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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2004] UKSSCSC CSDLA_419_2001 (23 April 2004) URL: http://www.bailii.org/uk/cases/UKSSCSC/2004/CSDLA_419_2001.html Cite as: [2004] UKSSCSC CSDLA_419_2001 |
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R(DLA) 5/04
(Petition of Michael Patrick Mooney for Judicial Review of a decision of a Social Security Commissioner)
CS (Lord Brodie)
23.4.04
CSDLA/419/2001
Practice - judicial review - approach to be taken by Commissioners in considering applications for leave to appeal - whether Commissioner's refusal of leave should be reduced as erroneous in law
The claimant, who suffered from dizzy spells and osteoarthritis, applied for both the mobility and care components of disability living allowance. Both the adjudication officer and the appeal tribunal refused to make an award. The Commissioner refused leave to appeal since the ground of appeal did not raise any proper issue of law. The claimant sought judicial review of the Commissioner's determination by petition to the Outer House of the Court of Session.
Held, refusing the petition, that:- there were three criticisms contained in the petition: (i) that the Commissioner had refused leave where the appeal tribunal had failed to have proper regard to the statutory test on virtual inability to walk, and that this was a ground of appeal contained in the notice of application to the Commissioner; (ii) that the Commissioner had failed to grant leave where the appeal tribunal had made obvious errors of law; and (iii) that in refusing leave the Commissioner erred in law in making his determination that "the distance covered would be sufficient to negate any award" (paragraph 29);
- in regard to the first criticism, the application to the Commissioner could not be read as containing an express ground that the tribunal had misdirected itself or otherwise misapplied the correct statutory test. The third criticism did not disclose a material error of law in that what was criticised was essentially a judgement by the Commissioner when considering the appeal tribunal's statement of reasons based on a purposive construction of the legislation and on his knowledge and understanding of social security principles and practice. (R (Anayet Begum) v. Social Security Commissioners and Cooke v. Secretary of State for Social Security cited with approval.) (paragraph 30);
- in regard to the second criticism, the appeal tribunal and the Commissioner were exercising an inquisitorial function. It was not straightforward for a Commissioner, simply on a consideration of the documents, to determine whether there was a failure on the part of the appeal tribunal to ask all the questions which should have been asked. Guidance on the proper approach is contained in R (Anayet Begum) v. Social Security Commissioners (paragraphs 31 to 34);
- it was not a valid criticism of a decision-maker, having an obligation to make findings and give reasons, that the decision does not canvass all relevant possibilities and demonstrate that they have been excluded when such issues have not been raised as issues before the decision-maker (paragraph 35);
- section 12(8)(a) of the Social Security Act 1998 states that an appeal tribunal need not consider any issue that is not raised by the appeal. While it is not necessary for an issue to arise that it be raised by a party, even if represented by a skilled representative, the issue must be one which obviously demands attention (paragraph 35);
- on the basis of this analysis, the Court could not regard the Commissioner as having fallen into error of law when refusing to grant leave to appeal (paragraph 37).
DECISION OF THE COURT OF SESSION (OUTER HOUSE)
Mr R. D. Sutherland (instructed by Anderson Strathern, Solicitors for Quinn Martin & Langan, Solicitors, Glasgow) appeared on behalf of the petitioner:
Mr Brodie (instructed by H. F. Macdiarmid, Office of the Solicitor to the Advocate General) appeared on behalf of the respondent.
LORD BRODIE
Introduction
Relevant Statutory Provisions
"71.–(1) disability living allowance shall consist of a care component and a mobility component.
(2) A person's entitlement to a disability living allowance may be an entitlement to either component or to both of them.
...
73.–(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which -
(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so; ..."
"12.–(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances -
(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment -
(i) he is unable to walk; or
(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or
(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or
(b) he has both legs amputated at levels which are either through or above the ankle, or he has one leg so amputated and is without the other leg, or is without both legs to the same extent as if it, or they, had been so amputated."
"12. … (8) In deciding an appeal under this section, an appeal tribunal -
(a) need not consider any issue that is not raised by the appeal; and
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made."
