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Tribunal of Commissioners                                                                                                    25 November 2005

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

“With regard to the higher rate of the mobility component, however, the Appellant must establish physical disablement leading to any problems with walking.  In this case the Appellant himself has confirmed that no diagnosis of his joint pains has ever been made.  He has had extensive investigation at several hospitals and numerous tests. He has also had a considerable amount of treatment.  Nevertheless, although he tells us that he was told he had Arthritis, he also told us today that he was advised by one of his consultants that he had slight inflammation in his lower back which would go away.  Certainly, the findings on examination by the Benefits Agency doctor who examined him in connection with the current claim do not indicate a significant physical problem.  The doctor’s report is difficult to interpret.  He makes the point that examination of [the claimant] was very difficult because he was complaining of pain.  Nevertheless he did note that there was no muscle wasting and there was no sign of any Arthritis in the joints.  Indeed the doctor marked him with full function of all parts of the body apart from his left shoulder where there appeared to be little movement.  In spite of this the doctor accepted that the Appellant could not walk more than 10 metres before the onset of severe discomfort.  The Tribunal accept the opinion of the Medical Adviser who looked at all the evidence and stated on 22 December 2003 that there is no physical reason for severe chronic walking problems.  We agree with that view.  It may well be that the Appellant does not do any useful walking.  He tells us that he walks across to the local park and that is as far as he goes.  We must consider how far he could reasonably be expected to walk.  His psychological problems are obviously considerable as outlined by the Psychiatrist whose report we have mentioned above.  It may well be that his psychological problems do contribute considerably to his walking difficulties.  However, looking at the physical reasons for any inability to walk we consider that these are not such as to render him virtually unable to walk out of doors taking account of time, distance, speed and manner of walking before the onset of severe discomfort.  His GP does not given an actual opinion about walking except to say that his mobility is restricted.  The GP does mention antalgic gait.  However, overall on taking account of his physical problems we do not consider that the Appellant satisfies the conditions for an award of the higher rate of the mobility component.”

142.We have, by virtue of being bound by the authority of Harrison, rejected the central submission on behalf of the claimant that the tribunal erred in law in assuming that genuinely experienced physical pain was not physical disablement or a feature of the claimant’s physical condition as a whole, unless it had an identifiable physical cause.

143.It is, however, submitted on behalf of both the claimant and the Secretary of State that, even on the footing that the claimant’s central submission is rejected, the tribunal nevertheless erred in law.  Those submissions were based substantially on passages in the initial written evidence, in this appeal, of Dr Pamela Ford of the Department for Work and Pensions’ Corporate Medical Group.  On an appeal to a Commissioner on a point of law, it is of course not generally appropriate to introduce medical evidence which was not before the appeal tribunal.  However, the Secretary of State did so in order to provide medical evidence relevant to the issue of law of general importance before us, and in the course of Dr Ford’s evidence she commented on the individual cases in terms on which the claimants then relied.

144.The particular passages relied upon on behalf of Mr B were these:

“37.I think that the evidence available does not permit us to be certain as to whether a specific cause for his (back) pain has been identified.  There are no hospital reports and

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