Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CIB/2362/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

The appeal is dismissed. The decision of the First-tier Judge did not involve the making of an error of law.

REASONS FOR DECISION

1          The appellant appeals the decision of the First-tier (Social Entitlement Chamber) held at Shrewsbury on 15/5/09 under reference 051/09/00048 with my permission. The tribunal upheld the Secretary of State’s decision that the appellant did not satisfy the Personal Capability Assessment from and including 19/11/08 and not incapable of work. He ceased to be entitled to Incapacity Benefit from and including the effective date.

2          In giving permission to appeal, I considered arguable the appellant’s representative’s submission that the tribunal had failed to give sufficient reasons for rejecting the appellant’s GP’s evidence and had failed to consider the consistency between the two medical reports. The further grounds of appeal were not arguable. They were simply disagreements with the facts found by the tribunal. The Secretary of State did not support the appeal in his response. The appellant’s representative did not reply, though he was invited to do so.

3          There were two items of evidence which the representative highlighted: a GP’s report and a mental health nurse’s report. The GP’s report comprised a very brief note handwritten on the representative’s covering letter. It stated the appellant’s medication and that it would be stressful and detrimental for the appellant’s mental health to return to work. This was accompanied by a copy of the mental health descriptors upon which the GP circled those he considered to be applicable. The report was not typed to avoid having to charge for it. The second item of evidence was a report from Mr Martin, the appellant’s mental health nurse, who met him in March 2009 (four months after the PCA decision) to discuss his current difficulties for the purpose of writing this report. [emphasis added] It addresses some of the mental health descriptors quite fully, but others simply by assertion. In more than one place, the report refers to ‘nowadays.’

4          The Secretary of State submits that the tribunal gave sufficient reasons for preferring the approved healthcare professional’s report to both items of evidence, and having considered both submissions and the Statement of Reasons, I agree with the Secretary of State.

5          The tribunal did not accept the GP’s report because it was, in essence, a tick-box exercise by him, seemingly without carrying out any mental health assessment, without any indication of his familiarity with the PCA and without clarifying the basis upon which his assessment was made. The representative objects that they did not know that they needed to produce evidence from a GP with experience of the PCA, and that they could not see why the evidence of a GP who knew the appellant well should be rejected, particularly when judged against the approved healthcare professional’s 15 minute examination.

6          Although a GP may give ‘tick-box’ style evidence to save the appellant the cost of writing a report, such a report will not reveal the evidential underpinning upon which the doctor’s judgement about the applicability of the descriptors was made. This will almost inevitably lessen the report’s value. The tribunal’s question about the GP’s understanding of the PCA is particularly apt in this case: one cannot tell from the report whether the selection of descriptors was made on the basis of the appellant’s problems after the date of decision – which appear to have changed since the date of decision having regard to some of the descriptors in Mr Martin’s later report. Post-decision changes of circumstance are legally irrelevant: section 12(8)(b), Social Security Act 1998). Moreover, a further lack of familiarity with the system is shown by the GP’s confirmation that a return to work would be detrimental to the appellant’s health. This is not the test of exceptional circumstances under the old form of regulation 27(b), which I presume the representative meant to raise with the GP in its letter to him of 30/12/08.

7          That a report is based on a brief interview, such as that by the approved healthcare professional, does not necessarily lessen its value if it is supported by evidence.

8          The tribunal rejected the mental health nurse’s report based on the discrepancies between it and the appellant’s oral evidence. I note that it is also rather different from the GP’s report and, in its own terms, is aimed at a date after the date of decision which is not legally relevant. In any event, the tribunal has given clear, rational reasons for rejecting the report.

9          The tribunal had, therefore, given sufficient reasons for rejecting both reports. It was well placed as a specialist body to weigh medical evidence and relate it to the legal tests in the legislation. It was entitled to rely on its own expertise in assessing the evidence and did so, having carefully considered the reports and explained why its preferences. This was a matter entirely for the tribunal.

10       The Statement of Reasons was sufficient to explain the decision and does not display any material error of law.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 19 April 2010