The Petitioner's Appeal Letter
"I wish to appeal your decision to refuse me disability living allowance. Osteoarthritis in my knees causes me to stop walking after only a few yards (approx 40 yds) due to severe discomfort. I suffer from nervous debility, and my hands get 'shakes'. This and the panic attacks means I need help from others, especially as concerns cooking for myself."
The appeal tribunal's Statement of Reasons for Decision
"1. Mr Mooney is aged 49. Mr Mooney claimed disability living allowance on 30.1.99. A decision was made on 9.2.99 that he didn't satisfy the conditions for entitlement. On 22.3.99 Mr Mooney asked for the decision to be looked at again. On 11.8.99 Mr Mooney's general practitioner provided a medical report. On 11.9.99 the original decision was looked at again but not revised. On 23.11.99 Mr Mooney requested an appeal.
2. Mr Mooney has had a tumour removed from his mouth and throat. He was operated on in January 1999. He also suffers from osteoarthritis, mainly affecting knees and lower back. He is able to walk 100 metres at a slow pace. He has had occasional falls but he doesn't require any physical support from another person out of doors. He does not experience pain or breathlessness amounting to severe discomfort but would require to stop because of arthritic pain. He does not require guidance or supervision whilst out of doors although he may prefer to be accompanied.
3. We adopt as part of our findings in fact the report by the GP at pages 68-71 which refers to the appellant's ability to carry out various functions without the assistance of anyone else. We therefore find that he is safely capable of attending to all aspects of his personal care.
4. We find the appellant is fully mentally competent and is aware of common dangers and does not suffer from any episodes of altered awareness or loss of consciousness.
5. The appellant has fallen occasionally but has had no injuries as a result of these falls."
"In order to qualify for the higher rate of mobility component, the person must have a physical disability which makes them either unable to walk or virtually unable to walk. The statutory criteria are contained in Sections [71] and 73 of the Social Security Contributions and Benefits Act 1992 and regulation 12 of the Social Security DLA Regulations 1991. Mr Mooney is not unable to walk and, therefore, the tribunal required to consider whether he was virtually unable to walk. Mr Mooney's evidence in his claim pack was that he could only walk 50 yards. His evidence to the tribunal was that he could go to the local shops which were 100 yards away. He stated that his walking had deteriorated since the decision was made. He did not use a stick as he couldn't cope with it. He stated that sometimes his knees gave way in the morning and were stiff. It took him two or three minutes to get out of bed. He attended AA meetings regularly. He presently lived in a flat which was three flights up and was waiting to move into sheltered accommodation. While it is correct that medical evidence is not conclusive and can be rebutted by direct or circumstantial evidence, that evidence requires to be both credible and consistent. Having had the benefit of taking oral evidence from Mr Mooney today we formed the view that he was not virtually unable to walk out of doors without severe discomfort taking into account distance, speed and manner.
The criteria for an award of lower rate mobility is that the person is so severely disabled, mentally or physically that they require guidance or supervision from another person when walking out of doors. Mr Mooney's evidence was that he was able to go out alone and he, therefore, does not qualify for the lower rate of mobility component.
The submission put before the tribunal was for an award of middle or lower rate care. The criteria to be addressed on award of middle rate care is that the person requires frequent attention throughout the day in connection with bodily functions [or] that they need continual supervision to prevent substantial danger to themselves or others. Again with regard to care needs, we had the evidence from the general practitioner at page 69 to the effect that he was mentally alert and not confused. There was no medical record of falls or of dizziness or visual problems. He was able to attend to all his personal care and was safely mobile in the home and at page 70 it was indicated that he was safely alone by day and by night and outdoors. Mr Mooney's evidence to the tribunal was that he was able to toilet unaided and use the shower, able to dry himself, able to dress using casual clothes, make himself coffee. He drank a lot of fluids. That he didn't cook because he was frightened of taking a turn. He stated that he had fallen outside recently and required 15 stitches and that two months before that he had slipped on the kitchen floor. That he had some six months ago burned himself boiling eggs. Having had the benefit of the evidence from Mr Mooney the tribunal found that he did not require frequent attention in connection with bodily functions.
