Upper Tribunal (Administrative Appeals Chamber)

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 Newcastle-upon-Tyne First-tier Tribunal dated 6 February 2009 under file reference 229/08/00400 involves an error on a point of law.  The First-tier 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 31 August 2008 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions at paragraph 27 below.

 

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

 

 

 

REASONS FOR DECISION

 

The issues in this appeal

 

1.         On one level this case is a purely routine appeal about whether or not the appellant is incapable of work.  It does, however, have one relatively unusual feature – the appeal is partly about the quality of a medical examination and report by an overseas doctor, based outside the United Kingdom, but conducted on behalf of the Department for Work and Pensions (DWP).

 

The routine features of this appeal

 

2.         This is a routine appeal in that the appellant has a long-standing diagnosis of post-viral fatigue syndrome or chronic fatigue syndrome. She has been in receipt of incapacity benefit since 1999. She set out her problems on the Incapacity Benefit questionnaire in 2007, stating that she had problems in respect of sitting, standing and walking, and explained how her condition varied.  She was examined by a doctor on behalf of the Department.  As a result of that assessment she was awarded three points for the standing descriptor.  The Secretary of State superseded the earlier decision and decided that she was no longer entitled to incapacity benefit. 

 

3.         The appellant lodged an appeal.  She stated that there had been little change in her condition for the previous nine years.  She took issue with the examining doctor’s report, setting out in detail the findings that she challenged.  She pointed out that the surname recorded for the person examined was not hers (although the first name and address were).  She noted that the doctor had recorded under ‘clinical history’ that she did embroidery; she denied saying this and stated that she had never done embroidery in her life.  She made further observations on the findings in relation to sitting, standing and walking.  She asked for the appeal to be heard ‘on the papers’.

 

4.         The First-tier Tribunal dismissed her appeal and confirmed the Secretary of State’s decision.  The Tribunal observed that there was a clear conflict of evidence between the appellant’s account and the examining doctor’s assessment.  The Tribunal preferred the latter’s evidence as it was “based on physical examination and discussion of the appellant’s disability with the appellant and thereafter the application of that information to the appropriate descriptors”.  The Tribunal referred to the evidence on sitting and walking (but not on standing) and agreed with the examining doctor’s analysis.

 

5.         The appellant then appealed to the Upper Tribunal, again taking issue with the examining doctor’s report but also with the First-tier Tribunal’s acceptance of that evidence. Mr David Kiersey, the Secretary of State’s representative now involved in this appeal, agrees that the tribunal’s decision involves an error of law in at least two respects.  First, the appellant had specifically raised the issue of the variability of her condition, but the tribunal had not adequately addressed this issue in its reasoning.  Secondly, the tribunal had not provided adequate reasons for rejecting the appellant’s account of her difficulties with sitting, standing and walking and for dismissing her challenges to the examining doctor’s report. 

 

6.         I agree with that analysis.  For example, when discussing the examining doctor’s physical findings the tribunal stated that there was “no evidence, however, that the record of the examination is incorrect”.  That was plainly wrong.  There was ample evidence that the record was incorrect in certain respects – the surname of the person examined was completely different, not merely misspelt, even if the other personal details were correct.  There was also the appellant’s categorical denial that she had ever practised embroidery.  These matters should arguably have prompted the tribunal to ask questions about the reliability of the doctor’s report, even without considering the issues raised by the appellant’s evidence as to the nature of her condition.

 

7.         Accordingly the First-tier Tribunal’s decision must be set aside and the matter remitted to be re-heard by a new tribunal, subject to the directions at paragraph 27 below.  Both parties are content for the Upper Tribunal’s decision to be given without reasons and the matter sent back for re-hearing.  However, there is one unusual feature of this case that requires some further comment.

 

The unusual feature of this appeal

 

8.         The appellant fell ill when working in England as a civil servant and was awarded incapacity benefit.  She then returned to the family home in the Republic of Ireland in 1999.  It appears that she has remained there since and has continued to receive incapacity benefit (presumably on the basis of EU law or a reciprocal agreement).       

 

9.         The appellant’s medical examination on 26 July 2008 was conducted in Dublin.  The examining doctor worked for the Republic of Ireland’s Department of Social and Family Affairs.  He completed by hand an official DWP form, called an IB-N-54C, which is broadly similar to the handwritten version of the IB85 form used by examining doctors in Great Britain before the introduction of the computer-based form.  In her detailed submission, the appellant stated that the examining doctor “was not familiar with the forms and kept telling me so.  He did not fill out the form at the time but took notes on a piece of paper.  I do not feel that he asked me enough questions to fill out the form properly”.

