Tribunal of Commissioners 25 November 2005
Case Nos CDLA/2879/2004 and CDLA/2899/2004
was an organic cause). However, the original awarding decision is not in the papers, and even if it had been it is unlikely that it would have contained anything specific by way of reasoning on this point. Further, the evidence which was before the original decision maker is not in the papers. The reasoning of that decision maker can therefore only be a matter of inference. Nevertheless, on the footing (as found by the tribunal) that there was no organic cause for the dizziness, it would have been open to the tribunal to find that it was likely that the original decision maker either (i) mistakenly considered that there was an organic cause when there was not or (ii) made an error of law in awarding the higher rate of the mobility component without being satisfied that there was an organic cause for the dizziness. Either of those events would have provided a ground for supersession. The tribunal did not, however, actually reason along those lines, and in the absence of such reasoning its decision was further erroneous in law. In addition, the tribunal did not in its statement of reasons indicate that it had consciously exercised the discretion in section 12(8)(a) of the Social Security Act 1998 to take into account issues not raised by the appeal (see R(IB) 2/04 at paragraph 94) and wrongly placed the burden of proof on those issues on the claimant.
170.We therefore set aside the tribunal’s decision as erroneous in law and remit the matter for reconsideration by a differently constituted appeal tribunal. The new tribunal must first consider whether (viewed as at the 25 November 2003, the date of the decision under appeal) there were one or more grounds for supersession of the original awarding decision. Grounds for supersession might be (a) a deterioration in the claimant’s condition since the original awarding decision (as contended in her application) and/or (b) a mistake of fact or of law in relation to the award of the higher rate of the mobility component. If the tribunal finds that there is no ground for supersession, the appeal should simply be dismissed. If there is a ground for supersession, the tribunal must consider what the appropriate award is. It must bear in mind here that the ground for supersession must form the basis of the new decision in the sense that the original decision can only be altered in a way which follows from that ground: see R (IB) 2/04 at paragraph 186. If, therefore, the only ground for supersession is that the claimant’s condition has deteriorated, the new tribunal could not remove the award of the higher rate of the mobility component even if it considers that the claimant’s dizziness does not result in her being virtually unable to walk.
171.Finally, for convenience, we set out below a summary of our conclusions on the issues of law raised before us:
(i) In our judgment the effect of the decision of the Court of Appeal in Harrison is that pain, dizziness or other symptoms are not a feature of the claimant’s “physical condition as a whole” within the meaning of regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 unless they have a physical cause. Difficulty in walking which results from pain, dizziness or other symptoms affecting physical functions which are found to have an entirely mental or psychological cause cannot therefore qualify a claimant for the higher rate of the mobility component of DLA. Decisions of Commissioners to contrary effect, such as those in CSDLA/265/97, CDLA/948/2000 and CDLA/3323/2003, should not be followed. (Paragraphs 86 to 101 above).
(ii)Although this must be a matter for decision by each tribunal on the basis of the evidence before it, on the evidence before us (particularly that of Dr Ford: see