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[2008] UKUT 22 (AAC) (24 November 2008)

 


THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

For the Appellant: Mr Smith, Welfare Rights Unit, Northumberland NHS Care Trust

For the Respondent: Mr Bartos, Advocate, instructed by Miss McCurry of the Office of the Solicitor to the Advocate General

Oral Hearing: Edinburgh, 11 November 2008

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal against the decision of the Appeal Tribunal given at Newcastle Upon Tyne on 26 March 2008 is allowed.

The case is referred to the First Tier Tribunal (Social Entitlement Chamber) before a differently constituted tribunal for a rehearing.

REASONS FOR DECISION

1. The claimant has appealed against the decision of the tribunal given at Newcastle on 26 March 2008. That decision found that the claimant was not entitled to the mobility component of disability living allowance from and including 4 June 2007. It awarded her the middle rate of the care component from 4 June 2007 to 3 June 2009.
2. It was accepted by both parties before me that the tribunal erred in law. For the reasons set out below, I accept that proposition. The parties were also in agreement that the decision of the tribunal should be set aside and the case remitted to a differently constituted tribunal for a rehearing.
3. The tribunal found that the claimant suffers from anorexia nervosa. They found that she had spent six months as an inpatient in a private hospital prior to December 2006. They then went on to find that she was then detained under the Mental Health Act and became an inpatient at the Royal Victoria Infirmary in Newcastle where she underwent naso-gastric feeding. They found as a fact that she was discharged from that hospital in February 2008.
4. Whilst a patient at the Royal Victoria Infirmary, Newcastle, she made a claim for disability living allowance on 4 June 2007. The decision in response to that claim was made on 20 August 2007. It awarded her the middle rate of the care component of disability living allowance from 4 June 2007 to 3 June 2009 and refused her claim for the mobility component.
5. The claimant then appealed to an appeal tribunal. The basis of her appeal was that she was entitled to the higher rate of the mobility component by virtue of satisfying the conditions set out in s.73(1)(a) of the Social Security Contributions and Benefits Act 1992, as defined by regulation 12(1)(a)(iii) of the Social Security (Disability Living Allowance) Regulations 1991. Section 73(1)(a) requires that the claimant is suffering from physical disablement, such that she is unable to walk or virtually unable to do so. Regulation 12(1)(a)(iii) provides:

"(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-

…

(iii) the exertion required to walk would constituted a danger to his life or would be likely to lead to a serious deterioration in his health."

It is to be noted that section 73(1)(a) is dependent on physical disablement. Regulation 12(1)(a) makes specific reference to the claimant's physical condition.

6. Mr Bartos in his submission to me made reference to the statutory provisions and submitted that there was an absence of clear findings in relation to the physical effects of the claimant's psychiatric condition, anorexia nervosa. With that proposition, I agree. It was crucial that such findings were made, standing the statutory conditions for the allowance.
7. There was evidence in relation to the physical effects of the claimant's condition before the tribunal. In a medical report by a consultant psychiatrist dated 30 July 2007, in answer to a question relating to a history of self-neglect, he said:

"In sense of neglecting to care for her her [sic] body's nutritional needs placing herself at risk for [sic] sudden death. Moreover, she has developed osteoporosis."

Later in the report, he went on to say:

"The risk is that when unobserved she over exercises (6) even when frail thus endangering herself."

In the claim pack, it is noted that her BMI was dangerously low (below 14) in January 2006 (see page 57) that she had developed osteoporosis and that she was physically unstable, due to a slow heart rate (see page 12). In a report from a consultant psychiatrist dated 5 December 2007, it was said:

"[The claimant's] physical ability is not impaired in terms of distance and speed. Yes she has used a wheelchair in the past, in the early part of her admission, when her weight was very low, to conserve energy. It is more a question that it would be inadvisable for [the claimant] to use walking as a means of getting herself from A to B as this will impair her energy balance when she is still significantly underweight."

