[2004] UKSSCSC CDLA_936_2004 (02 June 2004)

1.	This appeal, brought with leave of a district chairman, succeeds.  The decision of the tribunal on 15 12 03 was erroneous in law, as explained below, and I set it aside.  Under s14(8)(b) of the Social Security Act 1998, I remit the appeal to an entirely differently-constituted tribunal for rehearing. I do not feel able to decide it myself, as the claimant asks, because there are sufficient matters of fact still at issue on which opinions from the medical and disability members will be needed.  

2.	The claimant had awards of higher rate mobility and lowest rate care disability living allowance (DLA) beginning in 1999.  In her previous claim pack of 25 4 01 (page 16) she had said she could walk only 50 yards before having to stop.  Her GP at page 49 said she walked slowly, and that her walking was “limited by pain”, though he did not give a distance.  In her current renewal claim pack, the claimant gave (page 72) 150 yards as the distance she could walk.  But she told the DLA unit that she could walk only 150 feet (page 99), and gave the same distance in her appeal letter (page 101) and in oral evidence to the tribunal (page 136-7), saying she had made a mistake on the form.  The GP confirmed ongoing and persistent back pain (page 103), but again said nothing about distance.

3.	An earlier tribunal which sat on this claim had directed an EMP report.  The requisition (which is on the tribunal file) clearly asked for both care and mobility to be covered, but the DLA unit, for reasons which I do not know, asked the EMP to cover only care.  There was therefore no walking examination nor estimate of walking distance, though the EMP observed the claimant to move around indoors with a normal gait but slowly and holding on to furniture (page 123).

4.	The tribunal “felt” the claimant’s claim pack assessment had been correct, and said the 150 yards figure was not contradicted either by her GP or by the EMP.  I observe that the GP had never mentioned walking distance, and the EMP never considered it, because of the nature of her instructions.

5.	The grounds of appeal alleged that by failing to award the benefit, the DLA unit and the tribunal had breached the Disability Discrimination Act 1995 (DDA) and applied double standards, thereby infringing her human rights.  She also made the point that the car she drove was an automatic, and so spared her left leg, and argued that the tribunal had been wrong to take driving into account.  She urged (but this is wholly without foundation) that the tribunal had required her to be mentally as well as physically disabled.  A district chairman gave leave to appeal.  
	
6.	I asked the Secretary of State’s officer for a submission on any application the DDA might have to this case.  He submitted, citing CDLA/1064/00, that it had no bearing on the content of the law the original decision maker or the tribunal had to apply in reaching their conclusions.  Breaches of the DDA were actionable only in other ways, and any default by the Appeals Service in provision of premises or services might be breaches of natural justice or the right to a fair hearing, both of which would be grounds for setting aside a tribunal decision without any need for reference to the DDA.  The officer did, however, agree that the tribunal had failed to provide adequate reasons for its findings of fact on mobility.  
		
7.	The claimant’s response argues that the DDA provides an all-purpose definition of disability to which the tribunal was bound to have regard, as indeed it was bound to have regard to her earlier awards.  She reiterates that she did not take the Teneriffe holiday because her husband became ill.
	
8.	I agree that the tribunal gave inadequate reasons for its finding on higher rate mobility.  Although it referred to the fact that the claimant had completed earlier forms, it paid no attention to what she had said in those forms, which was indeed 150 feet – 50 yards.  This, coupled with her insistence that the 150 yards distance on the latest form was a mistake, required the tribunal at least to consider the conflict before simply deciding, in effect, that her walking distance had improved threefold since the previous claims.  This is why I set the decision aside.      	

