Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CIB/2882/2009

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge of the Upper Tribunal Miss E. Ovey

 

Decision: The decision of the tribunal contained an error on a point of law. For the reasons given below, I set the decision aside and remit the matter to be heard by a new tribunal. I direct that the new tribunal should be constituted differently from the previous tribunal.

 

 

REASONS FOR DECISION

 

1. This is an appeal by the claimant against the decision of the appeal tribunal given following a hearing at Sutton on 27^th October 2008. It is not supported by the Secretary of State. By its decision the tribunal dismissed the claimant’s appeal against the decision of the decision maker made on 14^th March 2008 that the claimant was not entitled to incapacity credits from and including that date. (The tribunal mistakenly gave the date of the decision as 7^th April 2008.) The decision maker’s decision was made because the claimant was found not to have scored the required number of points on a personal capability assessment.

 

2. I note that the Secretary of State’s submission to the tribunal states that claimant originally became incapable of work on 29^th March 2006. He was at first treated as incapable of work pending assessment under regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995, S.I. 1995 No. 311 but was subsequently assessed and found incapable of work on 10^th October 2006: see p.1C of the bundle of documents.

 

3. Unfortunately, the record of that assessment has not been found and so was not before the tribunal. There was a small amount of medical evidence supplied by the claimant himself, which appears at pp.132 and 133. The latter document is a form Med 3, said to be dated 29^th June 2006, which is very hard to read, but I think says, “Painful mobility. Cervical and back pain.” The former document is a form Med 4, which I think is dated 5^th July 2006 and which gives the claimant’s main diagnosis as chest pain, with other diagnoses of obesity and back pain.

 

4. In about October 2007 the claimant was asked to fill in a further incapacity for work questionnaire (form IB50). The form was received on 9^th November 2007. He listed a substantial number of medical conditions, including diabetes, angina, high blood pressure and extreme fatigue. He identified himself as having difficulties with the activities of sitting, rising from sitting, bending or kneeling, standing, walking, walking up and down stairs, reaching, lifting and carrying, seeing and speaking, and having problems with “fits or something similar” (defined on the form to include seizures, faints or other losses of consciousness) and coping with his toilet needs. He was depressed, but did not think he had mental health problems. It is to be borne in mind as respects the physical activities that he weighed about 22½ stone.

 

5. As will become apparent, of particular relevance to this appeal are the following statements:

 

“When I feel fatigued and fall asleep these like I am having a controlled black-out. Someone told me those are mini comas brought on by my sugar levels. It has happened to me in the supermarket. I suddenly fell asleep and was then awake to find myself stumbling about. I was only looking intensely at a shelf for a product and this happened. I’ve been asked to leave places like the café or library because of falling asleep.”

 

“I am type 2 diabetic and suffer from extreme fatigue attacks that happen throughout the course of a day.”

 

“I avoid lengthy appointments because of my sleep attacks. I also fear embarrassment from this …”

 

6. The claimant attended a medical examination on 4^th March 2008. The doctor’s report included the following:

 

“Side effects due to medication

 

The anti-diabetic medication is reported to cause moderately severe drowsiness. This [is] a known effect of the treatment, and is likely to have an impact on their function.

The anti-diabetic medication is reported to cause moderately severe ankle swelling. This [is] a known side effect of the treatment and is likely to have an impact on their function.

 

Diagnosis history

 

Diabetes

The condition started 1 year ago …

Hypertension

The condition started 16 months ago …

Dyspepsia

The condition started 1 year ago …

…

Chest Pain

The condition started 1 year ago …

Incontinence

The condition started 1 year ago …

Black Outs

The condition started 1 year ago.

He gets hypoglycaemic attacks and he has to sit down when these occur. He last had one of these episodes in November 2007.

He does not collapse with these episodes.

 

Description of a Typical Day

 

Claimant states that:

 

…

Has a disturbed sleep pattern.

…

Usually able to move around indoors on the level without difficulty.

Usually manages to climb up and down stairs holding banister.

Shopping is usually done by son.

Goes shopping for bread and milk at the local shop monthly.

Able to walk for 15 minutes at a normal pace around the block occasionally.

…

Always able to queue at the checkout without difficulty for less than 10 minutes.

