I have a commissioners oral hearing at the end of April for two linked cases and would value any input – esp. case law (have Miah & CDLA/1850/01).

An EMP is asked as part of her/his medical report to give an assessment of walking capacity in terms of distance that can be walked without severe discomfort – the form also asks to comment of the terrain over which the assessment is made.

In these cases the EMP did not do so. In one of the cases I had specifically put this at issue before the tribunal in a written submission asking the tribunal to consider this matter when weighing the EMP’s evidence V the evidence of the GP which gave evidence of a much more limited walking capacity. In the other case it was not specifically mentioned.

In both cases the tribunal concluded that although walking surface was not mentioned the EMP must have made her/his decision in the light of the guidance in R(M)1/91 i.e. considering an element of incline, etc. (though the chair also included kerbs which is really CSDLA/44/02).

One of the grounds I appealed on was regarding this matter (the other being Gillies issues).

In essence I am arguing:
• It is not appropriate to read into medical evidence an understanding of the law. This effectively places a legal fact finding assessment in the hands of a person outside the adjudication process against whom there would be no formal appeal.
• The guidance to EMPs actually talks about walking on level ground

The first thought that comes to mind is that the tribunal is reading into an EMP report something that just isn't there: looking at it from a Reps point of view, we could read into EMP reports almost anything that suited us, getting short shrift from a Chairman for doing so! In addition, the tribunal in this case seem to take it for granted that the EMP is fully conversant with guidance contained in R(M)1/91, which is debatable. Whilst on the subject of walking on level surfaces, this assumes an ideal world of pavements that are even and pedestrian friendly - not your average potholed version, with the occasional raised paving slab looking for the unaware or less mobile to trip over.

On countless occasions, I have looked carefully at the wording of the questions that EMP's are asked to answer, and in most cases the replies are far from satisfactory, or indeed informative.

"Client can walk up to 150 yards.......stops halfway...."

How long for? why? Do they start off with discomfort, is it brought on by walking? Can he/she do it on a regular basis, or is it a one off excercise? Method of walking - normally, flat footed, dragging one foot? Speed - normal, slow, gradually getting slower?

The stated walking ability appears to be based nowadays on the EMP's assessment of what he see of the client moving about indoors. Often, the report just repeats what the client has said - this is akin to judging my ability to drive a car by my understanding of the highway code. The practice of asking the client to judge a distance they can walk is often counter productive, as most of us can't judge 100 or 200 yards off the top of our heads.

Part of the difficulty lies in the fact that Tribunals seem to be an unswerving belief in EMP's and their ability to assess a client in about an hour, without the benefit of clinical records etc etc......

The hearing was heard on Tuesday

I am hopeful (though the argument regarding delegation of adjudication function didn't have wings)

Watch this space.

Mike

Mon 14-Jun-04 09:49 AM by shawn

The decisions have now been considered.

CDLA/2195/03 is a selected decision on the commissioners' site and states, in my view usefully:

"12. In my judgment, an EMP's evidence is to be judged by the answer given to the specific question posed. There is no room for assumptions such as that the EMP would have

been trained to give an answer on some particular basis (eg walking on "even terrain" or "level ground") or would have had in mind some statutory test in terms different from the specific question. That was one of the things which I said, in the context of a different question on the DLA140 report form, in decision CDLA/1850/2001, relied on by Mr Robinson.

13. He also relied on the decision of the Court of Appeal in Miah v Secretary of State for Social Security <2002> EWCA Civ 592. One issue in that case was whether a GP's ticked "yes" to the question "Is the patient able to walk outdoors, without the help of another person?" was to be taken as evidence that it was the GP's opinion that the claimant was able to take advantage of the faculty of walking out of doors without guidance or supervision from another person. The Commissioner had held that the word "help" was broad enough to cover guidance and supervision within the meaning of the conditions of entitlement to the lower rate of the mobility component of DLA. The Court of Appeal had little hesitation in deciding that it did not. In <39> and <40> of his judgment, with which Sedley and Ward LJJ agreed, Sumner J said:

"I do not accept that it is reasonable to infer that the Appellant's stated ability to walk without the help of another person applied equally to unfamiliar routes and to familiar ones. There is no dispute but that the Appellant could walk outside without the help of another person. The unanswered question was whether he could do so on unfamiliar routes. I do not see that the word `help' is sufficiently specific to enable a safe inference to be drawn on the essential point to which I have referred."

I find the general approach of the Court of Appeal helpful and one which can be applied in the present case.

14. Here there was an unanswered question as to the terrain to which the EMP's estimate of walking ability related. In my judgment, the only safe inference that could be drawn from the answer which the EMP did give is that the estimate related to the most favourable surface which could be expected to be encountered when walking out of doors, something like a recently surfaced uninterrupted stretch of pavement or, say, a car park, on which walking from one point to another would not leave the person higher or lower at the end point than at the start point. Ms Haywood for the Secretary of State accepted the validity of a proposition along those lines."

I would welcome comments on whether Cmmr Mesher's view on the nature of R(M) 1/91 & CSDLA/0044/02 is correct. I agree that there is no need to ens up significantly higher but should not there be some gradient considered - allbeit shallow - All pavement makers aim for some level of cambra since there needs to be water run off.



DECISION AT: CDLA/2915/2003

Sorry sent that off with only half the posting

Actually on rereading the decison in CDLA/2195/03 from para 15 re: mobility it doesn't appear to be that bad It still talks about normal residential streets.

The other linked decision (CDLA/3210/2003) is not on the Cmr site. n this decision Cmmr Mesher does not accept that there was evidence that would result in the argument in CDLA/2195/03 making any difference but does make a moderately useful point about the need for outdoor wear if walking outdoors.
11. However, I do accept that the appeal tribunal erred in law, for two linked failures of explanation. The first is that, in addition to what the claimant is recorded as having told the EMP about difficulties with shoes and socks, she seems to have given oral evidence (the record of proceedings is also hard to read in places) about having to bandage her feet after treating them with cream during exacerbations of eczema and possibly then putting plastic bags over the top. There was a mention of slippers and being able to get up and down stairs. That, coupled with the possibility of swelling of the feet during exacerbations, seems to me to raise a question of whether there were times when the claimant could not get anything on her feet which would be suitable for walking out of doors at all. I think that Mr Commissioner Pacey was suggesting something along those lines when granting leave to appeal. The appeal tribunal failed to explain what it made of that evidence, which was inconsistent with the appeal tribunal's reasoning that even during exacerbations the claimant was able to walk several hundred metres outdoors before the onset of severe discomfort, albeit at half the speed she would otherwise walk. It was that reasoning which allowed the appeal tribunal to avoid determining how often the claimant had exacerbations of eczema and for how long, but it was in my judgment an error of law for the appeal tribunal not to say whether it accepted or rejected the evidence mentioned above and how it affected its reasoning.

12. The second failure of explanation was accepted by Ms Haywood at the oral hearing. This is that on the reasoning described in the previous paragraph the appeal tribunal did not explain how, if the claimant could walk the same distance during exacerbations and outside those periods, but at reduced speed because of soreness, severe discomfort was not suffered at some earlier point. If the soreness and discomfort was such as to halve walking speed, the question of when it amounted to severe discomfort was inevitably raised. That was a matter not fully explained in the EMP's report. In my judgment it was an error of law for the appeal tribunal not to explain why there was not an earlier onset of severe discomfort during exacerbations of the claimant's eczema."

If anyone wants a copy let me know.

Mike

You may find CDLA/4127/2003 useful regarding quality of of EMPs comments/findings.

The briefcase area of rightsnet contains a summary of CDLA/4127/2003 together with a link to the full decision.