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[2006] UKSSCSC CDLA_3420_2005 (09 October 2006)

CDLA/3420/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The decision of the Disability Living Allowance Appeal Tribunal dated 7 June 2005 on Case No. U/42/142/2003/02121 is erroneous in law. I set that decision aside and direct that the claimant's case be heard again by a differently constituted tribunal.
2. The claimant appeals, with my leave, against the tribunal's decision that the claimant is not entitled to the mobility component of disability living allowance from and including 1 January 2004.
3. The claimant suffers from Marfan's disease and sarcoidosis. The first affects the connective tissues and in the claimant's case it has caused damage to his heart. He has undergone the first stage of two-stage surgery for the repair of the aorta, surgery to the ascending aorta. The second stage, surgery to the aortic arch, has yet to be carried out. In the claimant's case the sarcoidosis affects his lungs and, the claimant says, causes hyper mobility in his joints. The risk of death from the Marfan's disease has led to anxiety and depression. On 15 February 2002 a Disability Living Allowance Appeal Tribunal awarded the claimant the higher rate of the mobility component of disability living allowance for the period from 3 July 2001 to 31 December 2003. According to the decision notice that award was on the basis that the claimant was virtually unable to walk and that 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.
4. A renewal claim was refused and the claimant appealed that refusal. His appeal was dismissed by a tribunal on 18 February 2004. That tribunal's decision was set aside by a Deputy Social Security Commissioner on the grounds that it was erroneous in law by reason of the tribunal's not having dealt with the claimant's contention that as the second stage of the heart surgery had not been carried out he was at risk of an aneurysm in the aortic arch or the descending aorta with the consequence that 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. That was also the ground on which a Commissioner had granted leave to appeal. A second error in law identified by the Deputy Commissioner was that the tribunal had not dealt with the claimant's point that his condition was, if anything, worse at the time of the refusal decision than it had been when the first tribunal awarded benefit.
5. The notice of the decision of the tribunal of 7 July 2005 which is now under appeal to me is in the following terms:-

"The Appeal is refused.

[The claimant] is not entitled to either component of disability living allowance with effect from 01/01/2004.

This is because he does not satisfy the statutory criteria of either component at any rate.

As requested by the Appellant, we have decided this appeal on a consideration of the papers.

We accept the facts and reasons for the decision as set out in the submission. We find that the regulations have been correctly applied and the decision must therefore be confirmed.

As with all sufferers with Marfan's syndrome, there is a danger of aortic aneurysm which no surgical procedure can entirely prevent. However, no supervision is appropriate and most sufferers can lead normal working lives.

In relation to exercise, very vigorous exercise is to be avoided as it could increase the risk of aneurysm but more gentle exercise is beneficial and encouraged. This condition itself would not therefore give rise to any entitlement to DLA. The Sarcoidosis may lead to breathlessness and restrict his exercise. This condition for [the claimant] was diagnosed some time ago and has no treatment for it: it is therefore mild and not progressive and would not give rise to any significant loss of function.".

6. The relevant paragraphs of the statement of the tribunal's reasons, to which I have affixed numbers, are as follows:-

"1. [The claimant] now requests a statement of reasons for [the tribunal's] decision. We noted in the decision notice the nature of the effects of Marfan syndrome and really there was little to add to those comments. [The claimant] had an award of the higher rate of the mobility component from 03 July 2001 to 31 December 2003. On renewal no award was made. The appeal was heard by a tribunal on 04 February 2004 which confirmed the decision that there was no entitlement. On that occasion [the claimant] attended the Tribunal and had the advantage of being able to talk to him. He lives alone in a flat; he drives a car; he has not worked since 1995. He gets depression. On that occasion he said he was only seeking higher rate mobility. He complains that exertion of walking would kill him.

2. He appealed against the decision of the Tribunal. The Secretary of State did not support the appeal but the Commissioner allowed the appeal on the basis that he considered that it was an error of law that the Tribunal had not made any specific finding on the claimant's contention that he remained at risk of having an aortic aneurysm because the aortic arch had not been removed during his cardiac operation in March 2002.