…”

 

7. On clinical examination, the doctor set out a large number of normal findings in relation to the claimant’s lower back but included as an abnormal finding that the claimant could bend to touch his knees. He assessed the claimant as having no problems with sitting, rising, bending, reaching or lifting and carrying, although he did say that the pain and the stiffness came on predictably, which made them more manageable. He assessed the claimant as having no problems with vision, speech or continence. As respects consciousness, the doctor said:

 

“The history given regarding symptoms, investigation and treatment does not indicate that the customer is suffering from a condition that causes involuntary loss or alteration of consciousness during waking hours and which prevents them from safely continuing any activity.”

 

8. It seems that the copy of the report which was in the papers originally prepared before the tribunal began at page 10 of 23. On 30^th September 2008 this was directed by the tribunal to be remedied and that was purportedly done: see p.89. Unfortunately, although there were presumably nine missing pages, only five additional pages have been produced. They appear to be the first pages of the report, but do not bear page numbering in the same way as the rest of the report. The upshot is that although it is clear that the doctor disagreed with the claimant’s choice of descriptor for walking, standing and going up and down stairs and assessed him as having no problems, the usual summary of functional ability is missing, as are parts of the upper limb assessment.

 

9. The doctor also carried out a mental health assessment and found that the claimant’s mental health condition caused mild functional impairment. His overall view was that the claimant did not have significant functional impairment. I note with some surprise the description of the claimant on p.44 of the bundle as being of normal build, despite his weight (especially since at p.129 his height is given as five feet 10 inches).

 

10. Having regard to the evidence in the form IB50 and in the doctor’s report, the decision maker assessed the claimant as scoring no points on the physical descriptors applied in the personal capability assessment and as scoring five points on the mental descriptors. Under reg. 25 of the 1995 Regulations, the test is satisfied only if the claimant scores 15 points in respect of physical or physical and mental descriptors, or 10 points in respect of mental descriptors. In the light of that score, the decision maker inevitably found that the test was not satisfied.

 

11. The claimant appealed against the decision, stating:

 

“The decision is wrong because at all times, I have informed my doctor and the inspection doctor that I suffer from chronic episodes of falling asleep every couple or more hours. These are unpredictable and have duration of being either a cat-wink nap or lasting for a few hours. I do not consider my condition of effectively falling unconscious is something that can be acceptable in the work-place. There are obvious health and safety reasons why I cannot be employed.”

 

12. The decision was reconsidered on 30^th May 2008 but was not varied.

 

13. The appeal then entered choppy waters procedurally. The date first notified to the claimant coincided with his recently confirmed holiday plans and he applied for an adjournment on that basis and because he said his appeal was not ready for hearing, both because he was having difficulties with representation and because his G.P. had just referred him to hospital in connection with his fatigue and he wanted to put further medical evidence before the tribunal when he had had his hospital appointment. The referral letter (p.63) raised the possibility of “post viral syndrome or fatigue syndrome or ME”. The application was initially refused but on 15^th August 2008 was refixed by the tribunal for 16^th September 2008 with a direction that the claimant should obtain a medical report from the hospital.

 

14. The claimant responded to that information with a letter dated 20^th August 2008 expressing some doubt as to whether sufficient time had been allowed, but enclosing a copy of a letter to the hospital asking for information. He said that he had been told he might be suffering from sleep apnoea, which was treatable. The following day, and apparently independently, the appeal was relisted for 30^th September 2008.

 

15. On 18^th September 2008 the claimant wrote to the Tribunal Service asking for a further adjournment and giving considerable detail about the medical investigations then taking place, which he wished to have concluded before the hearing. He referred to a test which had already been conducted which showed he had “an obstructive sleep disorder of some nature” and expressed his hope that by mid November the diagnostic process would be complete and he would be receiving treatment which would enable him to attend the tribunal in the confidence that he was unlikely to fall asleep or to be so fatigued that he was mentally unable to function properly.

 

16. Again the application was not granted, but on 30^th September 2008 the tribunal did adjourn the hearing again, on the ground that the first-tier agency was not ready to proceed. The tribunal directed the Department of Work and Pensions to produce a complete copy of the doctor’s report, as mentioned in paragraph 8 above, and directed the claimant to produce any further evidence at least seven days before the next hearing.

