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[2006] UKSSCSC CSDLA_399_2005 (24 February 2006)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSDLA/399/2005

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: L T PARKER

Oral Hearing

Appellant:

Respondent: Secretary of State

Tribunal: Hamilton Tribunal Case No:

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1. The decision of the Hamilton appeal tribunal (the tribunal) held on 22 September 2003 is not in error of law. The decision therefore stands.

The issues

2. It is not in dispute that the claimant, at all relevant times, suffered from Alzheimer's disease. The question for determination by the tribunal was whether the appellant was entitled to the mobility component of disability living allowance at the higher rate (higher mobility). She had already been awarded it at the lower rate. As it was conceded by the representative on behalf of the appellant at the tribunal hearing that she did not qualify for higher mobility under s.73(3) of the Social Security Contributions and Benefits Act 1992 (which requires, in addition to the satisfaction of the highest rate care criteria, an award which the appellant already had, that she is severely mentally impaired and displays severe behavioural problems), the contention before the tribunal was that the appellant was virtually unable to walk under s.73(1)(b) of the Social Security Contributions and Benefits Act 1992 (the Act); for this purpose the appellant has to show that a physical disablement is a material cause of her walking problems and that such resultant difficulties fit the statutory criteria for "virtually unable to walk" as set out in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 (the regulations). The appellant submits that behavioural problems stemming from a physical disability limit her walking out of doors to a sufficient extent such that she can qualify under s.73(1)(b), without recourse to s.73(3).

The statutory criteria

3. Social Security Contributions and Benefits Act 1992

"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 … throughout which—

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;

…

(5) … circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy a condition mentioned in (1)(a) … above.

…"

4. Social Security (Disability Living Allowance) Regulations 1991

"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 …

…

(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;

…

The background

5. The file has had to be re-constructed so certain documents are missing. The appellant has her husband as her appointee. On 12 November 2002, he applied for supersession of her award, which was then an indefinite one of entitlement to the lower rate of the mobility component and the highest rate of the care component from 31 December 2002. It is apparent from the terms of the letter asking for such supersession, that the appointee misunderstood the criteria for the highest rate care component already awarded because his stated reason was that, "… night time requirements … have deteriorated significantly"; therefore, he said, he had filled in the disability living allowance (DLA) claim form which accompanied his letter only with respect to that "part of form that covers night time needs".
6. This was not strictly accurate, as the appointee completed the question about problems in walking outdoors, to which he ticked "[n]o" and also the one enquiring whether there was a need to have someone with his wife when she was outdoors, to which he said "[y]es", elaborating:

"As my wife has Alzheimer's disease she has become very disorientated and requires myself or someone to be with her when outdoors to ensure her safety."

7. Following the adverse decision on the supersession notified by a decision maker (DM) on behalf of the Department on 7 January 2003, which is the decision under appeal to the tribunal, the appointee appealed on 5 February 2003 in the following terms:

"I feel that she is entitled to the higher rate [of mobility] … She has no short term memory at all and finds it very difficult to leave the house and converse with neighbours, therefore I have to accompany her everywhere.

It is a great strain on myself to speak to people about my wife's condition and I therefore try to take my wife out in the car whenever I can to let her and myself visit places that sometimes bring back good memories …"

8. On a date unknown, a tribunal adjourned to instruct a report by an examining medical practitioner (EMP), which report is in the papers and dated 3 July 2003. It is a report carried out for the purposes of care only. To the EMP, the appointee is recorded as saying with respect to his wife:

"She is able to get about the house but she needs supervision on the stairs …

She doesn't wander from the house but she wanders if out of doors …

She is not keen to go out locally because she is aware she cannot hold a conversation."

9. The EMP observed:

"Physically rose from chair unaided and walked unaided with normal gait and balance."

There was no muscle wasting. The EMP was of the opinion that the claimant could walk on the level indoors without anyone's help.