3. The present Tribunal has great difficulty in dealing with the Commissioner's comments. The nature of Marfan syndrome is well known to all Marfan's sufferers and their families and to the medical profession. The condition unfortunately renders sufferers liable to an aortic aneurysm which results in the premature death of many. Marfans, however, in itself until such an event happens, does not give rise to any significant disability. Sufferers can lead normal working lives. Their mobility is normal. They are not advised to restrict their mobility because of this condition.

4. Unfortunately [the claimant] appears to suffer from an anxiety about his condition which stops him leading the normal life which he should be able to lead. He is unnecessarily restricting his mobility and not working.

5. He was granted mobility component for two years and this tribunal considers that this is entirely inappropriate for a sufferer of Marfan's condition alone. [The claimant] had no other conditions which would have significantly reduced his mobility.

6. Walking reasonable distances causes no danger to [the claimant's] health and therefore he is not entitled to higher rate mobility component. He does not need guidance or supervision when walking. He is at risk of having an aortic aneurysm as indeed every sufferer is. We do not know what the Commissioner is referring to in relation to the removal of the aortic arch. There is an operative procedure which strengthens the arch which can reduce the risk of aneurysm; it never entirely removes it, which would of course cause death.

7. Any supervision however because of this risk is entirely inappropriate. It is a risk with which all sufferers know they have to live. No amount of supervision from any other person can reduce the risk or ameliorate its effects if it happens.

8. There is nothing in [the claimant's] medical condition which prevents him from carrying out all normal bodily functions.

9. He therefore does not satisfy the conditions for any rate of Disability Living Allowance.".

7. The relevant legislation is section 73(1)(a) of the Social Security Contributions and Benefits Act 1992, which provides that a person is entitled to the mobility component of disability living allowance if he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so, and regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991. Insofar as relevant to this appeal regulation12 (1)(a) provides:-

"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; … .".

8(1). In the notice of the tribunal's decision it is recorded that the claimant had asked for a hearing on the papers. In the first of the paragraphs of the statement of the tribunal's reasons for decision which I have set out in my paragraph 5 above it is remarked that the tribunal of 4 February 2004 had the advantage of being able to speak to the claimant. The implication of that is that the tribunal was hindered in the exercise of its inquisitorial role by the claimant's absence. There is no copy of the claimant's request for a paper hearing. If a tribunal is hampered by a claimant's choice of a paper hearing instead of an oral hearing it is an error in law for the tribunal not to consider whether or not the claimant should be given a further opportunity to attend a hearing. In this case the statement of reasons is silent on the matter and there is no copy of the record of the tribunal's proceedings in the appeal bundle or in the tribunal file. It is a breach of regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 for the clerk to the tribunal not to preserve the record of the tribunal's proceedings until the expiry of a period of 6 months or until the papers are sent to the Commissioners' office in connection with an appeal against the tribunal's decision whichever is the earlier. It may be that the claimant had indicated that he simply did not want to attend any further tribunal hearings, in which case the tribunal just had to do the best it could without him, but if he said that he could not attend because of illness or some other unavoidable commitment and did not want the decision delayed then the tribunal should have considered whether or not an adjournment to a later hearing at the normal tribunal venue or for a domiciliary hearing was appropriate. However, as I have had to set the tribunal's decision aside for other reasons, I have not troubled to find out what has happened to the record of the tribunal's proceedings or what reason, if any, the claimant gave for requesting a paper hearing but it should be noted that a tribunal's decision can be set aside in such circumstances.

