CDLA/3875/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Leicester appeal tribunal dated 27 June 2001 and I substitute my own decision which is that the claimant is entitled to the higher rate of the mobility component of disability living allowance from 27 October 2000 to 26 June 2001.

REASONS

2.	I held an oral hearing of this appeal, at which the claimant appeared in person and the Secretary of State was represented by Mr Jeremy Chang of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.

3.	The claimant, who was born in 1959, has a congenital thoracic scoliosis and degenerative disc disease.  In 1982, she had a Harrington fusion of the spine.  It was not a great success and she had a further operation in 1983 to adjust the rod and another in 1984 to remove it altogether.  There is no doubt that she suffered severe pain before the operations because the hospital notes show that the degree of pain, rather than the curvature of the spine, was the reason for embarking on the surgery.  Since 1984, she has had to put up with the discomfort.

4.	The claimant tells me, and I accept, that she was first awarded mobility allowance in 1982 for one year and she then had annual awards until 1986 when she was awarded it until her 75th birthday.  That is consistent with the uncertain prognosis while the outcome of the surgery was awaited.  I have before me the report of the medical examination carried out on 22 March 1984, a week after the claimant’s discharge from hospital following her last operation, in which the doctor recorded that the claimant was “unable to walk more than twenty yards before having to stop owing to back pain” but that her condition was likely to improve, although she was likely to remain virtually unable to walk for twelve months.  None of the other medical reports obtained in the 1980s is before me.  The 1986 award of mobility allowance will have been transmuted into an award for life of the higher rate of the mobility component of disability living allowance.

5.	As far as I can tell, no further action other than is routine was taken in relation to the award until 2000, when the Benefits Agency received from the claimant’s ex-husband some photographs, showing her in a gym.  She tells me that he also told the Benefits Agency that she was working which was shown to be untrue.  Not surprisingly, the photographs caused the claimant to be interviewed and then visited by an examining medical practitioner on 29 September 2000.  When interviewed, the claimant explained the limited extent to which she could participate in activities at the gym.  She said that she had qualified as an instructor but had been physically unable actually to take any classes although she could teach the theory.  The examining medical practitioner expressed the opinion that the claimant’s ability to walk without severe discomfort was limited to 250 metres, that her speed was likely to be very slow and that it would take her 30 minutes to walk that distance, requiring to stand for several minutes at half-way and have a complete rest after the full distance.  He said that she tended to sway slightly, limping on both legs and that she had some impairment of balance, tending to find support on walls and furniture.  He also said that walking the 250 metres did require some support, such as “taking an arm” from another person.  He said she had had the same mobility needs since 1984.  On the strength of that evidence, the Secretary of State superseded the 1986 award on the ground that there had been a change of circumstances.  He decided that the claimant was not entitled to disability living allowance from 27 October 2000, the date of the decision.  

6.	The claimant appealed.  The supersession was reconsidered but no action was taken to alter it and the case came before the tribunal.  The claimant had obtained written support from her general practitioner who said:

“She was born with spinal deformity and spent some time on traction and then in the 1980s had spinal fixation twice.  As a result she has recurrent lower back pain which at times is so severe she is unable to stand.  There is also pain in her left hip as a result of abnormal gait.  She perseveres as much as she can and tries to exercise as much as possible as recommended by her doctors but has pain at all times which is much worse when she tries to move about.  Although she can walk she has pain all the time requiring analgesia and her quality of life is much improved when she has access to her own car.  Her general condition is certainly no better than when she was originally given benefit and is likely to continue to deteriorate as the years go on as the problem has resulted in degenerative joint changes.”

Her surgeon, backed up that report, although he had not seen the claimant for some years.  She also produced her hospital notes from the 1980s, to which I have already referred.  In addition to that medical evidence, she had written support from two friends, who wrote of the practical difficulties she had.  One of the friends had taken the photographs sent to the Benefits Agency and she stated:

“I attended the exercise with [the claimant] for a few months, but I attended by myself on those occasions she was unable to take part due to her condition.  I would inform you that [the claimant] only participated in very mild forms of exercise on sporadic occasions, as she had been given to believe this might help her mobility.  In the event, it made the situation worse instead of better, and whilst she did her best to exercise in some form to keep her mobility stable, her incapacity and pain increased to such an extent that she had to give up any attempts at further exercise.  This was a long time ago, some two or three years or more and since that time she has been completely unable to participate in any form of exercise.”

