Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CIB/1222/2008

ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE WARD

Attendances:

For the Appellant:

Mr Javid Akhtar, Rochdale MBC Advice Service

For the Respondent:

Mr Stephen Cooper, Solicitor

Decision:

The decision of the appeal tribunal sitting at Rochdale on 7 February 2008 under reference 947/07/02118 involved the making of an error of law and is set aside. The case is remitted to a differently constituted tribunal of the First-tier Tribunal (Social Entitlement Chamber) for rehearing.

REASONS FOR DECISION

1. The claimant has a back and neck condition since an injury sustained playing football in 1989 and has been incapable of work since 1994. He has other conditions also, but these appear to have little operative effect on his ability to perform the activities which are the subject of the descriptors for the purposes of the personal capability assessment (“PCA”).

2. He had been examined in 1995, when the doctor had on examination found:

“lying on couch, leg movements normal. Raised to sitting, with some discomfort. Got off couch slowly. Standing bent forward to touch just below knees. Other back movements normal. Neck and shoulder movements normal today, hip movements normal, tone and power in all limbs normal.”

He concluded that the claimant had problems with sitting, rising, standing, walking, stairs, bending and kneeling, lifting and carrying, and that no significant change was anticipated. As a result the claimant passed the PCA.

3. In July 2007 the claimant was examined again by a Dr R. Dr R found no abnormal findings on examination and recommended that no points be awarded. A decision on supersession was taken to this effect on 27 July 2007. The claimant in a reasoned letter of appeal set out where he disagreed with Dr R’s conclusions but also raised a number of specific points about the manner in which the assessment was conducted, key points of which for present purposes are considered further in paragraph 5 below. These matters were properly referred back by the Department to a Medical Adviser who did not provide a substantive reply, merely observing, a little tersely, that “the claimant has not provided any new medical evidence.”

4. On appeal the tribunal (a) took the view that the claimant’s condition was not as bad as he said it was because he had not pressed more energetically for further treatment; (b) indicated that it regarded the 1995 assessment as over‑generous in its findings compared with the 2007 assessment, which it preferred; and (c) preferred the 2007 assessment to a short report from a GP at the claimant’s practice on the grounds that (1) the GP’s report appeared to have been based on answers given by the claimant and (2) it was given by a doctor who was not the claimant’s regular doctor and whom he saw only occasionally. As a result the tribunal dismissed the appeal.

5. There was also evidence before the tribunal that (a) between the date of decision and the tribunal hearing the claimant had had a change of medication for pain relief from co-codamol to morphine patches; (b) the claimant had received physiotherapy from at least two different sources at dates which were not entirely clear but one session of which appeared to have been in June or July 2007 and between the date of decision and the appeal hearing was in receipt of both physiotherapy and acupuncture treatment; (c) at the medical examination by Dr R, (1) the chair in which he was observed to sit “for 35 minutes without obvious discomfort” had a back and arms and, moreover, was placed against the wall, against which the claimant had rested his head, though was still uncomfortable (2) the chair from which the claimant was observed to rise, twice, “easily” and “unaided”, was of a type with arms, which the claimant used (that this type of chair(s) was used is not recorded in the notes) (3) Dr R was not in a position to have observed the claimant walking 20 metres “normally” to the examination room as stated, as he was facing in the opposite direction when the claimant entered the room (4) the claimant when asked to crouch had fallen and had had to hold on to a chair and the wall in order to rise, at which the doctor had responded to the effect that it did not matter if the claimant had to use support. It appears that all of the matters at (1) to (4) in this paragraph formed part of the evidence on which Dr R relied when making his recommendations. The tribunal’s decision does not indicate what it made of any of them.

6. Permission to appeal was given by Judge Lloyd-Davies. It was not limited permission, but he raised three points: (a) whether the preference for Dr R’s evidence was sustainable in the light of the history of the claimant’s condition (b) what the tribunal made of the evidence from the GP and of the evidence from the physiotherapist referring to the physiotherapy and acupuncture treatment (c) what the tribunal made of the use of morphine patches for pain relief.

7. An oral hearing was held in Manchester. A previous hearing date in January 2009 had been vacated at the request of the claimant.

8. The claimant’s case is that the tribunal’s preference for the evidence of Dr R and adoption of his findings is perverse. I would not so categorise it, but I do consider that there are criticisms that can properly be made of it.

9. The claimant had raised specific complaints about the conduct of the 2007 medical examination, both in his appeal letter and through his MP. A response had been sent in the form of a letter to the claimant’s MP which did not address the points identified in paragraph 5 to any significant extent; rather, it provided an explanation of the medical assessment process and a statement that “as recorded, the report is medically reasonable and appropriately justified” and that “as recorded, the medical examination and interview process was conducted in accordance with Atos Healthcare’s Professional Standards” (emphasis added.) However, the claimant was, among other matters, challenging certain of the recorded observations on which Dr R’s findings were based and continued to do so in his appeal. In my view the tribunal needed to make findings on those matters which were the subject of head- on challenges to the recorded observations before it could properly reach a view as to the evidential weight to be given to Dr R’s report.

10. I also consider that the tribunal failed to make findings about what physiotherapy or other treatment the claimant had already received in the period when the tribunal expected him to have taken more energetic steps to secure further treatment if his condition was as bad as he claimed.

11. The third area where in my view findings were necessary relates to the morphine patches. Findings on when these were prescribed and the circumstances leading up to their prescription would enable the tribunal then to reach a view with input from its medically qualified panel member as to what, if anything, could be inferred about the levels of the claimant’s pain at the date of the decision appealed against.

12. With these findings, it would be able to draw inferences as to (a) the severity or otherwise of the claimant’s condition and (b) the reliability or otherwise of the 2007 medical assessment.

13. It follows that in my view the tribunal erred in law by failing to make the findings that were the necessary groundwork to the conclusions it reached. It was this that rendered the conclusions unsafe, rather than that the conclusions themselves were, as was alleged, perverse.

14. I would add, though, that the tribunal was under a duty to give reasons which (among other things) tell the parties why they have won or lost and which enable the Upper Tribunal to see whether any question of law arises. In my view this required the tribunal, which sought to draw an adverse inference as to the severity of a condition from the fact that more treatment had not been sought or provided, to indicate, as it is not obvious, what treatment it considers might have been provided additionally to that which was in fact provided.

15. Other defects that there may have been in the reasoning would probably not have occurred had the necessary findings of fact been made, as set out above.

16. It follows from all the above that the tribunal’s decision must be set aside and the matter remitted to a new tribunal. A large amount of evidence was put before me which was not before the original tribunal. I do not regard it as material to the present appeal. As I am setting aside the tribunal’s decision and a rehearing will follow, that evidence may be relevant to the rehearing if, but only if, despite having been prepared after the date of the original decision appealed against (27 July 2007), inferences can be drawn from it as to the circumstances obtaining at that date: see R(DLA) 2/01 and 3/01.

17. As I am setting the decision aside on other grounds, I do not need to deal further with the point on which Judge Lloyd-Davies gave permission to appeal as set out at (a) in paragraph 6 above. The history of the claimant’s condition is one matter which the tribunal to which this case is remitted will need to take into account.

18. The fact that this appeal has succeeded on a point of law does not carry any implication as to the ultimate outcome of the claimant’s appeal, which is entirely a matter for the tribunal to which this case is now remitted.

(Signed on the original)

C G Ward

Judge of the Upper Tribunal

27 January 2010