Scottish Court of Session Decisions

Petitioner: Govier; Drummond Miller

Respondent: Brodie; Office of the Solicitor to the Advocate General

10 January 2007

[1] The petitioner resides in Glasgow and seeks National Insurance (Incapacity) Credits as from 29 January 2002. The basis of this application is that the petitioner claims that he is incapable of work. In that circumstance it is possible to apply not only for benefits but for credits in respect of contributions which would be otherwise paid while in work for certain contributory benefits such as pensions and other illness related benefits. In order to qualify for National Insurance (Incapacity) Credits, a claimant requires to demonstrate that he is incapable of work following what is called a personal capability assessment in terms of section 171C of the Social Security (Contribution and Benefits) Act 1992, and regulation 25 of, and the Schedule to, the Social Security (Incapacity for Work) (General) Regulations 1995.

Section 171C provides:-

"[1] Where the own occupation test is not applicable, or has ceased to apply, in the case of a person, the question of whether the person is capable or incapable of work shall be determined in accordance with a personal capability assessment.

[2] Provision shall be made by regulations -

.......

(b) As to the manner of assessing whether a person is, in accordance with a personal capability assessment, incapable of work."

[2] Regulation 25(1) of the Social Security (Incapacity for Work) (General) Regulations 1995 provides:-

"For the purposes of section 171C(2)(b) of the Contributions and Benefits Act a person is incapable of work in accordance with a personal capability assessment when one or more of the descriptors in Part I or Part II apply to him if, by adding the points listed in column (3) of the schedule against the descriptor, he obtains a total score of at least -

(a) 15 points in respect of descriptors specified in Part I; or

(b) 10 points in respect of descriptors specified in Part II; or

(c) 15 Points in respect of descriptors specified in Parts I and II".

[3] The Schedule to the regulations provides a list of disabilities which may make a person incapable of work. Part I of the Schedule describes physical disabilities under three headings. The first heading is concerned with activities. Under the heading of activities there are a large number of exercises to do with walking, walking up and down stairs, sitting, standing, bending and kneeling and so forth. Against each activity the second column provides a series of descriptors which define or describe the level of performance which the claimant can achieve against that activity. The third column contains the points which are to be awarded against each descriptor. Part II of the Schedule provides for the assessment of mental disabilities in a similar fashion. This scheme is administered by the Secretary of State for Work and Pensions, who is responsible for the Social Security system throughout the United Kingdom.

[4] Following his application, and pending medical assessment, the petitioner was held to be incapable of work and awarded National Insurance (Incapacity) Credits by a decision of the Secretary of State dated 7 February 2002. On 8 January 2003, following consideration of evidence from the petitioner and medical evidence, a decision maker acting on behalf of the respondent awarded the petitioner 1 point under the personal capability assessment, and thus found the respondent was not incapable of work. This decision therefore superseded the award of National Insurance credits dated 7 February 2002, as from 8 January 2003. The petitioner appealed by letter dated 13 January 2003, and another decision maker, again acting on behalf of the Secretary of State, reconsidered the petitioner's application, but on 22 January 2003 found no reason to alter the earlier decision. The petitioner appealed to the Appeals Tribunal, which refused his appeal on 22 October 2003. The petitioner then appealed to the Social Security Commissioner, who refused him leave to appeal the Tribunal's decision by determination dated 19 January 2004. The Tribunal had also refused leave to appeal their decision to the Commission. It is against the Commissioners' determination that the present Judicial Review is directed.

[5] The procedural narrative behind this process was as follows. Following the petitioner's original application, and his award of credits in February 2002, the Secretary of State sought a report from the petitioner's general practitioner, which was dated 15 April 2002, and which said very little about the petitioner's condition. The petitioner also submitted a form IB50 which is a questionnaire in which a claimant such as the petitioner describes his symptoms, and which, the petitioner claimed, justified the conclusion that he was unfit for work. This document was dated 3 July 2002. On 5 December 2002, an examining medical practitioner, Dr Christie, submitted a form IB85, following an examination that he had made of the petitioner. Thereafter, the original decision maker, on the basis of the petitioner's submissions, and Dr Christie's report, reached his said decision on 8 January 2003, and concluded that in terms of the personal capability assessment the petitioner should only be awarded 1 point in terms of the exercise which he was required to undertake in terms of the statutory provisions described above. This, as indicated earlier, superseded the earlier decision of 7 February 2002. In particular the decision maker decided on the basis of the information supplied by the petitioner and the assessment of Dr Christie, that the petitioner did not qualify for any points in terms of the physical disability part of the personal capability assessment as described in the first part of the schedule to the regulations and only to 1 point under the mental disability part of Part II of the schedule. The basis of the award of the single point under the second part of the Schedule was that the petitioner was found to be anxious about the prospect of returning to work. This decision was later confirmed by a second decision maker.

