CM_299_1988 [1989] UKSSCSC CM_299_1988 (08 May 1989)

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Cite as: [1989] UKSSCSC CM_299_1988

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[1989] UKSSCSC CM_299_1988 (08 May 1989)

    R(M) 1/91

    Mr. D. G. Rice CM/299/1988

    8.5.89

    Mobility allowance - "virtually unable to walk" - whether claimant's difficulty in negotiating inclines was relevant

    The claimant had been awarded mobility allowance. That award was due to expire on 16 October 1987. He made a renewal claim. A medical appeal tribunal in a decision dated 11 May 1988 confirmed the decision of the medical board that the claimant did not satisfy the medical conditions for an award of mobility allowance. The tribunal had found that although the claimant walked with a marked limp he was able to make steady progress without apparent pain or stress. The claimant appealed to the Commissioner conceding that he could walk reasonably well on the level but not up inclines. The Commissioner considered the meaning of "unable or virtually unable to walk".

    Held that:

  1. agreeing with what was said in R(M) 1/78, the meaning of "virtually unable to walk" is a question of law;

  2. extending what was said in R(M) 3/78 at paragraph 12, the base point was a total inability to walk, which can be extended to take in people who can technically walk but only to an insignificant extent;

  3. an inability or virtual inability to walk cannot merely be established by an inability "to walk to the shops or to a bus stop and so carry on a normal life" (see R(M) 3/78 at para. 9);

  4. it was clear from the wording of regulation 3(1)(b) of the Mobility Allowance Regulations that a claimant's "ability to walk" had to be assessed by reference to "his ability to walk out of doors" and the test should select or envisage the kind of pavement or road which is normally to be found in the course of walking out of doors. The ability or otherwise to surmount hills or mountains was not relevant to the question of inability to walk. However, the tribunal must envisage a reasonable outdoor track which will not be entirely level.
    5. DECISION OF THE SOCIAL SECURITY COMMISSIONER
  5. I grant the claimant leave to appeal. As both parties have consented to my treating the application for leave as the appeal itself, I can conveniently go on to deal with the appeal. For the reasons hereinafter appearing, the decision of the medical appeal tribunal given on 11 May 1988 is not erroneous in point of law, and accordingly this appeal fails.

  6. The Secretary of State received from the claimant a renewal claim to continue an existing award expiring on 16 October 1987. The history of that claim is set out in the submissions of the Secretary of State, and there is no merit in my repeating such history here. Suffice it to say that the claimant contends that the decision of the medical appeal tribunal of 11 May 1988, confirming the decision of the medical board to the effect that the claimant did not satisfy the medical conditions for an award of mobility allowance, was in the circumstances of the case erroneous in point of law.

  7. The tribunal gave as the findings and reasons for their decision the following:

    8. "All submissions were considered and the scheduled evidence examined. We observed him [i.e. the claimant] walk a distance of 100 yards both indoors and out. He walked with a marked limp but made steady progress without apparent pain or stress and without dragging his right leg. We therefore agree with the findings of the Board".

    The findings of the Board were that the claimant was not unable or virtually unable to walk, nor would the exertion required to walk constitute a danger to his life or be likely to lead to a serious deterioration in his health. The claimant challenges the tribunal's conclusion that he walked "without apparent pain or stress" but it cannot be over emphasised that whether a claimant experiences pain and whether such pain amounts to "severe discomfort" within regulation 3(1)(b) are matters of medical opinion for the sole determination of the tribunal. However, the Secretary of State questions whether or not the tribunal should have used the language of the statutory provision, namely "severe discomfort" instead of "pain or stress" in their findings and reasons for decision. Whilst it is helpful if the tribunal uses the statutory language, so as to eliminate any possibility of their not applying the right test, there is no obligation on them so to do. Manifestly, if the claimant walked without "pain or distress" a fortiori he walked without "severe discomfort". If anything "pain or distress" constitutes a lower threshold than "severe discomfort".

  8. The next complaint by the claimant is that the MAT failed to carry out a medical examination. However, it cannot be over-stressed that the tribunal are not required by law to carry out any such medical examination and such a failure does not in itself render their decision erroneous in point of law. The nature and extent of any test necessary to assess walking ability is a matter for the tribunal (see R(M) 3/78).