We then considered the question of supervision. It had been stated in evidence by Mr Mooney that he sometimes had dizzy spells and fell. This, however, was not confirmed by the doctor. We consider the danger was too remote and that there was not any requirement for supervision to prevent substantial danger to himself."
There then followed reasoning which was specific to the claim for the care component of DLA. The tribunal concluded: "We, therefore, refused the appeal and upheld the decision of the adjudication officer."
The Notice of Application to a Commissioner for Leave to appeal
"I refer to the DAT decision of 16/7/00 treat this letter as application for leave to appeal to the Commissioner on the grounds that the tribunal have erred in law in respect of the reasoning in relation to the higher rate mobility component.
On page 68 there is a GP report which states:
'Walks very slowly and can manage about 100 yards'.
At finding of fact 2 the tribunal write:
'He is able to walk 100 metres at a slow pace'.
The tribunal gives no reason for not adopting the GP's statement as to speed 'very slow'.
Indeed it may be that they have had no regard to the GP report in respect of mobility as it is not mentioned at finding of fact 2 (in respect of mobility) but it is mentioned in finding of fact 3 (in relation to care).
Similarly in the reasons in respect of higher mobility they make no reference to the GP report and the GP's evidence is only mentioned in respect of the main meal test.
The tribunal appears to have ignored evidence on a selective basis and this is an error of law."
Determination by Social Security Commissioner Refusing Leave to appeal
"This is an application to a Commissioner by the claimant for leave to appeal on a question of law from the decision of the appeal tribunal dated 6 July 2000.
Having considered the application, I refuse leave to appeal. The suggested ground for appeal [does] not appear to me to raise any proper issue of law. It is not a true point of law to raise an argument on semantics as to whether a particular walking falls to be categorised as 'slow' or 'very slow'. That is especially so where, as here, the distance covered would itself be sufficient to negate any award."
Submissions of Parties before the Court
Submissions for the Petitioner
Submissions for the Respondent
Discussion and decision
"It is impossible to lay down a priori rules for such questions as the distance a person must be found to walk without severe discomfort before he ceases to count as "virtually unable" to walk, since so much depends on the circumstances and physical state of each particular claimant. However it has been said that what "virtually unable to walk" means is a question of law (R(M) 1/78 [paragraph] 11), and some general guidance can be gleaned from the reported decisions. In the absence of any special indications from the other three factors, if a claimant is unable to cover more than 25 or 30 yards without suffering severe discomfort, his ability to walk is not "appreciable" or "significant"; while if the distance is more than 80 or 100 yards, he is unlikely to count as "virtually unable to walk" as those words have generally been interpreted in [section] 73 and [regulation]12. In the difficult ground in between, I for my part find helpful the approach of the Commissioner in case CM 79/89 at [paragraph 13], where he said that mobility allowance (as it was then) was never designed to - and does not - embrace those who can walk 60 or 70 yards without severe discomfort. In such a case, therefore, there would have to be some other factor such as extreme slowness or difficulty because of the manner of moving forward on foot before a claimant would count as "virtually unable"".
