(4), I broadly agree with the approach adopted by Judge Levenson.

28.	Judge Levenson’s guidance on the interpretation of regulation 19(4) has application to all the activities within Schedule 2, including in particular those for which use of an aid is expressly contemplated by the activity heading – namely mobilising, understanding communication, navigation and bowel and bladder control.  Whereas the latter two use the term “normally used”, the headings to the former two expressly import conditions of reasonableness.

29.	It is long established that the heading to each activity is integral to understanding the scope of the descriptors within it, as stated by Commissioner Brown in C2/98(IB) and Chief Commissioner Martin in C31/98(IB).  Whereas those cases applied to IB, they are equally applicable to ESA.  Therefore the heading to the “Mobilising” activity informs the construction of the descriptors within that activity.  In so far as it relates to the use of a walking stick, manual wheelchair or other aid “if such aid can reasonably be used”, it amounts to an express qualification of regulation 19(4) and creates an additional test which has to be applied as part of the LCWA when the activity of “Mobilising” is considered.  The heading to the “Mobilising” activity effectively makes express provision for the conditions implied by Judge Levenson in RP v SSWP.  It does not appear to me that it materially alters the relevant considerations which a decision-maker has to address.

30.	RP v SSWP establishes that when addressing the issue of whether a wheelchair can reasonably be used within the terms of the heading to the “Mobilising” activity, the first question is whether a wheelchair is normally used by the claimant.  If so, the functional assessment of the claimant’s ability to mobilise ought to proceed on the basis that he or she normally and reasonably uses a wheelchair.  Equally, if the claimant has been referred for assessment, and an appropriate professional has recommended the use of a wheelchair, it seems to me that any functional assessment of the claimant’s ability to mobilise should proceed on the basis that he or she can reasonably use a wheelchair.  An appellant in such a case might seek to challenge the assessment, or to rely on a change of circumstances, in order to show that he or she cannot reasonably use a manual wheelchair.  Notwithstanding that possibility, use of a wheelchair in each case would prima facie be normal and reasonable.

31.	This is a case where the appellant normally uses an aid – a walking stick – but not a wheelchair.  It is not a case where a wheelchair has been prescribed or recommended to him by a person with appropriate expertise.  If applying Judge Levenson’s decision in RP v SSWP, and for the purposes of regulation 19(4), the appellant otherwise should only be assessed as using a wheelchair if:

	(a)	one is normally used by people in that situation acting reasonably in all the circumstances; and

	(b)	it would be reasonable for the claimant to do the same.

32.	An issue which requires further consideration is what factors need to be taken into account in considering whether use of a manual wheelchair is reasonable.  The Department agrees with the approach of Judge Levenson and has issued guidance in consequence of Judge Levenson’s decision in DMG Memo Vol 8/44.  Guidance in this context of course is merely that.  It reflects the Department’s interpretation of the law and it is not binding on tribunals in any way.  The guidance advises on the practical application of the principles set out by Judge Levenson.  It suggests that the decision-maker should have regard to questions such as whether the aid or appliance is affordable, whether the claimant is able to use and store the aid or appliance and whether the claimant is physically able to use the aid or appliance.  In the present case, the appellant and the Department submit that the guidance is correct.  They also find support for the Department’s approach in the decision of Judge Gamble in DM v SSWP, referred to above.

	DM v SSWP

33.	In DM v SSWP, Upper Tribunal Judge Gamble addressed the same activity of “Mobilising” which is in issue in this case.  The claimant had sustained an injury to her left foot and ankle following a fall from height.  The claimant was able to walk short distances using two crutches.  The First-tier tribunal found that the claimant might well not be able to walk the distances in the descriptors using her two crutches, but held that she could mobilise those distances using a wheelchair.

34.	The claimant appealed on the basis (i) that it had not been suggested by medical personnel that she could use a wheelchair and that this might be medically unsuitable in terms of her rehabilitation programme; (ii) that a wheelchair was not available to her in reality from local providers; (iii) that as she lived in an upstairs tenement flat, the question of the practicality of wheelchair use should have been considered in terms of her living arrangements.  The Secretary of State’s written submission agreed with the grounds submitted by the claimant.

35.	In the light of the concession by the Secretary of State, Judge Gamble accepted that the proper approach of a tribunal applying the ‘Mobilising’ activity is to treat the matter of reasonableness as one requiring a broad exercise of their independent judgment to all the factors which are relevant in each individual case.  He held that those factors should not be restricted to a consideration of a claimant’s physical ability to use a manual wheelchair.  He accepted that the tribunal should have explicitly considered the three matters raised by the claimant in her grounds of appeal above, as well as the physical ability of the claimant.  Judge Gamble stressed that the application of the text of the activity must always be on an individual basis.