 

17. On 14^th October 2008 the claimant faxed through to the Tribunal Service a further request for an adjournment, largely because his medical condition (as to which he gave further information) was still under consideration, but also pointing out that he had not yet received a complete copy of the doctor’s report. In response it was said that the further information had been sent on 3^rd October, but a further copy was being sent and that, in effect, there was now no need for a further adjournment. In fact, as I have said in paragraph 8 above, it seems that the report was still incomplete.

 

18. On 20^th October 2008 the claimant sent to the Tribunal Service what he described as Part I of his submission on the appeal. It focussed on a point made by the Secretary of State’s submission to the tribunal, that the claimant had not supplied a form Med 4. The claimant complained that that implied that he was at fault in not supplying such a form, and drew attention to letters from the Department for Work and Pensions telling him he did not need to do so. He made the point on p.100 that he thought the Department wanted more information about his condition because it had got worse since the previous assessment. The letters to which he referred are at pp. 102 and 103.

 

19. On 24^th October 2008 the claimant sent an edited version of Part I of his submission, making effectively the same points, together with Part II. Part II gave an account of the claimant’s problems with tiredness and obtaining a medical investigation, together with supporting documentation, but concluded by saying that the submission was not complete and repeating the request for an adjournment.

 

20. The appeal had by this time been listed for hearing on 27^th October 2008. It is accepted that on the morning of that day someone claiming to be the clerk to the tribunal (as the claimant puts it) telephoned the claimant and asked whether he was attending and received a reply broadly to the effect that he was intending to do so and was leaving home in good time, but with the addition that if the claimant fell asleep he might not get there. There is some dispute as to exactly when the call was made and what was said. In the event, however, the claimant did not attend, because, he says, he did fall asleep, having originally been woken from sleep by the telephone call, and the tribunal proceeded to decide the appeal on the papers.

 

21. The claimant wrote to the Tribunal Service by letter dated 26^th November 2008 and marked “faxed and sent by 2^nd class post” asking for a statement of reasons and also objecting to the refusal of an adjournment (p.141). The letter was treated as an application for the decision to be set aside on the ground of the claimant’s absence, but that application was refused on 7^th January 2009. The claimant then sought to appeal against that refusal by letter dated 13^th February 2009, objecting to the tribunal’s reliance on what the clerk said had occurred and giving further information about his medical condition. The tribunal reconsidered the application but again, on 27^th March 2009, refused to set the decision aside.

 

22. It was not until 7^th September 2009 that the statement of reasons which the claimant had requested was sent to him. It seems that the claimant may have been told that this delay was the result of illness on the part of the chairman of the tribunal, although that is not formally stated anywhere in the papers on behalf of the Tribunal Service. Be that as it may, the delay was obviously very unfortunate.

 

23. As to the refusal to grant an adjournment, the tribunal gave the following reasons:

 

(1) there had been two earlier adjournments;

 

(2) the claimant had not attended the hearing on 30^th September 2008 or an appointment with his G.P. on 21^st October 2008 (said by him to be because he had fallen asleep) and the tribunal therefore found that there was “not a great likelihood” of his attending on a future occasion if an adjournment had been granted;

 

(3) the task of the tribunal was to make a decision about his problems as at 14^th March 2008, the date of the decision appealed against, which would become more difficult if the appeal were further adjourned;

 

(4) there was already a good deal of evidence relating to the claimant’s sleep problems.

 

24. As to the personal capability assessment, the tribunal gave the following reasons:

 

(1) the doctor’s assessment that the claimant’s choice of descriptors was not correct was based on solid grounds, namely, what he was told by the claimant and his observations and examination;

 

(2) there was no evidence from the claimant that he scored physical points other than his bare assertion;

 

(3) the tribunal found that it could not place reliance on the claimant’s own account of his problems. To support that conclusion, the tribunal relied on his having said that he had fits or something similar at least once a day, on the basis that his problem with tiredness was to be likened to a fit. The tribunal did not accept that as a correct description.

 

25. The tribunal explained why it did not accept the claimant’s description of his sleepiness as follows:

 

“The Tribunal accepted that disturbance of night-time sleep resulted in [the claimant] having naps during the daytime. It should be recorded at this point that [the doctor] accepted this problem, and found that mental health descriptor 16(e) was met on the strength of it. It was important, however, for the Tribunal to form a view as to the severity of this problem in order to decide if [the claimant] had been correct in likening his sleepiness to fits … The answer was provided by the response of [the claimant] himself to a questionnaire provided to him in order that a decision could be made as to where his problem registered on the Epworth Sleepiness Scale. While describing that there was a high chance that he would fall asleep in some situations (for example, while watching TV) he said that he would never fall asleep in a car, while stopped for a few minutes in traffic (see page 123). In the judgment of the Tribunal this reply meant that the napping did not sound in a “Remaining conscious” descriptor.”