Mr Brodie sees that passage in the decision of the Commissioner as supporting his proposition that it would be difficult to conclude that a person was virtually unable to walk if he was in fact able to cover 100 yards. Mr Sutherland, on the other hand, urged me to regard what had been said by Commissioner Hull as obiter and not as an indication of the general approach adopted by Social Security Commissioners. Mr Sutherland accepted that he could have no quarrel with the proposition that an ability to cover the distance of 100 yards without interruption and without severe discomfort negates a finding of being virtually unable to walk but, he submitted, there was no basis for inferring these words into the final sentence of the determination. What there was, was a statement by the Social Security Commissioner that "the distance covered would itself be sufficient to negate any award". Mr Brodie emphasised that when the court is reviewing the decisions of specialist statutory tribunals such as the appeal tribunal and the Social Security Commissioner, it should accord these tribunals and their decision-making a proper respect. The court, as he put it, under reference to what had been said by Hale LJ in Cooke v. Secretary of State for Social Security, should take a modest line. Mr Sutherland reminded me of the differences as between the decision-making process that was under consideration in Cooke and the decision-making process which was under consideration here. However, he accepted that a degree of deference or, at least, respect was indeed owed by the court to a lower decision-making body. One might assume that it had done its job properly but one must also be aware that mistakes do happen. I agree with Mr Brodie that the court should take a modest line. I agree with Mr Sutherland that the court should show proper respect to what he described as lower decision-making bodies (for myself, I prefer the expression "specialised decision-makers"). I consider that useful guidance is to be found in the judgement of Hale LJ in Cooke v. Secretary of State for Social Security supra. That was an appeal with permission of the Court of appeal from the decision of a Social Security Commissioner dismissing the claimant's appeal from the decision of a disability appeal tribunal dismissing an appeal from the decision of an adjudication officer. The appeal was refused. The court took the opportunity to make some observations on the criterion for the grant of permission to appeal in such cases. The leading judgment was given by Hale LJ As was recognised by Mr Brodie when he was addressing me in relation to the decision, Hale LJ was discussing a statutory appeal rather than an application for judicial review but, he submitted, similar considerations applied. In both cases, the court was being invited to review (using the term in the broadest sense) decisions of specialised decision-makers in what was a highly specialised area of law. Hale LJ said this at 285e:
"[The] ordinary courts should approach such cases with an appropriate degree of caution. It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner will have got it right. The Commissioners will know how that particular issue fits into the broader picture of social security principles as a whole. They will be less likely to introduce distortion into those principles. They may be better placed, where it is appropriate, to apply those principles in a purposive construction of the legislation in question. They will also know the realities of tribunal life. All of this should be taken into account by an appellate court when considering whether an appeal will have a real prospect of success."
Hale LJ went on to express the view that the Court of Appeal should take an appropriately "modest view" of how likely it was that the Social Security Commissioner had got it wrong. Agreeing with Mr Brodie, I see the admonition contained in the judgement of Hale LJ to be a useful one. It was Mr Brodie's submission that I should keep the observations of Hale LJ in mind when considering whether Commissioner Walker had "got it wrong". I do not consider it to be consistent with what I took to be an essentially common approach adopted by counsel, to conclude from the terms of his determination that the Social Security Commissioner in the present case had indeed misdirected himself in relation to the criteria to be applied in deciding whether a person is virtually unable to walk. The Social Security Commissioner was considering a Statement of Reasons for Decision of the appeal tribunal. That decision included a statement of these criteria, both by reference to the relevant statutory provisions and in its conclusion in the final sentence of the first paragraph that: "having had the benefit of taking oral evidence from Mr Mooney today, we form the view that he was not virtually unable to walk out of doors without severe discomfort taking into account distance, speed and manner". In the circumstances I find it artificial in the extreme to suggest that the Social Security Commissioner, when referring to the distance over which the petitioner was able to progress, was misdirecting himself or acting under error of law. I cannot, in any event, regard what is suggested as being an error of law on the part of the Social Security Commissioner to be material. The question to which his attention had been directed by the Notice of Application was whether there was any significant difference between managing about 100 yards walking "very slowly" and being able to walk 100 metres "at a slow pace". The Commissioner, as I would understand his determination, considered that there was no significant difference between these expressions and it was because he considered there to be no significant difference that he made the determination that he did. He then went on to say that this was especially so in the light of the distance covered. Even if it is to be assumed against the Commissioner, because of his use of the expression "sufficient to negate any award", that, when making his determination, he was failing to have regard to the factors of length of time taken, manner in which progress was made, and absence of severe discomfort, I cannot see how such failure might have made a difference to that determination.
"In dealing with appeals of these kinds, the insurance tribunal, namely the local appeal tribunal or the commissioner or deputy commissioner as the case may be, is exercising quasi-judicial functions ... But there is an important distinction between the functions of an insurance tribunal and those of an ordinary court of law … [A] claim by an insured person to benefit is not strictly analogous to a lis inter partes. Insurance tribunals form part of the statutory machinery for investigating claims, that is, for ascertaining whether the claimant has satisfied the statutory requirements which entitle him to be paid benefit out of the fund. In such an investigation neither the insurance officer nor the Minister ... is a party adverse to a claimant. ... The insurance tribunal is not restricted to accepting or rejecting the respective contentions of the claimant on the one hand and of the insurance officer or Minister on the other. It is at liberty to form its own view of a case, even though this may not coincide with the view of either [the claimant or the insurance officer or the Minister]."