 

10.       The appellant, of course, was not at the subsequent tribunal hearing, which was held in Newcastle-upon-Tyne, where the Department’s Overseas Branch is based.  A presenting officer attended.  She stated that the Department completed the details of the person to be examined (and indeed it is plain that the handwriting at the front of the IB-N-54C is different to that of the examining doctor in Dublin).  She also informed the tribunal that “EMP is sent instructions by the Dept.  Irish Authorities have certain Drs who do these exams, and they do quite a few of these”.

 

11.       Notwithstanding the implied explanation that the incorrect surname on the report was the result of a transcription error in Newcastle, the appellant’s other criticisms of the doctor’s report prompted me to ask the Secretary of State’s representative to provide details of the approval and training process for those examining doctors in the Republic of Ireland who carry out examinations on behalf of the DWP.  Mr Kiersey made enquiries of the International Pension Centre in Newcastle and replied as follows:

 

“I was told that, with the exception of Spain, doctors who carry out examinations on behalf of the Secretary of State do not receive any training.  The examining doctors receive a copy of the questionnaire completed by the claimant, a blank report form and a detailed guidance note on how to complete the report.”

 

12.       Mr Kiersey also helpfully referred me to the decision of Mr Commissioner Howell QC (as he then was) in the unreported decision CIB/4445/2004. The circumstances of that case were rather different, in that the appeal tribunal had before it an “incompletely translated overseas medical report in general terms”.  Mr Commissioner Howell QC added that such a report was “not sufficient to base a fair assessment of the claimant's capacities in terms of the very specific activity descriptors required for the purposes of the personal capability assessment under the UK incapacity benefit rules”.   

 

13.       The Commissioner concluded (and I respectfully agree) that:

 

“a medical examination and report exactly following the form used by approved doctors in the UK for the personal capability assessment is not essential, but the questions that have to be answered remain the same, so whatever medical evidence is used must be sufficiently detailed, specific and comprehensive to yield clear answers on each of the activities and descriptors in issue” (paragraph 2).

 

14.       I note that Mr Kiersey’s enquiries did not reveal any information about the approval process for examining doctors abroad.  However, the admission that such doctors receive no training (except in Spain) may be significant.  That information, of course, was not before the First-tier Tribunal. 

 

15.       It is a matter of common knowledge that over the years there have been complaints both by voluntary sector organisations on behalf of claimants and by claimants themselves about the quality of medical examinations conducted for the purpose of assisting decision-makers assess entitlement to incapacity benefit.  It is equally well known that the Department has sought to improve the training provided to the doctors (and now other health care professionals) who carry out such examinations.

 

16.       For example, the Department’s explanatory leaflet ESA214, The Work Capability Assessment, devised for employment and support allowance, which has replaced incapacity benefit, explains the four-stage approval process for ensuring the quality of medical assessments.  It explains that medical examiners must first attend a prescribed three day training course, followed by a written assessment.  They must then undertake supervised practical training and appraisal.  Furthermore, “healthcare professionals are provisionally approved to carry out unsupervised medical assessments once they have successfully completed the first three stages of the approval process” (ESA214, p.6).  There is then a fourth and final stage involving appraisal of casework.

 

17.       The Upper Tribunal is in no position to comment on the quality or effectiveness of this training and appraisal programme.  However, in terms of its relevance to the statutory tests that training is presumably substantially more than is offered to those examining doctors in other EU member states (excepting perhaps Spain) who conduct examinations for the DWP.  As noted above, Mr Kiersey’s inquiries have established that examining doctors in the Republic of Ireland receive no specific training in the personal capability assessment for incapacity benefit.  At best, they receive “a detailed guidance note on how to complete the report”.  This information might be thought to add some credence to the appellant’s account of the examining doctor’s apparently frank comments about his lack of familiarity with the assessment process (see paragraph 9 above).

 

18.       In addition, however, the claimant expressed the view that the doctor did not ask her “enough questions to fill out the form properly”. This is, of course, a common complaint about incapacity benefit medical examinations conducted in Great Britain.  Sometimes the complaint has some substance.  Some times it does not.  In any event, as Mr Commissioner Jacobs (as he then was) stated in CIB/908/2003, “The length of an interview and examination is not relevant in itself. The issue is whether it is properly conducted. If in a particular case it can be done properly in 17 minutes, why should the doctor spend longer on it?”  Tribunals are used on a daily basis to checking such complaints against the doctor’s own record of the length of the examination.  Often there is some disparity, which may have the effect of undermining the claimant’s argument that the assessment process was inadequate.

 

19.       In the present case, therefore, there was also a challenge by the appellant to the adequacy of the examination.  However, the DWP form used by the examining doctor in Dublin, an IB-N-54C, includes no mention of the start time, the end time or the duration of the examination.  There is simply no prompt on the form to encourage the doctor to include such details.  The new tribunal will simply have to form its own judgement as to the adequacy of the examination, based on the extent of detail recorded on the IB-N-54C form and weighing that against the points made by the appellant – including her assertion that the form was not actually completed contemporaneously and her insistence that she has never engaged in embroidery.

