I'm off for two weeks after today.

Have written reasons for hearing where I thought claimant had good case and gave good ev.

Mr was s/e painter & decorator, used to watch Bolton travelling all over, ??, Has form of PTSD and now is not working, only goes to local shop or travels only with brother.

Mr was asked if he was dumped somewhere how would he get home. Answered I suppose I would ask where the station was and try and get home, said he wouldn't like it though.

Question is this. For me the actual evidence showed something different to the response gained from a theoretical question.

Is there a CD on how the tribunal should weigh up evidence from the actual circumstances and the theretical evidence from theoretical questions?

Answers on a postcard to sunny South Wales please.

Cant think of a CD off the top of my head which directly answers your question but this is really just a question of the weight given to evidence. The theoretical answer to the theoretical question is part of the appellants evidence and IMHO is quite valid as a means for the tribunal to, amoungst other things gauge his credibility as a witness. Presumably at that point they had in mind LRM. The key question is how much weight they gave this evidence in light of the other evidence, the stronger the weight of factual evidence, the less weight this line of questioning should be given. You then come down the issue of how the final decision was explained in the SOR. If the weight given to this 'theoretical' evidence was not justified then you have grounds for appeal. Hope this helps.

I would suggest approaching the question of whether there are grounds for leave to appeal in the following way. He says he never went anywhere without his brother. First of all did the evidence presented to the DAT support this contention e.g was it contradicted by his brother in which case he has problems, or did he describe instances when he had been somewhere and it was clear no one was with him. In which case again he has problems.

If the DAT accepted as a fact that he never went anywhere without someone with him, then the next issue the DAT have to deal with is 'why'. Unless it was clear that, for example, he was a very gregarious sort of person and the person who was with him was simply for company, then to have someone with you every time you went out would be strong evidence of a need for guidance and/or supervision. The DAT could reason that you didn't need someone with you for guidance and/or supervision, but such reasoning would have to be based on evidence. What facts did they arrive at that supported such a conclusion?

The theoretical question posed could be seen as so far fetched as to add almost nothing to the evidence. The construct may be beyond the concept of someone and this will affect their answer. Also, what does it mean? The answer may differ depending on if the place that you were 'dumped' was somewhere you had never been but was say a couple of miles from home, or somewhere that was hundreds of miles away. For the purposes of lrm there is no distinction, but in his head when he answered the question there might have been.

CSDLA/12/2003: Unfamiliar routes
Paragraphs 28 and 29 set out the steps a tribunal should take when ascertaining the low rate mobility test:

determine whether, through disablement, the claimant is unable to walk on familiar routes without guidance or supervision - in which case he satisfies
if the claimant can walk on familiar routes consider if he or she can walk on unfamiliar ones - if the claimant cannot the test is satisfied
See also CDLA/4806/2002 and R(DLA)6/03 (formerly CDLA/2106/2002).

CDLA/2377/2002 states that "the question that needs to be asked is what would happen if the claimant went along unfamiliar routes without being supervised."


Per last case; ie what would happen if on unfamiliar route. You already have oral evidence Client 'wouldn't like it' - perhaps you enter a ground of appeal on the basis that Tribunal didn't use the correct test as they should have asked another question to establish why 'he wouldn't like it'.

Perhaps also, in the way the question was asked it was misleading or confusing- which if so, could be added to the above to clarify/or to suggest other evidence should be preferred. -Could argue undue weight- Tribunal must examine the evidence as a whole.

Another thought is that if Client had to ask for directions, that might, of itself, amount to a need for supervision.

Hope the above help.

cablou