10. To the question "[t]o what extent is the person's disability as described throughout this report due to physical factors?", the EMP responded, "0%", adding "100% mental due to Alzheimer's disease".
11. The appointee attended the tribunal hearing accompanied by his representative, Miss Marion Gell, a welfare rights officer with South Lanarkshire Council. While it is not suggested that the chairman of the tribunal kept no record of proceedings, no copy is now available. The tribunal confirmed the refusal of the supersession application. The representative requested a full statement of reasons on 24 September 2003 and such a statement is annotated as issued to the parties on 6 November 2003. However, on 15 October 2004, Miss Gell wrote to the Appeal Service saying that, despite her initial request, which she repeated on 11 March 2004, she received the full statement only on 23 April 2004; furthermore, although she said she had requested leave to appeal on 21 May 2004, no decision had yet been received either by herself or by the claimant. The letter of 15 October 2004 from Miss Gell is date stamped as received by the Appeal Service on 20 October 2004 but, according to an Appeal Service note, "[t]he original file was destroyed as no action had been taken on it on the issue of the full statement on 6 November 2003". A new file had to be constructed with papers from the Disability Benefits Unit in Blackpool and from the representative, so that it was a further year before the application was put before a district chairman, who both accepted the reasons for lateness and granted the application for leave. Wheresoever the fault lies, this history of delay is most regrettable.

The tribunal's statement

12. Relevant parts of the statement include the following:

"4. On 3 July 2003 an independent medical examiner was instructed to examine the Appellant by a Tribunal which adjourned for this purpose. … [T]he report … is adopted …

…

6. At the oral hearing it was common ground that the only matter at issue was whether the Appellant's significant dementia and memory loss made her virtually unable to walk and this was a physical disability. … She avoids people outdoors and had never been one to walk.

7. The decision in R(M)3/86 was submitted.

The reasons for the unanimous decision were:

8. It was made clear that the only matter at issue was whether or not the Appellant's Alzheimer's Disease from which she had suffered for some considerable time made her virtually unable to walk in terms of Reg 12 of the DLA (General) Regulations 1991 [sic] and Section 73 of the Contributions and Benefits Act 1992.

…

12. The Appellant's argument submitted by the representative as understood by the Tribunal was that the dementia/Alzheimer's Disease from which the Appellant unfortunately suffered … produced a physical disablement which prevented her from mobilising. The argument seemed to be that the memory loss and confusion gave rise to a physical impediment to walking or indeed constituted such a physical disability.

13. The relevant Commissioner's [sic] decision [sic] were all considered. There is a good number including R(M)1/80, R(M)2/78 which decided in a Medical Appeal Tribunal that Down's Syndrome/mongolism was a physical condition, in CDLA 4486/2000 that ME condition was the basis for a claim for higher rate or [sic] mobility component. In CDLA 15106/96 it was argued that genuine pain and physical disablement might arise from a psychological condition. In Harrison v Secretary of State for Scotland [sic] it was argued that hysteria was not a physical condition unless it is a consequence of a physical condition such as pain.

14. However, these are not on all fours and each case has to be decided upon its circumstances and here the Appellant can walk outdoors if given guidance, supervision or encouragement. She therefore qualifies for the lower rate as already awarded but cannot be considered virtually unable to walk (as she can physically walk) based upon the conditions for a grant outlined above as there are no consequential physical disabilities."

Appeal to the Commissioner

13. These are as follows:

"It was submitted to the Tribunal that [the claimant's] 'virtual inability' to walk stemmed from her 'refusal' to walk, i.e. that she would take a few steps then stop and that it would take some considerable effort to encourage her to continue.

The Tribunal has failed to properly consider this matter. The correct findings have not been made, for example, the frequency of halts or ' refusal' to walk and how long it might take to persuade her to walk or to continue to walk.

The Tribunal has failed to properly consider the matter put before it in respect of the submission that Alzheimer's disease has a known physical cause and that an inability to walk attributable to the disease may be considered under the ' virtual inability to walk' test. Paragraph 14 of the full decision … indicates that the Tribunal has failed to accept that Alzheimer's disease is of itself a physical entity, causing reduction of the brain's normal functioning …"

14. The written submission from the Secretary of State does not support the appeal:

""The claimant herself states in the claim pack, she has no physical problems walking but becomes disorientated when outdoors, and has been awarded the lowest [sic] rate of the mobility component."