8. In paragraph 6 of the statement of reasons reference is made to the difficulty which the tribunal had in understanding what the Commissioner meant by removal of the aortic arch. The tribunal should not have detained itself with that matter. The case was remitted for rehearing because the tribunal of 4 February 2004 had not dealt with the claimant's point that because the second stage of the surgical treatment of his heart had not been carried out the aortic arch remained in its pre-operation diseased state. The issue for the tribunal was whether or not there was any merit in the claimant's argument that in that situation the exertion of walking constituted the risks referred to in regulation 12(1)(a)(iii). Whether or not the Commissioner had understood the surgical procedure employed to deal with a diseased aortic arch and whether or not there is a procedure which can eliminate the risk of aneurysm in the arch was irrelevant to the issue remitted to the tribunal. As the reference to the tribunal's difficulty in understanding what the Commissioner meant by removal of the aortic arch has given the claimant the impression that an irrelevant consideration has informed the tribunal's decision the decision is erroneous in law. The claimant's explanation for the tribunal's difficulty in understanding the Commissioner is that the tribunal seems to have been unaware that for several years the practice of strengthening the diseased aortic arch with dacron has been replaced with a procedure which does involve removing the diseased tissue and replacing it with artificial tubing. The Commissioner's reference to removing the arch is simply short-hand for that procedure. There is no doubt in my mind that the Commissioner was saying no more than that the claimant's aortic arch had not been treated but I doubt very much that the medical member of the tribunal, even if he was not a cardiologist, was not aware of all the surgical procedures currently available.
9. In the second of the paragraphs which I quote from the statement of reasons it is said that the case was remitted to the tribunal because the February 2004 tribunal had not dealt with the claimant's point that he remained at risk of suffering an aortic aneurysm. That is only partly correct. As I say above a second and related reason for the Commissioner's setting aside of the 2004 tribunal's decision was that tribunal's failure to explain why it had not renewed the award made by the tribunal of 18 February 2002 despite the claimant's contention that his condition was no better, and indeed poorer, than it had been at the time of the decision under appeal to the 2002 tribunal. I assume that it is paragraph 5 of those quoted above which was intended to deal with that additional point. However, it does not do so adequately. Firstly, because the 2002 tribunal decision was not challenged there is no statement of reasons and there is little or nothing in the papers to explain why that tribunal made the award which it did make. Paragraph 5 simply says that the award of mobility component for 2 years is considered to be entirely inappropriate for a sufferer of Marfan's disease alone. It is open to a tribunal to say that on the evidence before it it will not renew an award made by an earlier tribunal but it is not open to it to say, as has been said in this case, that the earlier tribunal's decision was wrong. A tribunal has no jurisdiction to impugn the judgment of an earlier tribunal. Moreover, the basis of the 2002 tribunal's award was not just the application of head (iii) to the claimant's case. According to the decision notice head (ii) was also applied. There is nothing in the 2000 tribunal's notice of decision or in the papers to indicate the factual findings on which head (ii) was applied and no evidential basis for the statement in paragraph 5 that the claimant had no conditions other than Marfan's syndrome which would have significantly restricted his mobility at the time of the decision under appeal to the 2002 tribunal. Paragraph 5 is, therefore, erroneous in law.
10. I now turn to the regulation 12(1)(a)(iii) question which the Commissioner remitted to the tribunal. In granting leave to appeal I said that a disability living allowance tribunal's decision has to be based on evidence, not the tribunal's medical opinion, and that there was no evidence before the tribunal to justify its opinion that the exertion of walking would not risk a rupture of the aneurysm. That would seem to assume that there was evidence in this case that the claimant does have an aneurysm in the untreated part of the aorta. As far as I can see from the papers that assumption is not correct. What is established is that the claimant has Marfan's disease which renders him vulnerable to the development of an aneurysm in the unstrengthened, or unreplaced, parts of the aorta. Also, my impression was that the claimant had, as claimant's with unusual conditions often do, supplied copies of the specialist literature on his condition and its treatment. The claimant has not in fact done that although he has in his submissions relied on his understanding of the specialist advice which is given about the treatment of the disease and how sufferers should modify their activity. It was not, therefore, an error for the tribunal to take into account its own understanding of the effects of the condition in rejecting the claimant's submissions. Nevertheless, for reasons which I shall give in the following paragraphs the tribunal's approach to the regulation 12(1)(a)(iii) question was not correct.
11. Firstly, the decisions of the tribunal and of the earlier tribunal of 4 February 2004 and, indeed, the Secretary of State's decision of 24 December 2003 have been rendered erroneous in law in respect of both the head (ii) and head (iii) questions by the decisions of the Tribunal of Commissioners on CDLA/2879/2004 and CDLA/2899/2004 which were issued on 25 November 2005. In his report of 28 August 2003 the claimant's general practitioner includes in his diagnosis of the claimant's disabling conditions stress, anxiety and low mood secondary to the uncertainty of the prognosis and further operative intervention. The level of the anxiety etc. was described as being moderate to severe. It seems to me that at none of the stages of adjudication in this case has the claimant's anxiety been taken into account in relation to either the head (ii) or head (iii) question. Given the opening words of sub-paragraph (a) of regulation 12(1) and the reference to physical disablement in section 73(1)(a) that is understandable. However, the guidance in paragraph 116 of CDLA/2879/2004 is:-