[6] On the first occasion that the Tribunal heard the petitioner's appeal after the procedure followed by the decision makers, the hearing was adjourned for further evidence from Dr Kennedy. The Tribunal again met on 22 October 2003. The decision of the Tribunal on this occasion was that the appellant was entitled to 3 points in respect of descriptor 1(e) in Part I of the Schedule, which relates to physical disabilities. Descriptor 1(e) is concerned with an inability to walk more than 400 metres without stopping or severe discomfort. The Appeal Tribunal also found that he further he qualified for 1 point in respect of descriptor 17(c) in Part I of the Schedule which relates to the avoidance of routine activities because the applicant is convinced that they will prove too tiring and stressful, and to 1 point in respect of descriptor 18(a), which describes an inability on the part of the applicant to look after himself without assistance from others. This last descriptor in fact carries an award of 2 points. The Appeal Tribunal made no award under Part II of the Schedule relating to mental disabilities. He therefore still failed to satisfy the personal capability assessment requirements and was accordingly not entitled to National Insurance credits.

[7] In terms of section 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 any appellant whose application has been rejected by an Appeal Tribunal may seek a statement of reasons for the decision subsequent to the decision letter being served upon him. The petitioner sought such a statement and this was issued on 25 November 2003. The statement describes the Tribunal's findings as to the petitioner's points entitlement, the principal findings in fact which it made, and the supplementary findings and reasons for its decision. In general terms, the principal reason for its conclusion was that it preferred the evidence of the examining medical practitioner to that of Dr Kennedy.

[8] By virtue of section 14 of the Social Security Act 1998, there is an appeal on a point of law against the Tribunal's decision to the Social Security Commissioner. Leave of both the Tribunal and the Commissioner is required for such an appeal to proceed. The petitioner sought such an appeal, and the Tribunal refused him leave on 2 December 2003. The Commissioner then also refused leave to appeal on 19 January 2004. It is against this last decision by the Commissioner in particular that the present Judicial Review is directed. If the Commissioner's decision was unjustified, then the Appeal Tribunal will require to reconsider the original decision by the decision makers.

[9] In these circumstances, counsel for the petitioner made a number of criticisms of the Tribunal's decision, which he submitted were so serious that the Commissioners erred in law in not allowing the petitioner's appeal to proceed. The terms of the statement of reasons for the Tribunal's decision dated 22 October 2003 disclosed serious flaws of reasoning and logic. The Appeal Tribunal awarded 3 points to the petitioner in respect of descriptor 1(e) in Part I of the Schedule to the Regulations. This related to a finding that the applicant was unable to walk for more than 400 metres without stopping or severe discomfort. In the report of the examining medical practitioner (at page 8), on which the Tribunal expressly relied for this finding, Dr Christie found that the applicant had no walking problems. This finding had been expressly adopted by the decision maker in awarding no points to the applicant under this heading. There was therefore no apparent justification whatever for the Tribunal's award of 3 points for the descriptor. Further, the Tribunal awarded the applicant 1 point in respect of descriptor 17(c) in Part I of the Schedule. This refers to the avoidance of carrying out routine activities. Again, there was no justification for that conclusion in Dr Christie's findings, yet the Tribunal specifically concluded in their statement of their reasons that they had reached that conclusion on the basis of Dr Christie's findings, and because they rejected the evidence of Dr Kennedy. Finally, the Tribunal awarded the petitioner 1 point in terms of descriptor 18(a) which is to the effect that the petitioner could not look after himself without the help of other people. Again the Tribunal indicated that the reason for their conclusion was specifically that they preferred the evidence of the examining medical practitioner to that of Dr Kennedy; however again the examining medical practitioner's findings were if anything contradictory of such a conclusion, and in any event, the descriptor in question properly carried an award of 2 points rather than 1. In addition to all of this, the Tribunal completely ignored the single point which had been awarded to the petitioner by the decision makers in respect of his mental disabilities under Part II of the Schedule. It should perhaps be noted at this stage that there was no serious challenge offered by counsel to the respondent to the seemingly incongruous nature of the conclusions which the Tribunal reached.

[10] Counsel for the petitioner therefore submitted that where, as here, a Tribunal was obliged to produce a statement of reasons for its decision, those reasons must contain an intelligible justification for the decision, and such reasons should leave an informed reader or the court in no real and substantial doubt about its decision. Reference was made to Wordie Property Co. Ltd v The Secretary of State for Scotland 1984 S.L.T. 345, and Daljit Singh v Secretary of State for the Home Department 2000 S.C. 219, per Lord Weir at p.222. In the present case the Tribunal had signally failed to give adequate reasons for its decision in general terms, as to why it had accepted Dr Christie's report as opposed to that of Dr Kennedy, and in particular it had failed to account for its detailed findings which led to its award of points to the applicant. Accordingly there must be a question as to whether the Tribunal had reached its decision in the absence of clear evidence, and if so, whether this amounted to a fatal flaw which went to the heart of the Tribunal's decision, and amounted to an error in law which the Commissioner should have recognised.