It is because the function of social security tribunals, including the appeal tribunal and the Social Security Commissioner, is to investigate, that they can be described as having an inquisitorial function or a duty to act inquisitorially rather than simply determining upon the issues identified by the parties on the basis of the evidence led by the parties. As investigators or inquisitors, if it is apparent to them that there is a material point available to the claimant, supporting his claim for benefit, that point should be explored. It was under reference to this inquisitorial function of the appeal tribunal that the Commissioner in R(IS) 11/99 said this, at paragraph 31 of his decision:
"It seems to me that there is clearly a duty upon a tribunal to ensure that all relevant questions have been asked of a claimant. It could not be otherwise, given the complexity of social security law and the fact that few claimants have advisors and many are poorly educated. The asking of questions is largely achieved by ever-more sophisticated claim forms but even the income support claim form, which runs to several pages, cannot ask all possibly relevant questions. Some questions are designed merely to elicit an answer which will reveal whether further questions need be asked later. When a case goes on appeal, it seems to me that the tribunal are not bound to ask questions that have already been asked by the Secretary of State or by an adjudication officer, unless the points have been put in issue, but they are obliged to ask those questions that have not previously been asked but which should have been asked."
"13. The first issue before me is what is the proper approach for the court to apply when judicial review is sought where the Commissioner failed to grant leave to appeal but the real grounds were not identified in the grounds of appeal to him. It is common ground that both the Commissioner and the tribunal have an inquisitorial jurisdiction (R v. Deputy Industry Injuries Commissioner ex parte Moore [1965] 1 Q B 456 and R v. Medical appeal tribunal ex parte Hubble [1958] 2 QB 228). It is also common ground that the Commissioner may give leave on the basis of grounds not raised in the grounds of appeal. As far as I am aware that matter has never been disputed, albeit there is no decision of the Court of appeal or High Court affirming that it is so.
14. In the end, these two matters are simply background matters and there had been little, if any, dispute between the parties as to the test that I should apply in the present case.
15. In her application for permission to apply for judicial review, the claimant raises alleged errors of law not included in her grounds of appeal to the Commissioner. The standard test for judicial review of a Commissioner's refusal of leave to appeal is set out in R v. Secretary of State for Social Services ex parte Connolly [1986] 1 All ER 998 at 1007 paragraph h. Slade LJ there said:
"In a case where a commissioner has refused leave to appeal without giving reasons and an applicant seeks to challenge such refusal by way of judicial review, the onus must, in my judgment, lie on the applicant to show either (a) that the reasons which in fact caused the commissioner to refuse leave were improper or insufficient or (b) that there were no good grounds on which such leave could have been refused in the proper exercise of the commissioner's discretion. He may well discharge this onus by showing that the decision sought to be challenged was on the face of it clearly erroneous in law or, alternatively, gave rise to a substantially arguable point of law. However, if it can be seen that there are still good grounds on which the commissioner would have been entitled to refuse leave in the proper exercise of his discretion, the court should, in my opinion, assume that he acted on those grounds unless the applicant can point to convincing reasons leading to a contrary conclusion."
16. That passage must now be considered in the light of the judgment of the Court of appeal in R v. Secretary of State for the Home Department ex parte Robinson [1998] QB 929. At page 943e Lord Woolf, then Master of the Rolls, giving the judgment of the court said:
"We turn now to consider the third point which arises on this appeal. We have observed that the special adjudicator did not expressly consider whether it was reasonable to expect the claimant to settle in Colombo. He merely asked himself whether the claimant would have a well-founded fear of persecution if he was returned there. However, he did consider the question whether the claimant had "special characteristics" so that he may have been assuming that Colombo was a safe haven in accordance with previous decisions. No question relating to reasonableness, as opposed to safety, was raised in the grounds of appeal to the tribunal. Under these circumstances was the tribunal itself obliged to consider whether the special adjudicator had dealt correctly with questions relating to reasonableness when it considered whether to grant leave to appeal?"