The claimant told the tribunal that she had qualified as a fitness instructor for the disabled but had been physically unable actually to take classes.  She challenged the examining medical practitioner’s finding as to the distance she could walk, suggesting 100 yards would be more accurate than 250 metres and that she would have to stop several times, rather than just once.

7.	The tribunal considered that she “sat comfortably and moved in and out of the Tribunal with apparent ease”.  They also found there was no muscle wasting (as to which the claimant first wonders how they knew, although she accepts that that finding might have been derived from the examining medical practitioner’s report, and secondly says that in any event she tried to keep her muscles toned by exercising as far as she can, on medical advice, and by using a Slendertone machine).  They also observed that she had started using crutches since the Secretary of State’s decision had been made.  Having considered the evidence, they concluded:

“On the oral evidence given by the appellant and all of the medical evidence it was clear that the appellant had mobility problems and that she suffered from pain.  On her own admission, however, she indicated that she could walk at least 100 hundred yards before severe discomfort set in.  The EMP was of the opinion that she could walk 250 metres albeit in 30 minutes and with some support and stop half way.  There was no other medical evidence which related directly to the distance that she was able to walk.  [The general practitioner] gave [her] opinion ‘although she can walk she has pain all the time requiring analgesics’”.

Taking into consideration all of the evidence the Tribunal on the balance of probabilities concluded that the appellant was able to walk at least 100 metres before severe discomfort set in and forced her to stop and she was therefore not virtually unable to walk.”

The claimant now appeals with the leave of another tribunal chairman.  She had made a new claim that was initially refused but, on “reconsideration” in February 2002, she has now been awarded the higher rate of the mobility component of disability living allowance for an indefinite period from 27 June 2001, the date of the tribunal’s decision.

8.	Mr Chang conceded that the tribunal’s decision was erroneous in point of law on three grounds.  Firstly, the tribunal had not considered whether there were adequate grounds for superseding the 1986 award.  Secondly, although the claimant had said she could walk 100 yards, she had said that she could only do so while experiencing pain and so the tribunal had failed to consider whether she suffered severe discomfort while walking that distance and had erred in finding that she had admitted being able to walk that distance without severe discomfort.  Thirdly, the tribunal had failed to consider the relevance of the claimant requiring support from another person while walking outdoors.  Mr Chang nonetheless submitted that the tribunal had been entitled to reach the conclusion they had.  On the other hand, he conceded that they had not been obliged to reach that conclusion and he initially submitted that I should refer the case to another tribunal for determination.  He stressed the fact that a tribunal would have a medically qualified member.  However, he accepted that there was plenty of medical evidence in the papers before me and did not resist my suggestion that I should determine the case myself, given that only eight months’ worth of benefit is now in issue.   I am satisfied that the tribunal did err in law, broadly on the grounds suggested by Mr Chang.  I consider it desirable that I should substitute my own decision for the tribunal’s.

9.	Mr Chang was right to concede that the tribunal had not been obliged to reach the conclusion they did on the evidence before them.  Even if the claimant was able to walk 100 yards without severe discomfort, the tribunal were wrong to say that “therefore” she was not virtually unable to walk.  Regulation 12(1)(a)(i) of the Social Security (Disability Living Allowance) Regulations 1991 provides that, in considering whether a person is virtually unable to walk for the purposes of section 73 of the Social Security Contributions and Benefits Act 1992, one must have regard to “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”.  Distance is not the only criterion and there is no rule of law that a person who can walk 100 yards without severe discomfort must be regarded as virtually unable walk without regard to the speed at which or the length of time for which or the manner in which he or she walks that distance.

10.	In this case, there was not only the evidence that the claimant needed some support when walking (which is a facet of the “manner” in which a person can make progress on foot – see paragraph 22 of the statement of reasons of the Tribunal of Commissioners in R(M) 1/83), but there was other evidence of her poor balance, poor gait, slow speed, continual discomfort and limited endurance.  Even accepting the examining medical officer’s evidence in full, the tribunal could have decided that the claimant was virtually unable to walk.  To say that a person can walk 250 metres with a very long pause in the middle and a complete rest at the end is much the same as saying that a person can walk 125 metres before pausing to avoid severe discomfort (why else is there the pause ?) and then walk one further stage of 125 metres before stopping to avoid further severe discomfort.  If the whole exercise takes 30 minutes and is managed only with some continuous, albeit not necessarily severe, discomfort and only with a limp and a need to hold on to someone or something and if it then leaves the claimant requiring a long rest, it seems to me to be quite open to a tribunal to conclude that the claimant is virtually unable to walk.  That is not to say that a tribunal accepting the examining medical practitioner’s evidence could not, as a matter of law, have determined that the claimant was not virtually unable to walk in this case, had this been a decision on a claim.  The question was one of judgement for a tribunal of fact.

