Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CIB/2734/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Nicholas Paines QC

Decision: The decision of the First-tier Tribunal is not supported by an adequate statement of reasons. I set it aside and remit the case to a differently constituted tribunal for determination.

REASONS FOR DECISION

1.               The claimant is a man born in 1980. He became incapable of work in 1999 and has been in receipt of incapacity credits. In June 2007 he was assessed under the Personal Capability Assessment by an examining doctor, who concluded that the claimant scored no points under the physical descriptors in the PCA but 14 points in respect of mental health descriptors. In July 2008 the claimant was required to complete an incapacity for work questionnaire and in November 2008 he was assessed under the PCA once again. On this occasion the examining nurse concluded that the claimant scored no points in respect of physical descriptors and 6 points in respect of mental health descriptors. On 10 December 2008 a DWP decision-maker accepted the examiner’s opinion, concluded that the claimant was not incapable of work in accordance with the PCA and superseded the previous decision.

2.               The claimant appealed and the decision was reconsidered, but not changed. The appeal came before the First-tier Tribunal in July 2009. The claimant attended, accompanied by his sister. A representative from an advice centre, who was unable to represent the claimant at the hearing, had submitted a written submission prepared at short notice and some evidence in the form of GP records and a letter from the claimant’s sister. There was at one stage in this appeal some doubt as to whether those documents were seen by the members of the First-tier Tribunal that heard the case, but I am confident that they were, for reasons that I shall mention later in my decision. The tribunal accepted that the claimant met the descriptors for which they DWP had awarded points, and in addition found that he could not use a telephone directory (descriptor 15d). Since that still left the claimant with insufficient points to be incapable of work in accordance with the PCA, the tribunal dismissed the appeal.

3.               The claimant appeals with the permission of Judge Wikeley. This is an appeal on a point of law. The issue is not whether I agree with the First-tier Tribunal’s conclusions on the facts of the claimant’s case but whether their decision involved an error of law. A decision will involve an error of law if it is not supported by an adequate statement of reasons. Whether a statement of reasons is adequate does not depend on whether I agree with the tribunal’s reasoning but on whether it tells the parties why the tribunal reached the conclusions they did, in sufficient detail to show that they applied the law properly. I do not consider that the statement of reasons in this case does so.

4.               To explain why, I must say more about the background to the case, beginning with the claimant’s representative’s submission to the tribunal. First of all, despite the understandable doubts raised by the facts that the submission and accompanying evidence were not in the main file sent from the First-tier Tribunal to the Upper Tribunal and had been marked ‘received after tribunal’ by First-tier Tribunal staff, it is clear from the terms of the statement of reasons that the members of the tribunal had the documents: the statement of reasons contains the statement “there is no indication in the medical records supplied by Speak Easy that [the claimant] has any problems with his shoulder, back or thumb”. As far as I can see, the only document that refers to problems with the claimant’s back or thumb is the representative’s submission; there is no mention of these problems in the record of proceedings. The tribunal would not therefore have dealt with those claimed problems if it had not learnt of them through reading the submission. Secondly, the medical records referred to in the phrase I have quoted are the enclosures to the submission.

5.               Mention of them in the statement of reasons does not establish that the tribunal saw the documents before the hearing, but if the tribunal had only seen them after the hearing I would have expected the statement of reasons to mention this; moreover, if the tribunal members only saw the documents after the hearing but were aware that they had been received before the hearing, I would have expected them to reconvene the hearing. I therefore conclude that the members had the documents before the hearing; this conclusion is supported by the representative’s file note of a conversation with the tribunal staff on the day of the hearing, in which she was told the documents had been ‘taken down this morning with the papers’.

6.               In the submission the representative referred to the June 2007 examination, which was in the papers, and said “the Appellant indicates that he still suffers from anxiety, panic attacks and self harms and therefore, he asks the Tribunal to consider that he should still score points for the same descriptors”. The submission then asked to the tribunal to consider five specific mental health descriptors in addition to those found to be satisfied in the June 2007 examination.

7.               In relation to the physical descriptors, the submission referred to a motor accident when the claimant was 16 which left him with pain and stiffness as a result of which he ‘cannot raise one arm to his head as if to put on a hat, but can with the other’, to the lodging of an airgun pellet in his lower spine when he was around 18, causing pain and discomfort in the claimant’s lower back and a rugby injury causing pain and discomfort in the claimant’s knee; it submitted that these conditions cause the claimant difficulty with walking, using stairs, sitting, standing, rising and bending and kneeling. Finally the submission referred to an injury to the claimant’s right thumb which made him unable to use a pen or pencil.

