Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Sunderland First-tier Tribunal dated 24 March 2009 involved an error on a point of law and is set aside. The case is remitted to a tribunal within the Social Entitlement Chamber of the First-tier Tribunal for reconsideration in accordance with the directions given in paragraphs 14 to 18 below and further procedural directions to be given by a district tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

REASONS FOR DECISION

1. The tribunal of 24 March 2009 was concerned with the decision dated 1 October 2008, removing the claimant's entitlement to incapacity credits on supersession following receipt of the report of an examination by an approved disability analyst (ADA) on 5 September 2008. She had been accepted as incapable of work since 5 May 1995. On 10 May 2007 she had been examined by an approved doctor (Dr Ann Bhaskaran), following whose report the personal capability assessment (PCA) was applied to her. She qualified for enough points on mental health descriptors to pass the PCA. Dr Bhaskaran's summary of the medical evidence in support of the mental health descriptors identified was that the claimant had a "moderately severe mental health condition affecting the ability to cope with a number of activities of daily living", but she also advised that her condition should improve significantly within 12 months. The examination of 5 September 2008 was carried out by Ms Kim McCaffery, who described herself as a registered nurse. Her summary of the medical evidence on mental health was exactly the same, but she only identified enough descriptors to qualify the claimant for eight points. A report dated 9 June 2008 from the claimant's GP had stated that he was not aware of any incapacitating medical condition, having last seen her on 9 May 2008 for contraception only.

2. The decision of 1 October 2008 stated that the decision awarding incapacity credits from 5 May 1995 had been superseded because there had since been a relevant change of circumstances, the receipt of medical evidence following an examination by an approved doctor. There was reliance on regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. As in force until the day before 30 October 2008, regulation 6(2)(g) allowed supersession where the Secretary of State had:

"received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995 from a doctor referred to in paragraph (1) of the regulation;"

With effect from 30 October 2008 an amendment replaced "doctor" by "health care professional" (defined in section 39(2) of the Social Security Act 1998 with effect from 3 July 2007 as meaning a registered medical practitioner, a registered nurse, an occupational therapist or physiotherapist registered with certain regulatory bodies, or a member of certain other regulated professions prescribed by the Secretary of State). Following a similar amendment with effect from 3 July 2007, regulation 8(1) of the Incapacity for Work Regulations has allowed claimants to be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination.

3. The claimant's appeal against the decision of 1 October 2008 reiterated her problems and disagreed with many of the opinions in the report of 5 September 2008. She attended the hearing on 24 March 2009 and gave evidence. The tribunal disallowed the claimant's appeal and confirmed the decision under appeal. It found that her evidence was inconsistent and variable, so that it was inappropriate to rely wholly on it. It said that it had considered all the mental health descriptors apart from those already awarded, but concluded that none were merited on the claimant's detailed answers about what she actually did, rather than her more negative general responses. It relied mainly on its own assessment of the descriptors and the GP's response, rather than the contents of the report of 5 September 2008.

4. The claimant then obtained representation from Ian Liddle, a welfare rights officer for Sunderland City Council, who applied on her behalf for permission to appeal in a letter dated 16 September 2009 (I think a mistake for July). He submitted first that the supersession was unlawful, because the examination of 5 September 2008 was not carried out by a doctor, as required in regulation 6(2)(g) of the Decisions and Appeals Regulations, and that the tribunal's reasons were inadequate in that it did not identify the inaccuracies and inconsistencies in her evidence that it said made it unreliable. When granting permission to appeal I said that the point on regulation 6(2)(g) deserved consideration on appeal and asked various questions about the arguments that could be made. I also suggested that it was arguable that, in the light of the number and nature of the mental health descriptors accepted by the tribunal, it should have dealt with and given reasons in relation to regulation 27(2) of the Incapacity for Work Regulations and the test of whether there would be a substantial risk to a person's physical or mental health if a claimant were found capable of work.

5. The Secretary of State's fully reasoned submission dated 4 December 2009 did not support the appeal. It was submitted that the failure to amend regulation 6(2)(g) did not invalidate the supersession. What mattered was the receipt of medical evidence following an examination authorised by regulation 8 of the Incapacity for Work Regulations. In answer to a question in my directions it was suggested that in the alternative the ground of relevant change of circumstances under regulation 6(2)(a)(i) could be relied on if a change in the claimant's condition from that revealed by the examination of 10 May 2007 could be identified. On regulation 27, it was submitted that there was no evidence before the tribunal to suggest that it could apply, so that it did not need to be dealt with, and the claimant's current representative had not raised the point when applying for permission. However, the submission very properly referred to and attached a copy of a recent decision of Upper Tribunal Judge May QC (CSIB/340/2009) in which he rejected precisely the submission just made on behalf of the Secretary of State about regulation 6(2)(g), but there was no submission whether that decision should or should not be followed.