11.	However, it is of the utmost significance that the appeal before the tribunal was not against a decision given on a claim.  The Secretary of State’s decision was a supersession under section 10 of the Social Security Act 1998 (as applied transitionally to decisions of adjudication officers).  The power to supersede conferred by section 10(1) is made subject to subsection (3) which provides that regulations may be made prescribing the cases and circumstances in which a decision may be made under section 10.  Regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides:

“(1)	Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).

(2)	A decision under section 10 may be made on the Secretary of State’s or the Board’s own initiative or on an application made for the purpose on the basis that the decision to be superseded – 

	(a)	is one in respect of which –

(i)	there has been a relevant change of circumstances since the decision was made; ….”

In CDLA/3466/00, a Tribunal of Commissioners said:–

“Regulation 6 prescribes threshold criteria, not outcome criteria.  By that we mean this.  It prescribes cases and circumstances in which an application is brought within the scope of section 10.  That is in accordance with our interpretation of supersession as a process that is neutral on the correctness of the decision that has been superseded.  It does not prescribe criteria that determine whether a new outcome is appropriate.  That is not governed by regulation 6.  It is left to be determined, without prescription, by reference to the facts of the case and the conditions of entitlement."

However, in order to get round the problem that there might otherwise be no appeal against a refusal to supersede a decision in a case where a claimant had applied for a supersession, the Tribunal held that, where a claimant applied for a supersession on the ground of a change of circumstances, the decision could be superseded even if there had in fact been no such change.  The mere assertion that there had been a change was sufficient to meet the threshold criterion.  If there had in fact been no change, the original decision could be replaced by a new decision to precisely the same effect.  That approach had the result that there was no such thing as a refusal to supersede a decision and so avoided the problem of there possibly being no appeal against such a decision.

12.	It is not necessary to take that approach where the Secretary of State considers a case on his own initiative because he is quite entitled simply to take no action, making no decision at all, if he does not in fact supersede or revise the decision so as to produce a different outcome.  If there has been no application for supersession, there can be no refusal.  I would therefore suggest that, when considering a case on his own initiative, the Secretary of State must find that one of the threshold criteria is actually satisfied before he can supersede a decision.   Alternatively, if for the sake of consistency the Secretary of State’s mere assertion that there has been a change of circumstances is to be regarded as sufficient to justify a supersession, I would hold that, although regulation 6 does not prescribe outcome criteria, the threshold criteria must be satisfied if the outcome is to be different from the decision under consideration.  Indeed, that seems to me to be the case whether the supersession is on the Secretary of State’s initiative or on an application by a claimant.  Otherwise, the obvious purpose of section 10(3) (i.e., that a decision should be altered on supersession only in prescribed circumstances) would be entirely defeated.   It does not matter, for the purposes of this appeal, which of those two alternative analyses one adopts.  Either way, as Mr Chang accepted, an award of benefit can be altered only if one of the threshold criteria in regulation 6 (or in regulation 3 relating to revision) is actually satisfied.

13.	That does not mean that it is always necessary to identify which of the criteria is satisfied.  Thus, if it is obvious that a claimant who has been awarded benefit does not currently satisfy the qualifying conditions, it can be said that either there has been a change of circumstances since the original award or else that award was based on either an error of fact or an error of law.  It may be important to determine which of those alternatives applies in order to fix the date from which the award is to be altered but, if it established that there will be no question of the recovery of an overpayment, even that will not be necessary and the Secretary of State or a tribunal can simply say that one of the three grounds must be met, without identifying which.  Alternatively, the Secretary of State can select the criterion most favourable to the claimant (as was done in R(DLA) 6/01).

