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R(M) 2/89:
"R(M) 2/89
1.3.88
APPEAL FROM DECISION OF MEDICAL APPEAL TRIBUNAL ON A QUESTION OF LAW
One legged man: whether capable of "walking" with aid of crutches: effect of failure to wear prosthesis.
The claimant had been awarded mobility allowance but his award expired on 11 September 1985. He made a renewal claim. A medical board in their decision of 31 October 1985 concluded that the claimant did not satisfy the medical conditions for the allowance. He appealed to a medical appeal tribunal (MAT) who confirmed the decision of the board.
The claimant had been run over by a bus when a child which had necessitated amputation of his left leg below the knee. He had an artificial leg but was unable to wear it from time to time. When not using his leg, he used two elbow crutches. He had also been cast and measured for a new patellar tendon bearing leg. Whilst the MAT inspected the claimant's artificial leg, they observed him walk only with the aid of elbow crutches. They concluded he could walk.
Held:
1. whilst it was for the tribunal to determine whether the progress a claimant makes amounts to walking, no tribunal, acquainted with the ordinary use of language could reasonably impose a walking test whereby a one legged man made progress by means of crutches. The tribunal had not looked at the claimant's ability to walk. "Walk" was an ordinary English word and meant that at least one foot should always be on the ground (CM/67/1981 considered);
2. a new MAT would have to determine the matter. They should bear in mind that an ability to walk is to be judged having regard to a prosthesis or artificial aid which the claimant habitually uses or wears (regulation 3(2) of the Social Security (Mobility Allowance) Regulation 1975 SI 1975 No. 1573). They would have to consider therefore whether or not the artificial leg was worn habitually and whether when using it habitually there was an inability to walk without severe discomfort. Also by virtue of regulation 3(2) they would have to consider whether his existing prosthesis was suitable. Further, account had to be taken of the new artificial limb and consideration given firstly, as to whether the claimant was unable or virtually unable to walk if he habitually wore it and secondly whether it was suitable in his case.
1. My decision is that the decision of the medical appeal tribunal is erroneous in point of law and it is set aside accordingly. The matter is referred back to a differently constituted medical appeal tribunal for determination.
2. This is an appeal by the claimant on a question of law against the decision of a medical appeal tribunal, given on 5 December 1986, whereby the tribunal decided that the claimant did not satisfy the medical conditions for an award of mobility allowance.
3. The claimant had an award of mobility allowance which expired on 11 September 1985 and the Secretary of State received a renewal claim for the allowance. The adjudication officer referred the medical question arising on the claim to a medical practitioner for an examination and report in accordance with regulation 53(2) of the Social Security (Adjudication) Regulations 1984. The medical practitioner made his report on 13 July 1985. The adjudication officer referred the medical question arising on the claim to a medical board which gave a decision on 31 October 1985 that the claimant did not satisfy the medical conditions for an award of an allowance. On 5 December 1986 the medical appeal tribunal confirmed the decision of the medical board and found that the claimant did not satisfy the medical conditions for the allowance.
4. The claimant was born on 9 March 1961. When he was 7 years of age he was run over by a bus and this necessitated the amputation of his left leg below the knee. He has an artificial leg which he uses to assist him in walking. At times the stump of his leg becomes sore and affected with boils and he is unable to use the artificial limb. When that happens he uses elbow crutches in order to walk. The examining medical practitioner who saw the claimant in June 1984 was of opinion that he was virtually unable to walk. In his assessment of walking ability the medical practitioner said that although the claimant could manage 100 yards with the aid of his elbow crutches he was quite exhausted by the end of that time. The same medical practitioner conducted the examination for the purpose of the renewal claim in July 1985 and again was of opinion that the claimant was virtually unable to walk and was of opinion that his walking ability was unlikely to improve until he had solved his problems with the artificiml limb. The medical practitioner observed the claimant limp along at a moderate pace taking his weight on two elbow crutches, he started to tire after about 100 yards. He noted that the claimant's balance was poor. A report was sought from the medical officer at Med ALAC at Warbreck Hill by the senior medical officer in the Department, the request is at page 55 of the case papers and the answers at page 9. It was said that the last time the claimant had attended at the clinic was on 11 January 1985 when he was cast and measured for a new patellar tendon bearing leg. The leg had never been completed because he had never attended for a fitting-four different appointments having been made for him. The doctor was unable therefore to provide with any certainty the information requested by the senior medical officer and gave what he described as "presumptive answers". He said that the claimant could wear his artificial limb for the major proportion of the time. He suffered recurrently from superficial infections of the skin of his stump and to some extent the problem was constitutional and associated with higher than average levels of sweating. In the opinion of the doctor he could help himself by taking better care of his stump and artificial leg and by paying more attention to regular hygiene. The doctor was of opinion that when he could wear his prosthesis he would be able to walk three or four miles, without aids of any sort, and that when not wearing it he should be able to manage at least a quarter of a mile using crutches. Before the medical board the claimant said that he could walk about 100 yards using his crutches and then he had to stop due to tiredness. He said that when he had the artificial limb in place the stump gets sore and he cannot walk any further than 100 yards. The board were of opinion that he satisfied none of the conditions for an award of mobility allowance. They saw him walk using his elbow crutches and remarked that he was able to walk 100 yards with the aid of these at a reasonable rate and without undue exhaustion.