6. The circumstances in CSIB/340/2009 were essentially the same as in the present case, except that the supersession by the Secretary of State was perhaps more squarely based on regulation 6(2)(g) and nothing else. Judge May said this in paragraph 5:

"The claimant had the protection of an awarding decision being final unless it is overturned on appeal or revised or superseded in accordance with regulations 3 or 6 of the [Decisions and Appeals Regulations]. In these circumstances the claimant is entitled to rely on the strict terms of the statutory provisions which at the time the decision was made was based on the Secretary of State receiving medical evidence, following an examination in accordance with regulation 8 of the [Incapacity for Work Regulations] "from a doctor" referred to in paragraph (1) of that regulation. ... The claimant was entitled to rely on that being the statutory basis for supersession and it is not possible in my view to rewrite the statutory provision for the convenience of the Secretary of State because he had failed to make the necessary amendment to the Decisions and Appeals Regulations consistent with regulation 8(1) of the [Incapacity for Work Regulations]. I note in paragraph 3 of his submissions he categorises the failure to amend the regulation as `unfortunate'. If the Secretary of State's submission to me is correct I question why he considered it necessary to amend regulation 6(2)(g) to substitute `health care professional' for `doctor' by the amendment of 30 October 2008. As the tribunal did not deal with this issue and because the evidence used by the Secretary of State to found the supersession was not of the type required at the time by regulation 6(2)(g) I find that the tribunal's decision errs in law and I set it aside."

The judge re-made the decision on the appeal by deciding that there had been no valid supersession under regulation 6(2)(g).

7. In his reply dated 5 January 2010, Mr Liddle adopted Judge May's reasoning and submitted that the tribunal had been duty bound to consider regulation 27 of the Incapacity for Work Regulations even though he had not taken the point when applying for permission to appeal.

8. I should follow and apply Judge May's central reasoning unless satisfied that it is wrong. I am very far from that latter position. The eventual amendment of regulation 6(2)(g) of the Decisions and Appeals Regulations can in my view easily be explained even if the Secretary of State is right, by a desire to have consistent language in the two provisions to avoid misunderstanding. But the central point is cogent and convincing: claimants are entitled to rely on existing entitlements not being taken away except in compliance with the plain words of the provision, which cannot be rewritten to suit the convenience of the Secretary of State. Regulation 6(2)(g) could have simply referred to receipt of medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations. Instead it included the condition that the evidence be provided by a doctor. That condition cannot be ignored so long as remained part of the provision. Accordingly, I conclude that in the present case, the conditions for supersession under regulation 6(2)(g) could not be met on 1 October 2008.

9. However, I do not agree that the only option for a tribunal in such a case is in effect to set aside the Secretary of State's decision, which would have to leave the Secretary of State able to start again by making a new superseding decision based on a different ground. It follows from the principles set out by the Tribunal of Commissioners in R(IB) 2/04 that such a course should only be adopted when the decision under appeal had so little coherence or connection to legal powers as not to amount to a decision at all (see paragraphs 72 and 192(2) of that decision and R(IB) 7/04). In the present case, the decision under appeal was defective in relying on a ground of supersession that was not in law available, but in accordance with paragraphs 73, 74, 77 to 80 and 192(1) of R(IB) 2/04 the tribunal had power to reach the correct decision after considering whether some other ground of supersession applied, always subject to giving all parties a fair opportunity to address the altered basis of the case. The tribunal of 24 March 2009 plainly failed to take that approach. The Secretary of State's decision that it confirmed cannot be regarded as having in substance been based on regulation 6(1)(a)(i), by its reference to a relevant change of circumstances. The change was identified as consisting of the receipt of medical evidence, which cannot in itself be a relevant change of circumstances, and only regulation 6(2)(g) was cited. However, there can be no objection to remitting the appeal against the decision of 1 October 2008 for rehearing after the Secretary of State has had the opportunity to put forward a different ground of supersession, which the claimant and her representative have then had time to consider.

