MB-v-Department for Communities (DLA) [2017] NICom 11

Decision No:  C9/16-17(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 11 June 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 11 June 2015 is in error of law. The error of law identified will be explained in more detail below. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against. 

2.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access.  An appeal tribunal which has a Medically Qualified Panel Member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination. 

3.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.  
	
	Background

5.	On 16 January 2013 a decision-maker of the Department decided that the appellant was not entitled to either component of DLA from and including 19 October 2012.  On 11 February 2013 the decision dated 16 January 2013 was reconsidered but was not changed.  On 7 November 2013 an appeal tribunal disallowed an appeal against the decision dated 16 January 2013.  On 26 March 2015 Mr Commissioner Stockman allowed an appeal against the decision of the appeal tribunal dated 7 November 2013 and remitted the appeal for re-hearing before a differently constituted appeal tribunal for determination.

6.	The further appeal tribunal hearing took place on 11 June 2015.  The appellant was present, was accompanied by her daughter and was represented.  There was no Departmental Presenting Officer present. The appeal tribunal allowed the appeal, in part, making an award of entitlement to the lowest rate of the care component of DLA from 19 October 2012 to 18 October 2016 but disallowing entitlement to the mobility component of DLA.

7.	On 27 November 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 7 December 2015 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

8.	On 11 January 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 15 March 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 4 April 2016, Mr Hinton, for DMS, supported the application for leave to appeal.  Written observations were shared with the appellant and her representative on 6 April 2016.  Written observations in reply were received from the appellant’s representative on 6 May 2016 and were shared with Mr Hinton on 10 May 2016.      

9.	On 3 August 2016 I granted leave to appeal. In granting leave to appeal I gave, as a reason, that an arguable issue arose as to the manner in which the appeal tribunal applied regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended.  On the same date I determined that an oral hearing of the appeal would not be required.  There then followed a delay in the promulgation of this decision occasioned by the current volume of work in the Office of the Social Security Commissioners.

	Errors of law

10.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

11.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

	Analysis

12.	In PG-v-Department for Communities (DLA) ([2016] NICom 83, (C34/16-17(DLA)), I stated the following, at paragraphs 24 to 28 of my decision:

‘24.	In paragraph 19 of her decision in R(DLA) 4/03 the Social Security Commissioner in Great Britain (and former Deputy Commissioner in Northern Ireland) stated the following:

‘Perhaps the most litigated area in social security law is the test set out in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991. The test is expressed in relatively few words contrasted with what has been extensively argued and written on its meaning and application in fact and in law.’

		25.	Regulation 12(1)(a)(ii) of the 1991 Regulations in Great Britain is in identical terms to regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended.  It is in the following terms:

‘12.—(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (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 place of residence or as to place of, or nature of, employment—

(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 …’ 

26.	The reference to section 73(1)(a) is, of course to that paragraph in the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, which is in the following terms:

‘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;’
 
	27.	In paragraphs 20 to 25 of her decision in R(DLA) 4/03, the Social Security Commissioner set out the principles to be applied when an adjudicating authority was considering ‘virtual inability to walk’ and, more significantly, the relevance of the factor of ‘severe discomfort.’ It is worth replicating her remarks in full:

‘20. I deduce the following propositions from the case law with respect to regulation 12(1)(a)(ii):

(1)	R(M) 1/81 establishes that the adjudicator evaluates the restrictions (if any) on the claimant’s ability to walk out of doors without severe discomfort, whether the limitations are in respect of distance, speed, length of time or manner.

(2)	The relevant question is how far the claimant is limited in walking without suffering severe discomfort rather than before severe discomfort begins to set in. As Mr Commissioner Howell QC put it in CDLA/608/1994 at paragraph 15:

“An ability to walk 50 yards which can only be accomplished at the expense of the onset of pain amounting to severe discomfort for some time afterwards is not an ability to walk without severe discomfort, even if the pain does not begin in real earnest until the end of the 50 yards.”