9.	However, I cannot accept that there has been an application of double standards leading to an infringement of the claimant’s human rights.  The DDA does not impact on the law relating to DLA, which is contained in ss72 and 73 of the Social Security Contributions and Benefits Act 1992 and regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991, as interpreted in numerous commissioners’ and higher court decisions (see pages 1C-G of the bundle).  The criteria for both mobility and care components are quite stringent, and many people who are undoubtedly disabled under the DDA tests do not come within them.  A finding that a person is not entitled to DLA most emphatically does not mean that they are not recognised as disabled, and it is clear that the tribunal in the present case did recognise the claimant as disabled.  It is simply wrong to say it assumed the claimant could do everything for herself like a normal person, as it is wrong to say the tribunal was looking for some mental disablement before it could award benefit.

10.	The DDA definition of disability in s1 (as supplemented by further definitions in Schedule 1) does indeed cover people with physical or mental impairment which has a substantial and long-term adverse effect on ability to carry out normal day-to-day activities.  It is a very wide definition.  But it is only “for the purposes of this Act”, ie the DDA itself.  It does not operate to drastically alter, without express provision which I do not find in the DDA, the content of the law tribunals have to apply, even though this requires deciding on questions of disability within a different definition.  The DDA requires “service providers”, of which the Appeals Service is no doubt one, not without justification to treat a disabled person less favourably than others without his disability.  Its purpose is to enable disabled people to participate effectively in (for present purposes) tribunal hearings.  If the Appeals Service failed to make a tribunal accessible to a disabled person (for example by holding a hearing for a wheelchair user in an upstairs room without a lift, or failing to provide facilities for a deaf person to participate in the hearing), that might well without any question of justification amount to a breach of natural (“procedural”) justice or of article 6 of the European Convention on Human Rights as now applied by s3 of the Human Rights Act 1998.  If it did, I might set aside the decision reached by the tribunal; but I would do this without recourse to the DDA.  

11.	There might also, and quite separately, be a breach of the DDA; but that would be actionable only in the County Court or by an application for judicial review (s25 and Schedule 3, paragraph 5).  

12.	The rehearing tribunal will investigate the case afresh, make its own findings of fact and explain its conclusions.  It will consider whether the claimant’s walking distance, having regard to breathlessness and angina, speed and gait, as well as pain, made her virtually unable to walk at the date of the decision appealed against: s12(8)(b) of the Social Security Act 1998 will prevent it from looking at any more recent date, though any evidence the claimant wishes to produce (and she must produce it herself) may be looked at if it can fairly be referred back to that date.  This is quite different from the DDA which, for example, requires past and possible future disability to be taken into account even if there is no present disability, and requires the effects of medical treatment or certain aids to be disregarded.   The tribunal may want to explore in greater detail what the claimant actually did by way of walking when she went shopping with her sister.  It will need to look at medication, and any side effects this may have.  The claimant herself will bear in mind that an ability to walk only 50 yards, if the tribunal accepts this, does not axiomatically mean that she is virtually unable to walk.  

13.	The cooking test is of cooking a main meal for one person only.  The tribunal will be entitled to take the claimant’s driving abilities and activities into account, provided it explains itself intelligibly and does not act perversely.  It may also take into account, if it sees fit, that the claimant and her husband had planned a holiday in Teneriffe and that it was the husband’s illness, not the claimant’s condition, which caused it to be given up.  

14.	Each renewal claim is a separate matter, and the fact that there have been previous awards gives a claimant no vested right to their continuance.  If the tribunal decides the evidence on the present claim does not support entitlement, it will be entitled so to find; but it will be wise to explain why it is differing from those earlier awards.

15.	The rehearing tribunal will be the judge of fact, and the claimant’s success before me on a point of law does not guarantee success before that tribunal.  She is strongly recommended to attend the rehearing.

16.	Finally, the Secretary of State’s officer’s mention of further claims was to safeguard the claimant in the event that the rehearing tribunal does not allow her appeal or allows it only in part.  That decision would apply from 15 9 03, leaving the claimant without benefit and unable to get it again unless and until she makes a fresh claim, which will operate only from its own date.   	

							(signed on original)		Christine Fellner
												Commissioner

												2 June 2004