  9. However, the real matter of complaint appears to be the failure of the tribunal to advert specifically to his difficulty in coping with "incline/uneven surfaces etc.". In his letter dated 11 May 1988 the claimant has elaborated further. He says as follows:

    10. "As regards observations made during a walk of 100 yards. The walk was on an even surface and as I have previously stated, problems occur whilst walking on raised, uneven or hilly surfaces. I would be grateful if you could let me know if the allowance is applicable only when walking on flat, even surfaces, as would appear to be the case. If in fact this is so then it is obvious I do not qualify and am considered to be mobile and continue to carry on as normal as long as I remain within the confines of the housing estate in which I live and make no attempt to leave the flat smooth paved surfaces, even to shop or simply socialise".

    In other words, the claimant poses the crucial question of what constitutes "walking" within regulation 3(1) of the Mobility Allowance Regulations 1975 [SI 1975 No. 1573].

  10. I endeavoured to answer this question in the unreported decision CM/47/1986, and for convenience I cite the relevant paragraphs:

    11. "5. What constitutes walking has been considered in paragraph 10 of decision R(M) 3/78:
    "The word "walk" is an ordinary English word in common usage and, in the context of regulation 3, means to move by means of a person's legs and feet or a combination of them. I agree with Mr. Taylor that regulation 3 does not require a reference to environmental circumstances. I shall not attempt a comprehensive definition of the words in the regulation as I think it is undesirable to do so. Where a person is "unable" to walk must always be a question of fact and degree. "To walk" is a well known verb and doctors, who are aware of the medical condition of a claimant, using their expertise, would rarely have difficulty in deciding whether a person is or is not "unable to walk" on seeing the person using or attempting to use his or her feet and legs and moving or being unable to move. In my opinion, a test of seeing a person walk by the medical members should rarely require further investigation other than in exceptional cases, which will be a matter for the medical members to decide. It is for the tribunal to decide the extent and nature of any test in order to ascertain whether a claimant "is unable or virtually unable to walk".
  11. In the present case, I am concerned not with the claimant's ability to walk (it is accepted that he can do this within limits) but with whether or not his walking performance is so poor that he can properly be regarded as "virtually unable to walk". The meaning of "virtually unable to walk" is, in my judgement, a question of law. As was said in paragraph 11 of decision R(M) 1/78:

    12. "What 'virtually unable to walk' means is a question of law, and in my view it means unable to walk to any appreciable extent or practically unable to walk."
    This definition was adopted in decision R(M) 3/78 (para. 12). In other words, the base point is a total inability to walk, which is extended to take in people who can technically walk but only to an insignificant extent.
  12. However, Mr. Rowland argued that since the decisions were given in R(M) 1/78 and R(M) 3/78 the contemporary regulation 3(1) had been amended, so that the original words "virtually unable to walk" simpliciter had been expanded to take the form of paragraph (b) of the present regulation. Mr. Rowland argued that the need to take into account questions of distance, speed, length of time and manner in measuring a claimant's progress on foot without severe discomfort suggested, to put it no higher, that something more was contemplated than a mere minimal ability to walk. Mr. Rowland supported his contention by pointing out that the whole purpose of making an award under the regulations was to enable the recipient to pay for transport if his walking ability was such that he was unable to derive any practical advantage from it. Whilst Mr. Rowland did not go so far as to suggest that anyone with some disability as to walking should be put into the position of a person without that disability by being granted the allowance, so that he might be able to purchase transportation, nevertheless he contended that a generous approach should be adopted in determining whether or not a claimant was virtually unable to walk. In any event, in his submission, an ability to walk 50 yards was not enough to exclude him from the benefit of regulation 3(l)(b).

  13. I think that attempting to interpret the regulation by reference to the underlying purpose for which an award is made is fraught with danger. An attempt in this direction was made in decision R(M) 3/78. At paragraph 9 the Commissioner observed as follows:

