Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CIB/2631/2009

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Fox Court, London on 9 February 2009. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal.

2. The Claimant is a man now aged 33. He suffers from back pain, knee pain, a bladder problem and depression and anxiety. These problems are all the result of an incident in 2004 in Eritrea when he was assaulted and hit on his back, knees and groin.

3. The Tribunal’s decision was to dismiss the Claimant’s appeal against a decision, made on 20 March 2008, superseding and removing with effect from that date the Claimant’s award of incapacity credits on the ground that he was not incapable of work in accordance with the personal capability assessment. The decision maker, accepting the advice of the examining doctor, had found that the Claimant scored no points from either the physical activities or the mental health descriptors comprised in that assessment.

4. The Claimant was represented at the oral hearing before the Tribunal. His representative had prepared for the hearing a written submission (p.129) contending that the Claimant scored 15 points for physical descriptor 13(b) (no voluntary control over bladder) and a total of 11 points from the mental health descriptors.

5. In its Statement of Reasons the Tribunal referred to that submission, and said that there was medical evidence, namely a report from a physiotherapist and GP practice records, which was “in parts, consistent with that submission”. The crucial part of the Tribunal’s reasoning is then set out as follows:

“3. However, the tribunal concluded that enuresis occurred during the night and that there was only weak indication that the Appellant was troubled by loss of control of his bladder during the waking hours. In addition, nothing in the Appellant’s movements, appearance or communications at the hearing (including responsiveness or other behavioural signs) suggested that he was in physical or psychological discomfort of any kind. Accordingly, the IB85 assessment was regarded as (on the balance of probabilities) reliable as to the Appellant’s functional capabilities at the relevant time.

4. In reaching this conclusion, the tribunal considered that the 03/08 IB85 seemed to address and assess the particular aspects that had been held out by the Appellant as giving him limitations or problems. It provided a report of a “typical day”, as well as clinical details and opinions that were plausible and coherent. Moreover, incontinence during the night when in bed was considered by the tribunal to fall outside of the meaning of “no control or loss of control” when addressing the statutory activities and descriptors, which – throughout the PCA – are concerned with the functional impact of the person’s physical or phychological state on daytime activities. In addition, the 08/08 letter from Mr [in fact Ms] Mahtani (Consultant Clinical Psychologist at p.117) draws a ‘picture’ of an Appellant who is occasionally – but not usually - psychologically restricted in his personal or social functioning.”

6. The grounds of appeal advanced by the Claimant’s representative are that the Tribunal erred in law in the following respects. First, it made the statement in the second sentence of para. 3 of the Statement of Reasons without explaining whether it had taken into account Ms Mahtani’s (the consultant psychologist’s) caution that “although [the Claimant] appears contained in his demeanour, he suffers from severe psychological difficulties including depression, sleeping difficulties and anxiety.” Secondly, the last sentence of para. 4 of the Statement of Reasons was unreasonable in drawing the inference from Ms Mahtani’s report that the Claimant was “psychologically restricted” only “occasionally”.

7. I gave permission to appeal because I considered the grounds of appeal to be arguable, and I further stated as follows:

“In addition, it is arguable that, given that the Tribunal had the opportunity to question the Claimant fully, and was therefore arguably in at least as good a position as the examining doctor had been to reach a conclusion in relation to the mental health descriptors, the Tribunal did not sufficiently explain why it found that the Claimant did not satisfy any of the mental health descriptors which had been put in issue (p.129). Should the Tribunal have covered the same ground when questioning the Claimant as had been covered by the examining doctor, or was the Tribunal entitled to rely on the Claimant’s answers to the examining doctor in the manner which it did in the first two sentences [of para. 4 of] the Statement of Reasons?”

8. The grounds of appeal, and the point which I raised at the time of giving permission, relate solely to the mental health aspect.

9. The Secretary of State does not support the appeal, submitting as follows:

“8. The First-tier Tribunal have clearly examined all the evidence before them including the report from [Ms Mahtani]. Although the First-tier Tribunal have not gone into detail about each individual contended descriptor, they have clearly considered all the evidence before them in making their findings. The First-tier Tribunal did not simply accept the HCP’s report, they have used their own judgment in conjunction with all the evidence before them. In CIB/461/2000 the tribunal had weighed all the evidence and accepted the evidence of the HCP as being more accurate. The Upper Tribunal Judge held that in such circumstances there is no need for the tribunal to go into great detail concerning each descriptor and that it is sufficient for the reasoning to make it clear which view had been preferred. He continued however, that had the tribunal adopted some of the descriptors advanced by the claimant, some by the approved doctor and some of their own, or any combination of such a mix, then clearly there would be an obligation to deal in detail with the descriptors the tribunal had selected and make specific findings concerning each one. In a case such as this it is sufficient for the reasoning to make it clear which view had been preferred.

