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[2008] UKSSCSC CDLA_2372_2007 ( 15 May 2008)

CDLA/2372/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the claimant against the decision of the Cardiff Appeal Tribunal given on 31^st January 2007. By their decision the tribunal dismissed the claimant's appeal against the decision of the decision maker made following revision on 24^th August 2006 that she was entitled to the lower rate of the mobility component of disability living allowance but was not entitled to the care component at any rate. The appeal is not supported by the Secretary of State. Nevertheless, for the reasons set out below, I have concluded that the decision of the tribunal was erroneous in point of law and must be set aside. In the circumstances, also as explained below, the matter must be remitted for rehearing by a new tribunal constituted, differently from the previous tribunal, under the provisions of Part I of the Social Security Act 1998.

The relevant facts are as follows. In a claim pack received on 2^nd May 2006, the claimant said that she suffered from chronic fatigue syndrome, depression and a bowel disorder. This was supported by a report from the claimant's G.P. dated 16^th May 2006. I note that the G.P. did not refer to bowel disorder, but I note also that that condition was not raised in the covering request from the Department of Work and Pensions (p.45).

The claimant went on to say in her claim pack that she was receiving disability living allowance (p.9). She was seeing a hospital psychiatrist for depression, suicidal tendencies and possible obsessive compulsive disorder. As respects mobility needs, she explained that she suffered severe anxiety out of doors, was liable to fall and needed help to calm her down and enable her to get up if she had fallen. Her care needs were that she needed help to get to the toilet in cases of urgency, that she needed help with her medication and that she needed supervision because of a history of attempted suicide, her anxiety attacks and the suspected obsessive compulsive disorder. She summed up her claim by saying that having chronic fatigue syndrome was very debilitating, that she suffered daily pains and aches in her abdomen and the worst of all were the mental health aspects. She concluded by apologising for the claim form coming in so late.

I make the last point because it is the claimant's case that prior to her present claim she had had an award of the mobility component at the lower rate and the care component at the highest rate for three years. That does not seem to be disputed by the Secretary of State. Although it is said that the computer records show only the present claim, the suggestion is that the previous award had been for a fixed term and was not renewed by the appropriate date (p.125). That would be consistent with the claimant's apology. I therefore proceed on the footing that the claimant had indeed had such an award in the recent past. As may be inferred from the foregoing, there is no record of the previous claim in the papers before me.

The G.P.'s report, in addition to confirming the diagnoses referred to above, described the claimant's condition as moderate normally and occasionally severe. It was constant, every day. She was due to start cognitive therapy and was on a fluoxetine trial. If the claimant was feeling low she could not be bothered with personal care; she had no energy to get up, wash and dress.

On 2^nd May 2006 the claimant's claim was disallowed. It is clear from the reasons that the decision maker had had regard to the claim pack and the G.P.'s report, but there is no reference to any earlier claim. Notification of the decision prompted a letter from the claimant dated 12^th June 2006 stating:

"I have been entitled to high rate for personal care for a few years also low rate for mobility. I cannot understand the decision to stop both payments, as my conditions are not only the same but in fact I feel strongly are now worse."

She substantiated that by explaining that she had been unable to get her youngest son to the school he had been attending with sufficient frequency and had had to move him to a nearer school, that she had attempted suicide more times and that she was now under a psychiatrist. She concluded by saying that she had not given all the details because the Department had them all in the relevant forms.

In response, the Department arranged an examination by an examining medical practitioner. It took place on 15^th August 2006. The E.M.P. recorded what the claimant said about being too tired sometimes to carry out activities of normal personal care and about her mental health problems, but, having carried out a physical examination, concluded that significant disability was unlikely. He accepted that she had problems with depression and chronic fatigue, but noted that she was well nourished, tidily dressed and able to look after her three children. He also recorded what the claimant said about needing someone with her out of doors, but did not express a view about whether that was so. By way of prognosis, he expressed the hope that the claimant's anxiety, depression, panic attacks and obsessive compulsive disorder would improve with psychotherapy and that her abdominal problems would improve with a definitive diagnosis.

Following that report, the decision of 2^nd May 2006 (for some reason described as a decision dated 27^th June 2006) was revised on 24^th August 2006 and the claimant was awarded the lower rate of the mobility component, as already mentioned.

The claimant appealed by an appeal form dated 11^th September 2006, making essentially the same points as those in her letter of 12^th June 2006. The claim was reconsidered on 14^th October 2006 but was not further revised.