(3)	It is an error of law to equate the onset of severe discomfort with the point at which the claimant stops walking.  Walking which gives rise to severe discomfort is discounted.  If a claimant walks 100 yards of which the last 10 are after the onset of severe discomfort, he must be judged as if the distance he walks at that stage is the farthest distance he can go without such a result, which could be 80 yards only.  When he stops is evidentially relevant to determining what are a claimant’s real limitations but, as Mr Commissioner Jacobs pointed out in CDLA/1389/1997, at paragraph 50(d):

“a claimant may cover only a particular distance because there is no need or reason to go any further.  For example, a claimant may only walk 20 yards because that is the distance to the shop where the claimant buys a newspaper before returning home to read it.”

(4)	Rests which a claimant is forced to take from time to time before continuing to walk must be included when calculating “the length of time” the claimant takes to walk a particular distance.  Otherwise, as Mr Commissioner Rowland points out in CDLA/805/1994, there would be little purpose in regulation 12(1)(a)(ii) including the three separate factors of speed, distance and time as the first is a function of the last two.

(5) 	Mr Commissioner Rowland follows the same approach in CDLA/4388/1999 and, more recently, in CDLA/2050/2002.  In the latter cited case he makes the particular point that a tribunal must consider, where a claimant pauses, whether he can “walk further or whether that really was the absolute limit of the claimant’s capacity to walk” (paragraph 17).

(6)	In CDLA/6104/1999, Deputy Commissioner Newsome at paragraph 8 makes the valuable point:

“It may be the case that a claimant rests at a particular point because he is already in severe discomfort or because he will immediately be in such discomfort if he continues or because he is able to pace himself in such a way that if he rests at particular intervals even though the threat of severe discomfort is nowhere near imminent he will be able to progress some considerable distance before such a threat materialises.  It is in connection with the latter alternative that the pace or speed of walking becomes highly relevant in assessing whether the claimant can be taken to be virtually unable to walk.”

21.	None of the above cases nor those cited in argument directly answer the question before me.  However, the statutory wording makes clear that the focus of whether a person is “virtually unable to walk” under regulation 12(1)(a)(ii) is on the limitations imposed by the claimant’s physical condition as a whole on an ability to make progress on foot out of doors.  This judgement of fact and degree is, as Mr Commissioner Howell QC said in CDLA/608/1994 (at paragraph 13) “intended to be a broad one”.

22.	All the aspects of a claimant’s walking are to be considered which result from physical disablement and an evaluation of its quality is then made.  This is on the basis that firstly, walking achieved only with severe discomfort is discounted and secondly, that a tribunal must pay appropriate regard to manner, speed, distance and time.  This exercise is carried out with the purpose of determining whether, taken overall, the claimant’s walking out of doors is properly described as “virtually unable to walk”.

23.	If a stop is the absolute limit of the claimant’s capacity to walk then no issue of taking the test only to the first onset of severe discomfort arises.  But if a claimant recovers after a period of rest and continues walking without severe discomfort, then the statutory test does not preclude such continued walking from being assessed.  The tribunal must judge from the evidence such relevant factors as how far the claimant can initially walk without experiencing severe discomfort, how long any severe discomfort lasts before it subsides or, if he has paused to prevent such discomfort then the necessary duration of that pause, how frequently these halts recur if at all, and what is the total distance and time he can walk in this manner without severe discomfort.

24.	Time, speed, manner and distance of walking, achieved without severe discomfort, are therefore balanced in order to reach an overall judgement on whether the claimant is virtually unable to walk.  If a claimant has to rest an hour between each set of walking before severe discomfort subsides, he or she is more likely to be virtually unable to walk than a claimant who requires only 5 minutes.  Conversely, if a claimant with morning stiffness through rheumatoid arthritis walks the first minute out of doors in severe discomfort, stops for 4 minutes in order to flex his limbs and thereafter is enabled to walk 10 miles without severe discomfort at a reasonable pace and speed and without further halts, the statutory criteria do not prevent a conclusion which is in no way perverse, that such a claimant does not fall within regulation 12(1)(a)(ii).

25.	All of these are matters for the good sense of tribunals.  It is not, however, the law that only walking to a first halt required through severe discomfort is relevant.  This adds an unjustifiable gloss to the statutory criteria given the broad purpose of the test under regulation 12(1)(a)(ii), which is to establish the practical limitations on a person’s ability to walk due to the stated factors.’

