JW-v-Department for Social Development (DLA) [2015]NICom 34

Decision No:  C2/15-16(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 25 March 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Craigavon.

2.	For the reasons I give below, I grant leave to appeal.  Under Article 15(8)(b) of the Social Security Order (NI) 1998 I set aside the decision of the appeal tribunal and I direct that the appeal shall be determined by a newly constituted tribunal.

REASONS

	Background

3.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 29 July 2011 and was awarded high rate mobility component for a period of two years.  She made a renewal claim on the basis of needs arising from foot problems, foot drop, diabetes, irritable bowel syndrome, blood pressure problems, bladder and kidney problems and urinary infections.  The Department obtained a report from the applicant’s general practitioner (GP) on 21 May 2013.  On 4 June 2013 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 29 July 2013.  The applicant appealed.

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  At a hearing on 25 March 2014 the applicant indicated that she was not seeking the care component, but only the mobility component.  However, the tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 4 June 2014.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 16 July 2014.  On 14 August 2014 the applicant applied to a Social Security Commissioner for leave to appeal.

	Grounds

5.	The applicant submits that the tribunal has erred in law on the basis that, when assessing mobility:

	(i)	the tribunal wrongly relied on disputed evidence from a treadmill test;

	(ii)	the tribunal should have addressed her ability to walk out of doors on uneven surfaces;

	(iii)	she was previously awarded high rate mobility component and her condition had not improved;

	(iv)	the tribunal should have adjourned to consider the outcome of nerve conduction studies.

6.	The Department was invited to make observations on the applicant’s grounds.  Mr Culbert of Decision Making Services (DMS) responded on behalf of the Department.  Mr Culbert submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

	Assessment

7.	An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law.  However, the party who wishes to bring an appeal must first obtain leave to appeal.

8.	Leave to appeal is a filter mechanism.  It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

9.	An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

	The tribunal’s decision

10.	In relation to her mobility, the applicant had stated on her claim form that she had suffered from “foot drop” for two years.  She stated that she had managed for 45 seconds only in a treadmill test and that she used a walking stick.  She said that she could only walk 2-3 metres or 8-9 yards in 1-2 minutes very slowly.  She stated that she had numbness in both feet and dragged her foot.  Her GP in a factual report confirmed left common peroneal nerve palsy in 2011, leading to foot drop, but stated uncertainty as to the current position in May 2013.  A letter from the GP dated 24 September 2013 confirmed that foot drop was still present and that the applicant was using a splint and a walking stick at all times.

11.	The tribunal heard evidence from the applicant that this condition started in 2011, and led to her tripping quite a bit.  She was given a splint to wear on her leg to stop the tripping.  She would wear it regularly when she had pain and discomfort.  At times she would have pain in her foot and ankle, even when at rest.  She used a stick to help her mobility.  She was recorded as saying that she could walk the length of three blocks of semi-detached houses in her own street.  She stated in her claim form that she had undergone a treadmill test in 2012 for 45 seconds.  At hearing, it was put to her that whereas she stated that she had walked 45 seconds on the treadmill test, in fact she was recorded as walking for 2 minutes and 36 seconds.  She disputed that it would have been two minutes.  She stated that she would go shopping with her husband but would sit to rest after a couple of aisles leaning on a trolley.

12.	The tribunal accepted that the applicant would have some limitation in relation to walking.  However, the tribunal stated that:

“… the Tribunal is of the unanimous opinion that the Appellant’s walking would not be so restricted as to render her virtually unable to walk.  Tribunal accepts the clinical findings contained in the medical evidence”. 

13.	In relation to the dispute about the treadmill walking time, the tribunal stated that:

“Appellant did indicate a very limited period on the treadmill, 45 seconds, as opposed to the specialist report which advised 2 minutes 36 seconds.  Today Appellant stated, when the conflict of evidence was advised, that “it would not have been two minutes.”  Reading the reports and taking all medical evidence into account the Tribunal accepts the medical records as being more probably the accurate and reliable records.”

14.	On this basis, the tribunal found that the applicant could walk a reasonable distance for reasonable time in a reasonable manner and at a reasonable speed without severe discomfort.

	Assessment

15.	In her second ground the applicant submits that the tribunal failed to address limitations on her capacity to walk due to pain she would experience on uneven surfaces out of doors.  In R(M) 1/91, the Great Britain Commissioner held that the test envisaged walking on the kind of pavement or road that one would normally expect to find in the course of walking.  Therefore, uneven surfaces are not contemplated within the statutory test.  I do not accept that the tribunal has erred in law on this ground.

16.	In her third ground the applicant submits that her condition had not improved from the time of her last award.  It is well established that a tribunal on a renewal claim is not bound by any previous award but must consider the conditions of entitlement at the date of the new claim afresh.  I do not consider that any error of law arises in this regard.

17.	In her final ground the applicant submits that the tribunal reasons erroneously refer to the possibility of a fresh claim, as she would be over the relevant age limit for DLA.  I am not satisfied that the tribunal’s reference to such a possibility amounts to an error of law.

18.	The applicant’s first ground of appeal is that the tribunal unfairly considered the length of time that she walked when undertaking a treadmill test for cardiac investigation.  Essentially she submits that this was an artificial test of her walking ability as she pressed on through severe discomfort when on the treadmill.

19.	It does appear arguable that the tribunal has determined the question of whether the applicant is virtually unable to walk solely by reference to the evidence that she was able to walk for 2 minutes and 36 seconds in the course of a treadmill test conducted for the purpose of a cardiology investigation.