"In our judgment, therefore, even if a decision-maker or appeal tribunal considers that mental or psychological problems are the substantial cause of a claimant's walking difficulties, it should award the higher rate of the mobility component if it finds that a physical disorder contributes to the claimant's inability or virtual inability to walk to more than a minimal extent.".

It would appear from paragraph 4 of the statement of its reasons for decision that the tribunal of 7 June 2005 has discounted anxiety as having any relevance to the head (ii) or head (iii) questions. In the light of paragraph 116 of the Commissioners' decision that is an error of law. The Tribunal of Commissioners was dealing only with the head (ii) question but its reasoning applies equally to the head (iii) question. In this case as the tribunal took the view that the Marfan's syndrome was not a reason for the claimant to restrict his walking it probably would not have regarded the anxiety or depression as causing any restriction in his mobility but the effect of the Commissioners' decision is that even although a tribunal does not think that the claimant's physical condition as a whole impairs his mobility sufficiently to bring him within the scope of regulation 12(1)(a) it must, where there is also the presence of a mental condition, consider whether or not the physical condition has more than a minimal effect on the claimant's mobility and, if it decides that the effect is more than minimal, go on to consider whether or not the mental condition brings the claimant within the scope of regulation 12(1)(a) and explain its conclusions.

12. The question of the claimant's ability to walk was twice referred to medical advisers of the Department for Work and Pensions in connection with the current claim. The first adviser noted the clinical information supplied in the general practitioner's factual report and said:-

"In my opinion he is likely to be able to walk a reasonable distance."

The second adviser said that, further to the first adviser's advice, he considered that:-

"The effort of walking 100 metres, at his own, slightly reduced pace, on the flat is not such that it would give rise to a real danger of life-threatening complication. He has had valvular replacement and is under treatment.".

The tribunal's conclusion on the regulation 12(1)(a)(iii) question as stated in paragraph 6 of the statement of reasons is:-

"Walking reasonable distances causes no danger to [the claimant's] health and therefore he is not entitled to higher rate mobility component.".

Neither the medical advice nor that passage from the statement of reasons properly addresses the head (iii) test. That head does not refer to walking which is modified in any way as regards speed, distance or the time for which walking is sustained. The head (iii) test is, therefore, whether or not the exertion of walking what would be for a person of the claimant's age and sex normal distances at normal speeds would constitute a danger to his life or be likely to lead to a serious deterioration in his health.