36.	Both Ms Loughrey and Mr McKendry submit that the approach adopted by Judge Gamble in DM v SSWP was the correct one.  Nevertheless, it seems to me that there is some tension between the approach of Judge Gamble and established jurisprudence addressing the nature of the LCWA and its predecessors.  For example, Commissioner Jacobs, in reported Great Britain Commissioner’s decision R(IB)2/03, when addressing the ”rising from sitting” activity under the former personal capability assessment (PCA) for the purposes of IB, applied a functional analysis of the descriptor.  He held that the PCA was designed to test in a systematic, analytical way the claimant’s various physical disabilities.  Later, as Upper Tribunal Judge Jacobs, in GS v Secretary of State for Work and Pensions [2010] UKUT 244, he has said that the analysis previously applied by him to the test for IB in R(IB)2/03 applied equally in the case of ESA.  His statement in GS v SSWP to this effect was approved by Upper Tribunal Judge Lane in LF v Secretary of State for Work and Pensions [2010] UKUT 352.  In this jurisdiction Chief Commissioner Mullan has approved the same approach at paragraph 25 of GF -v- Department for Social Development (ESA) [2011] NICom 160.  I also agree with this approach.

37.	The difficulty I perceive with the approach suggested by DM v SSWP is that it departs from a purely functional analysis.  If one assesses the activity of “Mobilising” in a way which considers an individual’s domestic circumstances, such as whether he or she lives in an upstairs flat, then an assessment of two people with identical functional disability could lead to different outcomes.  A person living on the ground floor might not satisfy any descriptors within the activity, on the basis that it would be reasonable to use a wheelchair, whereas her upstairs neighbour with an identical functional disability might.  This is possible because the approach which focuses on an individual’s domestic circumstances departs from testing the physical disablement on the basis of a purely functional analysis.

38.	In GS v SSWP, Judge Jacobs was addressing the “Manual dexterity” activity in its pre-28 March 2011 version, and in particular the issue of whether an individual could “do up/undo small buttons, such as shirt or blouse buttons” in the now repealed descriptor.  His words address that issue, but illustrate the problem well:

13.	“It follows that the tribunal was wrong to consider the practicalities of dressing, the type of shirt and so on.  Even the Secretary of State’s representative, having submitted that a functional analysis was appropriate, was tempted into this type of speculation.  It is important to appreciate the context.  The ultimate purpose of the descriptors is to test a person’s capability for work.  They test the claimant’s manual dexterity for work-related purposes.  They do not test the claimant’s ability to self-care.  The reference to shirts and blouses is for the purpose of illustration.  They are not words of definition or limitation.

14.	The proper approach to the interpretation and application of descriptor 6(f) is this.  The descriptor tests the claimant’s anatomical functions that would be involved in fastening or unfastening buttons.  They include pinch grip, co-ordination of finger movements, and flexibility of the finger joints.  The reference to small buttons identifies the size and shape of the object to which those functions are applied.  The First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor.  By doing that, it will avoid the myriad questions that otherwise appear to arise on descriptors.  Is the ability to use a tap tested with wet or dry hands?  What sort of surface is the £1 coin resting on?  How smooth or thick are the pages of the book?  And so on and so on.”

39.	Judge Jacobs was not dealing with the question of whether an aid or appliance might reasonably be used.  However, it seems to me that Judge Jacobs was correct to focus on the claimant’s functional ability to perform the particular activity.  It further seems to me that, when, in regulation 19(4), the legislation requires consideration to be given to use of an aid or appliance in assessing the extent of a claimant’s capability to perform any of the physical activities in Part I of Schedule 2, this must also be a functional assessment.  A decision-maker must focus purely on the extent to which a claimant can, for example, mobilise using his walking stick.

40.	Similarly, it seems to me that the reasonableness or otherwise of using an aid should be judged purely in the context of its potential use to enhance functional ability.  Matters which go beyond functional ability cannot be relevant to the question of whether wheelchair use is reasonable in the context of the “Mobilising” descriptor.  The basic question should be whether it would be reasonable to use an otherwise appropriate aid in order to enhance function.

41.	I consider that questions such as whether the doorway to the appellant’s home is wide enough to accommodate a wheelchair, or whether there are steps to his front door, or whether he has adequate storage space for a wheelchair, cannot be directly relevant to functional assessment for particular descriptors.  Therefore, I must respectfully disagree with Judge Gamble in DM v SSWP to the extent that he accepts that a tribunal will err in law by failing to ask questions as to whether a wheelchair would be practical or suitable from the point of view of the claimant’s living arrangements.  It also follows that I consider that the Department’s guidance to that effect cannot be correct.

