FH-v-Department for Communities (DLA) [2017] NICom 36

Decision No:  C40/16-17(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 9 February 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	As will be explained in greater detail below, both parties have expressed the view that the decision appealed against was erroneous in point of law.

2.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

3.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to Disability Living Allowance (DLA), for a particular period, remains to be determined by another appeal tribunal. 

4.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 3 November 2015, which decided that the appellant was not entitled to DLA from and including 17 August 2015;

(ii)	the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

(iii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and 

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it. 

	Background

5.	On 3 November 2015 a decision maker of the Department decided that the appellant was not entitled to DLA from and including 17 August 2015. An appeal against the decision dated 3 November 2015 was received in the Department on 11 November 2015.

6.	On 24 January 2016 the appellant completed an appeal listing form in which he ticked a box to indicate that he was unable to come to the appeal tribunal hearing and requested that another appeal tribunal hearing date be arranged.  His stated reason for his inability to attend was that he was having further x-rays on his back and hips and believed that the outcome of those x-rays would be critical to his appeal.  On 28 January 2016 the Legally Qualified Panel Member (LQPM), on an interlocutory basis, refused an application for a postponement of the appeal, giving, as a reason that:

‘The tribunal is concerned with function, not with the precise diagnosis.  We are also focusing on how he was at the time of decision.     

7.	The appeal tribunal hearing took place on 9 February 2016. The appellant was present.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 3 November 2015.

8.	On 19 August 2016 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS).  On 1 September 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM). 

	Proceedings before the Social Security Commissioner

9.	On 7 October 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 24 November 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 14 December 2016, Ms Adams, for DMS, supported the application for leave to appeal on one of the grounds submitted on behalf of the appellant. Written observations were shared with the appellant on 15 December 2016.  Written observations in reply were received from the appellant on 3 January 2017 and were shared with Ms Adams on 6 January 2017.

10.	On 7 April 2017 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason, that an arguable issue had arisen as to whether the appeal tribunal had properly applied the legislative tests for entitlement to the higher rate of the mobility component of DLA.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

11.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

12.	In R(I)2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I)2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

	Analysis

13.	In the application for leave to appeal, which was received in the Office of the Social Security Commissioners, the appellant made the following submissions:

‘I believe that the decision maker did not adhere to the guidelines in the initial application.  The Tribunal did not fully examine the medical reports.  I suffer from chronic illnesses including heart disease, facet joint disease and osteoarthritis and these were mentioned in passing at the Tribunal.  These are progressive illnesses and things will only get worse for me. I consider this decision wrong and would ask that you grant me leave of appeal.’

14.	In her written observations on the application for leave to appeal, Ms Adams has made the following submissions:

‘Turning now to the higher rate mobility component, section 73 of the Social Security Contributions and Benefits (NI) Act 1992 provides in effect that in order to qualify for the higher rate mobility component a person must be unable or virtually unable to walk.  Regulation 12 of the Social Security (Disability Living Allowance) Regulation (NI) 1992 in so far as relevant provides that a person shall be regarded as being virtually unable to walk if his ability to walk out of doors is so limited as regards to the distance over which or the speed at which or the length of time for which or manner in which he can make progress on foot without severe discomfort. 

In decision C44/97(DLA) the then Chief Commissioner Martin considered the definition of virtually unable to walk and what was required of adjudicating authorities when applying the test.  He referred to previous guidance from Chief Commissioner Chambers in C3/87(MOB) and at paragraphs 15 stated: 

“Helpful guidance is also available from Chief Commissioner Chambers in C3/87(MOB), a case concerning mobility allowance which is directly relevant to the present case.  In that case at paragraph 7 Chief Commissioner Chambers stated as follows:-

"... In my view the decision of the Court of Appeal should not be interpreted as requiring the Tribunal to provide answers to the four questions raised by the Regulation in terms of a distance, a speed, a time and a description of the child's manner of walking.  Undoubtedly, those questions must be specifically addressed and answers given; but to require the Tribunal to attempt to quantify distances, speeds, etc. would be to impose an impossible burden upon them.  It is, moreover, difficult to see what purpose it would serve to provide such answers; as it would remain for the Tribunal to decide whether or not the child was unable or virtually unable to walk.  If there are to be limits of distance, speed, etc marking the level below which claimants qualify for mobility allowance, it is for Parliament or the Rule-making authority to set them; not the Medical Appeal Tribunal. ..."