The oral hearing

15. The case came before me for an oral hearing on 21 February 2006. The appellant remains represented, as she has been throughout, by Miss Marion Gell. The Secretary of State was represented by Mr Brodie, Advocate, instructed by Mr Matheson, Solicitor, of the Office of the Solicitor to the Advocate General. I am indebted to them both for their helpful submissions. I am especially grateful to Miss Gell who, following a direction in which I drew the attention of the parties to CDLA/156/1994, insofar as it considers the nature of Alzheimer's disease, submitted some more recent data on the aetiology and development of Alzheimer's disease. This information confirmed, in effect, what was said at paragraph 12 of CDLA/156/1994:

"It was not in dispute as between the medical witnesses that Alzheimer's disease caused a gradual but inevitable loss of brain cells, so that it eroded an already developed brain."

The arguments

16. Miss Gell submitted that the tribunal had failed to make the relevant findings applicable to the test of virtually unable to walk, viz. what were the actual limitations on the claimant's walking and were they linked to physical disablement? In R(M)3/86, which was put to the tribunal, a Tribunal of Commissioners confirmed those as the two relevant questions and endorsed their being dealt with in that order.
17. As a result of R(M)3/86, it was clear that behavioural problems could count provided attributable to a physical disablement and not to a conscious choice. In the present case, the claimant's behaviour was a reaction to her Alzheimer's disease, which is classifiable as a physical disablement, as it is due to a physical process in the brain. She relied on paragraph 12 of CDLA/156/1994, as set out above in my paragraph 15 and on the medical evidence submitted for the purposes of my oral hearing. Thus, for example, in information from the National Parkinson Foundation, it is said that in patients suffering from Alzheimer's disease, MRI scans reveal "marked generalised atrophy". It was not suggested, however, that either CDLA/156/1994 or this medical information had been before the tribunal.
18. Nevertheless, Miss Gell argued that, as R(M)3/86 had been submitted to the tribunal, it was obliged to address the points necessarily arising from that case and the tribunal had failed so to do. The EMP's report addressed only walking indoors. Although she did not produce a written submission for the tribunal's benefit, yet in support of her contentions under R(M)3/86 she had told the tribunal that on occasions the claimant was reluctant to go to the car and that, in any event, that was the furthest she would go; the tribunal then failed to elicit sufficient information from the appointee about the nature and extent of these problems.
19. Miss Gell accepted that neither did she herself ask questions of the appointee about these matters. Unfortunately, Miss Gell did not have the full file with her at the oral hearing and could not confirm when her organisation first undertook representation of the appointee; it was certainly not at the stage when he lodged his appeal to the tribunal and, on reflection, as she knew nothing about any adjourned tribunal, and given that adjournment was for an EMP report on care only, she suspected that the involvement of her organisation occurred after that adjournment. It was probable that the appointee sought assistance due to that trigger.
20. On behalf of the Secretary of State, Mr Brodie submitted that his role was that of amicus curiae; the sole interest of the Secretary of State was in ensuring that entitlement was correctly established following proper adjudication. On the evidence in the papers, and he had no comments on what might or might not have been said before the tribunal, no error of law had been demonstrated on the tribunal's part.
21. The two relevant tests "for determining whether a person who was capable of putting one foot in front of another, and so walking in the accepted sense of the word, was nevertheless to be treated as virtually unable to walk" (see paragraph 8 of R(M)3/86) did not, in law, have to be addressed in a particular order but it was essential that each was answered affirmatively.
22. He chose to address first whether the claimant's asserted walking difficulties arise from "physical disablement" and are part of the claimant's "physical condition as a whole" for the purposes of higher mobility. He accepted the conclusion of a more recent Tribunal of Commissioners in the combined cases of CDLA/2879/2004 and CDLA/2899/2004, as conveniently summarised at its paragraph 171(i), to the effect that symptoms qualify as such only where they have a physical cause and not where found to have an entirely mental or psychological cause. (I did not understand Miss Gell to dissent from this.)
23. Mr Brodie pointed out that issues of fact are for a tribunal, in this case one containing a doctor. What matters is whether the evidence was such that a reasonable tribunal could find from it that there was a physical disablement. The Secretary of State would not complain if a tribunal concluded that Alzheimer's disease is a physical disablement provided rationally based on the evidence. However, the only evidence before the tribunal was that in the EMP report and to the effect that the claimant's disability was 100% due to mental factors.
24. Mr Brodie accepted that there may be a sufficient body of medical opinion supporting a contention that a particular condition is of physical aetiology such that adequacy of reasons would require a tribunal to articulate a contrary opinion as part of its duty to provide sufficient reasons; indeed, the consensus of respectable medical opinion could be of such degree that the result became a matter of judicial knowledge. However, a case like CDLA/156/1994, as an individual Commissioner's decision on the facts with respect to the nature of Alzheimer's disease, is not binding on tribunals, though it materially affects the weighing of evidence in subsequent similar circumstances.
25. It is for a claimant to make out the conditions of entitlement and tribunals must operate on the basis that they can proceed only on the evidence before them. The only possible conclusion for the tribunal was that the disablement had not been demonstrated as physical and, moreover, that even if it were, insufficient restrictions on walking ability resulted from it, so that the claimant could not, in any event, be described as "virtually unable to walk". Mr Brodie referred to the information from the EMP as set out in my paragraphs 8 – 10 above. On the evidence in the papers, the only reasonable inference from it is that any limitations on walking out of doors did not begin to approach the degree and level required to satisfy regulation 12(1)(a)(ii) of the regulations.