5. The tribunal heard the claimant's representative and considered the scheduled evidence which was before them. They also heard and examined the claimant. He was observed walking 40 yards indoors, using elbow crutches, and he stopped three times complaining of sweaty palms and breathlessness. The members of the tribunal also observed him walking out of doors for 70 yards. The findings and reasons for the tribunal's decision were stated as follows:
"We find the claimant has a strong powerful right leg with all normal movements and a normal blood supply. (There is a boil on the back of the thigh). There is some evidence on the thighs of a healed pustular type of acne not on the trunk. The stump of the left leg is a good below knee stump apart from a slight over-growth of fibula which does not appear to be a source of disability. He has tender pressure areas particularly one at the back of the medical tuberosity, a tender wart and some scars of healed pustules. There is also a painful pressure area on the medical tuberosity. There is no sign of pressure over the patella tendon to indicate it is weight bearing. There is full knee movement without complaint. The leg above the stump is normal. There is much hard skin under the right foot and on the front of the palm of both hands consistent with prolonged crutch walking.
We inspected the prosthesis made in 1985 which shows signs of minimal wear inside the socket. He claims that both wrists are painful particularly the right one but both show full range of movement. We therefore find no impediment to satisfactory crutch walking. In our opinion he fails to qualify for the mobility allowance because we find no physical disability of his right leg or arms which would prevent satisfactory crutch walking up to the limit of normal endurance for a man of his age i.e. several hundred yards. In this respect he is not so limited as to the manner, distance, time and speed of walking as to make him totally or virtually unable to walk. The exertion of walking is not a danger to his health to adversely affect his life expectancy. Although he complains of discomfort during crutch walking in our opinion this should not affect his walking capacity to such an extent as to qualify him under Regulation 3(1)(b).
He believes that his difficulty in wearing the artificial limb on the left leg relates to the design of the limb and that it can be corrected to allow him to use the limb continuously for walking. We would expect this to be achieved within 12 months."
6. I have the advantage of written argument prepared by the Disablement Resource Unit at Liverpool on behalf of the claimant in this appeal. It is contended that the facts before the tribunal show that his best means of making progress, most of the time, did not amount to walking because of his inability to wear his prosthesis. It is argued that the tribunal failed to make adequate findings on this aspect of the case and did not follow the guidance given by the Commissioner in CM/67/1981.
7. It is clear from the findings that the tribunal did not see the claimant walking with the aid of his artificial limb and indeed did not base their findings on his walking ability with this. In the opinion of the members he failed to qualify for mobility allowance because they could find no physical disablement of his right leg or arms which would prevent satisfactory "crutch walking" up to the limit of normal endurance for a man of his age. Their finding related to the ability of a one legged man to progress with the aid of crutches.
8. The circumstances in which, for the purpose of section 37A of the Social Security Act 1975, a person is or is not to be treated as suffering from physical disablement such that he is unable or virtually unable to walk are those provided for in regulation 3 of the Mobility Allowance Regulations 1975. I set out the regulation in its entirety:
"3(1) A person shall only be treated, for the purposes of section 37A, as suffering from physical disablement such that he is either unable to walk or virtually unable to do so, if his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment-
(a) he is unable to walk; or
(b) 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
(c) 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.
(2) A person shall not be treated, for the purpose of section 37A as suffering from physical disablement such that he is either unable to walk or virtually unable to do so if he is not unable or virtually unable to walk with a prosthesis or an artificial aid which he habitually wears or uses or if he would not be unable or virtually unable to walk if he habitually wore or used a prosthesis or an artificial aid which is suitable in his case."
It is to be noted that the circumstances there relate to an inability to walk or to be virtually unable to walk. The regulation relates to making progress by way of walking and not progressing by way of hopping. The point was considered by the Commissioner in CM/67/1981 at paragraph 6, he said as follows:
"6. This is not the end of the matter. One recorded statement is that the claimant would have no mobility problem with crutches. The question is whether she has not a mobility problem but a walking problem, viz. a problem such that she is unable or virtually unable to walk not just a mobility problem. Walk is an ordinary English word and its meaning is not a question of law though in Decision R(M) 3/78 at paragraph 10 the Commissioner ventured a definition. It is ultimately for the medical board or medical appeal tribunal (with due regard to that decision) to determine whether the progress that can be made amounts to walking. But clearly not all progress that is made constitutes walking; for instance I should not regard hopping on one foot as walking; and I would venture to suggest that not every form of movement on crutches amounts to walking. There are several kinds of crutches; some, placed under the arms, enable a person to propel himself forwards placing not more than one foot on the ground; while others are little more than elaborate walking sticks with grips for the forearms. It is not possible to infer from the medical appeal tribunal decision in the present case what kind of propulsion they consider the claimant to be capable of when using crutches, and there is no suggestion that they gave any consideration to the question whether the kind of propulsion achievable constitutes walking. If the best progress that can be made does not amount to walking then the claimant should be found to be unable to walk. If it does amount to walking the question of virtual inability to walk falls to be considered."
