Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 21 (AAC) (29 January 2009)
Main Category: Incapacity benefits

IN THE UPPER TRIBUNAL Appeal No. CIB/3197/2008

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

Decision: My decision is that the Wolverhampton tribunal's decision heard on 15 July 2008 under reference 053/08/01657 contains an error of law that is not material to the outcome of the appeal.

The decision is NOT set aside.

REASONS FOR DECISION

1. This is a claimant's appeal brought with the permission of Mr Andrew Bano sitting as a Social Security Commissioner. The functions of the Social Security Commissioners were transferred to the Upper Tribunal under the Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833) on 3 November 2008. Accordingly, this appeal has been transferred to the Upper Tribunal (Administrative Appeals Chamber) for determination.
2. The appeal arises in relation to the Secretary of State's decision of 22 January 2008 superseding the appellant's entitlement to Incapacity Benefit following the appellant's failure to achieve enough points to pass a Personal Capability Assessment. The basis of the appeal as set out by the appellant's representative, Miss Sharon Tilt, is that the tribunal failed to give adequate reasons for their decision in that they failed to address evidence from the appellant's GP and did not look at each specific mental health descriptor which had been put in issue. The appeal did not raise issues in relation to the physical descriptors.
3. In giving permission to appeal, the Commissioner considered it arguable that the tribunal did not give sufficiently detailed attention to the mental health descriptors put in issue by the claimant.
4. The approved doctor had awarded nil points for the physical descriptors and 4 points for the mental health descriptors, comprising DLc (frequently distressed, 1 point), CPa (mental stress a factor in stopping work, 2 points) and CPf (scared/anxious that work would bring back/worsen his illness). He described the appellant's mental health problem of anxiety and depression as functionally mild.
5. The self-assessment questionnaire ('IB50') that a claimant fills out for the purposes of the Personal Capability Assessment does not contain specific descriptors about mental health. Although the questionnaire has space for the claimant to give information about his mental health, it gives no guidance about the functional difficulties that are relevant to the assessment. Unless the claimant has had previous experience of the Personal Capability Assessment or help in filling out the IB50, it will only be after the examination that he understands what the mental health test is about. By this time, it is too late, and evidence produced for the evidence may appear to be ex post facto justification. It is for this reason that tribunals need to be particularly careful in exploring the application of the mental health descriptors.
6. The appellant used the blank space in the questionnaire to give some information about what problems he had had in the past and described some of his current difficulties with 'crowds, queues, excessive noise, excessive heat etc'. It is notable that the types of difficulty he identified bear little relationship to the mental health descriptors on the Personal Capability Assessment.
7. His GP provided a letter for the appeal in general terms, reciting 'a long history of anxiety and panic attacks' and stating that 'he continues to display anxiety features, becomes anxious in crowds and is unable to use public transport'.
8. At the hearing, the appellant relied on a submission explaining the mental health descriptors he considered applicable. Had these been accepted, the appellant would have passed comfortably.
9. The tribunal, however, considered that the claims made by and on behalf of the appellant were 'very exaggerated and lacked credibility'. Their basis of their view lay in a comparison of the IB85 (especially the typical day, which was not materially disputed) with appellant's submission and oral evidence. The tribunal made relevant findings of fact which were justified on the evidence before it, which led them to prefer the approved doctor's report. These were the main reasons given by the tribunal:

'It is clear from the overall evidence including that of the appellant that the mental health problems are largely historical of may years ago and that largely now he suffers from a lack of confidence. Miss Tilt puts forward his two breakdowns but these were many years ago…He has not had to attend a psychiatrist, CPN, counsellor or similar for many years. He has rather settled into a non-employment routine caring for his wife and to an extent for his elderly mother. We carefully consider the mental health descriptor points submitted by Miss Tilt which, if with respect, were true, would indicate a person who would be under significant psychiatric care and with significant medication which are not the case here. Overall we adopt and prefer the objective assessment and evidence of the 'approved doctor' who is experienced in making these assessments for the Personal Capability Assessment.'

10. The question is whether this was sufficient. The starting point lies in the principles set out in higher courts which identify the basic object and requirements to be met in giving reasons in the judicial context. In South Bucks D.C. v Porter (No. 2) 2004 UKHL 33, [2004] 1WLR 1953, Lord Brown of Eaton-under-Heywood said the reasons must be

'intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved...The reasons need refer only to the main issues in the dispute, not to every material consideration. Decision letters must be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.'

This statement was adopted as applicable to Social Security tribunals by a Tribunal of Commissioners in R(DLA)3/08. Of necessity, there must be a large degree of flexibility in how the objectives are achieved and requirements met.

11. It was submitted to the Upper Tribunal that the Statement of Reasons was, in effect, fatally flawed because it did not go through each and every mental health descriptor put in issue, as required by CIB/1006/2008. I do not think the Commissioner in that case meant to go so far. The generalised approach taken by the tribunal in that case led it to overlook relevant evidence and led it significantly astray. In circumstances such as those, exhortations by Commissioners to deal with each mental health descriptor are very useful. However, it is unlikely that the learned Commissioner intended that, unless this was done in every case, whatever the circumstances and state of evidence, the tribunal's decision must inevitably be overturned. A similar prescriptive approach was rejected in CSIB/160/2000.
12. The level of detail required in a Statement of Reasons will vary from case to case. In this appeal, the descriptors claimed by the appellant were laid out clearly in a submission. The medical report from the appellant's GP was couched in generality and went nowhere near supporting the extent of mental health difficulties expressed by the appellant. The tribunal's decision rested on the credibility of the appellant's assessment of his mental health problems as seen in relation to the countervailing medical evidence and the tribunal's own legal and medical expertise. The tribunal manifestly did weigh the appellant's evidence and found it unlikely. They were entitled to prefer the IB85.
13. It would have been a pointless exercise to go through each contested descriptor in these circumstances, since the reasons given by the tribunal for rejecting the appellant's evidence was equally applicable to each of them. This approach will not often be appropriate, and tribunals are rightly wary of taking going down this road in all but the clearest cases.
14. The remaining ground of appeal was that the tribunal did not deal specifically with the GP's report. I accept that this was the case.
15. Failure to deal with a relevant medical report will generally amount to an error of law, though whether the error is a sufficient basis for overturning the decision will vary from case to case. The report in this appeal was largely historical, as established by the tribunal, and too general in its description of anxiety features to be of assistance to a tribunal. The specific difficulties identified by the GP did not relate to the mental health descriptors, apart from the mention of panic attacks and more tangentially, being afraid to go out alone. The tribunal accepted that the appellant suffered from anxiety and depression and established that the matters in the report were largely historical (paragraph 8 of the Statement of Reasons). In particular, they looked at the evidence relating to panic and going out of doors alone, which were touched on in the report. However, they preferred the approved doctor's record of the appellant's typical day, which indicated that he did not score any points in either of these areas. They were entitled to do so.
16. In the circumstances, I consider that the failure to deal with the report specifically could not have made any difference to the outcome of the appeal. Nor did it affect the fairness of the proceedings. The error was not, in all of the circumstances, material. Because of this, I consider that I am not able to set aside the decision.

[Signed]

S M Lane

Judge of the Upper Tribunal

25/02/2009