8.               The tribunal’s reasoning in respect of physical descriptors was relatively brief. It referred to the claimant’s claimed difficulty with all physical functions except bending and kneeling, walking and vision. It then referred to the extent of the ‘abnormal’ medical findings in the November 2008 examination report, the absence of a reference in the GP records to shoulder, back or thumb problems and to its own observation of the claimant as explaining why the tribunal “felt that [the claimant] was capable of undertaking all the physical descriptors”.

9.               Though brief, this part of the reasoning tells the claimant why the tribunal reached the conclusions they reached on most of the physical descriptors. In circumstances where, though there were some ‘abnormal’ medical findings in respect of the claimant’s left arm in both PCA examination reports, neither examiner had concluded that the claimant met any of the descriptors for activity 9, I do not consider that the law required the tribunal to explain in more detail why those abnormal findings did not in their view support a conclusion that any of the descriptors for activity 9 was satisfied.

10.           The claimant’s representative draws attention to the reference in the submission to descriptor 9e and the note in the record of proceedings of the claimant saying “Can’t lift left arm above my head. Had operation. Can with other.” I do not consider that the fact that the activity of reaching was mentioned in more detail in the submission than other physical activities, or that the claimant gave this particular evidence at the hearing, required the tribunal to deal with the point in any greater detail.

11.           However, the reasoning in the statement of reasons does not cover activity 14 – remaining conscious without having epileptic or similar seizures during waking moments. Though not referred to in the representative’s submission, blackouts had been referred to by the claimant in the questionnaire. They were also listed among the “Conditions medically identified” in the June 2007 PCA examination (page 2 of the papers), though the examining doctor had supported a finding of “no problems with consciousness” with the statement “The claimed physical difficulties with consciousness are actually symptoms of a mental health problem” (page 12). The November 2008 PCA examination report does not mention loss of consciousness at all, save that on page 55 the finding of “no problems with consciousness” is again supported by the statement “The claimed physical difficulties with consciousness are actually symptoms of a mental health problem”.

12.           This somewhat legalistic statement has given rise to a debate in the written submissions to the Upper Tribunal as to whether the examiners were correct in law to dismiss any problems with consciousness as being mental and not physical. The Secretary of State has referred to regulation 25(3)(a) of the Social Security (Incapacity for Work) Regulations 1995, which says that Part I of the schedule to the Regulations, containing the physical descriptors, only applies to disability which “arises … from a specific bodily disease or disablement” and the decision of Judge Jupp in CIB/98/2008. The claimant’s representative has referred to the decision of Judge Lane in WM v SSWP [2009] UKUT 229 (AAC).

13.           It seems to me that the tribunal’s handling of activity 14 – which had been explicitly raised by the claimant’s answers to the questionnaire – is erroneous in law for the simple reason that the statement of reasons does not tell the claimant why he scored no points under those descriptors. I can understand why the tribunal did not deal with it; the claimant’s accounts of his difficulties have varied over time, with additional injuries being mentioned for the first time in the representative’s submission and that submission making no reference to blackouts. The tribunal may have thought the claimant was no longer maintaining his claim to suffer from blackouts, or disbelieved it (as tribunals are of course entitled to do), or may have simply overlooked the mention of them in the questionnaire and the finding of blackouts in the June 2007 PCA report. But, particularly where a claimant with acknowledged mental problems is unrepresented, the law in my view requires the tribunal to ensure that any descriptors that may be in issue are covered in their decision. Claimants with mental problems are (as members of First-tier Tribunals will know much better than I) not always well equipped to give a comprehensive account of their problems at a hearing.

14.           If the new tribunal finds that the claimant did suffer blackouts at the relevant time, they will need to consider the issues raised by the phrasing of activity 14 and its descriptors and by regulation 25(3)(a): whether the blackouts amount to ‘lost or altered consciousness’, whether they are seizures ‘similar’ to epileptic seizures and whether any inability of the claimant to perform the activities described in the descriptors arises from a specific bodily disease or disablement. These are matters of medical diagnosis; guidance on the law is given in the decisions reviewed in the commentary on regulation 25 and activity 14 in Bonner on Non Means Tested Benefits.

