PLH                                                                         Commissioner's File:  CDLA 1196/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Disability Living Allowance
Appeal Tribunal: 	Manchester
Tribunal Case Ref:  	U/40/122/2001/01448
Tribunal date:		2 January 2002
Reasons issued:		21 January 2002

1.	The decision of the Manchester tribunal sitting on 2 January 2002 was in my judgment erroneous in law for the reasons identified in the direction dated 2 May 2002 at page 111 and agreed in the written submission of Ms D Chappell on behalf of the Secretary of State dated 10 June 2002 at page 112.  I accept that concession as rightly made, set aside the tribunal decision and (as agreed by the representatives of both parties) remit the case in accordance with section 14(8)(b) Social Security Act 1998 for rehearing and redetermination by a differently constituted tribunal. 
2.	In my judgment a rehearing before another tribunal which will include a medically qualified member is necessary, because the material before me is not sufficient to be clear what the final decision on the merits of the case should be, and the tribunal is the appropriate body to deal with medical and factual issues.  The new tribunal should have regard to the pending appeal to the Court of Session in case CSDLA 1019/99 Secretary of State v Gillies, and should clarify the position of the medical member expressly at the outset of the hearing.
3.	I direct the new tribunal that apart from the apparent confusion over whether the consultant’s estimate of the physical limitation on the claimant’s walking ability was the same as that of the examining doctor, the approach of the previous tribunal as to the requirement of a physical disablement for the purposes of higher rate mobility component was correct.  That has been well settled law for many years, and insofar as the recent decision of a deputy Commissioner in case CDLA 948/00 relied on in the grounds of appeal suggests otherwise I am unable to agree, as that would be inconsistent with established Court of Appeal authority: see R(M) 1/88 Harrison v Secretary of State.  The remaining points in the grounds of appeal relate to the treatment of the factual evidence which will all require consideration afresh by the new tribunal, and do not call for separate comment.
4.	The appeal is allowed and the case remitted accordingly.

(Signed)

P L Howell
Commissioner
14 August 2002