In the reasons for decision pertaining to the higher rate mobility component the tribunal stated at paragraph 12:

“ .... There is no dispute that the appellant is able to walk. The issue is whether he is virtually unable to walk.  We accept he does experience pain when he walks and there is background of chronic back pain.  It is established that walking which can only be achieved with severe discomfort is to be ignored.  ... The legislation does not define the meaning of a virtual inability to walk. In terms of distance 50m is a benchmark but no more than that.  It was our view that most of the time the appellant could manage this without experiencing severe discomfort.  In reaching this conclusion we do acknowledge that the appellant is not exercising pain-free and there is a background of discomfort and fatigue.”

Whilst the tribunal has noted the distance (the appellant) could walk it does not refer to the time, speed or manner of his walking ability.  In failing to address these issues it is my submission that the tribunal has not correctly applied the statutory test and it has failed to provide adequate reasoning why it has deemed (the appellant) not to be virtually unable to walk.  

Based on the above extracts it is evident that that the tribunal has considered (the appellant’s) conditions in full and the medical evidence pertaining to same.  Whilst the tribunal correctly concluded that (the appellant) was not entitled to any of the care components or lower rate mobility component.  However for the reasons advanced above it is my submission the tribunal has erred in its consideration of the higher rate mobility component.’

15.	It is clear, therefore, that both parties have expressed the view that the decision appealed against was erroneous in point of law.

16.	I would add that in PG-v-Department for Communities (DLA) ([2016] NICom 83, (C34/16-17(DLA)), I stated the following, at paragraphs 24 to 28 of my decision:

‘24.	In paragraph 19 of her decision in R(DLA)4/03 the Social Security Commissioner in Great Britain (and former Deputy Commissioner in Northern Ireland) stated the following:

‘Perhaps the most litigated area in social security law is the test set out in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991. The test is expressed in relatively few words contrasted with what has been extensively argued and written on its meaning and application in fact and in law.’

25.	Regulation 12(1)(a)(ii) of the 1991 Regulations in Great Britain is in identical terms to regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended.  It is in the following terms:

‘12.—(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (unable or virtually unable to walk) only in the following circumstances—

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment—

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk …’ 

26.	The reference to section 73(1)(a) is, of course to that paragraph in the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, which is in the following terms:

‘73.—(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;’
 
27.	In paragraphs 20 to 25 of her decision in R(DLA)4/03, the Social Security Commissioner set out the principles to be applied when an adjudicating authority was considering ‘virtual inability to walk’ and, more significantly, the relevance of the factor of ‘severe discomfort.’ It is worth replicating her remarks in full:

‘20. I deduce the following propositions from the case law with respect to regulation 12(1)(a)(ii):

(1)	R(M) 1/81 establishes that the adjudicator evaluates the restrictions (if any) on the claimant’s ability to walk out of doors without severe discomfort, whether the limitations are in respect of distance, speed, length of time or manner.

(2)	The relevant question is how far the claimant is limited in walking without suffering severe discomfort rather than before severe discomfort begins to set in. As Mr Commissioner Howell QC put it in CDLA/608/1994 at paragraph 15:

“An ability to walk 50 yards which can only be accomplished at the expense of the onset of pain amounting to severe discomfort for some time afterwards is not an ability to walk without severe discomfort, even if the pain does not begin in real earnest until the end of the 50 yards.”

(3)	It is an error of law to equate the onset of severe discomfort with the point at which the claimant stops walking.  Walking which gives rise to severe discomfort is discounted.  If a claimant walks 100 yards of which the last 10 are after the onset of severe discomfort, he must be judged as if the distance he walks at that stage is the farthest distance he can go without such a result, which could be 80 yards only.  When he stops is evidentially relevant to determining what are a claimant’s real limitations but, as Mr Commissioner Jacobs pointed out in CDLA/1389/1997, at paragraph 50(d):

“a claimant may cover only a particular distance because there is no need or reason to go any further.  For example, a claimant may only walk 20 yards because that is the distance to the shop where the claimant buys a newspaper before returning home to read it.”

(4)	Rests which a claimant is forced to take from time to time before continuing to walk must be included when calculating “the length of time” the claimant takes to walk a particular distance.  Otherwise, as Mr Commissioner Rowland points out in CDLA/805/1994, there would be little purpose in regulation 12(1)(a)(ii) including the three separate factors of speed, distance and time as the first is a function of the last two.