    14. "It was submitted by Mr. Gibbons that the expression "unable or virtually unable to walk" was ambiguous. The regulations did not state the amount or quality of a person's ability to walk. He submitted that the words meant an ability to walk a quarter of a mile, or something of that order, to enable a person to walk to the shops or to a bus stop and so carry on a normal life. He said that the claimant should have been subjected to tests to ascertain whether she could walk a distance of something of the order of a quarter of a mile. In the grounds of appeal, it is contended that the true interpretation relevant to this case is that the claimant is within the description set out in the regulations if she is so limited in her ability to walk, as to prevent walking for the minimal essential activities of life in her situation without attendance, equipment and transport available. That seems to me to be adding words to the statutory regulations which were not intended and are not implicit and to be importing a meaning other than the plain meaning."
    I agree with that approach. I consider it is just as true today as it was when enunciated in 1978. All that the change in the statutory provision has done is to ensure that in considering whether a person should be regarded as virtually unable to walk certain specific considerations now have to be taken into account. But "virtually unable to walk" still means "unable to walk to any appreciable extent or practically unable to walk".
  14. What constitutes an inability to walk to any appreciable extent is a matter of fact and is for the tribunal to determine. They must apply their own judgement, and so long as their decision is not perverse, it is not open to the Commissioner to interfere. In the present case the tribunal decided that, as the claimant could walk without discomfort within regulation 3(1)(b) for 50 yards, he had taken himself out of the category of one who was unable to walk or virtually unable to walk. I consider that the tribunal were entitled to reach this conclusion."

  15. It follows from what I said in the earlier case that an inability or virtual inability to walk cannot be established by an inability "to walk to the shops or to a bus stop and so carry on a normal life". A claimant is not to be put into the position of a person without a disability as to walking. A person may well be excluded from the benefit of regulation 3(1)(b) even if he is confined to the "housing estate in which [he lives]" and if he is unable "to shop or simply socialise".

  16. It is clear from the wording of regulation 3(1)(b) that a claimant's "ability to walk" is to be assessed by reference to "his ability to walk out of doors". The significance of this is that the test should not proceed on the basis that his ability should be adjudged by reference to a surface as level as a billiard table. It is well known that surfaces indoors tend to be smoother and more even than those out of doors. Hence the specific statutory requirement that the ability to walk be tested by reference to the natural irregularities that have to be negotiated by anyone walking out of doors. However, in applying that test only reasonable conditions should be in contemplation. The test should obviously not be as to whether the claimant could walk on unploughed land or over unmade-up roads or over pavements under repair by the Council. Many people who would on no basis regard themselves as being incapable of walking would be unable to negotiate those particular conditions. The test should be to select or envisage the kind of pavement or road which one would normally expect to find in the course of walking out of doors. The criterion is the type of surface which anyone walking out of doors would normally expect to encounter, any unusual hazards being disregarded. And the authority for determining what the test should be will be the medical appeal tribunal. They will determine whether the claimant is able to walk in the conditions envisaged. It will be for them to decide whether to test him over a specific track out of doors, or to judge his capacity in dealing with such a track from his walking indoors. It will be a matter for the medical expertise of the tribunal.

  17. As regards the question of a claimant's ability to negotiate "inclines", it cannot be over-stressed that the criterion is whether or not the claimant is unable or virtually unable to walk; the question is not whether he is unable or virtually unable to climb. The ability or otherwise to surmount hills or mountains has no relevance, in my judgement, to the question of whether or not a claimant is unable or virtually unable to walk. Of course, no pavement or road is absolutely flat. Some degree of "incline", or for that matter "decline" must be contemplated. But once again the tribunal must envisage a reasonable outdoor track which will not be entirely level.

  18. It is not in dispute in the present case that the claimant put in issue the question of his inability to negotiate "inclines-uneven surfaces etc" but in my judgement, it was unnecessary for the tribunal specifically to refer to this matter. All they required to determine was whether the claimant could walk out of doors, and this they clearly did. They observed him "walk a distance of 100 yards both indoors and out". Manifestly, they were satisfied that he could walk out of doors and such walking out of doors must be assumed to have taken into account a certain amount of irregularity. It was not necessary for the tribunal to analyse the matter any further. At the end of the day all they were required to do was to determine whether or not the claimant could get within regulation 3(1)(b). They decided that he did not. They explained the reasons for this by stating that he walked a distance of 100 yards both indoors and out, and added that he did so "without apparent pain or distress". Moreover they confirmed the findings of the Board. I do not see in what respect it could be said that the tribunal erred in point of law. An intolerable burden is not to be imposed on tribunals in dealing with mobility allowance claims (cf. Baron v. Secretary of State for Social Services, appendix to R(M) 6/86, p. 11 paras. E to F).

  19. For completeness, I should say that no complaint has been made as to the absence of an explanation as to why the claimant having previously been awarded mobility allowance, was unsuccessful on his renewal claim, but had such a complaint been voiced, then for the reasons admirably set out in paragraph 7 of the submissions of the Secretary of State, there would have been no substance in it.

  20. I dismiss this appeal.

    21. Date: 8 May 1989 (signed) Mr. D. G. Rice Commissioner
     

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