The claimant attended the appeal hearing on 31^st January 2007 but was not represented. The papers relating to the claimant's previous award were not before the tribunal. There is a first line in the record of proceedings which I cannot completely read but which appears to say that the tribunal tried to get some information relating to the previous claim, but it is not clear whether the claimant was aware that in fact the tribunal did not have all the previous details. She went on to give oral evidence in response to the tribunal's questions about her medical conditions, some past history and her present treatment. Unfortunately, the record is not completely legible, but in view of the conclusion I have reached as explained above, that is not material.

In the statement of reasons the tribunal dealt with the previous claim as follows:

"It is not wholly clear whether this was a renewal claim or a new claim. No papers relating to an earlier award were before the tribunal, but the appellant said that she had a previous award of lower rate mobility and highest rate care for 3 years. The tribunal considered whether it should call for any papers relating to a previous award, but concluded that it had substantial medical evidence of the appellant's current condition and would be hearing evidence from her and could proceed without any injustice or unfairness."

The claimant was refused leave to appeal by the chairman but renewed her application to the Commissioners by a form dated 20^th July 2007. She explained that it was late because she had been unwell after a fall. She raised a number of grounds of appeal, of which the material one for present purposes was that the tribunal had no evidence that she had in fact been receiving the highest rate of the care component for three years prior to the hearing, which she regarded as very important because nothing had changed except that her mental health had deteriorated. On 19^th December 2007 Mr. Commissioner Lloyd-Davies accepted the appeal despite its lateness and granted leave, raising the question whether the tribunal should have called for the previous papers. He referred to the decision in R(M)1/06, but there is no such decision and it appears to me clear that the reference is a slip for R(M)1/96.

The decision in R(M)1/96 concerned a claimant who had been awarded mobility allowance (as it then was) but on a renewal claim lost his award despite his contention that his ability to walk had got worse, not better. In giving his decision, Mr. Commissioner Howell stated, as the fourth of a series of "incontrovertible" points, that on a renewal claim, which is a fresh claim for benefit for a period not covered by any previous award, there can be no question of the tribunal's being bound to follow any previous decision or of there being a different standard to apply in determining whether or not the relevant statutory conditions had been satisfied depending upon whether or not benefit has been awarded before. He regarded it as inconsistent with that point that there should be any kind of predisposition in favour of the claimant; it remained the case that the tribunal had to be affirmatively satisfied that the relevant conditions were met.

Having said that, however, the Commissioner went on to say:

"…while a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition, the need to give reasons to explain the outcome of the case to the claimant means either that it must be reasonably obvious from the tribunal's findings why they are not renewing the previous award, or that some brief explanation must be given for what the claimant will otherwise perceive as unfair. This is particularly so where … the claimant points to the existence of his previous award and contends that his condition has remained the same or worsened, since it was decided that he met the conditions for benefit. An adverse decision without understandable reasons in such circumstances is bound to lead to a feeling of injustice and while tribunals may of course take different views on the effects of primary evidence, or reach different conclusions on the basis of further or more up to date evidence without being in error of law, I do not think it is imposing too great a burden on them to make sure that the reason for an apparent variation in the treatment of similar relevant facts appears from the record of their decision…

…if the reason for differing from the previous decision does not appear or cannot be inferred with reasonable clarity from the tribunal's record, it will normally follow in my view that they will be … in error of law." (paragraphs 15 and 16)

The Commissioner gave as examples of reasons which were obvious from findings of fact the case in which there was found to be a substantial reduction in attendance needs following a successful hip operation, and the case where the claimant was observed to walk without discomfort for a long distance. He pointed out that to state a conclusion such as that the claimant was not virtually unable to walk without stating the basis for the conclusion would not satisfy the requirement to give reasons.

In considering the applicability of R(M)1/96 to the present case, the Secretary of State, in a submission dated 12^th February 2008, drew attention to the decision of Mr. Commissioner Powell in CDLA/5152/2002. In that decision the Commissioner was dealing with submissions that the tribunal had erred in failing to identify an improvement in the claimant's condition to support their decision not to renew the previous award. He was concerned to make clear that the effect of R(M)1/96 was not to impose a requirement on a tribunal to do so. It does not appear to me that the Commissioner intended to cast any doubt on the clear requirement in R(M)1/96 that the claimant should be able to understand why the award was not being renewed; he was making the point that different tribunals might properly reach different conclusions even on the same evidence.

The Secretary of State's submission in the present case is first that the tribunal had before them substantial evidence on the basis of which they could properly make a decision and that having said that they considered that they had substantial evidence the tribunal had explained why they did not require to see the previous papers.