15.           As regards the mental health descriptors, the statement of reasons does not expressly rely on the findings at the November 2008 PCA examination, but on the tribunal’s own conclusions. It contains a reference – by summarising the terms of the descriptor – to nearly all the descriptors in Part II of the PCA. It is in that respect far more comprehensive than the record of proceedings, which only mentions physical problems relating to the claimant’s shoulder, a problem with concentration testified to by the claimant’s sister, the statement “can’t read very well so couldn’t find a number” and a reference to previously experienced side-effects of medication. It ends with the statement “No other problems at all. Nothing more to say”. This cannot, however, have been taken by the tribunal to mean that the claimant was disclaiming any problems other than those mentioned in the record of proceedings. The record does not make any reference, for example, to depression or anxiety, but the tribunal nevertheless accepted in the statement of reasons (as the DWP had done) that the claimant was frequently distressed at some of the day due to fluctuation of mood, felt scared or panicky for no obvious reason, became irritated and preferred to be alone for 6 hours or more each day.

16.           The Secretary of State agrees with the claimant’s representative that the November 2008 examiner appears to have misunderstood descriptor 17a (‘mental stress was a factor in making him stop work’) because she advised that the descriptor was not satisfied since “The main reason for leaving was upper limb problem”. I agree that that this finding does not answer the question whether mental stress was nevertheless a factor. The Secretary of State suggests that that error is balanced by an error in the claimant’s favour of implicitly finding him unable to use a telephone directory because of mental disease or disablement when the evidence suggested the inability was due to poor reading skills. However, the tribunal’s stated reason for not finding descriptor 17a satisfied was (with my emphasis) that “The reason he left work was because of an upper limb problem”. This means it was the only reason, ruling out stress as a factor. But I do not know how the tribunal reached that conclusion, since the record of proceedings does not contain any discussion of the claimant’s leaving work. If (which is not stated) it was based on the November 2008 report, that report does not contain an adequate basis for it.

17.           The claimant’s representative’s submission had invoked the June 2007 PCA report and claimed there had been no change since that report. That report had found the claimant to satisfy five descriptors that the tribunal did not find satisfied (including descriptor 17a, the examining doctor finding that “The main reason for leaving work was stress”). The Secretary of State had submitted to the tribunal that the burden of proof was on him and had, very properly, included the July 2007 report in the papers. In CIB/1509/2004 Judge Jacobs held that (to the extent that issues of burden of proof remain relevant following Kerr v Dept for Social Development [2004] UKHL 23) the burden of proof in removing an award continues to fall on the decision-maker even where the supersession is under regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. There is also authority for the proposition that, where a claimant claims no change since a previous favourable assessment, the earlier assessment is relevant to the tribunal’s enquiry.

18.           The consequence of this is that, while the issue in a case of supersession under regulation 6(2)(g) is whether the claimant satisfies the conditions of entitlement as at the date of the Secretary of State’s supersession decision, a previous favourable assessment relied on by a claimant is relevant to the tribunal’s decision and raises the sub-issues – which the tribunal must consider – of whether the tribunal either disagrees with the previous assessment or considers that circumstances have changed. Since supersession under regulation 6(2)(g) does not require the Secretary of State to show a change of circumstances, it is open to him (and the tribunal) to make, on the same facts, a different judgment from that made previously.

19.           The statement of reasons in this case does not advert to the June 2007 PCA report or explain why the tribunal reached a different conclusion on descriptors that the examining doctor had found satisfied on that occasion. It is therefore, in my view, inadequately reasoned. I consider that I should set it aside since, without having formed any view of my own on the outcome of the case, I cannot be sure that the decision is nevertheless correct. Since I am not in a position to take a decision myself on the claimant’s capacity for work in accordance with the PCA, I remit the case to a differently constituted tribunal for re-determination.

20.           Finally I would suggest that if, as I suspect, the DWP’s system for producing form IB 85 PCA reports encourages examiners to quote a ‘main reason’ for leaving work, it is questionable whether that is a helpful form of opinion to encourage examiners to give. An opinion that the main reason was something other than mental stress does not rule out stress as a factor and is likely to be of little help to decision-makers.

Judge Nicholas Paines QC

25 June 2010