My conclusion and reasons

Order of the relevant questions

26. I agree with Mr Brodie that the approach of a Tribunal of Commissioners in R(M)3/86, with respect to the order in which the two tests are answered, is not mandatory as a matter of law; however, as one of pragmatism, it is frequently more sensible for a tribunal to address them in the order so proposed. This is because a factual determination about the nature of a claimant's walking is usually relatively straightforward having regard to direct evidence from the claimant, or those who care for the claimant, whereas the aetiology of a medical condition may be complex and, in any event, is a question on which it is difficult for the claimant to obtain information or even to address. Moreover, it is, in my experience, often the case that the Secretary of State does not provide any helpful material on the latter point for a tribunal, either in the written submission or at the hearing (where a presenting officer on behalf of the Secretary of State seems rarely to appear nowadays).

Entitlement to higher mobility under s.73(1)(a) of the Act and regulation 12(1)(a)(ii) of the regulations: sufficient limitations

27. It is clear that Miss Gell put to the tribunal the issues arising under R(M)3/86, where a Tribunal of Commissioners thus set out the correct approach to behavioural problems affecting a claimant's walking provided these stem from physical disability, particularly at paragraphs 8 and 9:-

"…. First, one should ask whether his ability to walk out-of-doors was so restricted '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 had to be treated as virtually unable to walk. All the various elements …. had to be considered separately … However if the claimant was unable to walk or virtually unable to walk in accordance with the above criteria, then the next question was whether this condition was attributable to some physical impairment such as damage to the brain. The criterion was whether the claimant could not walk, as distinct from would not walk. We agree with the importance of that distinction. Manifestly, if a child, who has been walking perfectly satisfactorily decides to stop, but his refusal to continue further can be overcome by the promise of a reward or the threat of punishment there can be no question of his stopping having arisen out of a physical condition over which he has no control. In the case postulated, he was making a conscious choice, and on no footing could his refusal to walk be identified with a physical disablement. It is, of course, for the tribunal as a medical matter to determine whether a child's propensity to cease walking is to be attributed to a deliberate election on his part or to a physical disablement.

9. We are conscious that tribunals may often have very difficult cases. For example, there may be instances where the person concerned, who can otherwise walk perfectly well, is sometimes prevented from so doing by a physical disability, but only on rare occasions. It will in those circumstances be a matter of degree as to whether or not that person can be regarded as virtually unable to walk, and it is for the tribunal to make the relevant assessment. Accordingly, they will frequently need to know the relevant history of the walking capacity of the person concerned and they will have to make a judgement as to what evidence they will accept. These issues may prove difficult, but they will have to be resolved by the medical tribunal. In any event, we do not consider that hyperactivism in itself qualifies the sufferer for mobility allowance. If a person can run, as hyperactive children normally can, manifestly they can walk. What is relevant is whether or not they suffer from temporary paralysis (as far as walking is concerned) and, if so, to what extent." (Emphasis is the Tribunal's own.)

