Upper Tribunal (Administrative Appeals Chamber)

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Cite as: [2009] UKUT 127 (AAC)

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AG v Secretary of State for Work and Pensions [2009] UKUT 127 (AAC) (08 July 2009)
Incapacity benefits
medical evidence

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 Stockport North First-tier Tribunal dated 26 January 2009 under file reference 994/08/01890 involves an error on a point of law. The appeal tribunal's decision is set aside.

The Upper Tribunal is not in a position to re-make the original decision under appeal.

It therefore follows that the appellant's appeal against the Secretary of State's decision dated 6 August 2008 must be re-heard by a different First-tier Tribunal, subject to the Directions at paragraph 22 below.

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

REASONS FOR DECISION

The decision in summary

The appellant's appeal to the Upper Tribunal is allowed. The decision of the Stockport North First-tier Tribunal dated 26 January 2009 under file reference 994/08/01890 involves an error on a point of law and is set aside. The appellant's appeal against the original decision of the Secretary of State must be reheard by a different First-tier Tribunal.

The background to the appeal to the tribunal

The appellant, a man who is now aged 50, completed an IB50 questionnaire on 9 July 2006 (pages 48-66) in which he described his health problems. The following month his GP, Dr Patel, confirmed a diagnosis of tennis elbow (pages 45-47). The appellant then underwent a medical examination for the purposes of incapacity benefit by an examining medical practitioner (EMP), Dr Gill, on 19 September 2006. The IB85 medical report prepared by Dr Gill also confirmed the diagnosis of tennis elbow on both sides. Dr Gill agreed with the appellant that he had problems with both manual dexterity and lifting & carrying (although not as to the degree of the latter). The result of that examination was that a decision maker awarded 23 points on the personal capability assessment and concluded that the appellant was not capable of work (page 83).

The appellant then completed a fresh IB50 on 2 October 2007 (pages 6-25), repeating his problems. He indicated he had difficulties with manual dexterity, lifting & carrying, rising from sitting and seeing. He then underwent a new medical assessment on 4 March 2008, conducted by Dr Mangrolia (page 26). On the basis of the new IB85 report, a decision maker acting on behalf of the Secretary of State awarded the appellant zero points on the personal capability assessment. The decision was therefore that the appellant could no longer be treated as incapable of work as from 6 August 2008, the date of that decision (pages 43-44).

However, the new IB85 report was a little unusual. Although Dr Mangrolia evidently conducted the examination on 4 March 2008, the report is signed by a different doctor, Dr Mehta, and dated 23 June 2008 (page 40). The explanation given on the supersession decision was that "the original medical report dated 4 March 2008 was returned for rework on two occasions as the decision maker had some queries which required clarification by Medical Services". There was no explanation on that decision as to the nature of these queries (nor indeed do they appear to be explained elsewhere in the appeal bundle).

The appellant lodged an appeal against the decision on his incapacity, describing it as arbitrary and the result of fraudulent decision-making (pages 1-4). His friend and then representative, who had accompanied the appellant to the medical, also wrote pointing out that Dr Mehta had not been present at the examination and the report was accordingly "an utter fabrication" (page 84). She also complained that Dr Mangrolia had not been impartial.

The Stockport North First-tier Tribunal's decision

An appeal tribunal, comprising a lawyer and a medical member, sat at Stockport North on 26 January 2009 to hear the appeal (pages 99-104). The appellant attended with his new representative, a welfare rights officer, and gave evidence. His representative also provided a short written submission on his behalf (page 93), pointing out (amongst other matters) the lack of any explanation for the "reworking" of Dr Mangrolia's report by Dr Mehta.

The tribunal's decision was to confirm the Secretary of State's decision and so to dismiss the appeal, with no change to the score of zero points that had been awarded (page 105). The tribunal chairman subsequently issued a full Statement of Reasons for its decision (pages 107-108). The tribunal focussed – as had been agreed at the hearing – on the manual dexterity and lifting & carrying descriptors. The tribunal concluded that the appellant's evidence was unreliable given that his "condition was not consistent with his level of treatment and actual lifestyle". It is hard to see how any criticism can be made of those credibility findings insofar as they relate to the appellant's own oral evidence.

However, the tribunal then went on to state (at paragraph 5):

"The Tribunal preferred instead the evidence of Dr Gil. It is expert carried out by someone trained in the personal Capability Assessment and is based upon questions asked of [the appellant] and upon a clinical examination. The Tribunal agree and adopt Dr Gil's conclusions."

The tribunal also went on to consider and (not unreasonably) dismiss an argument advanced by the appellant's representative based on the "exceptional circumstances" ground in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311).

The appellant then applied for leave to appeal against the tribunal's decision. District Tribunal Judge Loring refused permission to appeal on the basis that there was no issue of law involved (page 111). The appellant's representative renewed that application before the Upper Tribunal (pages 112-135). I subsequently granted permission, noting in particular a fundamental problem with paragraph 5 of the Tribunal's Statement of Reasons (see paragraph 8 above).

