IN THE UPPER TRIBUNAL	Case No.CE/1690/2014
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and remit the matter to be reheard by a new tribunal in accordance with the directions below.  

REASONS FOR DECISION

1.	This is a supported appeal with the permission of a District Tribunal Judge from a decision of the First-tier Tribunal dated 5 September 2013.  That decision dismissed the claimant’s appeal from a decision dated 12 July 2012 following in a medical assessment superseding an earlier decision awarding ESA from and including 16 April 2012.

2.	The tribunal found that the claimant scored 9 points on the limited capability for work descriptors in Schedule 2 to the 2008 Regulations, and that regulation 29 of the Employment and Support Regulations 2008 did not apply, with the result that he was not to be treated as having limited capability for work.

3.	The claimant claimed to score 15 points for mobilising under Schedule 2, and the evidence included evidence that he had been found to be virtually unable to walk by another tribunal, which had awarded him the higher rate of the mobility component of disability living allowance.  The tribunal accepted that the claimant did have considerable difficulties in mobilising but concluded that “the best choice - for the majority of the time - was activity 1(c), where there was an inability to mobilise 100 meters [sic] on level ground without stopping in order to avoid significant discomfort or exhaustion; or an inability to repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion.”  The statement of reasons continued:

“4………  The Tribunal observed and found that the Appellant did (making use of a walking stick) have an awkward gait – because he walked on the edge of his rotated, left foot – he nevertheless progressed quite quickly and would cover 30 metres in about as many seconds.  At that point, he would pause for a few seconds and then continue at the same, quite fast pace.  In the Tribunal’s evaluation, such a pause does not amount to a ‘stop’ and it would expect that he would be able to achieve a hundred metres within 2 minutes.  At that point, he would need to rest for more than a pause.  The Tribunal considered that would have been reasonably typical of the way the Appellant mobilised at the date of the decision under appeal (although there was an attempt to use a prescribed splint some months later to correct the foot drop).

The Tribunal deliberated on what is the conceptual or practical difference between a ‘pause’ and a ‘stop’ and considered that a pause is an act involved in pacing an activity, whereas a ‘stop’ creates a break in the activity.  In the Appellant’s case, he does not need to need to break until he achieves about 100 metres.  It also considered that finding Activity 1(c) was not inconsistent with and award of the mobility component of DLA, where case law has suggested that being unable to achieve around 70 metres at a reasonable pace without severe discomfort might meet the criteria for such an award.”

4.	I agree with the Secretary of State that the tribunal was wrong in law in the way it distinguished a pause from a stop.  The descriptor is concerned with the distance a person can mobilise “without stopping”.  The simple question for the tribunal is “at what point does the claimant need to stop in order to avoid significant discomfort or exhaustion?”  For this purpose, it does not matter if he has to stop for a few seconds or for several minutes - see also as to this GC v SSWP [2014] UKUT 117 (AAC) at paragraph 21 where Judge Paines QC stated “I do not consider that part (i) of each descriptor draws any distinction between ‘stopping’ and ‘pauses’; if a person has to interrupt their mobilising within the stipulated distance in order to avoid significant discomfort or exhaustion, they meet part (i) of the descriptor without regard to whether the interruption is better described as stopping or a pause.”
5.	On its findings of fact, therefore, the proper conclusion for the tribunal to have come to was that the claimant would stop for a few seconds after 30 metres. The tribunal then failed to make any finding, as it should have, as to why he stopped for those few seconds.  If it concluded that he needed to stop to avoid significant discomfort or exhaustion, or would have needed to stop for that reason after no more than 50 metres, the appropriate conclusion would appear to have been that the claimant could not mobilise on foot for more than 50 metres without stopping for that reason.  

6.	That, however, does not automatically score points under the first descriptor.  Even if it was the case that the claimant could not mobilise on foot to that extent, the tribunal would also need to consider whether he could reasonably use a manual wheelchair, and if so, how far he could mobilise on level ground in that wheelchair.  Given that the claimant did not appear to have a problem with the use of his arms, and his back problem was with his lumbar spine, I am unclear from the decision why he could not have mobilised in a wheelchair, and the tribunal’s statement of reasons makes no reference to this.

7.	For these reasons, I am satisfied that the tribunal was in error of law and I set aside its decision and remit the matter for rehearing by a new tribunal.

8.	I do not therefore need to deal in detail with the points raised by the claimant’s representative on this appeal but would comment as follows:

(1)	The tribunal is not an expert tribunal but is entitled to rely on the expertise of the medical member.  Having said that, it should be clear in what respect it is relying on that expertise, bearing in mind that no medical examination is carried out.  
(2)	The tribunal can rely on its own observations but should put those observations to the claimant for comment.  I note, however, that there is no suggestion on this appeal that the claimant had any particular comment to make on what the tribunal observed.  If a party wishes to complain on appeal that they were not given the opportunity to comment on some matter, then it seems to me that they should also explain what they would or might have said if given that opportunity.  If they had nothing relevant to say that might have affected the outcome of the hearing, then they can hardly complain of an injustice in being deprived of the opportunity.
(3)	The fact that the claimant was not given the opportunity to deal with regulation 29 does not appear to me on the facts of this case to involve any error of law.  He was represented by an experienced representative, who never raised the question, and even now there is no explanation how there could be any substantial risk to the mental or physical health of any person, including the claimant, if he were found not to have limited capability for work.

9.	There is a reference in the record of the proceedings to further medical evidence being submitted.  I have been unable to find it on the file, and if it is to be relied on at the new hearing then it should be resubmitted for the new hearing, which will of course be concerned with the position as at the date of the decision maker’s decision in July 2012.

 
(signed)		Michael Mark
			Judge of the Upper Tribunal

			17 October 2014