	When is a wheelchair normally and reasonably used?

42.	However, I recognise that this approach throws up its own questions.  The tribunal in the present case said that “we can see no reason why a wheelchair could not be used by him…”.  Indeed, I imagine that very many people with a lower limb disablement limiting mobility, however slight or temporary, can mobilise a sufficient distance in a wheelchair as to exclude themselves from satisfying any descriptor under the activity of “Mobilising”.  Such a broad group might include claimants whose use of a wheelchair would be entirely disproportionate to the degree of their functional disablement, or claimants who would be medically advised to use alternative walking aids for therapeutic reasons, or claimants with temporary conditions.  However, is that what the legislation requires?  When assessing functional ability, just because there is no reason why he or she cannot use a wheelchair, should a decision-maker conclude that use of a wheelchair by a claimant is reasonable?

43.	I consider that, in addressing this question, it is important to recall that, while the heading to the “Mobilising” descriptor expressly introduces the condition that a wheelchair can reasonably be used, regulation 19(4) continues to require that a wheelchair is normally used.  Referring to the use of aids and appliances in general, Judge Levenson in RP v SSWP added the qualification “by people in that situation acting reasonably in all the circumstances”.  I consider that this qualification is better expressed, in the context of “Mobilising”, in terms of whether a wheelchair would normally be used by a person with the appellant’s degree of walking disablement in order to enhance his or her ability to mobilise.  It seems to me that by focusing on the question of whether a wheelchair could reasonably be used by the appellant, the tribunal has omitted to address the question of whether a wheelchair would normally be used by a person with the appellant’s particular disabilities.

44.	How then, in the absence of actual or recommended use, is the question of whether a wheelchair would normally be used by a claimant to be assessed?  In answering that question, it seems to me that the system of eligibility for public provision of wheelchairs must remain a central factor.  In general, people who normally need to use a wheelchair will be assessed for one and if appropriate will have this item provided without charge by the NHS.  In the context of a relatively specialised aid such as a manual wheelchair, it seems appropriate to construe the requirement of reasonableness in the heading to the activity of “Mobilising” with this aspect of government policy in mind.

45.	Typically, an individual will be referred for assessment for eligibility for wheelchair provision by their doctor, a hospital consultant or an OT.  Such a referral will take place against a background of appropriate therapeutic assessment, with regard to the level of the relevant mobility difficulties and the individual’s needs.  Under the NHS in Northern Ireland, a comprehensive assessment by an OT will take place for all wheelchair requests.  I consider that it would be difficult to conclude that a wheelchair would be normally used by a claimant with a particular degree of disability without the benefit of such an assessment.

46.	In this case, the tribunal has not addressed the question of whether it would be normal for an individual with the claimant’s particular mobility limitations – namely ability to walk up to 200 metres using a stick – to be referred for wheelchair use.  The NHS Regional Eligibility Criteria specify that a candidate for a wheelchair should have “limited or no walking ability”.  Professional assessment against the relevant criteria is carried out in order to determine whether an individual should use a wheelchair.  Therefore, it is a question requiring a level of specialist expertise.  I acknowledge that a general practitioner may be involved in referring patients for assessment for wheelchair use.  Accordingly, many medically qualified members (MQM) of the tribunal are likely to have experience of this.  However, I consider that it would only be in the clearest of cases that an MQM’s opinion might be relied on to settle this question in the absence of evidence from a relevant professional accustomed to making the assessment.  Nevertheless, if there is clear evidence that an appropriate candidate for wheelchair provision has unreasonably declined a referral for assessment, it may be an appropriate instance for determining that the claimant could reasonably use a wheelchair.

47.	As observed above, I consider that difficulties with the home environment should not affect the question of whether it is reasonable for a claimant to mobilise using a wheelchair.  However, I also recognise that consideration of such practicalities is a central part of the assessment for wheelchair provision.  Where a wheelchair has been recommended by an appropriate professional under the NHS, practical assistance such as disabled facilities grants of up to £25,000 may have to be provided to adapt the wheelchair user’s home environment.  The decision on wheelchair provision addresses both the level of need and the reasonable consequences of providing one.  If it is normal and reasonable for a person to use a wheelchair, having regard to all relevant matters, one will be provided and the associated costs will be met from the public purse.  The practical questions arising as in DM v SSWP should not therefore need to be addressed as, where a wheelchair would normally and can reasonably be used, the appropriate adaptations of the potential user’s home environment will follow.