The appellant's representative and Mr Mick Hampton, the Secretary of State's representative now involved in the matter, are both agreed that the tribunal's decision involves an error of law. My reasons for allowing this appeal may therefore be expressed shortly.

Why the appeal tribunal's decision is erroneous in law

Paragraph 5 of the tribunal's Statement of Reasons is fundamentally flawed as a basis and partial explanation for its decision. The misspelling of Dr Gill's name is neither here nor there. However, the tribunal purported to rely on Dr Gill's report as justifying its decision to disbelieve the appellant and to dismiss the appeal. Yet it was Dr Gill's September 2006 IB85 report that had largely agreed with the appellant's view of his medical problems (at that time) and had resulted in a decision that he scored 23 points on the personal capability assessment. It would be positively perverse for a tribunal to rely on Dr Gill's report as a reason for disbelieving the appellant.

The most likely explanation, of course, is that a busy tribunal judge, under considerable time pressures, mis-transcribed the relevant doctor's name by accidentally looking at the final page of the wrong report when writing up the Statement of Reasons. However, the tribunal's decision to rely on the second IB85 medical report from 2008 in these terms was flawed.

First, as the appellant's representative points out, paragraph 8 is the sort of "formulaic endorsement of the examining medical practitioner's report" that the former Social Security Commissioners regularly warned against (see e.g. unreported decision CIB/3074/2003). It is true, of course, that the tribunal in the present case made its own independent findings about the credibility – or rather lack of it – to be attached to the appellant's own evidence. To that extent the decision to dismiss the appeal could have been justified without reference to the EMP report and its standing.

Secondly, however, this merely raises a further problem with the tribunal's (assumed) reliance on the 2008 IB85 medical report. As indicated above, the appellant and both his representatives had taken issue with the validity of the second report. Those (on the face of it perfectly valid) questions were simply not addressed by the tribunal. It was as though there had been no challenge to the apparently combined report of Dr Mangrolia and Dr Mehta.

When giving permission to appeal I referred to the observations of Mr Commissioner (now Judge) Howell QC in CIB/511/2005 on the computerised medical examination report now used in incapacity cases (at paragraph 3, original emphasis).

"The use of this system, in which statements or phrases appear to be capable of being produced mechanically without necessarily representing actual wording chosen and typed in by the examining doctor, obviously carries an increased risk of accidental discrepancies or mistakes remaining undetected in the final product. Tribunals ought in my view to take particular care to satisfy themselves that reports presented to them in this form really do represent considered clinical findings and opinions by the individual doctor whose name they bear, based on what actually appeared on examination of the particular claimant. Tribunals who fail to identify and deal with apparent discrepancies such as those shown up here run an obvious risk that their own consideration of the case may be criticised as insufficient, especially if standard phrases such as the wording this one used - "The Tribunal preferred the evidence of the medical advisor which was based on clinical examination and findings." - are given as the reason for rejecting the claimant's own account of his disabilities."

The actual point at issue in CIB/511/2005 may have been rather different in that in that case there were what were described as (unspecified) "apparent discrepancies and inconsistencies" in the IB85 report (but presumably following an examination conducted by, and a report signed by, the same doctor). However, Mr Commissioner Howell QC's warning that "Tribunals ought in my view to take particular care to satisfy themselves that reports presented to them in this form really do represent considered clinical findings and opinions by the individual doctor whose name they bear, based on what actually appeared on examination of the particular claimant" appears to me to be of more general application.

In the present case the tribunal had before it an IB85 based on an examination carried out by Dr Mangrolia in March 2008 but signed off by Dr Mehta in June 2008. It had no evidence before it as to the nature of the "reworking" which had been carried out. It was incumbent on the tribunal at the very least to adjourn to obtain a full explanation of that process, given the challenge that had been made to the status of the report. Its failure to do so and its purported reliance on the 2008 IB85 report amounted to an error of law.

In the circumstances I do not need to address the other matters raised by the appellant and his representative about the tribunal's decision.

The disposal of this appeal

I must allow this appeal for the reasons 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 only appropriate course of action is for the appellant's appeal against the Secretary of State's decision on his incapacity claim to be reheard by a new tribunal (under section 12(2)(b)(i) of the 2007 Act).

The new hearing

I must stress that the fact that the claimant's appeal to the Upper Tribunal has succeeded should not be taken as any indication as to the outcome of the rehearing before the new First-tier Tribunal. The new tribunal might find in the claimant's favour and allow his appeal against the Secretary of State's decision. Alternatively, depending on the view it takes of the facts, that new tribunal may end up coming effectively to the same decision as the previous tribunal, in which case the appeal will be disallowed. The new tribunal will have to form its own judgment on which of the descriptors (if any) applied at the material time in this case.

Directions for the rehearing

I make the following specific directions for the rehearing.

(1) The rehearing will be at an oral hearing.

(2) The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

(3) The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

(4) If the claimant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office for the First-tier Tribunal within one month of the issue of this decision.

These directions are subject to any later directions by a District Tribunal Judge.

My decision is therefore as set out above.

Signed on the original Nicholas Wikeley

on 8 July 2009 Judge of the Upper Tribunal