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Tribunal of Commissioners                                                                                                    25 November 2005

Case Nos CDLA/2879/2004 and CDLA/2899/2004

“Substantial independence would be expected.

- “no muscle wasting”

- GP comments - “informs me he stays in bed”.

Rest is inadvisable in back pain.

EMP opinions are poorly connected with objective findings and independence with all functions listed would be expected day and night.

Intermittent counselling would be the most appropriate means of dealing with his mood disorder, rather than long term intensive supervision.  No physical reason for severe and chronic walking problems is evident.”

137.As a result of that advice, on 29 December 2003 a decision was made, by way of revision of the decision of 18 November 2003, that the claimant was not from 22 February 2004 entitled to any rate of either component of DLA.  The claimant’s appeal therefore continued as an appeal against the decision of 18 November 2003, as revised by that of 29 December 2003.

138.In support of the appeal the claimant’s representative obtained a further report, dated 15 April 2004, from his GP, who stated his diagnosis as “chronic lower back and shoulder pain. Anxiety with depression secondary to chronic pain.”  In the earlier report the GP had said that the back pain had started in 1990, the shoulder pain in 1994 and the anxiety and depression in 1999.  He stated that there had been an orthopaedic referral in 1995, an “MUA” under general anaesthetic in 1996, a pain clinic referral in 1997, a physiotherapy referral in 1999, referral to a rheumatologist in 2000 and referral to a psychologist in 2001.  (In oral evidence to the tribunal the claimant added that there had been an orthopaedic referral in 1989).

139.The GP stated, as regards mobility, that the claimant was in discomfort at rest, walked very slowly and in pain and that he did not leave the house when bad.  He stated the cause of these difficulties as “musculoskeletal pain”.   In the earlier report the GP had said that “back pain and shoulder pain can result in severe incapacity when he is bed bound. Anxiety and depression is also severe - requires medication and counselling.  Most if not all days are bad - my opinion is based on my observations when he attends to see me. More information from [the claimant] himself will confirm.”

140.The appeal tribunal, by the decision now under appeal to us made on 27 May 2004, allowed the appeal, but to the extent only of awarding the middle rate of the care component in respect of the period from 22 February 2004 to 21 February 2009 on the ground of a need for frequent attention throughout the day.  It considered that the tremor in the claimant’s hands meant that the claimant reasonably required assistance with dressing and undressing and with feeding, when using the toilet and when taking a bath or shower, and with medication.

141.The tribunal’s reasons in relation to higher rate mobility component were as follows.

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