13. The gathering of evidence has been unsatisfactory in this case and the tribunal has not had the assistance which it should have had. In response to the questions on page 13 of the claim pack the claimant said that the two people who could supply information about his illnesses or disabilities were his consultant cardiologist and his general practitioner. In his letter of appeal he noted that no approach had been made to the cardiologist and supplied her name and address again. I assume that when the general practitioner said in his factual report that the claimant had been warned that there was a significant risk of deterioration in his post-operation cardio-vascular condition he meant that the warning had come from the cardiologist but even if the general practitioner meant that the warning had come from him it seems to me that the Secretary of State should have obtained from the cardiologist a report as to the claimant's current condition and the prognosis, in particular the risk of the development of an aneurysm in the untreated part of the aorta. The Commissioner who remitted the case to the tribunal of 7 June 2005 advised the claimant to obtain a report from the cardiologist for the purposes of the rehearing of his case. The claimant does not seem to have done that. Nevertheless, the adjudication of a claim for a Social Security benefit is to be conducted as an inquisition at all stages, not as a litigation or preparation for a litigation (Paragraph 14 of Lord Hope of Craighead's opinion in Kerr (AP) v. Department for Social Development (Northern Ireland) [2004] UK HL 23). To my mind in this case, in which the claimant is suffering from two fairly unusual diseases, the minimum clinical evidence which was required for a proper adjudication on the claim was factual reports from all of the claimant's general practitioner, cardiologist and chest physician. If those reports did not indicate entitlement so clearly that no further inquiry was needed the Secretary of State should have referred the claimant to an examining medical practitioner for an assessment of his disabilities. It was an error in law for the tribunal to have proceeded without such evidence and it should have adjourned for it to be obtained. The claimant has attached to his observations of 17 May 2006 a copy of a letter of 6 July 2005 from his consultant physician. He says that that letter was "sent in last year". Obviously that must mean sometime after 6 July 2005. The letter, therefore, post-dates not only the two tribunal decisions but also the Commissioner's decision. The tribunal of 7 June 2005 cannot, therefore, be faulted for not having taken it into account as evidence of the claimant's disablement but it should be taken into account by the tribunal to which the case is now remitted.
14. When I granted leave to appeal I said that the tribunal's opinion that the exertion of walking would not risk a rupture of the aneurysm was contrary to the advice given to examining medical practitioners. That observation was made on the assumption that there is an aneurysm in the untreated part of the claimant's aorta. That assumption is probably incorrect. What prompted me to think that the tribunal's opinion was contrary to the advice given to examining medical practitioners was the information provided in the submission for the Secretary of State in CDLA/3941/2005. In that case I asked the Secretary of State's representative to ascertain what advice is given to examining medical practitioners about what would constitute serious deterioration in health within the meaning of head (iii). The Corporate Medical Group of the Department for Work and Pensions provided the Secretary of State's representative with three examples of circumstances in which it was considered that the exertion of walking would be likely to lead to serious deterioration in a claimant's health. The first example was that of cardiac deficiency. In relation to that it was said:-

"The effort needed to walk and the subsequent effect on the person's health is under consideration here. A serious cardiac deficiency, for example, would be relevant in this context.

The only examples that we would consider to be relevant are:

(i) That of a person with an aortic aneurysm on the point of rupture. The effort required to walk may lead the aneurysm to rupture. However, this situation may not be apparent, the aortic aneurysm may in most cases be undiagnosed if it is asymptomatic. If diagnosed, it would be likely to be treated, if possible.

(ii) That of a person with an hereditary weakness of a blood vessel in the brain such as the circle of Willis, this is known as a Berry aneurysm. Here again, the effort of walking may cause the blood vessel to rupture. Again, in most cases this would be undiagnosed, or if diagnosed for any reason, would be rapidly treated by surgery.".

The implication of that advice is that a claimant will not normally come within the scope of head (iii) by reason of an aortic aneurysm because either it will be undetected and not founded on in a claim for benefit or it will be detected and treated so that it no longer constitutes a danger to the claimant when he walks. In this claimant's case, assuming that at the date relevant to this appeal (which is the date of the Secretary of State's decision refusing to renew the award in September 2003) the claimant did not have an aneurysm in the untreated part of the aorta, the question is whether or not in the overall state of the claimant's health the probability is that the exertion of walking would constitute a danger to his life or would be likely to lead to a serious deterioration in his health.