 

On that basis, the tribunal also found that the claimant’s sleepiness would not give rise to a substantial risk to the mental or physical health of any person if he were found capable of work and accordingly that there was no exceptional circumstance for the purpose of reg. 27 of the 1995 Regulations.

 

26. The claimant sought permission to appeal on the following grounds (in summary):

 

(1) it was improper to rely on the evidence from the clerk to the tribunal about the telephone call to the claimant;

(2) the tribunal wrongly dismissed his application for an adjournment, having taken an unfair view of the reasons for the previous adjournments;

 

(3) the delay in providing a statement of reasons amounted to an abuse of process for which the tribunal chairman had given no explanation;

 

(4) the claimant had not said in his IB50 that he suffered from fits or anything similar. He suffers from a loss of consciousness brought about by an extreme sense of fatigue and then an involuntary episode of falling asleep. The tribunal did not consider adequately his evidence about his condition;

 

(5) the claimant had proved his condition. There were numerous discrepancies in the doctor’s report;

 

(6) the claimant did not answer the question about sleepiness in a car correctly. His answer was given so as not to be banned from driving.

 

27. The claimant was given permission to appeal by the Tribunal Judge on 14^th October 2009 on the ground that there was possibly an arguable point of law relating to the descriptor “Remaining Conscious”. The other grounds of appeal were regarded as not having sufficient merit to warrant the grant of permission, but the judge noted that since the matter would be before the Upper Tribunal they might be addressed.

 

28. The Secretary of State made a submission dated 8^th March 2010 considering but rejecting the claimant’s complaints about the consideration given to the clerk’s evidence, the decision on the application for an adjournment and the delay in providing a statement of reasons. As to the claimant’s condition, it is submitted:

 

“… the tribunal notes that it found the claimant’s evidence as related to the physical activities to be somewhat unconvincing, but, nevertheless, saw a distinction between the claimant’s apparent unusual sleep patterns and episodes of involuntary sleep, as envisaged by the legislation and explained by R(IB) 2/07. The tribunal considered that it was the claimant’s night-time sleep problems that required him to take naps during the day but this activity was mostly planned or allowed to happen rather than involuntary. The tribunal uses the evidence of the [doctor] to support its conclusions and made note of the claimant’s responses given on the “Epworth Sleepiness Scale”. … the tribunal … takes the view, not unreasonably in my opinion, that they clearly indicate that the claimant has a degree of control in his sleeping habits.

 

… the tribunal has dealt adequately with what was at issue i.e. whether the claimant’s tendency to fall asleep during the day was planned or involuntary.”

 

29. The claimant has not responded to that submission.[1]

 

30. Under Schedule 1 of the 1995 Regulations as amended, the “Remaining Conscious” activity is defined as follows:

 

“Remaining conscious without having epileptic or similar seizures during waking moments”.

 

Descriptor 14(a), which the claimant selected for himself by giving the answer he gave on his IB50 at p.16 of the bundle, reads:

 

“Has an involuntary episode of lost or altered consciousness at least once a day.”

 

Subsequent descriptors in the Schedule provide for points to be awarded for less frequent episodes; a claimant scores 8 points for such an episode once in the six months before the day in respect of which incapacity is to be determined.

 

31. This activity was considered by a Tribunal of Commissioners in R(IB) 2/07. It was there held that the reference to “similar seizures” meant seizures in the non-technical sense of a sudden attack of illness causing lost or altered consciousness rather than seizures in the technical medical sense of lost or altered consciousness resulting from a discharge of cerebral neurones. Thus a person suffering from vasovagal syncope or cardiac syncope, who is liable to experience lost or altered consciousness without such a discharge, might still satisfy a descriptor under activity 14. What is required is an episode which is involuntary, overwhelming and sudden: see para. 56.