[11] At this point counsel for the petitioner required to digress, because he accepted that these arguments had not been presented to the Appeal Tribunal or to the Commissioner when leave to appeal was sought. He referred to the case of Robinson v Secretary of State for the Home Department [1998] 2 Q.B. 929, where it was held that, although in seeking to appeal a claimant was required to state the grounds of his appeal, the appellate authorities were neither limited by the arguments actually advanced, nor required to engage in a search for new grounds; and that, since they were obliged to ensure that the decision would not contravene wider issues, where there was "a readily discernible and obvious point" which had not earlier been taken on his behalf, the court in exercising its general supervisory role would nevertheless consider it. Reference was also made to Mooney v The Secretary of State for Work and Pensions 2000 S.L.T. 1141. Counsel submitted that the obvious ground of appeal in the present case could be seen in the reasons offered by the Tribunal for its decision, which were so significantly different from what was decided by the original decision maker who was acting on the same medical evidence, that those contradictions should have been obvious to the Commissioner; and, further, the failure of the Tribunal adequately to state its reasons was an obvious error in law which should have been obvious to the Commissioner. Accordingly, the appeal had strong prospects of success and the Commissioner should have granted leave to appeal.

[12] In response, counsel for the respondent suggested that when the petitioner in a judicial review relies on material that was not in the application for leave to appeal, the test was whether the point taken was one with strong prospects of success, where the Commissioner would not have other good reasons to refuse leave. Reference was made to Regina (on the application of Begum) v Social Security Commissioners [2002] E.W.H.C. 401. Reference was also made to the cases of Quinn v Department for Social Development [2004] NICA 22; Cooke v Secretary of State for Social Security [2002] 3 AllER 279, and Mooney v Secretary of State for Work and Pensions 2004 S.L.T. 1141.

[13] I think that in this respect the submissions of counsel for the respondent accurately described the proper position. In circumstances such as the present, where the applicant did not raise these matters in the course of his applications for leave to appeal against the Tribunal's decisions, the point which is now raised must be one which is obvious and has strong prospects of success. In addition, however, if there are other reasons which would justify the Commissioner refusing leave to appeal, then that is what he should do. This court should be most reluctant, in these circumstances, to distrust the Commissioner's decision. I think that the position is best summarised by the passage quoted in the case of Begum by counsel from the respondent from the opinion of Slade L.J. in the case of R. v Secretary of State for Social Services ex parte Connolly [1986] 1 All E.R. 998 at 1007, paragraph (h):

"In a case where a commissioner has refused leave to appeal without giving reasons and an applicant seeks to challenge such refusal by way of judicial review, the onus must, in my judgment, lie on the applicant to show either (a) that the reasons which in fact caused the commissioner to refuse leave were improper or insufficient or (b) that there were not good grounds on which such leave could have been refused in the proper exercise of the commissioner's discretion. He may well discharge this onus by showing that the decision sought to be challenged was on the face of it clearly erroneous in law or, alternatively, gave rise to a substantially arguable point of law. However, if it can be seen that there are still good grounds on which the Commissioner would have been entitled to refuse leave in the proper exercise of his discretion, the court should, in my opinion, assume that he acted on those grounds unless the applicant can point to convincing reasons leading to a contrary conclusion."

[14] What this means in the present case is this. In order to succeed in his application, the petitioner has to demonstrate that the Tribunal erred in law (Social Security Act 1998, section 14). The error in law is said to be that the Tribunal made a factual error of such significance that no reasonable tribunal could have reached such a decision. However, the essential decision which the Tribunal reached was that the appellant did not qualify for National Insurance credits. It was perfectly clear from an examination of the circumstances of the case that there was no evidence of any kind which would have justified them coming to the view that the petitioner was entitled to these credits, once they had rejected the evidence of Dr Kennedy. In the first instance, therefore, it is necessary to decide whether it was open to the Tribunal to prefer the evidence of the examining medical practitioner, Dr Christie, to that of Dr Kennedy. Counsel for the petitioner criticised the examinations carried out by the medical examiner which, in his view, consisted simply of an interview. He maintained that Dr Kennedy's examination on the other hand was a proper clinical examination and should have been preferred by the Tribunal. Further, counsel submitted that the Tribunal erred in law by providing inadequate reasons for finding that the petitioner was vague and hesitant in his evidence and lacked credibility, and also because it failed to take into account relevant evidence placed before it in the shape of Dr Kennedy's report. The Tribunal, he said, had offered no reason why they found the applicant to be vague and hesitant or why he lacked credibility. The evidence of Dr Kennedy would have explained the appellant's hesitancy. The purported findings of vagueness and hesitancy did not necessarily lead to a lack of credibility. Such bare statements did not present sufficient reasons for rejecting the applicant's evidence. Finally, the Tribunal erred in rejecting Dr Kennedy's evidence because he had taken information from the petitioner at interview which the Tribunal concluded to be unreliable. To suggest that the unreliability of the appellant's evidence tainted Dr Kennedy's findings was unjustified; the interview was an integral part of any examination, and criticism of a doctor for carrying out an interview of an unreliable witness could not be justified. Dr Kennedy was not evidently biased by what was said in the interview by the petitioner any more than Dr Christie had been; if one was biased then so was the other. In these circumstances, counsel submitted that it was beyond argument that the Tribunal had erred in law, and if this were the case there must be realistic prospects for success in any appeal and the Commissioner was therefore in error in not granting leave.