17. Then at 945e he continued:
"It follows from what we have said that it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum-seeker leave to enter as a refugee, and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum-seeker or his representative."
18. Then a little lower down at g:
"It is now, however, necessary for us to identify the circumstances in which it might be appropriate for the tribunal to grant leave to appeal on the basis of an argument not advanced before the special adjudicator, or for a High Court judge to grant leave to apply for judicial review of a refusal of leave by the tribunal in relation to a point not taken in the notice of appeal to the tribunal.
Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should [be] under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious". Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."
19. There is nothing in the judgment of the court in Robinson to suggest that the test for a tribunal granting leave to appeal in an immigration case, in respect of a point not raised in the grounds of appeal, is not an appropriate test in other tribunals. In my judgment, it would be confusing and without logic were some different test to apply to a Social Security commissioner. I therefore adopt it and adapt it to apply in the present case. Thus where the Master of Rolls refers to "an obvious point of Convention law" one could equally well read "an obvious point of Social Security law".
20. The position is that mere arguability is not the test, a higher hurdle must be surmounted. The point must be obvious; that is one which would have a strong prospect of success were leave to be granted. An obvious point, it seems to me, is one that stands out and not one that can only be gleaned by a paper chase through various documents which may underlie the decision maker's decision. Accordingly, it will, in my judgment, ordinarily be difficult to bring a reasons challenge within such a category, unless the reasons are obviously deficient on their face."
As part of his submission, Mr Sutherland pointed to what he saw as an unresolved inconsistency between the tribunal's recording of the evidence of the petitioner as being that he had fallen outside recently and required 15 stitches and its finding in fact that the petitioner had fallen occasionally but had had no injuries as a result of these falls. I shall return to this point. Otherwise, Mr Sutherland's criticism of the appeal tribunal focused on its failure to make findings in fact on a number of matters which might bear on the petitioner's ability to walk: his having suffered dizzy spells, the potential for injury in the event of him falling, the time it took him to walk the distance of 100 metres mentioned in finding in fact 2 and whether the effort of doing so incapacitated him for further walking, and the impact of arthritic pain; this failure being compounded by a failure to make the findings in fact which it did make by reference to any particular point in time. In that this criticism was advanced without any reference to what had been said by the petitioner, or said on his behalf by his representative, during the course of the hearing before the appeal tribunal, it appeared to be implicit in Mr Sutherland's submission that what he was founding on was a failure by the tribunal properly to discharge its inquisitorial or investigatory function by pursuing lines of enquiry which had to be pursued, the failure being demonstrated by the absence of explicit findings on all the matters identified. I see this as implicit in Mr Sutherland's submission, notwithstanding, as Mr Brodie observed, the absence of any specific averment in the petition to the effect that the tribunal had failed to act inquisitorially. To use the language of R (IS) 11/99, there was, in Mr Sutherland's submission (as I understood it), a failure on the part of the tribunal "to ask those questions that have not … been asked but which should have been asked". An immediate difficulty that I have with this submission is that it is not averred and it was not said by Mr Sutherland that further inquiry into the matters identified by him would necessarily have produced information which would have materially altered the tribunal's assessment of the petitioner's ability to walk. Moreover, it is not averred and it was not said by Mr Sutherland that these matters were referred to at the hearing before the tribunal either by the petitioner or by his representative as bearing on the question of virtual inability to walk. It is, in my opinion, of some importance that although the petitioner was represented by a welfare rights officer from Glasgow City Council Social Work Department, these matters were not, as it would appear, put in issue at the hearing before the tribunal. The only feature of the petitioner's condition which was put forward in his appeal letter of 22 November 1999 as bearing adversely upon his ability to walk was osteoarthritis in his knees causing him to stop walking after approximately 40 yards due to severe discomfort. As I have already observed, neither were the matters referred to by Mr Sutherland put in issue in the Notice of Application to the Social Security Commissioner. This latter document was drafted by the petitioner's representative (as indeed the appeal letter appears to have been). This does at least suggest that whatever the general relevance of the matters referred to by Mr Sutherland to a claimant's inability or virtual inability to walk, they were not seen by the petitioner's representative to be material in the petitioner's case.