20.	I observe that the test in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (NI) 1992 (the DLA Regulations) is a test of ability to walk out of doors.  I further observe that the modification of the test by regulation 12(4)(a) of the DLA Regulations means that a person is to be taken not to satisfy the conditions of entitlement if he is not virtually unable to walk with a prosthesis or artificial aid which he habitually wears or uses.  The applicant uses a walking stick.  Nevertheless, it would not be possible to use a walking stick on a treadmill.  In addition, a standard treadmill would have handrails which could aid walking.  Therefore, I sought further comment from the Department on the relevance of the fact that the applicant’s walking stick could not be used on a treadmill and that handrails could have been used for balance instead.

21.	Mr Culbert submitted that the fact that the test was performed without a walking stick implied that the applicant could walk even better when using a walking stick.  Therefore, the lack of a walking stick was not particularly relevant.  He submitted that holding the rails on a treadmill would not be sufficiently different from using a walking stick to have made any difference to the tribunal’s findings.  He submits that use of handrails would not enable the applicant to walk any further than she could with a walking stick.

22.	I do not accept Mr Culbert’s submission to this effect.  It appears to me that the relevant statutory test envisages the use of any aid which is habitually worn or used.  A walking stick cannot be used on a treadmill, and therefore a treadmill test in the case of someone who uses an artificial aid must be viewed cautiously since it does not involve use of that aid.  A treadmill has handrails which can be used to support walking by the use of both arms.  However, the use of a bilateral aid to walking, such as double handrails, is very different from using a single walking stick, since full body weight can be supported by two rails, while it cannot be by a single stick.

23.	From publicly available information sources, I understand that the settings for a Bruce Protocol treadmill test are 1.7mph or 2.7kph for the first three minutes.  The applicant will have walked at this speed for the duration of her 2 minutes and 36 seconds test.  This speed setting is around 56% of normal walking pace.  I consider that this pace would have permitted comfortable reliance on the handrails for balance or to take weight off the lower limbs.  However, while the tribunal addressed a dispute about the duration of the treadmill test, the manner of walking on the treadmill, in the absence of the applicant’s walking stick, was not clarified by the tribunal.  It appears to me that, where a claimant habitually uses a walking aid which cannot be used on a treadmill, particular caution should be exercised.

24.	The applicant submitted that the treadmill test was stopped due to her breathlessness and dizziness, but that she walked through pain and severe discomfort when on the treadmill.  The tribunal noted that those conducting the treadmill test recorded mild shortness of breath and that the applicant felt lightheaded.  I asked the Department for observations on the relevance of the fact that the applicant was being tested in an artificial environment for a condition not related to her foot problems and her statement that she was walking through pain.

25.	In response, Mr Culbert submitted that the applicant had not said to the tribunal that she had experienced severe discomfort during the test.  He submitted that it would also have been reasonable to expect the applicant to have advised the medical professional conducting the test of severe discomfort.  Nevertheless, I consider that in the context of a test for cardiac function, a claimant with lower limb problems affecting mobility might well push through related symptoms in order to achieve a valid result.  The applicant was not asked by the tribunal about any difficulties she had with her mobility in the course of the treadmill test.

26.	Mr Culbert submits that while the statutory test is a test of ability to walk out of doors, the tribunal has simply considered evidence of ability to walk indoors as a way of demonstrating an ability to walk.  Relying on the decision of Chief Commissioner Martin QC in C44/97(DLA), he submits that it is not necessary for a tribunal to quantify distances, speeds, manner of gait or level of discomfort, albeit that it might have been preferable for the tribunal to make more detailed findings.

27.	I cannot disagree with the general proposition advanced by Mr Culbert.  However, in the present case, the tribunal has restricted its findings to the factor of time, by reference to the duration of the treadmill test.

28.	It appears to me that the evidence from a treadmill test is clearly relevant and can assist a tribunal in making findings as to an appellant’s ability to walk.  However, it is not a test of ability to walk “out of doors”, such as envisaged by the legislation.  Ideally, results from a treadmill test should be used by a tribunal to corroborate its findings based on actual evidence of the claimant’s ability to walk out of doors.  Here there was some evidence of the applicant’s walking ability in a supermarket, leaning on a trolley, but no findings were derived from that evidence.  Therefore the findings on mobility were taken entirely from the treadmill test.

29.	The tribunal is required to address the distance, speed, time and manner of walking.  Here the tribunal has stated that the applicant “can walk a reasonable distance for a reasonable time in a reasonable manner and at a reasonable speed without severe discomfort”.  Apart from the evidence that the applicant walked for 2 minutes and 36 seconds on a treadmill, which could result in a finding as to the time of walking, no specific findings were made on distance, speed or manner of walking.

30.	By my own calculation, based on a treadmill speed setting of 2.7kph for the first three minutes, the applicant may have walked 117m in 2 minutes and 36 seconds, at around 56% of normal walking pace.  This might have been enough for a tribunal to determine that the applicant was not virtually unable to walk.  However, it is not known whether the applicant held handrails to assist her walking due to her “drop foot” or whether she experienced any level of discomfort in her feet before breathlessness and light-headedness stopped the test.

31.	I conclude that there is some force in the submissions made by the applicant.  I grant leave to appeal.  I allow the appeal and set aside the decision of the appeal tribunal.  I direct that the appeal shall be reheard by a newly constituted tribunal.

(signed):  O Stockman

Commissioner

29 July 2015