9. The First-tier Tribunal have given careful consideration to all the available evidence placed before them and in preferring the findings of the HCP have determined that in this case the report based on the examination by a HCP specifically trained to examine the claimant’s functional ability in conjunction with the Personal Capability Assessment descriptors is justifiable.

10. I submit that the First-tier Tribunal were entitled to either accept or reject any of the available evidence. They were also entitled to assign whatever weight they chose to any piece of evidence before them.

11. The expert medical member of the First-tier Tribunal is well placed to consider and draw conclusions from the submitted medical evidence. I submit that the medical member of the First-tier Tribunal has special expertise in order to determine a claimant’s ability to perform the various descriptors that are considered in the course of the Personal Capability Assessment. It is reasonable to assume therefore that the medical member’s opinion about the claimant’s condition would be based upon the medical evidence that was available to them.”

10. In my judgment, however, the Secretary of State’s submission does not sufficiently take into account the fact that the Tribunal had the opportunity to and did hear evidence from the Claimant as to the effects of his mental health condition on his daily life. It is apparent from the Record of Proceedings, particularly at p.139, that questions about this were asked and answered. Some at least of those answers appear to have suggested different conclusions from those reached by the examining health care professional (HCP). For example, the Claimant is recorded as stating “Prefers to be alone both indoors and outdoors …… I used to watch football but not now because worries about his problems …. feels scared most of the time …” If accepted at face value, those answers would have suggested that the Claimant may well have satisfied at least descriptors 15(e), 17(b) and 18(e).

11. The Statement of Reasons makes no mention of the substance of the Claimant’s oral evidence to the Tribunal, or what the Tribunal made of it. (I read the second sentence of para. 3 of the Statement of Reasons as referring only to the manner in which the Claimant gave his evidence, rather than the substance of what he said).

12. Where the tribunal has the opportunity to hear evidence from the claimant there will in my view often by a crucial difference between the approach which it can properly take to the evidence from the HCP in relation to the physical activities and that which it can properly take in relation the HCP’s evidence in respect of mental health descriptors. The medical member of the tribunal is not permitted to carry out a physical examination of the claimant, and will therefore not have the opportunity of checking, directly, whether he agrees with the HCP’s clinical findings. Further, the tribunal will in practice not have the same opportunity as the HCP had to observe the Claimant’s movements and actions during his examination. The tribunal does, however, have the opportunity of hearing the claimant’s evidence in relation to the aspects of daily life which were covered by the HCP’s questioning. In general it therefore seems to me that it will rarely be satisfactory for a tribunal which has heard evidence from the claimant to adopt the approach that it accepts the conclusions reached by the HCP in relation to the mental health descriptors because they were based on answers to questions from someone trained to conduct the examination. If the claimant has given evidence to the tribunal which, in the tribunal’s view, confirms the HCP’s conclusions, then it will generally be sensible for the tribunal to say so, however briefly. If he has given evidence which on the face of it is contrary to those conclusions, the tribunal will in general need to say what it makes of that evidence. It may be, for example, that the tribunal considers it more likely that the answers which the claimant gave to the examining doctor were accurate because they were given before the claimant had appreciated their significance, or because they are more consistent with other evidence, or because the claimant’s condition appears to have changed. But it will rarely be satisfactory for the tribunal to make no comment at all on the substance of the oral evidence given by the Claimant in relation to the mental health descriptors.

13. That is not to say that, even where the claimant has given oral evidence, the tribunal will necessarily have to deal in turn with each of the mental health descriptors in issue, although it may often be desirable to do so.

14. I have hesitated before allowing this particular appeal on this ground because it is strongly arguable that, even taking all the evidence recorded in the Record of Proceedings at face value, the Claimant would not have scored the necessary 10 points. However, the Tribunal’s approach was in my judgment wrong in that it made no reference to the Claimant’s oral evidence, and I am unable to say that the Claimant could not have succeeded if it had adopted the correct approach. I would also in any event have allowed the appeal on the first of the grounds referred to in para. 6 above. If the Tribunal was going to attach the significance which it did to the manner in which the Claimant gave his evidence (as opposed to the substance of his answers), I agree that it should have adverted specifically to Ms Mahtani’s caution, which was one to which she plainly attached importance. I therefore make the decision set out in paragraph 1 above.

Charles Turnbull

Judge of the Upper Tribunal

4 August 2010