14.	However, those options are not open in the present case. I am prepared to accept that, at the time of the Secretary of State’s decision, the claimant could walk to the limited extent described by the examining medical practitioner upon whose report the Secretary of State relied.  The examining medical practitioner’s findings seem largely to have been based upon what the claimant said to him, notwithstanding her dispute about the distance, but it has not been suggested to me that the claimant is less able to walk than he thought possible and, in my view, none of the other evidence undermines his opinion.  For the reasons I have already given, it is a matter of judgement, if such a judgement is permitted, whether the claimant was at that time virtually unable to walk.  The findings are within the range in which, as a matter of law, a tribunal could properly decide either in favour of or against the claimant.  It must follow that, if the circumstances were the same at the time of the 1986 award, it is impossible to say that the adjudication officer made a mistake of fact or law, in the absence of any direct evidence of such an error. 

15.	Mr Chang therefore relied upon regulation 6(2)(a)(i), as the Secretary of State had done in the initial decision.  He submitted that there had been a change of circumstances and he relied on the 1984 medical report showing that the claimant could then walk only 20 yards, whereas she could walk further in 2000.  I do not doubt that there was an improvement in her condition between those two dates.  However, the question posed by regulation 6(2)(a)(i) is whether there had been any change of circumstances since the decision given in 1986, rather than 1984.  The actual evidence upon which the 1986 decision was made is not before me.  The 1984 report does not help answer the material question.  In 1984, it was expected that the claimant’s condition would improve as she recovered from her operation.  I presume that is why short awards were made in that year and the following year.  The implication of the extended award being made in 1986 was that it was then thought that the claimant’s condition had improved as much as it was going to.  The tenor of all the recent evidence is that the claimant’s condition thereafter remained fairly static, although there may have been some slight, and in my view, insignificant, deterioration rather than improvement.  I am not satisfied that, at the date of the Secretary of State’s decision in 2000, there had been any relevant change of circumstances since the date of the decision of the adjudication officer in 1986.  Nor am I satisfied that any variation there may have been implies that, as a matter of law, the claimant was to be regarded as not being virtually unable to walk in 1986.

16.	As none of the threshold criteria is met, the adjudication officer’s decision does not fall to be superseded or, alternatively, any supersession must be at the same rate.  The claimant remains entitled to the higher rate of the mobility component of disability living allowance during the eight months now in dispute.  It is unnecessary for me to say whether, exercising my own judgement on the findings I have made, I would have found the claimant to be virtually unable to walk.  

17.	This case illustrates the value of the threshold criteria.  Once a judgement – inevitably, to some extent, a value judgement – is made that a person is virtually unable to walk, it stands until it is shown to be flawed by error or no longer to be valid because circumstances have changed.  This is important.  Claimants need a degree of certainty about their entitlement to benefits and this is particularly so where the higher rate of the mobility component of disability living allowance is concerned.  On the strength of the award of that benefit, the claimant in this case had a car under the Motability scheme.  When her benefit was stopped, the car was repossessed and she tells me that she also lost a substantial financial deposit.

18.	This case also shows the desirability of Secretary of State keeping some record of decisions that goes beyond a mere statement of the outcomes.  For the reasons I have given in paragraph 13, the lack of such evidence will not always be fatal but, in this case, the Secretary of State has failed to show that the adjudication officer’s judgement was flawed or had ceased to be valid when the Secretary of State made his decision.  The result is that I am not entitled to substitute my own judgement for the adjudication officer’s.  Had there been evidence as to the facts found or the approach taken by the adjudication officer in 1986, the result might have been different.

19.	There was some discussion at the end of the hearing as to whether the effect of my decision would be to reinstate the 1986 decision and, if so, whether that decision would still subsist.  If it does still subsist, the February 2002 decision can be treated as having lapsed, with any benefit paid under it being treated as having been paid on account of the 1986 decision. I can see no practical difference between a life award of disability living allowance and an indefinite award.  Either may be removed if, but only if, one of the threshold conditions in regulations 3 or 6 of the 1999 Regulations is met.  However, it may be important to determine which decision is now the operative decision in order to decide whether the threshold conditions are in fact met if a revision or supersession is contemplated in the future.  It seems to me that the answer depends on which of the alternative analyses of regulation 6 I have mentioned in paragraph 12 one adopts.  The point does not actually require to be determined on this appeal and, not having heard full argument on it, I prefer not to express a view.  I content myself with giving the “outcome decision” in paragraph 1 above. 

(signed)	M. ROWLAND
Commissioner
5 April 2002