Upper Tribunal (Administrative Appeals Chamber)

TC [2009] UKUT 142 (AAC) (21 July 2009)
DLA, AA, MA: general
other

IN THE UPPER TRIBUNAL Appeal No. CDLA/3489/2008

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Lane

Decision: The appeal is not allowed. There has been no error of law by the tribunal.

REASONS FOR DECISION

1. As from 3 November 2008, cases that were previously dealt by the Social Security Appeals Commissioners, are dealt with by the Upper Tribunal (Administrative Appeals Chamber). Commissioners are now judges of the Upper Tribunal. The functions of Social Security and Child Support Appeals Tribunals were transferred to the First-tier Tribunal (Social Entitlement Chamber), and a chairman of an Appeals Tribunal now bears the title of first tier judge. I shall use the new judicial terminology throughout this decision.
2. The claimant, who is the appellant, brings this appeal with my permission. He is appealing against the Fox Court tribunal's decision of 1 May 2008 under tribunal no. 160/07/05363 by which it awarded the lowest rate of the care component and the lower rate of the mobility component of Disability Living Allowance from and including 13/4/07 – 12/4/10. In doing so, the tribunal revised the Secretary of State's refusal dated 4/6/07 to award either component of DLA at any rate. The appellant disagreed because felt he was entitled to the highest rate of the care component and higher rate of the mobility component.
3. I granted permission to appeal on the basis that the tribunal may have tribunal failed to fulfil their inquisitorial duty and failed to make adequate findings of fact about the appellant's mental health, communication/speech, and mobility problems; and may have failed to give adequate reasons for rejecting the GP's evidence.
4. There was, in addition, an allegation about the conduct of one member of the tribunal whose questioning the appellant found offensive because he felt it was based on an assumption about the level of care the appellant might be expected to receive on the basis of a mistaken belief about his, and his family's, country of origin. He argued that this somehow constituted a breach of natural justice.
5. I have read the complaint papers. While the outcome of the appellant's complaint is not a matter for the Upper Tribunal, it becomes one if the complaint manifests a breach of natural justice. However, I am unable to find any breach. The alleged mistaken belief about the appellant's nationality and cultural expectations about the levels of care provided to claimants with families from different national and cultural backgrounds played no part in the tribunal's decision. The appellant's complaint appears to flow from his own attitude to another nationality and does come anywhere near establishing bias or fault on the part of the tribunal. The authorities cited to me on breach of natural justice do not add anything to cause me to believe a breach of natural justice occurred.
6. The Secretary of State does not support the appeal. I find his Submissions compelling and have I have come to the conclusion that the appellant's submissions amount to no more than a disagreement with the factual findings that the tribunal was entitled to make on the evidence before it as an expert tribunal. It did not involve the making of any material errors.
7. The evidence before the tribunal on the appellant's mental health problems was addressed fully. The tribunal took the lack of psychiatric input as only one factor among many others in coming to its conclusion. Even if the tribunal had been wrong, this error would not have been sufficiently material to require the decision to be overturned.
8. I have also come to the conclusion that there was no failure in the inquisitorial process. The tribunal was not obliged to seek out further medical evidence. It had a number of reports before it submitted by a professional representative. The tribunal was reasonably entitled to conclude on that evidence that there was no psychiatric input: Dr Lucik's report of 19/11/07 mentions, in one sentence at page 82, that the appellant is now attending counselling regularly. This report post-dated the decision by 5 months and was not worded in a way that would indicate that the appellant had been attending counselling at the material time. The representative made no mention of counselling in the Submission, which one can take to have been made upon instructions and was not mentioned at the hearing, though the representative and Mr Kakou were given ample opportunity to do so in the course of a hearing that lasted some 1 ¼ hours. The further letter presented from a psychotherapist dated 25/11/07 states that he had seen the appellant twice – once in October and once in November 2007, both of which dates post-date the decision. CDLA/2462/2003 is not germane to this appeal; the appellant here was professionally represented.
9. The submission relating to the appellant's speech problem does not add to the weight of the representative's arguments. The tribunal did not say that the appellant did not have speech problems. On the contrary, they cited the medical evidence in support of the appellant having speech problems and weighed it up with a number of other relevant factors (including that in the representative's submission that, on a particular occasion, the appellant had managed to instruct solicitors) in coming to its conclusion that the appellant's speech problems were not frequent. They were entitled to do so.
10. The tribunal was entitled to take into account what was stated in the claim pack. This is a document signed by the appellant as correct and complete so far as he knows. It is quite right that the contents of a claim pack may become out of date by the time the Secretary of State makes a decision where there is a deterioration in the appellant's state of health during that time. This may, of course, account for a disparity between the claim pack and the oral evidence. However, the tribunal was entitled to reject this explanation and justified doing so on the basis of not only of contemporaneous evidence, but also evidence after the date of decision from Dr Lucik and Dr Carter.
11. The tribunal made full findings on the appellant's ability to walk and considered the relevant evidence. The representative's submission did not, as pointed out by the Secretary of State, point to a marked difference in the claimant's ability to walk on the basis of variability of his condition. The tribunal was in these circumstances entitled to take a broad-brush approach. They were also entitled to find that the appellant did not suffer severe discomfort, but only aches and pains, as indicated in the GP's report.
12. The representative cited two Commissioner's decisions, CIB/14442/96 and CDLA/15042/1996 in support of his submission that the tribunal was wrong to reject the GP's evidence, where the GP stated that the claimed difficulties were consistent with the appellant's diagnosis. The representative cites Commissioner Howell's view in CIB/14442/96 that

'The GP is a professional person, and as the claimant's husband pointed out nobody was forcing him to give one answer rather than the other. If he had thought that the question he was being asked gave an exaggerated description of the claimant's true level of disability he could easily have said so, for example by indicating a walking range of 300 or 400 metres instead of 200.'

The deputy Commissioner in CDLA/15042/1996 was of the view that where a GP adopts a claimant's estimate of their walking ability, 'he is in fact agreeing with it…as one which to him seems reasonable.'

13. I do not think that these statements represent a rule that where a GP adopts his patient's self-assessment he thereby accepts and agrees with that assessment unless he specifically says otherwise. There are two reasons for this, as follow:
14. Commissioner Howell's comments must be seen in the context of the appeal before him, where the tribunal's reason for rejecting the GP's evidence were described as 'simplistic'. In the present appeal, the tribunal's reasons were anything but simplistic. The tribunal did not simply reject the GP's views as had been done in CIB/14442/96. Indeed, the tribunal refers to the GP's evidence frequently and puts it in the context of the other medical evidence produced.
15. It is the tribunal's task to assess what weight is to be given to evidence and as a specialist tribunal is well placed to do so. Its knowledge of the constraints operating on health care professionals who write reports is more acute than that of judges sitting without a medical presence. The covering letter to the GP, the GPs manner of expressing himself, an absence of clinical findings and the context of the evidence in relation to the other evidence are all to be weighed in light of the tribunal's practical experience and specialist knowledge of the exigencies of the doctor/patient relationship. It is to be remembered, of course, that a GP is neither a lawyer nor an inquisitor, is not expected to cross-examine his patients as if her were one, and has an interest in maintaining a good relationship with the patient.
16. The tribunal explained carefully and fully its reasons taking a guarded view of the medical evidence, not least that of the GP.
17. In all of the circumstances, I am unable to find any material error of law.
18. Finally, it should be noted that the claimant made a supersession application on 5 June 2009 which the decision maker refused.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 02 September 2009