[2006] NISSCSC C18_05_06(DLA) (24 January 2006)

Decision No:  C18/05-06(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 16 February 2005

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 16 February 2005 of an appeal tribunal sitting at Newry.  That tribunal decided that the claimant was not entitled to either component of disability living allowance (DLA) from and including 13 January 2004.  The appeal to me has related to the mobility component and I therefore concentrate on that. In the appeal to me the claimant has been represented by Mr O’Neill of the Citizens Advice Bureau in Newry and the Department by Mr Kirk of its Decision Making Services.  I am grateful to both representatives for their very considerable assistance in this matter.  My decision is given in the final paragraph.

2.	There were essentially five grounds of appeal put forward by Mr O’Neill which I summarise as follows: -

(1)	That the tribunal had misinterpreted the claimant’s evidence in the DLA1 claim form.

(2)	That the tribunal had misinterpreted the claimant’s evidence by way of her statement to the Examining Medical Practitioner (EMP).

(3)	That the tribunal’s reasons were inadequate in not having commented on a physiotherapy report.

(4)	That the tribunal had referred to the fact that the claimant was carrying a big handbag on the day of the hearing and it was unclear whether or not it had drawn an adverse inference therefrom.

(5)	That the tribunal had misinterpreted the claimant’s evidence as to the manner in which she proceeded round a supermarket.

3.	The Department opposed the appeal and commented on the grounds set out above in its letter of 10 October 2005.  I trust Mr Kirk will forgive me if I do not set out his observations separately.  They are apparent on the face of the papers and my views thereon will be apparent in the remainder of the decision. 

4.	Further observations on these grounds were made by Mr O’Neill in his letter of 27 October 2005.  It is not necessary that I recite these observations in detail.  They are set out on the face of the papers.

5.	I will deal fairly briefly with grounds (1), (3), (4) and (5) as I do not consider that they have merit.  As regards ground (1) Mr Kirk is quite correct in that the claimant did state in her application form that she could walk 10 metres or yards in 5 to 10 minutes without severe discomfort.  This is stated at page 3 of the said form.  It is also correct that on the same page the claimant said that she could not walk any distance without severe pain.  It is quite a reasonable interpretation (and one which I believe the tribunal adopted) of the evidence on that page, that the claimant in using the phrase “any distance” was using that phrase colloquially to mean any substantial distance.  I find no merit in that ground.

(3)	I consider that the tribunal adequately explained its decision.  It was not required to comment on the physiotherapy report.  Same was not in fact an actual report as same would normally be understood in litigation. It was simply a physiotherapy discharge form.  It added nothing to the existing medical evidence and I do not consider that it was rejected by the tribunal. It was not necessary for the tribunal to comment on it as it did not assist in the determination of the claimant’s walking ability.  It was accepted throughout that the claimant had pain and the report did not assist in the determination of whether or not the claimant had severe discomfort.  In this connection it is worth mentioning that it is not necessary for a tribunal to comment in detail or at all on every piece of evidence.  Much will obviously depend on whether or not that evidence is crucial and relevant to the determination of the issues before the tribunal.  The standard is that the tribunal must adequately explain its decision.  In my view in this case it was not necessary for the tribunal to comment on the physiotherapy report in order to do so.  The tribunal has clearly accepted that the claimant had pain and accepted also that she had problems with walking and accepted that she had an Achilles tendon problem.  The evidence from the physiotherapist took the matter no further.  The tribunal’s function was to ascertain the level of walking restriction and the physiotherapy report did not assist in this matter.  I therefore consider there is no merit in this ground.

(4)	As regards the mention of the handbag I do not consider that the carrying of a large handbag is irrelevant to the assessment of whether or not someone is as limited in their walking ability as the claimant stated that she was.  It must be remembered that the claimant was stating that she could walk 10 yards or metres in 5 to 10 minutes before severe discomfort intervened.  I do not consider the carrying of a large handbag to be irrelevant to the assessment of whether or not this statement is correct.  Persons who are in severe discomfort in walking just a few steps are unlikely to be carrying large handbags though may of course do so.  I would have strongly preferred the tribunal to have raised this matter with the claimant and might have considered there to be an error had that been the only or even the main factor relied on.  However, I do not consider that any reliance placed on this observation was such as to vitiate the decision.  The tribunal has given many other reasons for not accepting the claimant’s evidence and it is quite clear that it relied very strongly on the EMP’s report.  This it was, of course, entitled to do.  However, I deal further with this matter later.