(5) 	Mr Commissioner Rowland follows the same approach in CDLA/4388/1999 and, more recently, in CDLA/2050/2002.  In the latter cited case he makes the particular point that a tribunal must consider, where a claimant pauses, whether he can “walk further or whether that really was the absolute limit of the claimant’s capacity to walk” (paragraph 17).

(6)	In CDLA/6104/1999, Deputy Commissioner Newsome at paragraph 8 makes the valuable point:

“It may be the case that a claimant rests at a particular point because he is already in severe discomfort or because he will immediately be in such discomfort if he continues or because he is able to pace himself in such a way that if he rests at particular intervals even though the threat of severe discomfort is nowhere near imminent he will be able to progress some considerable distance before such a threat materialises.  It is in connection with the latter alternative that the pace or speed of walking becomes highly relevant in assessing whether the claimant can be taken to be virtually unable to walk.”

21.	None of the above cases nor those cited in argument directly answer the question before me. However, the statutory wording makes clear that the focus of whether a person is “virtually unable to walk” under regulation 12(1)(a)(ii) is on the limitations imposed by the claimant’s physical condition as a whole on an ability to make progress on foot out of doors.  This judgement of fact and degree is, as Mr Commissioner Howell QC said in CDLA/608/1994 (at paragraph 13) “intended to be a broad one”.

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”.

23.	If a stop is the absolute limit of the claimant’s capacity to walk then no issue of taking the test only to the first onset of severe discomfort arises.  But if a claimant recovers after a period of rest and continues walking without severe discomfort, then the statutory test does not preclude such continued walking from being assessed.  The tribunal must judge from the evidence such relevant factors as how far the claimant can initially walk without experiencing severe discomfort, how long any severe discomfort lasts before it subsides or, if he has paused to prevent such discomfort then the necessary duration of that pause, how frequently these halts recur if at all, and what is the total distance and time he can walk in this manner without severe discomfort.

24.	Time, speed, manner and distance of walking, achieved without severe discomfort, are therefore balanced in order to reach an overall judgement on whether the claimant is virtually unable to walk.  If a claimant has to rest an hour between each set of walking before severe discomfort subsides, he or she is more likely to be virtually unable to walk than a claimant who requires only 5 minutes.  Conversely, if a claimant with morning stiffness through rheumatoid arthritis walks the first minute out of doors in severe discomfort, stops for 4 minutes in order to flex his limbs and thereafter is enabled to walk 10 miles without severe discomfort at a reasonable pace and speed and without further halts, the statutory criteria do not prevent a conclusion which is in no way perverse, that such a claimant does not fall within regulation 12(1)(a)(ii).

25.	All of these are matters for the good sense of tribunals.  It is not, however, the law that only walking to a first halt required through severe discomfort is relevant.  This adds an unjustifiable gloss to the statutory criteria given the broad purpose of the test under regulation 12(1)(a)(ii), which is to establish the practical limitations on a person’s ability to walk due to the stated factors.’

28.	I accept and adopt this reasoning in a reported decision of the former Social Security Commissioners in Great Britain.  The emphasis in the paragraphs set out above is my own.  I have added that emphasis because I am not certain that the appeal tribunal in the instant case, in arriving at its conclusions on the relevance of ‘severe discomfort’, has applied the correct test.  I say ‘not certain’ because it may be the case that the appeal tribunal had the correct test in mind and the phrasing in the statement of reasons is more inelegant than substantively wrong.  There is, however, sufficient doubt in my mind to permit the decision to stand.’

17.	In her written observations, Ms Adams has set out the appeal tribunal’s reasoning on potential entitlement to the higher rate of the mobility component of DLA. In my view, while the appeal tribunal has reminded itself that, as was observed by the Commissioner in paragraph 22 of R(DLA)4/03, ‘walking achieved only with severe discomfort is discounted’, it has not gone on to follow the additional detailed guidance provided in that decision.  The appeal tribunal has noted the benchmark of 50 metres and its overall conclusion is that the appellant could ‘manage’ that distance, most of the time, without experiencing severe discomfort.  As was noted above, the Commissioner in R(DLA)4/03 observed, ‘a tribunal must pay appropriate regard to manner, speed, distance and time.’ The emphasis here is my own.  The appeal tribunal has made no findings on these additional factors. 