To my mind, that submission does not address the point, which is the claimant's need to know why the decision is different from the previous decision. I entirely accept that the tribunal had evidence which was substantial and certainly sufficient to enable them to make a decision if there had not been a previous award. The course of action they took, however, meant that the decision they made was made in ignorance of the evidence before a previous decision maker or tribunal which had caused that decision maker or tribunal to conclude that the claimant was entitled to a much greater award, and was also made in effect without regard to the claimant's own evidence that her conditions had changed, if at all, for the worse. This is not a case of considering the previous evidence but weighing it differently, or of there being an obvious explanation such as an improvement resulting from medical treatment or the observation of the exercise of a particular ability which had previously been found not to exist.

In those circumstances, while it is possible to identify the tribunal's reasons for their findings of fact and conclusions on the basis of the evidence they had, it is not possible to identify their reasons for differing from the previous award because they did not have the knowledge of the basis of the previous award which would be a necessary departure point for giving reasons for differing from it.

The case is thus slightly different from R(M)1/96, in which it appears that the previous evidence was available to the tribunal. That decision, however, strongly implies, to my mind, that where there is reason to suppose that relevant material relating to a previous award is or may be obtainable fairness to the claimant requires that the tribunal should make efforts to obtain that material so that they can take into account the evidence which led a previous decision maker or tribunal to make an award to the claimant. That is particularly so where the claimant believes, or may believe, that many details relevant to the claim are contained in the previous papers, as was the case here. Tribunals have a duty to act inquisitorially and in my view that duty will extend to asking the questions the answers to which will enable them to give, or assist them in giving, reasons for a departure from a previous award. I therefore conclude that in failing to call for the previous papers the tribunal erred in law.

I realise that there may be cases in which the relevant information, or some of it, cannot be recovered when the new decision falls to be made. That possibility, however, does not mean that it is not part of the duty of a tribunal to call for previous papers if available in pursuance of their general duty to act inquisitorially, so that they can consider the basis of the previous decision if the papers can be produced. Nor does it mean that the tribunal should not look for alternative ways of making good any deficiency, such as obtaining a more detailed history from the claimant's G.P. In this connection, I note that in her letter dated 16^th May 2007 supporting the appeal the claimant's G.P. referred to "the reports I have previously written". This at least suggests that a previous decision maker may have had additional relevant evidence from the claimant's G.P. which the present tribunal was unable to consider.

I should add that the Secretary of State also submitted that the tribunal, having recorded their awareness of the previous award, did give their reasons for differing from that award by saying that they did not consider that the claimant satisfied the conditions for an award of the highest rate of the care component. In my view that, in isolation, cannot be an adequate reason for differing from a previous award. The claimant will immediately think or say, "But the previous decision maker did consider that I satisfied the conditions." The question is why the different decision makers reached different conclusions. A statement of the conclusion itself, even when supported by reasons as in the present case, does not answer that question. The Secretary of State's unsuccessful contention in R(M)1/96 was that it was sufficient for the tribunal to give reasons for their own conclusion. It follows from its rejection in that case that the submission made in this case does not succeed.

As I have reached the conclusion that this appeal should be allowed for the reason suggested by Mr. Commissioner Lloyd-Davies, I do not need to deal in detail with the observations made on behalf of the claimant in answer to the Secretary of State's submission. They do not directly address the points made above, although reference is made to the tribunal's power to call for evidence of previous awards. They do, however, highlight the need for detailed findings of fact particularly in relation to the frequency of the times when the claimant has difficulty with cooking or personal care through fatigue or lack of motivation and the frequency of times when she has needs arising out of her suicidal tendencies. The tribunal was clearly well aware of the point and did make findings, but also clearly found the evidence inadequate or unclear in a number of ways. The new tribunal will again need to have this well in mind and will no doubt wish to obtain evidence which is as clear as possible. Practically speaking, it may be of considerable assistance if the claimant's father, who is an important source of support to the claimant and who acted as her representative at one time, is able to give evidence.

For the reasons I have given, I allow the appeal and remit the matter to be heard by a new tribunal. The Secretary of State should make available to the parties and that tribunal any papers relating to the previous award and the tribunal should bear in mind what I have said in considering the matter. The tribunal will be aware that section 12(8)(b) of the Social Security Act 1998 has the effect that their task is to consider the claimant's condition at 2^nd May 2006, since the appeal is brought against that decision as revised, although they can of course have regard to material coming into existence after that date which sheds light on that issue.

The claimant is now represented by solicitors and is likely to find it of assistance to continue to have representation. Her representatives will no doubt wish to consider whether further medical evidence should be submitted for the next hearing. The decision whether or not to submit such evidence may be, but will not necessarily be, affected by the discovery of what former papers are available.

(signed on the original) E. Ovey

Deputy Commissioner

15^th May 2008