48.	The tribunal in the present case held that there was no reason why a wheelchair could not be used by the appellant.  However, it seems to me that the tribunal erred in its approach by failing to engage properly with the question of whether the appellant was someone who would normally use a wheelchair.  It has dealt with the question of the reasonableness of using a wheelchair in isolation of this question.  As a result, I consider that the tribunal has erred in law by finding that the appellant had no relevant restriction in the activity of “Mobilising” when his reasonable ability to use a wheelchair was taken into account.

	Physical restrictions on mobilising in a wheelchair

49.	I further consider that the question of the appellant’s physical ability to mobilise using a wheelchair is not a condition of the reasonableness of whether he could use one.  Rather it is a matter to be assessed once it is accepted that he could reasonably use a wheelchair.  This is because the scoring scheme for descriptors within the activity varies according to the distance which the appellant can mobilise.  Where wheelchair use is reasonable, a decision-maker has to assess the likely distance over which a claimant could propel a wheelchair, bearing in mind benchmarks of 50, 100 or 200 metres.  The only cause for variation in terms of the distance achievable, it seems to me, would be any physical condition which would compromise the ability to self-propel manually.  If a physical restriction was to be viewed as rendering it unreasonable for a claimant to use a wheelchair per se, then there would be no point in legislating for nuances in terms of the distance a claimant could mobilise using a wheelchair.

50.	The LCWA provides for medical examination of upper limb function.  However, the descriptors on which the healthcare professional gives an opinion are not necessarily helpful for assessing upper limb function in the context of manually propelling a wheelchair.  Moreover, upper limb function is only one factor which might restrict wheelchair use.  Other factors might include respiratory conditions, cardiac conditions or neurological conditions.  As pointed out above, the Regional Eligibility Criteria for provision of a wheelchair require that a wheelchair user must be physically able to self-propel the wheelchair independently and safely.

51.	In the present case the appellant points to evidence from the healthcare professional which indicates a slight tenderness over the left lateral epicondyle, consistent with a tennis elbow, and swelling in the left wrist.  These are factors which might affect his ability to mobilise.  However, the pro forma report from the healthcare professional nowhere addresses or assesses the likely ability of the appellant to self-propel.

52.	The tribunal found that the upper limb restrictions of the appellant would not compromise locomotion effected through turning the wheels on a wheelchair by hand.  There was no reference to a finding on distance in this context.  It is therefore not clear to me whether the tribunal was addressing the simple motion of turning a wheelchair wheel, or whether the physical effort of propelling a wheelchair with the appellant’s body weight over a distance of up to 200 metres was fully taken into account.

53.	Where, although this was not such a case, the Department seeks to rely on a submission that an appellant can self-propel in a manual wheelchair over a particular distance, it seems to me that the Department should have evidence of this.  The current report obtained for the purposes of the LCWA does not directly address the issue through its examination of, for example, upper limb function.  Yet, where a tribunal is left to decide such matters in the absence of evidence, its conclusions are inevitably speculative in nature and potentially unsound.  By Article 20(3) of the Social Security (NI) Order 1998, a tribunal may not carry out a physical examination of an appellant or require him or her to undergo a physical test.  However, this is not a licence to make findings on physical ability in the absence of examination or evidence.

54.	Any decision given in the absence of evidence is arguably irrational.  I consider that the tribunal did not have sufficient evidence to make the findings of fact which are required to address the question of how far the appellant could mobilise in a wheelchair.  Therefore, if I am wrong in my analysis of the application of regulation 19(4) and the “Mobilising” activity, I consider that the tribunal has materially erred in law in this respect also.

55.	For that reason and the reasons given above, I allow the appeal and set aside the decision of the tribunal.

	Disposal

56.	I have given consideration to whether I should remit the appeal to a newly constituted tribunal or to whether I should make the decision which the tribunal should have given.  Having regard to the particular facts and findings, I conclude that this is a case in which I can give the decision the tribunal should have given without making fresh or further findings of fact.

57.	In the present case, the tribunal found that the appellant could have unrestricted mobility “if he resorted to using a wheelchair”, awarding no points on this basis.  I have concluded that the tribunal erred in finding that the appellant’s functional ability should be assessed on the basis that he can normally and reasonably use a wheelchair.

58.	However, the tribunal had found that the appellant could mobilise more than 100 metres but fewer than 200 metres using a stick, which would result in a score of six points for descriptor 1.d.  The tribunal further found that the appellant satisfied descriptor 2.b in the activity of “Standing and Sitting”, resulting in a score of nine points.  I accept these findings.  The combined score amounts to 15 points for physical health descriptors, which is sufficient to satisfy the requirements of regulation 19(3)(a) of the ESA Regulations.

59.	I therefore allow the appeal and find that the appellant satisfies the LCWA from and including 8 October 2011.

(signed):  O Stockman

Commissioner

29 January 2013