Upper Tribunal (Administrative Appeals Chamber)

NS v Secretary of State for Work and Pensions [2009] UKUT 123 (AAC) (01 July 2009)
Incapacity benefits
attending medical examination

 


DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Basildon appeal tribunal dated 9 January 2009 under file reference 160/08/04487 involves an error on a point of law and is set aside.

The Upper Tribunal is in a position to re-make the original decision under appeal. The decision that the appeal tribunal should have made is as follows:

The appellant's appeal against the Secretary of State's decision dated 01 June 2008 is allowed. The appellant has shown good cause for her failure to attend the appointment for a medical examination on 09 May 2008. There were therefore no grounds for treating her as capable of work and so not entitled to incapacity credits from and including 10 May 2008. It follows that the Secretary of State's decision dated 01 June 2008 is revised accordingly.

This decision is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The decision in summary

1. The appellant's appeal to the Upper Tribunal is allowed. The decision of the Basildon appeal tribunal dated 9 January 2009 under file reference 160/08/04487 involves an error on a point of law. The Upper Tribunal remakes the decision under appeal, as set out above, and allows the appellant's appeal against the Secretary of State's decision that she had failed to show good cause for failing to attend a medical examination.

The background to the appeal to the tribunal

2. The appellant, a woman who is now aged 55, was asked to attend a DWP medical examination. According to the official log in the tribunal papers, she cancelled the first appointment and Medical Services cancelled the second appointment. The appellant did not attend the third appointment on 9 May 2008.
3. The Department sent her a BF223 enquiry form on 10 May 2008 asking why she did not attend the appointment on the previous day. The appellant gave detailed reasons, e.g. referring to her limited mobility and to her telephone contact with Medical Services.
4. It appears that on 1 June 2008 a decision maker decided to supersede the existing award of incapacity credits on the basis that the appellant had failed without good cause to attend to or submit to a medical examination on 9 May 2008. I say "it appears" advisedly. The reason is that there seems to be no copy of that decision or the accompanying notification letter to the claimant on the file before the tribunal. This is less than satisfactory.
5. That said, there is no dispute that such a decision was made in those terms and communicated to the appellant. She gave detailed reasons for appealing, explaining that she could not travel too far and that she was trying to get confirmation about her condition and its limitations from her GP. She also stated that Medical Services had refused to rebook the appointment a second time despite the problems she was having to get a date to see her GP.
6. Following the appeal, a decision maker refused to change the decision on 24 October 2008, confirming the Department's view that good cause had not been shown for the failure to attend the medical examination.

The Basildon appeal tribunal's decision

7. The appellant asked for her appeal to be dealt with on the papers and without an oral hearing. District Tribunal Judge Turrell sat at Basildon on 9 January 2009 to determine the appeal. The tribunal judge's decision was to confirm the Secretary of State's decision and so to dismiss the appeal.
8. The tribunal's Decision Notice, which stood as its Statement of Reasons, explained that the judge had not been satisfied on the balance of probabilities that the appellant had good cause for the failure to attend the medical examination. The tribunal noted that the appellant had been able to attend a hospital outpatient's appointment in April 2008. The tribunal continued:

"Whilst the tribunal does not doubt, in light of the hospital report, that it would have been uncomfortable to attend the DWP medical, the tribunal is unable to accept that it would have been too painful to go given the appellant's recent attendance at outpatients."

9. The appellant now appeals to the Upper Tribunal with the support of Tower Hamlets Law Centre. The Secretary of State's representative now involved in the case, Mr Mick Hampton, agrees that the tribunal's decision involves an error of law, at least on one point.