28.	I accept and adopt this reasoning in a reported decision of the former Social Security Commissioners in Great Britain.  The emphasis in the paragraphs set out above is my own.  I have added that emphasis because I am not certain that the appeal tribunal in the instant case, in arriving at its conclusions on the relevance of ‘severe discomfort’, has applied the correct test.  I say ‘not certain’ because it may be the case that the appeal tribunal had the correct test in mind and the phrasing in the statement of reasons is more inelegant than substantively wrong.  There is, however, sufficient doubt in my mind to permit the decision to stand.’

13.	In the instant case, the appeal tribunal set out the following in the statement of reasons for its decision:

‘The Higher Rate Mobility Component is awarded in respect of physical conditions which render a person unable or virtually unable to walk.  There is no dispute that the Appellant is able to walk.  The issue is whether she is virtually unable to walk.  We will accept at times when her condition is at its worst she could be considered to be virtually unable to walk.  The appellant in oral evidence acknowledged she could walk but would be in discomfort.  There is authority to the effect that conditions like chronic fatigue syndrome should be accepted as having a physical origin unless there is evidence that the restrictions are purely psychological.  We accept in the Appellant’s situation that there is a physical basis.

It is established that walking which can only be achieved with severe discomfort is to be ignored.  When considering whether a person is able to walk discomfort is considered to be less that the expression “severe pain or distress”.  It is very difficult with the Appellant’s condition to quantify these matters.  Doing the best we can and hopefully taking a realistic approach, we do not consider the Appellant to be virtually unable to walk.  We acknowledge at times her condition may be so bad that she would satisfy this.  However most of the time we believe this is not the situation.  We do acknowledge her walking is restricted most of the time.  The legislation does not define the meaning of a virtual inability to walk. In terms of distance 50 metres is a benchmark but no more than that. It was our view that most of the time the Appellant could manage this without experiencing severe discomfort.  In reaching this conclusion we do acknowledge that the Appellant is not exercising pain-free and there is a background of discomfort and fatigue.’  

14.	In my view, while the appeal tribunal has reminded itself that, as was observed by the Commissioner in paragraph 22 of R(DLA) 4/03, ‘walking achieved only with severe discomfort is discounted’, it has not gone on to follow the additional detailed guidance provided in that decision.  The appeal tribunal has noted the benchmark of 50 metres and its overall conclusion is that the appellant could ‘manage’ that distance, most of the time, without experiencing severe discomfort.  As was noted above, the Commissioner in R(DLA) 4/03, ‘a tribunal must pay appropriate regard to manner, speed, distance and time.’  The emphasis here is my own.  The appeal tribunal has made no findings on these additional factors. 

15.	The Commissioner guided decision-making authorities to balance time, speed, manner and distance of walking, achieved without severe discomfort, ‘… in order to reach an overall judgement on whether the claimant is virtually unable to walk.’  I am of the view that the appeal tribunal in the instant case has not undertaken the necessary balancing exercise.  Equally importantly though, the Commissioner stated that it is not ‘… the law that only walking to a first halt required through severe discomfort is relevant’, concluding that that would add ‘… an unjustifiable gloss to the statutory criteria.’  It seems to me that the appeal tribunal’s limited conclusion that the appellant could ‘manage’ a distance of 50 metres, most of the time, without experiencing severe discomfort, is falling into the trap exhorted against by the Commissioner.  As was noted by the Commissioner in paragraph 4 of CDLA/4388/1999

‘In any event, to say that a person can walk 50 yards frequently begs the question: what happens then?  and, for the reasons I gave in CDLA/805/94, that question must be considered.’
 
16.	For this reason, I have concluded that the decision of the appeal tribunal is in error of law and is, accordingly, set-aside.

17.	I do not, as a consequence of my conclusions set out above, have to consider the appellant’s other grounds for appealing.  I would note, however, and in agreement with Mr Hinton’s detailed written observations, that I would not have found the decision of the appeal tribunal to be in err on the basis of those other grounds.   

	Disposal

18.	The decision of the appeal tribunal dated 11 June 2015 is in error of law. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against. 

19.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

		(i) the decision under appeal is a decision of the Department dated 16 January 2013 in which a decision maker of the Department decided that the appellant was not entitled to either component of DLA from and including 19 October 2012;

		(ii) the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

		(ii) it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and 

		(iv) it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it. 

(signed) K Mullan

Chief Commissioner

16 February 2017