In a further report of the same date, it is said:

"She has been advised not to use walking as a mode of getting about in the community so that she can conserve energy and at least maintain her weight. Therefore, in my opinion it would be best if [the claimant] used public transport or private transport provided by her parents, as much as possible. I know that she is hoping to attend Newcastle College in which case she will be relying on public transport. She will also need to attend for psychotherapy and nutritional therapy and occupational therapy sessions at the RVI, every week. We would not be happy about her walking from Newcastle College up to the RVI"

8. The tribunal made reference to this evidence but, as indicated in paragraph 6, their findings lacked clarity in respect of her physical disablement and its effect upon her at the time the decision appealed against to them was made. I am satisfied that this constituted an error in law, as such findings were crucial to the decision that the tribunal required to make.
9. It is also apparent, having regard to the second report of 5 December 2007, that the tribunal made a mistake as to material fact in paragraph 7, when they found that the claimant had, as a matter of fact, begun a course Newcastle College in September 2007 before she was discharged from the Royal Victoria Infirmary. That finding was not based upon the evidence and, indeed, was contrary to the consultant's evidence of 5 December 2007, quoted above. This constitutes a further error in law.
10. Mr Bartos also submitted that the tribunal erred in law by virtue of a failure on their part to apply s.12(8)(b) of the Social Security Act 1998, which restricts them by providing that, in deciding an appeal, a tribunal shall not take into account any circumstances not obtaining at the time when the decision appealed against was made. The tribunal's findings are not restricted within these parameters and, accordingly, I agree that their decision errs in law on these grounds also.
11. The essence of the tribunal's decision is given in paragraph 8 of their statement, where they say:

"We find that lots of little bits of walking throughout the day will use as much energy as walking the equivalent distance in one event. It is only if she walks, without eating enough to replace the calories utilised that she is at risk. We find that the exertion of walking, by itself, is not a danger to her health. It is only dangerous if she walks without keeping up her calorific intake."

12. The question before the tribunal was whether the claimant's physical condition as a whole was such that the exertion required to walk would constitute a danger to her life or would be likely to lead to a serious deterioration in her health. It was too simplistic of the tribunal to find that exertion was dangerous only if she walked without keeping up her calorific intake and that this excluded her from satisfying the condition. In my view, the cause of her physical condition is not material in answering the question before them. The evidence before the tribunal that the psychiatric condition, anorexia nervosa, was the cause of the claimant's inability to eat, is not, in itself, material for the purpose of s.73(1)(a) and regulation 12(1)(a)(iii) It is her actual physical condition that is material, whatever the cause. The conclusion that she could obviate the risk by taking sufficient nourishment, does not alter that.
13. The decision of a Tribunal of Commissioners in R(DLA)4/06 dealt with the relationship of physical and mental disabilities in the application of S.73(1)(a). I was referred in particular to paragraphs 119 and 120 of that decision. I am, however, not satisfied that this authority has any application in this case, as there are clear physical disabilities which are manifested in consequence of the psychiatric condition. In the light of my view that the cause of the physical disablement is immaterial and it is the actual disablement and its consequences which matter, it is not necessary to get into the complex relationships between physical and mental disablements for the the purposes of s.73(1)(a) and Regulation 12(1)(a)(iii), which are discussed in that case.
14. The appeal goes to a freshly constituted tribunal. I direct them to have regard to what was said above in their approach to the appeal. In particular, it is important for them to have regard to s.12(8)(b) of the Social Security Act 1998 in deciding the appeal. They must make clear findings in relation to the claimant's physical disabilities at the time the decision appealed against to them was made and the effect of such disabilities on her physical condition. I also direct them that it would not matter, for the purposes of the allowance, whether these disabilities and the physical effects of them were caused as a result of an inability to eat or could be obviated by taking nourishment. In the application of regulation 12(1)(a)(iii), Mr Bartos indicated that he was content that what is encompassed by the phrase "serious deterioration", in the context of risk to health, is what was set out by Mr Commissioner Rice in paragraph 7 of R(M)1/98. Mr Smith did not dissent from that proposition and I direct the tribunal to follow that approach. There will be a complete rehearing of the appeal. The tribunal, in these circumstances, should ascertain from the Secretary of State whether the award made of the middle rate of the care component is still accepted by him. However, if a limit is to be placed on such an award, the tribunal, if asked to give reasons for their decision, must be in a position to set out the basis upon which it was so limited.

(signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 24 November 2008