It is of course for the medical appeal tribunal to determine whether the progress that a claimant makes amounts to walking and again, as was pointed out in R(M) 3/78, it is for the tribunal to decide the extent and nature of any tests in order to ascertain whether a claimant is unable or virtually unable to walk. However in the instant case it seems to me that the test adopted by the members of the tribunal, namely to have a one legged man progress by way of his crutches, and the finding that he failed to qualify for mobility allowance because the members of the tribunal could find no physical disability of his good leg or arms which would prevent satisfactory "crutch walking" on that one leg were such that no tribunal, acquainted with the ordinary use of language, could reasonably impose such a test or reach that decision. In my judgment the tribunal looked to the claimant's ability to progress rather than his ability to walk. "Walk" is an ordinary English word. The meaning given in Collins English Dictionary is, "to advance in such a manner that at least one foot is always on the ground" and in Websters Dictionary the following is material, "of a biped to move along leisurely on foot with alternate steps". In the Shorter Oxford English Dictionary the following meaning is given, "of human beings or other bipeds: to progress by alternate movements of the legs so that one of the feet is always on the ground" and the text refers that in the case of a quadruped there are always two feet on the ground. It seems to me in the context of regulation 3 walk must be limited in this way. In Lees and Secretary of State for Social Services (1985) AC 930 the principles laid down by the House of Lords make it clear that on its true construction regulation 3(1)(b) and (c) relate to a physical limitation upon the ability to move on foot but there is nothing in that case which directly bears on the narrower question before me. In coming to the conclusion which I have come to I have borne in mind the test enunciated by Lord Reid in Cozens v Brutus <1973> AC 874 at 861:
"It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision."
It appears to me in the instant case that the tribunal substituted the concept of progress for that of walking. A man with two legs, who has to use crutches, may manage himself in such a way as to walk, but not so a person with one leg only. I have been reinforced in my understanding of the word "walk" by Jacob v Javiller 7 COM CAS 116. That was a case where a dog was injured so that he could only go on three legs and it was held that in these circumstances he did not "walk" within a policy of insurance; in such a connection "walking" meant locomotion in the usual way on four legs. I have borne in mind also the provisions of regulation 3(2) but the criteria there is that the person is not able or virtually able to walk with a prosthesis or an artificial aid, not that that he is able to hop or progress in some way other than walking with such artificial aid.
9. I have held in favour of the claimant on the ground of appeal relating to what constitutes the ability to walk and on this ground I will set aside the decision of the tribunal. It is unnecessary for me to enter upon the consideration of the remaining grounds of appeal.
10. A new medical appeal tribunal will have to determine the case. Whether or not an examination is conducted and whether, and if so the form of, a walking test is to be included are all wholly matters for such tribunal. As is the question of whether the claimant is unable to walk or virtually unable to walk. The questions of fact arising under regulation 3 of the Mobility Allowance Regulations 1975, and I cannot over emphasise it, are for the tribunal to decide. But the members must bear in mind that the question is whether the claimant can walk, not whether he can progress by some other means of locomotion. I have explained in the previous paragraphs what walking requires and the members of the tribunal must view the case before them in that way. There is a further question which may arise before the tribunal. The old medical appeal tribunal appear to have accepted the claimant's case that he had difficulty in using his artificial limb. Ability to walk (walk in the sense of putting one foot in front of the other) is to be judged having regard to a prosthesis or artificial aid which a claimant habitually uses or wears, regulation 3(2). So therefore a person who can walk with his one good leg and his artificial leg would fail to qualify. But the claimant in the instant case contends that he has difficulty in wearing the artificial leg. Consequently the new tribunal will have to find whether the artificial leg is not worn habitually and, also, to consider whether when using it habitually there is inability to walk without severe discomfort. However that is not the end of the matter in so far as an artificial leg is concerned. Regulation 3(2) goes on to provide for the circumstance where a person fails to wear a prosthesis which is suitable in his case. A person is not to be qualified for the allowance "if he would not be unable or virtually unable to walk if he habitually wore or used a prosthesis or an artificial aid which is suitable in his case". The tribunal will have to consider whether the existing prosthesis is suitable in his case. However in the instant case there is also evidence that the claimant was cast and measured for a new patellar tendon bearing leg on 11 January 1985 and in September of that year the leg had not been completed because he had never attended for a fitting, though four different appointments had been made for him. It will be a question also for the tribunal to consider whether the claimant would not be unable or virtually unable to walk if he habitually wore or used the new artificial limb and whether such was suitable in his case.
Commissioners' File No: CM/97/1987
(Signed) J. J. Skinner
Commissioner"
So surely the tribunal decision must be perverse (if the circumstances are the same). Late Commissioner's appeal / set aside for error of law, grounds how the hell should claimant know about rm289???
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