[15] In response, counsel for the respondent maintained there had been no error in law by the Commissioner. The role of the examining medical practitioner was to assist the defender when a claim was made involving medical questions, by reporting on the applicant's medical condition in a manner relevant to the benefits or credits in question, so that the decision maker can decide on a claim. The examining medical practitioner is independent, and the department has no interest other than to pay benefits on a properly made assessment. The structure of the report prepared by the examining medical practitioner was therefore important. In the present case the report contains the date and time of the examination and a description of functions and abilities as represented by the claimant. There is then an assessment (IB85) which is made with regard to the Schedule to the 1995 Regulations, and in particular to the activities and descriptors in that Schedule, and that formed the basis of the personal capability assessment. In these circumstances, the petitioner's claim that there was no clinical assessment in the examining medical practitioner's report is simply wrong. Indeed the form contains a box to record the clinical examination carried out at section 18. So the examining medical practitioner's report was a detailed clinical report and is linked to the descriptors described in the Schedule, unlike Dr Kennedy's report. The Tribunal were entitled to accept or reject the reports before it as they saw fit. It is against that background, counsel maintained, that it has to be decided whether the Commissioner erred in law.

[16] So, in the first instance, it is necessary to decide whether it was open to the Tribunal to prefer the medical evidence of Dr Christie to that of Dr Kennedy. In my view it was perfectly within their remit in carrying out their fact finding exercise to do just that. They clearly considered that the examination by Dr Christie was soundly based on a proper clinical examination and interview, which was specifically related to the Schedule to the 1995 Regulations, and that it was preferable to the other medical evidence. As far as their conclusions that the appellant was vague and hesitant were concerned, that again is entirely a matter which they were entitled to come to a decision about, and indeed it is one of their primary functions. Their opinion that the appellant was vague and hesitant is clear, and provides a comprehensible reason for reaching their view on credibility. They were also entitled to come to a view about the petitioner's credibility on the basis of the way in which he answered questions. I can find therefore no substance in the criticisms made of the conclusions on credibility reached by the Tribunal, or for the reasons which they gave to justify those conclusions.

[17] In any event, it is perfectly clear that even if it is accepted that the Tribunal's decisions were not based on the evidence which they accepted (which is manifestly the case), it was plain that there were still good grounds in which the Commissioner would have been entitled to refuse leave in the proper exercise of his discretion. I refer to the passage in the judgment of Slade L.J. in the case of R. v Secretary of State for Social Services ex parte Connolly, referred to above. As I have indicated, the Tribunal were clearly entitled to conclude that they should rely on the evidence of Dr Christie in reaching a view in the case. However, it is clear that in coming to their decision the Tribunal reached some curious, if not bizarre, conclusions. Despite the decision maker's award of 1 point, which was clearly related to Dr Christie's findings, the Tribunal awarded a total of 5 points on a basis which seems difficult to comprehend. The basis for the award of these points is not found anywhere in Dr Christie's report. However, the essential decision which the Tribunal made, and which in my view cannot be attacked, was to prefer Dr Christie's report to that of Dr Kennedy. Their subsequent assessment of the petitioner's claim thereafter may leave much to be desired, but on the basis of the Tribunal's central finding, it cannot be said that the petitioner would have qualified for National Insurance credits. If the Tribunal made blunders in awarding points to the claimant which were not based on any medical evidence which could be linked to the descriptors under which the points were awarded, these are matters entirely in the claimant's favour. If anything was to be done about the award of points on the basis that they were wrongly made, that would be to withdraw the points from the claimant's assessment. In other words, the result of the Tribunal's errors in misplacing points to unjustified descriptors (if that be what happened) is that the petitioner is still without any sort of basis for a claim that he would be entitled to the credits he seeks. In these circumstances, it is clear that the Commissioner was entitled to refuse leave to appeal because there were substantial other grounds for supposing that the claim could not possibly succeed. In all these circumstances, therefore, the petition falls to be refused. The petitioner's pleas-in-law are repelled