18.	The Commissioner guided decision-making authorities to balance time, speed, manner and distance of walking, achieved without severe discomfort, ‘… in order to reach an overall judgement on whether the claimant is virtually unable to walk.’  I am of the view that the appeal tribunal in the instant case has not undertaken the necessary balancing exercise.  Equally importantly though, the Commissioner stated that it is not ‘… the law that only walking to a first halt required through severe discomfort is relevant’, concluding that that would add ‘… an unjustifiable gloss to the statutory criteria.’  It seems to me that the appeal tribunal’s limited conclusion that the appellant could ‘manage’ a distance of 50 metres, most of the time, without experiencing severe discomfort, is falling into the trap exhorted against by the Commissioner. As was noted by the Commissioner in paragraph 4 of CDLA/4388/1999

‘In any event, to say that a person can walk 50 yards frequently begs the question: what happens then?  and, for the reasons I gave in CDLA/805/94, that question must be considered.’
 
19.	For this reason, I have concluded that the decision of the appeal tribunal is in error of law and is, accordingly, set aside.

20.	I would add that in CB-v-Department for Communities (DLA) ([2016] NICom 8, C32/14-15(DLA)), I stated the following, at paragraphs 43 to 46:

	‘43.	Although I cannot be certain, the statement made by the appeal tribunal that it ‘… preferred this assessment by the EMP which was comprehensive, objective and based on clinical findings, history and observations’ has the tenor of being standard or formulaic wording purporting to validate evidence which was supportive of the appeal tribunal’s conclusions.

	44.	In CIB/563/2001, the appeal tribunal was also faced with what the Deputy Social Security Commissioner in Great Britain described as two expert medical reports which were in conflict.  One was a report of an examination conducted by a Benefits Agency Medical Services or ‘BAMS’ doctor as part of the decision-making process giving rise to the appeal.  The other was a report from an associate specialist in rheumatology at the appellant’s local hospital which the appellant had submitted in evidence.  The Deputy Social Security Commissioner said the following, at paragraphs 6 to 8 of his decision:

‘6.	The crux of the tribunal’s reasoning in this case appears in their statement of reasons:-

“In this case the tribunal must decide between two sets of conflicting evidence namely the findings of the (BAMS doctor) as against the verbal and written evidence of the appellant and the report of (the associate specialist).  In reaching their decision the tribunal preferred the (BAMS doctor’s) report.  This is because this report is from an independent source and follows a full clinical examination and verbal assessment of the appellant.”

7.	I find this formula, variations of which I have seen in other cases, to be irrational.  BAMS doctors are trained and paid by the Secretary of State, who is one of the parties to the proceedings, to provide expert evidence to assist in determining, amongst other things, incapacity for work.  In this case an associate specialist has been paid by a Solicitor acting on behalf of another party to the proceedings to prepare an expert report.  I do not understand the basis on which a tribunal can, consistent with its judicial function, prefer the report of the BAMS doctor on the ground that it is “independent”.  As to the other reasons given, there is no suggestion that the associate specialist did not conduct a full clinical examination or that he failed to take account of the appellant’s history in reaching his conclusions.

8.	I therefore conclude that the reasoning of the tribunal is inadequate; that their decision is erroneous in law; and that the case must be reheard.’

	45.	In the instant case, the implication of the appeal tribunal’s statement is that the EMP report was ‘… comprehensive, objective and based on clinical findings, history and observations’ and that those of the GP were not.  If that was what the appeal tribunal intended then its reasoning is in error.  Having examined all of the GP evidence, I do not see how it could not be said to be comprehensive, objective and based on clinical findings, history and observation.

	46.	I would add that the appellate authorities, including the Social Security Commissioners and the Upper Tribunal have been consistent in warning appeal tribunals about the consequences of adopting standard or formulaic paragraphs.  In CIB/511/05, for example, the Social Security Commissioner in Great Britain stated the following, at paragraph 3 of his decision:

‘… Tribunals ought in my view to take particular care to satisfy themselves that reports presented to them in this form really do represent considered clinical findings and opinions by the individual doctor whose name they bear, based on what actually appeared on examination of the particular claimant.  Tribunals who fail to identify and deal with apparent discrepancies such as those shown up here run an obvious risk that their own consideration of the case may be criticised as insufficient, especially if standard phrases such as the wording this one used - "The Tribunal preferred the evidence of the medical advisor which was based on clinical examination and findings." - are given as the reason for rejecting the claimant's own account of his disabilities.’’

21.	In the instant case the appeal tribunal has set out a statement concerning its conclusions with respect to potential entitlement to the higher rate of the mobility component of DLA which, in my view, falls into the category of a ‘standard’ or ‘formulaic’ paragraph.

22.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

(signed) K Mullan

Chief Commissioner

10 August 2017