 

32. On the basis of what is set out in the statement of reasons, I am very doubtful whether the Secretary of State is correct in submitting that the tribunal asked itself whether, on the evidence, the claimant suffered from “involuntary sleep” (as the submission puts it) as envisaged by the legislation and R(IB) 2/07. The R(IB) 2/07 test is not set out in the statement of reasons. Instead, it appears that the tribunal asked itself whether the claimant was correct in saying that his problem was to be likened to a fit. As I have noted, however, IB50 does in effect define “a fit or something similar” to include seizures, faints and other losses of consciousness. I am therefore prepared for present purposes to assume that the tribunal had regard to whether what the claimant experienced was involuntary, overwhelming and sudden and did not look for something medically similar to an epileptic fit.

 

33. Even making that assumption, however, I have formed the view that the tribunal did not give adequate reasons for its conclusion on activity 14. It did not expressly pose the question whether the claimant had unusual sleep patterns or episodes of involuntary sleep. It did not ask itself what degree of control the claimant had over his sleeping habits, or refer to planned naps. As far as the reasons go, the tribunal relied entirely on the claimant’s answer to the single question whether he would fall asleep in a car while stopped for a few minutes in traffic. There is no reference to the claimant’s evidence in his IB50 to having experienced a loss of consciousness in the supermarket or having fallen asleep in a café or the library, or to his answers not only about sitting and watching TV but also about sitting inactive in a public place, sitting as a passenger in a car or sitting and talking to someone. There is no reference to the claimant’s having apparently missed a doctor’s appointment and the hearing itself as a result of falling asleep, which certainly seem to point to a lack of control. The Secretary of State’s submission itself refers to episodes of sleep as “mostly planned or allowed to happen” and to the claimant as having “a degree of control”. All this evidence, taken together, certainly does not point to a clear exclusion of a descriptor such as 14(e), the once in six months descriptor, or even other descriptors attracting a greater number of points. The diagnosis of sleep apnoea was not available when the doctor produced his report, so it is not possible to know whether his assessment might have been affected in any way by that diagnosis. While I realise that the tribunal cannot be expected to consider every descriptor which the claimant has not referred to, I am here concerned with a single activity, to which an unrepresented claimant had devoted a lot of evidence, in circumstances in which he was not present at least possibly as a result of the condition in issue in relation to this activity. In my judgment, it was not sufficient for the tribunal to rely exclusively on a single answer by the claimant to the questionnaire without reference to his other evidence.

 

34. In coming to that conclusion, I have not relied on the claimant’s subsequent assertion that the answer was in any event incorrect. It is not an error of law for a tribunal to proceed on the basis that the evidence a claimant puts before it of what he himself says about his condition is evidence that the claimant invites the tribunal to accept.

 

35. There is a further and entirely separate basis on which I also conclude that the tribunal’s reasons for its decision were not adequate. As I have explained in paragraphs 2 and 3 above, in 2006 the claimant was found to satisfy the personal capability assessment, but no record of the relevant documents has been found by the Department of Work and Pensions. From the material the claimant has himself produced, it seems he was suffering from back, neck and chest pain and from obesity. There is some independent evidence that he continues to suffer from those conditions, in that the present doctor’s report refers to pain and stiffness and at least in October 2007 he weighed 22 stone 3 lbs. (p.129). It is also clear from p.92 that the claimant told the doctor that several of his present conditions began after his previous medical examination and they appear to have led to additional problems. As I said in paragraph 18 above, the claimant specifically asserted that he had got worse since the previous assessment.

 

36. It is not in dispute that under reg. 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, S.I. 1999 No. 991, an incapacity benefit decision may be superseded if there has been an incapacity determination and, following the actual decision, the Secretary of State has received a medical report from an approved health care professional. Nevertheless, the decision whether or not to supersede must be taken having regard to all the relevant evidence. In CIB/516/2008 Mr. Deputy Commissioner Paines had no hesitation in holding that there had been an error of law where a tribunal had failed to take into account the fact that there had been a previous favourable tribunal determination (the error having occurred because the tribunal were not made aware of that fact). In CIB/103/2001 Mrs. Deputy Commissioner Ramsay dealt with a case in which the claimant had twice failed to obtain a favourable medical assessment but had subsequently been held by a tribunal to satisfy the personal capability assessment. She held that the tribunal had not made an error of law in not referring to the existence of the previous unfavourable assessments or in not adjourning to obtain copies of those assessments because the assessments themselves would not contain evidence which assisted the claimant and since his appeals had been successful it was unlikely that either party had obtained a full statement of reasons from the tribunals concerned. It is clear from paragraph 11 of her decision, however, that she accepted that the Secretary of State should produce evidence of a previous favourable assessment, since it was relevant evidence which might cast light on the claimant’s present condition.

