[2008] UKUT 36 (AAC)

THE UPPER TRIBUNAL	Appeal No.  CDLA 2195 2008
ADMINISTRATIVE APPEALS CHAMBER

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions. 

Directions for new hearing

A	The new hearing will be at an oral hearing. 
B	The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.
C	The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal. 
D	If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision. 

These directions are subject to any later direction by a tribunal judge. 

REASONS FOR DECISION

1	The appellant (“L”) is appealing against a decision of the Newcastle upon Tyne tribunal on 2 04 2008 under reference 231 08 00073. Permission to appeal was granted by a tribunal chairman because of issues raised with regard to time and speed of walking. The tribunal confirmed, after a hearing, that L was not entitled to either component of disability living allowance in respect of his claim on 23 07 2007. The grounds of appeal relate only to the tribunal’s decision that the appellant was not entitled to the higher rate of the mobility component of disability living allowance. They were about the way the tribunal assessed L’s reliability in estimating time and distance of walking, and then using its findings to reach its own conclusions, on the basis of calculations in the decision, about L’s ability to walk. 

2	This, together with the terms of the grant of permission to appeal, put in issue what is meant by “normal pace”. I directed both parties to state the basis for their contentions about speed and time. But I considered that no other aspect of the tribunal’s decision was in issue in this appeal.

Walking speeds
3	The standard DLA claim form completed by L contains the following guidance and question:

	“Please tick the box that best describes your walking speed:

	Normal or moderate 		(about 51 metres or more a minute) 
	Slow 				(about 40 to 50 metres a minute)
	Very slow			(less than 40 metres a minute).

4	The secretary of state's representative pointed out in a submission that the Department is seeking to make all measurements of speed for these purposes consistent with the following approach: 

	Description:			Speed in metres/minute

	Brisk				>90
	Normal				61 - 90
	Slow				40 - 60			
	Very slow			<40

I am told that this either is, or will be, the approach taken in the Decision maker’s Guide, the DLA1 form (save that the “brisk” classification is not used), the electronic form for examining medical practitioners, and the LiMA guidance issued to ATOS employees assisting with examinations.  

5	I was also taken to evidence on which the Department for Work and Pensions based this approach to walking speeds. The following is the summary of evidence offered in support of this by Dr Raquel Rogers of the Health and Benefits Division of the Department for Work and Pensions. After setting out references to expert literature, she states:

“The consensus of opinion from these scientific sources indicates that the normal speed for most adults is in the range of 64-80 m/min. Our range of 61-91 m/min (and the follow on of slow and very slow ranges) is an approximation from this, and is likely to be inclusive of the majority of people. This then removes any need for segmenting the walking group by age group. While an elderly person may not be able to walk as far and as fast as a young person, they should be able to walk a reasonable distance at a normal pace.”

Dr Rogers then makes the point that it is also relevant how someone walks, as well as how fast. I had a look at the most recent of these papers (Fitzpatrick K, Turner S and Brewer M,” Improving Pedestrian Safety at Unsignalized Intersections” Institute of transportation Engineers journal, May 2007. That is a recent summary of much field research on pedestrian walking speeds. I am of course not an expert but I draw from this the fact that the current figures put forward for walking speed are based on a wealth of data and research. 

6 	It is in that context that this tribunal’s decision should be viewed. There is no such thing as a “normal” walking speed or pace. Walking speed is relevant to a claim for the mobility component of disability living allowance but the concern should be about how this claimant’s usual or regular ability to progress on foot compares with the range of speeds at which most people walk, not with some set single standard figure. 

7	Before leaving this topic, I endorse the more general submission by the Secretary of State on this appeal. Whether or not someone is virtually unable to walk is essentially a question of fact that must take into account all the matters referred to in the legislation. In one sense “speed” is central to this because regard must be had to “the distance over which or the speed at which or the length of time for which…” the claimant makes progress on foot (regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991). And, of course, speed is distance covered divided by time taken. But those who are virtually unable to walk often do not walk at a consistent speed. It is therefore the whole way in which progress on foot takes place before or with discomfort that must, in fact, be determined. There are no easy ways of turning that into an arithmetical calculation.  

The tribunal decision
8	The other ground of appeal related to the way in which the tribunal set about dealing with L’s contended virtual inability to walk. It challenged the tribunal’s mathematics	about how far and fast it thought L could walk given that he was found to be neither a reliable estimator of time nor a reliable estimator of distance.

9	The problem facing the tribunal was that it had little evidence before it other than the claims made by L. L’s claimed ability to walk was limited to normally walking 20 metes in 1 minute before severe discomfort. There is no examining medical practitioner report. The general practitioner reports that ability to walk was “unknown”. Enquiries established that there was no consultant report or other medical evidence available. The only other evidence was a written submission for L and L’s oral evidence. In the written submission it states that L’s maximum walking ability is 40 metres, and that he is unable even with stops to walk the 300 yards to his son’s home. The record of proceedings records oral evidence of distances of 25-30 metres covered and longer walks involving stops of several minutes. 

10	The tribunal therefore set about assessing for itself the reliability of L’s evidence. It set him a test to assess how good he was at estimating time by asking him during the hearing how long he had sat there. He stated that he had been there for 5 minutes, while the timed answer was 14. That concerns me for three reasons. 

11	It is not the task of a tribunal to examine or test individuals claiming disability living allowance. There is a thin line between carrying out observations of an appellant and conducting a physical examination of the appellant, the latter of which is prohibited in disability living allowance cases by section 20(3) of the Social Security Act 1998. See R(DLA) 1/95 and R1/01 (IB). A test of this kind is approaching, if not crossing, that line. It may also be approaching, perhaps crossing, another line: the duty of the tribunal to decide the case in an investigative way but not to provide evidence against a party that the other party has not provided. There must be equality of arms. If it was felt that there was not enough evidence here, then the tribunal had other ways of dealing with this, such as asking for an examining medical practitioner report or deciding the matter on the available evidence provided by the parties. 

12	In addition, I can see nothing in the record of proceedings that indicates that L or his representative were aware that he was being tested or that they were given any opportunity to comment on the conclusions that the tribunal drew from the test. Is it fair to give a claimant a test of which he or she is not made aware, or not made aware until afterwards? Is it fair to call into question the reliability of a claimant’s evidence when there is no other evidence calling it into question and the claimant is not put on notice that the tribunal is doing this? The principles are set out in R(DLA) 8/06. I am not satisfied that this decision complies with them.  

13	It is also not clear who conducted the test or how it was conducted. Was the test itself conducted correctly? What is the evidential weight of the test without any check on its accuracy? What weight should be put on a single test of time estimation conducted in a stressful situation without notifying the individual of the test? In this case the tribunal appeared to base its main findings on the one test answer. That is an inadequate way of assessing the evidence as a whole. 

14	The secretary of state's representative supports L’s appeal because the tribunal’s mathematics appear to be suspect. I agree, while also of the view that the tribunal based that mathematics on a test that was procedurally unfair.
	
Dr David Williams
Judge of the Upper Tribunal
11 12 2008

[Signed on the original on the date stated]