Why the tribunal erred in law

10. In principle a tribunal is perfectly entitled to take the view that, everything else being equal, if a claimant is able to attend an appointment at a hospital outpatient department, then she is also able to attend an appointment for a DWP medical examination. That is quintessentially a matter for the tribunal's good judgement. However, it is by no means evident in the present case that the tribunal was entitled to take that approach on the particular facts of this case.
11. The tribunal noted that the outpatient appointment had been at the Royal London Hospital, which is in Whitechapel, London E1. The appellant lives at an address in London E1. The tribunal made no finding about the location of the DWP medical examination centre, but it is clear from the paperwork before the tribunal that the centre is in Marylebone (which is in London NW1). The appellant had made express reference in her letter of appeal to her difficulties in travelling any distance, but the tribunal made no mention of this point.
12. A quick internet search suggests that the distance from the appellant's home postal district to the hospital is about a mile, whereas the distance from her home postal district to the medical examination centre is about 5 miles. That may or may not be accurate. I note the Law Centre's estimate that the distance to the medical examination centre is about 9 or 10 times further. I make no finding on that, not least as obviously this comparison takes no account of the relative ease or otherwise of, for example, public transport links. Logically, however, the further the distance the more difficult and more tiring and painful the journey might be expected to be. The tribunal should have considered those various issues, and especially the comparative distances, in the light of the appellant's evidence that she was "unable to travel too far". Its failure to do so amounts to an error of law in terms of finding the necessary facts to justify and to explain the decision reached.
13. This issue of the relative distances and comparative ease or otherwise of the respective journeys is the only ground of appeal on which the Secretary of State's representative provides any comments. It is also the sole ground on which the appeal is supported.
14. However, the appellant, in her correspondence, and Tower Hamlets Law Centre, in their submission on her behalf, raise a number of other issues. The most compelling of these relates to the issue of good cause itself. As the Law Centre observes, this was not a simple case of failure to attend for a medical with no explanation. The official log shows that the appellant (or her daughter) rang Medical Services on four occasions prior to the May medical appointment. She evidently asked for a home visit and also explained that she needed more time to get supportive evidence from her GP.
15. The Department's submission to the tribunal stated that although the appellant had informed them that she was not well enough to attend the relevant appointment, "it was the second appointment that she had cancelled and the Medical Services were unable to make a further appointment for her" (page 1B). It is not obvious whether that is "unable" in the sense of "not legally possible" or "unable" in the sense of "not administratively possible or desirable". If it was the former, no authority was cited for the proposition.
16. It is true that there is a statutory power to suspend payment of a relevant benefit where a person fails, without good cause, to submit to a medical examination on two consecutive occasions (Social Security Act 1998, section 19 and Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), regulation 19(2)). However, that provision does not apply to those cases (as in the present appeal) where the issue is a person's capacity or incapacity for work (see regulation 19(1)). Those cases are governed by the separate statutory test of good cause under regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311).
17. It seems likely that "unable" was being used in the submission in the latter sense of not administratively possible. Certainly the document entitled "Explanation of the Medical Services appointment process", included in the papers before the tribunal, implies that the administrative default position is that following one cancellation by the same individual a new appointment will not usually be offered but the matter will be referred for a decision on "good cause" if the person fails to attend.
18. The standard AL1 appointment letter, which was not before the tribunal but a copy of which has now been provided by the Law Centre, makes no reference to this procedure. Instead, it simply states "if you cannot attend on this day, let us know yourself by contacting the help desk…. And another appointment will be arranged for you". In her letter of appeal the appellant refers to this letter and to the fact that she did not know that she could only change the appointment once. Although the Secretary of State has made no comments on this ground of appeal, I am satisfied that there is a further error of law in that the tribunal failed to explain why it did not accept the appellant's account as constituting good cause for her non-attendance at the medical examination.
19. The two errors of law identified in the tribunal's decision are such that it is appropriate for the Upper Tribunal to set aside the decision of the First-tier Tribunal dated 9 January 2009 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).

The disposal of this appeal by the Upper Tribunal

20. Having set aside the First-tier Tribunal's decision, the Upper Tribunal may either remit (send back) the case for a fresh hearing before another tribunal, or may re-make the decision under appeal. The Secretary of State's representative, Mr Mick Hampton, invites the Upper Tribunal to take the former course of action.
21. However, I take the view that the most appropriate course of action, as well as allowing the appeal, is also to remake the decision under appeal. In doing so the Upper Tribunal may make any decision the First-Tier Tribunal could make and may make such findings of fact as are appropriate.
22. The issue of "good cause" depends in part on factors such as the individual's state of health at the relevant time and any disabilities she may have (Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311) , regulation 8). The Commissioners' case law also shows that it is for the claimant to demonstrate good cause, and that this means some fact which, having regard to the claimant's circumstances, would probably have caused a reasonable person of her age and experience to act (or fail to act) as she did.
23. In the present case there is evidence from the hospital about the nature and condition of the appellant's health. There is also very clear evidence about her attempts to get a GP's letter and the fact that she was not made aware of the departmental policy about the consequences of an appointment being cancelled for the second time at the claimant's request. There was certainly nothing in the letter inviting her to the medical examination that could have put her on notice about this – if anything, the contrary. I therefore conclude, taking into account all these circumstances, that the appellant has shown that she did have good cause for her failure to attend the medical examination on 9 May 2008.
24. Accordingly the Upper Tribunal re-makes the decision in the terms set out above. The limits of this decision should be noted. The Upper Tribunal is simply resolving the issue of good cause in respect of the non-attendance at the medical. The question of whether or not the appellant actually meets the test under the Personal Capability Assessment (or its successor under the new benefit, employment and support allowance), is not before the Upper Tribunal. The Secretary of State will now doubtless take steps to call the appellant for a further appointment for a medical examination and /or consider whether a home visit is necessary.

Conclusion

25. I must therefore allow the appeal. The tribunal's decision involves an error of law as explained above. This error of law is such that I must set the tribunal's decision aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal re-makes the decision under appeal under section 12(2)(b)(ii) of the 2007 Act in the terms set out above at the head of this Decision.
26. For completeness, I should acknowledge that the appellant had asked for an oral hearing of this appeal before the Upper Tribunal. However, I have decided to make a decision in her favour without a hearing as, in the circumstances, and bearing in mind the various factors relevant to the statutory overriding objective of dealing with cases fairly and justly (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), regulation 2), that is the most suitable way to resolve the appeal.

Signed on the original Nicholas Wikeley

on 1 July 2009 Judge of the Upper Tribunal