28. I accept that the above is the correct approach (except that I consider that, where a person's refusal to walk is overcome by, for example, a reward, it must be a matter of fact only whether this remains linked to physical disablement, not one of law, as the Tribunal of Commissioners might seem to be implying; but this is in no way the suggested scenario in the present appeal). I accept too that a tribunal is an inquisitorial body obliged to ask questions where a genuine issue arises. However, the tribunal "shall not take into account any circumstances not obtaining at the time when the decision appealed against was made" (s.12(8)(b) of the Social Security Act 1998), although it may, of course, take into consideration later evidence insofar as this reflects the circumstances at the relevant time; standing that the request for supersession was because the appointee considered that the night time requirements had deteriorated significantly (and there is also on file a note of a telephone call on 12 November 2002 to the Department when this was clarified as the claimant now requiring to get up around three times each night), the terms of the appeal to the tribunal which made no mention whatsoever of refusals to walk, that an EMP report was required by an earlier tribunal only with respect to care and the content of that report, the evidence is overwhelming that at the relevant date any behavioural problems in walking out of doors related to the claimant wandering away and to her inhibiting distress because she could not converse with people, and in no respect to a refusal to make progress on foot.
29. On a balance of probabilities, even without the record of proceedings, from all the evidence, including what Miss Gell has said to me today about its hearing, the tribunal could legitimately consider that no prima facie case had been made out of facts existing at the relevant date consistent with the submission under R(M)3/86 and which justified further enquiry. The tribunal could rationally conclude that, if the claimant's behavioural problems were of such an extreme degree that, on occasions, she declined to move to an extent that her condition was justifiably described as "temporary paralysis", then the appointee would have mentioned this contemporaneously. On the evidence, a conclusion in her favour would have been perverse. The onus to make out the grounds of appeal, just as it is to satisfy the criteria contended for in her supersession application, lies on the claimant in this case. I judge there is no error of law in how the tribunal handled whether she was "virtually unable to walk", either with respect to its inquisitorial duty or to its findings in fact; its statement of reasons must be read as a whole and assuming an informed reader who knows the material put to the tribunal.

Entitlement to higher mobility under s.73(1)(a) of the Act and regulation 12(1)(a)(ii) of the regulations: "physical disablement" and "physical condition as a whole"

30. Although CDLA/156/1994 is concerned with a narrower point arising under s.73(3) of the Act, the acceptance by Mr Commissioner Rice that Alzheimer's disease involves erosion of the brain cells would seem to point inevitably to a view that Alzheimer's disease has a physical cause. However, such findings of fact are not binding on tribunals, although a tribunal is entitled to adopt the same approach if it wishes to do so and must surely give weight to an opinion reached after access to, and consideration of, current specialist medical evidence.
31. It seems to me that the classification of any medical condition has to be so approached and that paragraph 121 of the decision of the Tribunal of Commissioners in CDLA/2879/2004 and CDLA/2899/2004 must be read on that basis:

"Finally, as to the proper classification of conditions such as autism, Down's syndrome and learning disabilities, and as to the extent to which mental disorders could be regarded as having a physical cause owing to genetic defects or changes in brain chemistry, those issues do not arise on the facts of the cases before us and were not the subject of any detailed submissions. For the avoidance of doubt, we should make it clear that we expressly refrain from expressing an opinion on these issues."

32. However, there was a consensus between the medical experts before Mr Commissioner Rice in 1994 about the nature of Alzheimer's disease, although I do not know if the point has been reached yet of an unanimity of medical opinion such that judicial knowledge may be assumed with respect to it; therefore, adequacy of reasons would, in my view, if the point was essential to its decision, require a discussion of why the tribunal (including its medically qualified member) agreed with the opinion of the EMP that no physical factors (my emphasis) were involved in Alzheimer's disease. But, as no error of law arises from the tribunal's adverse findings and reasoning on the claimant's actual walking ability, then full reasoning on "physical disablement" and "physical condition as a whole", as these matters arise in a patient with Alzheimer's disease, was otiose so that, in the circumstances, no alternative error of law arises from this failure.

Summary

33. For the above reasons, in my view, no error of law is demonstrated and therefore the tribunal's decision stands. The tribunal did not apply any wrong legal test. It made adequate findings of fact, having regard to the totality of the evidence before it, and sufficiently explained why it took the view of the evidence it did. There was no irrational assessment of any evidence before it, no indication of any unfair hearing nor of a major procedural breach. In no respect was its decision perverse.

(Signed)

L T PARKER

Commissioner

Date: 24 February 2006