(5)	As regards the tribunal’s conclusion in relation to going shopping around a supermarket for 20 to 30 minutes, I am in agreement with Mr Kirk that this does not indicate that the tribunal considered that the claimant could walk without rests, stops etc for that period of time.  I would, in this connection refer to the tribunal’s finding that the claimant’s limitations did not amount to severe discomfort within 40 or 50 yards.  If the tribunal felt the claimant could walk for 20 to 30 minutes without interruption I would have expected it to have said so.  It is merely citing the evidence in relation to shopping round a supermarket as supportive of its conclusion that she did not suffer severe discomfort within 40 to 50 yards and I consider there was no error of law in its so doing.  

	In this connection I would refer to decision CSDLA/666/2002, a decision of Mrs Commissioner Parker in Great Britain.  In that decision Commissioner Parker decided it was not the law that only walking to the first halt required through severe discomfort was relevant.  If the claimant recovered after a period of rest and was able to continue walking without severe discomfort the statutory test did not preclude such continued walking from being assessed in the light of the evidence.  I am in agreement with Mrs Commissioner Parker in that respect and therefore the evidence of ability to walk albeit with stops, starts and rests is not irrelevant to the determination of the ability to walk without severe discomfort.  The standard is, after all, one of virtual inability to walk, a very severe restriction indeed.

6.	Mr O’Neill made certain further comments in his letter of 27 October 2005.  In that letter he referred to decisions CM/145/1988 and CDLA/7427/1995 as authority for the proposition that distance, time, speed and manner of walking had to be considered in determining whether someone was virtually unable to walk.  This is, of course, correct.  However, the terms in which Mr O’Neill referred to those decisions appeared to indicate a view that there was some statutory distance, speed etc which automatically either qualify or not qualify.  That is not so.  The legislation provides no indication as to qualifying distance, speed etc.  Provided that a conclusion that a claimant is or is not virtually unable to walk is reasonable on the findings of fact it is not a matter for challenge.  In any event in this case it is quite obvious that the tribunal did not accept that the claimant could only walk 10 yards in 5 minutes before the onset of severe discomfort.  Its findings of fact clearly indicate that it considered she could walk a much greater distance.

7.	I come now to ground (2).  I do consider that there was an error of law in this respect and that the said error was sufficient to vitiate the tribunal’s decision.  It is quite apparent from the reasons for the decision with relation to the mobility component that the tribunal considered that the claimant had been inconsistent in her evidence.  It refers to the fact that in the DLA1 form she stated that she could walk 10 yards or metres in 5 to 10 minutes.  The tribunal reasons that in her evidence to the EMP, the claimant stated that she could walk 50 to 75 yards without severe discomfort.  However, the claimant’s evidence to the EMP was that she could “limp about painfully on a stick for at most 50-75 yards”.  While pain does not necessarily equate to severe discomfort (see CSDLA/667/2002) the tribunal was not, without further exploration, entitled to conclude that the claimant’s evidence to the EMP was that she had been able to walk for 50 to 75 yards without severe discomfort.  The tribunal was not entitled to take the rather partial view which it appears to have taken of her statement to the EMP.  It ignored the fact that she had said that she could limp painfully with a stick for at most 50 to 75 yards.

8.	Mr Kirk is quite correct in that the EMP did express his own opinion on the matter of the claimant’s walking ability and he has clearly stated that she could walk 50 to 75 yards slowly without severe discomfort and that this would take approximately 2 minutes.  The EMP has referred to the fact that the claimant’s gait was that of limping painfully with a stick but it would seem that he did not consider that the degree of pain amounted to severe discomfort within that distance.  It is quite obvious that the tribunal relied, as indeed it was entitled to do on the EMP’s opinion.  There is no error of law in that.  However, it appears to have concluded on the erroneous basis mentioned above that there was inconsistency in the claimant’s evidence.  In light of the claimant’s full statement to the EMP ie that she could walk 50 to 75 yards but would do so limping painfully with a stick I am not of the view that the tribunal was entitled to consider, without further exploration, that her evidence was inconsistent.  As the tribunal’s view of the reliability of the claimant’s evidence was central to its decision  and as this alleged inconsistency was central to that view, I therefore consider that it was in error of law and I set the decision aside.

9.	This is not to be taken as an indication that the tribunal would not have been entitled to regard the claimant’s evidence as unreliable.  That is a matter for any tribunal as a fact finding body but in this particular case it is quite apparent that the tribunal has misinterpreted at least a part of the claimant’s evidence and that misinterpretation was a crucial factor in its assessment of her evidence.

10.	I set the tribunal’s decision aside for this reason.  I do not consider that this is a case where I can give the decision which the tribunal should have given.  I therefore remit this matter to a differently constituted tribunal for rehearing.  The claimant wins her appeal.

(signed):  M F Brown

Commissioner

24 January 2006