10. As indicated above, the obvious potential ground of supersession would be a relevant change of circumstances. It is to be noted that the assumption in the decision of 1 October 2008 was that the currently operative decision that needed to be superseded was that initially awarding (or, I add, at least finding qualification for) incapacity credits from 5 May 1995. It was therefore assumed that there was no outcome decision on qualification for credits following the application of the PCA, and its passing, after the 2007 report from Dr Bhaskaran. There was some discussion of that situation in R(IB) 2/05, where I explained that if regulation 6(2)(g) was being applied it did not matter whether it was the original awarding decision that was being superseded or an intervening supersession decision following the application of the PCA and the ending of the deeming of incapacity for work under regulation 28 of the Incapacity for Work Regulations. It certainly appears from the evidence discussed in R(IB) 2/05 and from the documents in the present and other cases that standard practice is that a supersession decision is not given following a passing of the PCA when there is an existing entitlement, whether or not in law such a decision ought to be made.

11. If that is the factual situation here, then the question under regulation 6(1)(a)(i) of the Decisions and Appeals Regulations would appear to be whether there has been a relevant change of circumstances since the 1995 decision had effect on 5 May 1995. However, that does not seem to make much sense or to be very fair to the claimant. It would be disproportionate to invite further submissions on a problem that is likely to have only a very limited scope. My provisional view is that in the context of "incapacity benefit decisions" within the definition in regulation 7A(1), where an "incapacity determination" underlies the continuing operation of an outcome decision on entitlement to benefit or credits, a decision like that awarding incapacity credits here is to be taken as having effect for the purposes of regulation 6(1)(a)(i) on the date of the most recent incapacity determination. Therefore, the test on 1 October 2008 would be whether there had been a relevant change of circumstances since the application of the PCA following the report of 10 May 2007 from Dr Bhaskaran. I shall direct the new tribunal to follow that provisional view, subject to any submissions on the rehearing from either party.

12. Those conclusions are enough on their own to require the setting aside of the decision of the tribunal of 24 March 2009. However, I should deal very briefly with the other errors of law put forward. As the ADA of 5 September 2008 had accepted that mental stress was a factor in making the claimant stop work and that she was scared or anxious that work would bring back or worsen her illness and tha£t she got within two points of passing the PCA on the mental health descriptors, the tribunal of 24 March 2009 should at least have considered and recorded findings and conclusions on the test of substantial risk to health if found capable of work under regulation 27 of the Incapacity for Work Regulations. There was a real question how the claimant's health would hold up under the stresses of work. In relation to Mr Liddle's point on the tribunal's reasons, I am satisfied that the tribunal made it quite clear enough in substance why it did not find the claimant's oral evidence reliable.

13. For the reasons given above the tribunal's decision involved material errors of law and I set it aside. The claimant's appeal against the Secretary of State's decision of 1 October 2008 is remitted to a First-tier Tribunal for reconsideration in accordance with the following directions.

Directions to the new tribunal

14. No-one who was a member of the tribunal of 24 March 2009 is to be a member of the new tribunal that reconsiders the claimant's appeal. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any findings made or conclusions expressed by the tribunal of 24 March 2009.

15. The Secretary of State is to produce a new written submission on the case on the basis that the ground of supersession in regulation 6(2)(g) is not in law available and having regard to paragraph 11 above, within a time to be fixed by a district tribunal judge in further directions. Those directions will also deal with whether the claimant's representative is to be required to produce a written submission in reply before the rehearing.

16. If, as appears likely, the potential ground of supersession put forward is relevant change of circumstances, the receipt of the report of the ADA of 5 September 2008 cannot in itself be a relevant change, but may constitute evidence of a relevant change in the claimant's condition and/or her ability to cope with it. That will probably involve the tribunal in considering whether the two reports of 10 May 2007 and 5 September 2008, and other evidence, show real changes in those matters or merely differences in opinion about the assessment of those matters. In carrying out that comparative exercise, the new tribunal is to apply the approach set out in paragraph 11 above, subject to its own evaluation of any submissions to the contrary.

17. If the tribunal concludes that the Secretary of State has proved that a ground of supersession exists with effect from 1 October 2008 and that the claimant is not incapable of work under the PCA, it must go on to consider the potential application of regulation 27 of the Incapacity for Work Regulations.

18. The evaluation of all the evidence, including the weight to be given to the comparative expertise and professional standing especially as to the identification of mental health problems of Dr Bhaskaran and Ms McCaffery, will be entirely a matter for the judgment of the members of the new tribunal. The decision on the facts in this case is still open.

(Signed on original): J Mesher

Judge of the Upper Tribunal

Date: 8 March 2010