15. The evidence as to the overall state of the claimant's health in the papers before me is:-

(i) The claimant has Marfan's disease which can weaken the walls of blood vessels to the point that they dilate under the pressure exerted upon them by the pumping of the heart and the aneurysm thus created can rupture under that pressure. The claimant has already undergone surgical treatment of the ascending aorta because of an aneurysm in that vessel and he is on notice that the prognosis is poor and that he may require further surgery on the aortic arch. There is nothing in the papers to indicate that at the relevant date a further aneurysm had developed in the aortic arch.

(ii) The claimant says that he has been told that his pulmonary artery is affected by the Marfan's disease.

(iii) The claimant says that he suffers from hyper mobility of the joints which causes him pain on walking.

(iv) The claimant's general practitioner includes anxiety and depression in the diagnosis of the claimant's conditions.

(v) The claimant suffers from sarcoidosis which affects his lungs. The letter of 6 July 2005 from his chest physician to which I refer above says:-

"Thank you for your letter of 23 June 2005.

I confirm that your sarcoidosis had caused pulmonary damage (on both radiological and lung function criteria) and that at your last review both your radiology and lung function testing appeared stable. Your X-rays showed hyper inflated lungs, loss of volume in both upper lobes with fibrotic changes consistent with sarcoidosis. Your X-ray appearances have been static for some time.

Your lung function test performed on 4 September 2003, showed an FEV1 of 1.9 litres (this is 41% predicted), FVC of 4.0 litres (this is 70% predicted) and your FEV1/FVC percentage was 47% (normal range or greater than 70%). Transfer factor and co-efficient was 49% of 77% predicted respectively. These lung function tests as I mention to you have been relatively stable since December 2001, but obviously do represent a significant decrease on the normal range expected from somebody of your age and height.

… .".

16. Because of the time for which his case has been in train the claimant has requested that, if it is in my jurisdiction to do so, I make my own decision rather than remit to a third tribunal for a rehearing. There is insufficient evidence before me on which to base a decision. Also I think that a proper consideration of the medical evidence requires a contribution from a medical practitioner. I would be in danger of suggesting to the claimant that he is either more or less ill and disabled than he actually is. I direct that before the case is listed for rehearing by the new tribunal the Secretary of State will obtain:-

(1) a report from the claimant's cardiologist, the report to include an indication of the prognosis as at 24 September 2003 with particular reference to the risk of the development of a further aneurysm and the likelihood that walking at the speeds and distances normal for a man of the claimant's age in normal health would exacerbate that risk in the claimant's case and

(2) a report from an examining medical practitioner.

Other issues may have emerged by the time the case is heard by the new tribunal but on the current evidence the issues for that tribunal are:-

(a) Does the disablement resulting from the combination of Marfan's syndrome, sarcoidosis, anxiety and depression bring the claimant within the scope of head (ii) of regulation 12(1)(a)?

(b) Do the sarcoidosis, anxiety and depression exacerbate the effects of the Marfan's syndrome on the claimant's cardio-vascular system? In particular, is the risk of the development of an aneurysm in the aorta or the pulmonary artery increased by the impairment of the lungs?

(c) Bearing in mind the advice from the Corporate Medical Group and assuming that the claimant undergoes regular checks for deterioration in the cardio-vascular tissue, is there any risk of the claimant developing an aneurysm in the aorta or in the pulmonary artery which reaches the point of danger before it is detected and is that risk exacerbated by the claimant's walking normal distances at normal speeds? The development of an aneurysm is in itself a serious deterioration in health even although it is not on the point of rupture.

17. The claimant should remember that the tribunal must base its decision on the circumstances obtaining at the date of the Secretary of State's decision under appeal. If he thinks that his disability has worsened since then he should make a new claim without waiting for the new tribunal's decision. He should also attend the tribunal hearing unless he is too unwell to do so in which case he should ask the chairman to exercise his discretion to hold a domiciliary hearing. He should support such a request with medical evidence.
18. For the foregoing reasons the claimant's appeal succeeds, inasmuch as I have set the tribunal's decision aside, and my decision and directions are in paragraphs 1, 14, 17 and 18 above.

(Signed) R J C Angus

Commissioner

(Date) 9 October 2006