CM/145/1988

Would anyone have a copy of the following decision that they could post a link to or fax me please- 02838317060

CM/145/1988

It seems Paul (NEVIP) had a copy in 2007 from the archive.

Here you go

CM/145/1988

SOCIAL SECURITY ACTS 1975 TO 1986

CLAIM FOR MOBILITY ALLOWANCE

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Appeal Tribunal:

1. My decision is that the decision of the medical appeal tribunal (MAT) given on 5 August 1987 is erroneous in point of law in so far as the reasons for the decision are insufficiently stated to satisfy the requirements of regulation 31(4) of the Social Security (Adjudication) Regulations 1986.

2. The claimant is now aged 54. He has difficulty with walking. On 2 May 1986 the Secretary of State received a renewal claim from the claimant to continue an existing award which expired on 16 July 1986. The history of that claim is set out in the written submission made on behalf of the Secretary of State dated 27 July 1988 and I see no merit in my repeating such history here. Suffice it to say that the claimant contends that the MAT erred in point of law and seeks to have their decision set aside.

3. Regulation 3(1)(b) of the Mobility Allowance Regulations 1975, as amended, clearly imports that a person may be found to be virtually incapable of walking if his ability to walk out of doors is limited in one or more of the various ways mentioned in that regulation in making progress on foot without severe discomfort. Accordingly it was incumbent on the MAT to record findings of fact on each of the factual tests in regulation 3(1)(b). The tribunal recorded that the claimant walked 90 yards “very slowly”. He told them he could only walk ” about 5 minutes”. Assuming it took the claimant five minutes to walk 90 yards, It would take him more than 1 1/2 hours to walk a mile about 4 1/2 times as long as a normal person, assuming, of course, the claimant could keep up the pace. In my view this is so slow as to be arguably paramount to virtually unable to walk. The MAT gave no explanation as to why they did not consider it to be sufficiently slow to satisfy the medical conditions for an award of mobility allowance. Further, regulation 3(1)(b) refers specifically to “his ability to walk out of doors ..”. The MAT recorded that they saw the claimant walking “along the tribunal corridors” and there is no indication that they assessed the claimant’s walking ability in the context of his walking out of doors.

4. The effect of pain and discomfort on the claimant’s walking ability was specifically in issue in this case. The MAT observed the claimant “walking about 90 yards .. with a limp on his left leg” and concluded that he “was not in severe discomfort over this walk”. They recorded clear findings on the extent and nature of the claimant’s walking ability without severe discomfort and concluded that the “pain in his left groin .. was caused more by anxiety and apprehension rather than by any physical disablement.” The Secretary of State’s representative supports the appeal on the following grounds:

“It Is submitted that this is a point which had not previously arisen In the course of the claim. It is submitted therefore that it was incumbent on the MAT to bring this point to the attention of the claimant in the interests of them. In this respect the Secretary of State’s representative refers to decision CM/186/1986 in which the Commissioner held that such an omission amounted to a breach of natural justice.”

I agree with this submission. The MAT’s decision was erroneous in law on this ground also.

5. I can appreciate that the claimant considers it unfair that whereas he received mobility allowance, he now receives nothing although he considers his condition warrants it. In Decision R(A) 2/83 the Commissioner stated on this point at paragraph 5:

“Such determinations depend, however, largely upon individual medical opinion and, in my view it is desirable that, when there has been a previous certification in respect of a condition relating to attendance allowance, in the absence of material change, careful consideration should be given to whether subsequent evidence warrants a different conclusion. It may be that the previous determination was plainly wrong. If possible, a situation should be avoided in which medical practitioners, who hold different medical opinions on similar medical circumstances, give contrary decisions which the general public, and particularly those afflicted by disabling conditions and those associated with them and who care for them, do not understand, and is apt to produce a feeling of injustice.”

In the present case there is nothing to indicate why the MAT decided that the claimant did not satisfy the conditions for an award of mobility allowance. Was it because his condition had improved or was it because the MAT disagreed with the assessment of the previous MAT? In my view the decision was inadequate because the claimant was left in the dark as to why and upon what basis it had been rejected.

6. For the reasons stated above the decision of the MAT was erroneous in law. The matter must be referred to a fresh MAT which in accordance with normal practice should be differently constituted from that which gave the decision of 27 July 1988.

7. The claimant’s appeal is allowed and I give the decision set out in paragraph 1.

(Signed) R.F.M. Heggs
Commissioner

PS - the word “paramount” in para 3 should, I think, be “tantamount”.

Much appreciated

Thanks