 

20.       The new tribunal should also bear in mind that it may not be appropriate to regard this examining doctor’s report in quite the same light as those prepared by assessors conducting examinations in Great Britain. It will be recalled that the presenting officer’s evidence to the tribunal was that the Irish authorities have certain doctors who do these exams “and they do quite a few of these”.  There was, however, no indication as to the experience that this particular doctor had with such assessments.

21.       Moreover, Ireland, of course, has its own social security system.  The equivalent benefit to incapacity benefit in Ireland is incapacity pension.  One of the qualifying criteria for that benefit is that the claimant is “permanently incapable of work” (Social Welfare Consolidation Act 2005, section 118(1)).  Irish law makes no provision for any points-based system of assessing incapacity, akin to the British personal capability assessment, for the purpose of determining entitlement to that pension.  Indeed, the test under Irish law appears to be much more like the former very broad-brush test for incapacity that applied to invalidity benefit on this side of the Irish Sea before 1995.  For example, there is no detailed statutory definition of the concept of incapacity for work in Ireland and apparently no case law from the Irish courts to assist in understanding the concept (see M. Cousins, Social Security in Ireland, Supplement 60 of the International Encyclopaedia of Laws - Social Security Law, published by Kluwer).

22.       So, the examining doctor in question in this case in Dublin might or might not “do quite a few of these” examinations on behalf of the DWP.  Evidently, however, his general day-to-day professional experience would be in making assessments of claimants in the Irish system based on a test much more like the pre-1995 test for incapacity for work in Great Britain.  In addition, the doctor would not be conducting such examinations within the framework of the DWP’s training and appraisal programme, which might raise legitimate questions as to both the consistency and accuracy of assessments.

 

23.       I do not underestimate the practical difficulties involved in obtaining appropriate and reliable reports of medical examinations conducted in other EU countries.  I also accept that the present case is clearly a long way from being an “incompletely translated overseas medical report in general terms” as was the case in CIB/4445/2004.  The report was in English and was on an official DWP form.   However, the acid test remains, as Mr Commissioner Howells QC explained, that “whatever medical evidence is used must be sufficiently detailed, specific and comprehensive to yield clear answers on each of the activities and descriptors in issue”.

 

24.       The assessment of that evidence is a matter for the new tribunal.  In this context I note the appellant’s submission that there is an apparent inconsistency in Mr Kiersey’s otherwise helpful observations.  At paragraph 11 of his submission Mr Kiersey suggests that the medical evidence in the present case (presumably in the IB-N-54C) “is sufficiently detailed for the purposes of the PCA” (personal capability assessment).  However, earlier at paragraph 7 he submits that it is not clear whether the approved doctor gave due consideration to the issue of variability (and that the tribunal likewise failed to address this issue).

 

25.       In this particular case, the Secretary of State should make a supplementary submission for the benefit of the new tribunal which addresses this apparent inconsistency.  In particular, that further submission should make it clear whether or not it is conceded that the examining doctor addressed the question of variability adequately.  I note that the IB-N-54C form includes a box below each physical functional area which asks for “Details of variability, fluctuation, pain [etc]”.  The examining doctor’s only entries read “She reads; listens to the radio; watches T.V. and does embroidery” (as regards sitting) and “not clinically anaemic” (as regards standing and walking).  The supplementary submission should also attach a copy (if still available) of the report of the previous medical examination conducted in the appellant’s case, which she states was in July 2001.

 

26.       More generally, the Secretary of State may wish to consider whether to review the IB-N-54C form, or its equivalent for employment and support allowance, to ensure it is fully fit for purpose.  At the very least it might be helpful to have prompts indicating the time that the examination started and ended and the amount of time devoted to writing up, as is standard on the computer-based IB85 in use in Great Britain.

 

 

 

 

Conclusion and Directions

 

27.       My decision is as set out above.  In addition the following Directions, made under section 12(3) of the 2007 Act, apply to the new hearing:

 

(1)        The new tribunal should not involve any tribunal judge or medical member who has previously involved in hearing this appeal.

 

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

 

(3)        The Secretary of State should make a supplementary submission dealing with the issues raised at paragraph 25 above and any other material matters.  This should be sent to the Tribunals Service office in Newcastle-upon-Tyne within one month of the issue of this decision.

 

(4)        If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should also be sent to the Tribunals Service office in Newcastle-upon-Tyne within one month of the issue of this decision.

 

(5)        The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may reach the same or a different ultimate outcome to the previous tribunal.

 

These directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

 

 

 

 

 

 

 

 

 

Signed on the original                                  Nicholas Wikeley

on 14 December 2009                                  Judge of the Upper Tribunal