 

37. In this case, the tribunal clearly could not be expected to call for the previous assessment. On the other hand, the tribunal’s statement that there was no evidence from the claimant, save for his bare assertions, that supported his contention that he scored points on the physical descriptors may be literally accurate but ignores entirely the fact that a previous independent medical assessment had found that he satisfied the personal capability assessment. Further, the tribunal rejected the claimant’s own evidence of his problems without reference to the support that his evidence had previously received from an independent medical examination. It follows that the tribunal made an error of law, either in failing to take into account the fact of a previous favourable medical assessment or, if the tribunal did take that fact into account, in giving inadequate reasons by not referring to that assessment.

 

38. This has particular significance given that the tribunal’s rejection of the claimant’s own evidence was based on the doctor’s report. Yet that report itself gives rise to certain queries. In the first place, it is incomplete. As I have said, it is surprising to note that it describes a man as overweight as the claimant as being of “normal build”. It makes unexplained references to predictable pain and stiffness. It states that a known side effect of the anti-diabetic medication is to cause moderately severe ankle swelling, which is likely to have an impact on function, but does not address that point at all. Nor does it make any reference to the likely consequences of the claimant’s obesity. It says that he can usually climb up and down stairs holding the banister, which suggests that the claimant may satisfy descriptor 2(c). It refers to his ability to queue at the checkout for less than 10 minutes, which suggests that the claimant may satisfy descriptor 4(d) or another of the standing descriptors. It notes that he assisted himself when rising from sitting, which suggests that the claimant may satisfy descriptor 5(b) or 5(c), a possibility that was rejected by the doctor on the grounds of inconsistency with other available evidence. Such a rejection may of course be perfectly reasonable, but is not obviously so in the present case given the other points I have mentioned. These considerations support my view that the tribunal failed to give adequate reasons for its rejection of the claimant’s own evidence.

 

39. Both the bases for allowing the appeal require in fairness to the claimant that the decision of the tribunal should be set aside and that he should have the opportunity to put his case before a new tribunal with such evidence as he regards as appropriate. I therefore exercise my powers under s.12(2) of the Tribunals, Courts and Enforcement Act 2007 to set aside the decision of the tribunal and to remit the case to the First-tier Tribunal, which should reconsider the case having regard to what is said above. It should also consider whether reg. 27 may apply in this case, since that issue is raised by the terms of the claimant’s original appeal and was rightly considered by the previous tribunal. I also direct, in exercise of my power under s.12(3), that the members of the First-tier Tribunal who are chosen to reconsider the case are not to be the same as those who made the decision which has been set aside.

 

40. In those circumstances, it is not necessary for me to consider in detail the grounds of appeal to which I have referred in paragraph 26(1) to (3) above. I do, however, make the following comments:

 

(1) while it is clearly improper for a tribunal to engage in independent evidence-gathering relevant to the merits of the appeal and then to rely on that evidence without giving the parties the opportunity to deal with it, reliance on communications involving tribunal staff on questions of attendance is a very different matter. Where, as here, such communications are regarded by the tribunal as relevant to the question whether an adjournment is to be granted, there is in my view no error of law in taking that material into account;

 

(2) in my view the tribunal faced a difficult decision over the question of a further adjournment. I do not need to express a view on whether or not its decision was within the boundaries of the discretion vested in it, but I point out that the further medical evidence which the claimant hoped to adduce after a further adjournment would have been relevant to his condition at 18^th March 2008, since it related to the sleep problems of which he had been complaining then and apparently for some time previously. I also point out that since the claimant, as reported by the clerk, clearly did wish to attend and address the tribunal if the hearing went ahead, it was incumbent on the tribunal to look very carefully at the material before dismissing an appeal by an unrepresented claimant who had previously received a favourable medical assessment leading to an award of incapacity benefit.

 

41. It is a matter for the claimant whether or not he chooses to be represented at the reconsideration of his appeal, but it may well be that he would find representation helpful.

 

 

(Signed on the original) E. Ovey

Judge of the Upper Tribunal

29^th April 2010