DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the First-tier Tribunal dated 8 July 2009 under file reference 123/09/00069 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 9 December 2008 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

 

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The re-hearing will be at an oral hearing.

 

(2) The new First-tier Tribunal should not involve any tribunal judge or medical member who was a member of the tribunal considering this appeal on 8 July 2009.

 

(3) The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal (namely 9 December 2008).

 

(4) If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).

 

(5) The new First-tier Tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

These Directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

The Upper Tribunal’s decision in summary

 

1. The appellant’s appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal dated 8 July 2009 under file reference 123/09/00069 involves an error on a point of law and is set aside. The case now needs to be reheard by a new First-tier Tribunal.

 

The background to the appeal to the First-tier Tribunal

 

2. The appellant is a gentleman now aged 43. He has apparently been receiving incapacity benefit (or its predecessor benefit) for a number of years (at least since 22 December 1992).

 

3. On 27 July 2007 the appellant was seen by a doctor (Dr Ao) on behalf of the Secretary of State. Dr Ao accepted that the appellant suffered from epilepsy and expressed the view that physical descriptor “14(c)” or “Fc” applied, meaning that the appellant had an involuntary episode of lost or altered consciousness at least once a month (and indeed Dr Ao noted that the appellant had lost some teeth as a result of one such incident). As a result of the doctor’s report, the appellant was scored at 15 points and continued to receive incapacity benefit.

 

4. On 17 November 2008 the appellant underwent a fresh medical examination, on this occasion by Dr Kithan. His conclusion, however, was that the appellant had no problems with consciousness and that the appellant’s statements were not consistent with having epileptic fits once a month. Following that examination, a decision maker concluded on 9 December 2008 that the appellant scored nil points on the personal capability assessment. She accordingly decided that the appellant was capable of work and was no longer entitled to incapacity benefit.

 

5. The appellant lodged an appeal, arguing amongst other things that his condition had not changed since the previous medical in 2007 when he had been found to score 15 points.

 

6. A staff member in the Department subsequently wrote to the surgery at which the appellant was registered. The GP’s reply was that the appellant had registered as a patient there in 2000 but had not been seen since then with regard to epilepsy or any other matter.

 

The First-tier Tribunal’s decision

 

7. The First-tier Tribunal heard the appeal on 8 July 2009. The appellant attended with his CAB representative. As well as the appellant’s oral evidence, the tribunal had before it both the 2007 and the 2008 examining doctors’ reports, along with the appellant’s own questionnaire and the short report from the GP.

 

8. The tribunal’s decision was to dismiss the appeal and to confirm the Secretary of State’s decision. The tribunal judge subsequently issued a short Statement of Reasons for the tribunal’s decision, comprising just three paragraphs. The first paragraph simply set the scene. The second paragraph recorded the appellant’s evidence but found very few facts. In the third paragraph the tribunal rejected the appellant’s evidence as “entirely implausible”, stating that the effects he described were not consistent with the known after-effects of an epileptic fit and it was “inherently improbable” that a person with those symptoms would not have sought more recent medical advice.

 

The proceedings before the Upper Tribunal

 

9. Mr Briscall, the appellant’s CAB representative, argues in short that the tribunal failed to give adequate reasons for its decision. Mr Briscall has now produced a copy of a letter from 1995 in which a consultant neurologist confirmed a diagnosis of focal epilepsy (with complex partial seizures). He has also produced copies of the GP surgery’s computer records relating to the appellant. However, these entries for the most part post-date the date of the tribunal hearing.

 

10. Ms Lesley Worrall, who now acts for the Secretary of State in these proceedings, does not support the appeal to the Upper Tribunal. Her argument, in summary, is that the tribunal gave adequate reasons for its decision and did not err in law.

 

The Upper Tribunal’s reasons for allowing this appeal

 

11. I start with the obvious point that the tribunal cannot be criticised for failing to have regard to the consultant neurologist’s letter and the GP notes. That evidence was simply not put before the tribunal. Plainly the onus is on the appellant and his representative to have their evidence together in time for the hearing. The tribunal can only decide the case on the evidence before it.

 

12. I also accept that the tribunal in this case made a very strong finding of credibility, or rather lack of credibility, on the part of the appellant. I acknowledge that findings of credibility are pre-eminently a matter for the First-tier Tribunal, which has the advantage of reviewing the evidence at first hand. The tribunal also, of course, includes a medical member.

 

13. I bear in mind the warning of Leveson LJ in the Court of Appeal’s judgment in Secretary of State for Work and Pensions v Roach [2006] EWCA Civ 1746 (at paragraph 37) that a Social Security Commissioner (now an Upper Tribunal Judge) should not seek to disturb a tribunal’s findings of fact by way of “an attempt to reanalyse evidence (which he had not heard) from a perspective that he preferred.” It follows that the Upper Tribunal should tread very warily before disturbing a finding of credibility, whether that is in favour or contrary to the interests of a claimant, and can only do so if there is an error of law. However, the First-tier Tribunal is also under an obligation to give adequate reasons for its decision.

 

14. Ms Worrall’s argument, of course, is that the tribunal in this case has done just that – it simply did not believe the appellant’s account and said so, giving brief reasons, and that was sufficient in all the circumstances of the case. She therefore submits that the tribunal met the minimum standard or threshold for adequacy of reasons.

 

15. In support of her submission Ms Worrall cites the decision of Mr Commissioner Goodman in unreported decision CIS/12032/96. This was an appeal against a tribunal decision to the effect that the claimant was liable to repay more than £12,000 in overpaid income support. The Social Security Commissioner allowed the appeal on the agreed basis that the tribunal had failed to record the (extensive) evidence it had received and had also failed to make a finding of fact on a crucial issue. However, Mr Commissioner Goodman rejected a further ground of appeal, relating to the tribunal’s statement that it did not find the claimant to be a credible witness. Counsel for the claimant had argued that the tribunal should have given some indication of why they had come to that view. Rejecting that argument, the Commissioner stated (at paragraph 14):

 

“A tribunal in particular in a case of this kind must assess the credibility or otherwise of any witness including the claimant. If it does not find the evidence given by the claimant credible, it is entitled to say so without more. It is difficult to understand what reasons it is supposed to give other than simply that it does not believe the claimant. I do not see how that belief can be corroborated.”

 

16. However, those comments need to be seen in the context in which they were made. As I sought to explain in unreported decision CIS/4022/2007:

“43. In my view it would be unsafe to regard this comment as suggesting that it is sufficient in any and every case for a tribunal simply to rule that it finds a particular witness not to be credible, with no further explanation. I note that the reported decisions in R(I) 2/51 and R(SB) 33/85 appear not to have been cited to Mr Commissioner Goodman, and that his observations on the credibility point were strictly obiter in any event, in the sense that they were not necessary to decide the case before him.

44. In this context it is also important to bear in mind the wider point made by a Tribunal of Commissioners in Northern Ireland in decision R 2/01(IB)(T): ‘What constitutes adequate reasoning may vary from case to case and there is a danger in attempting to elevate a particular decision into an authority that a certain format or content either always will or always will not constitute adequate reasoning. It will all depend on the circumstances of the case, the evidential background and the issues’ (paragraph 31).”

17. Further, at paragraph 52 of CIS/4022/2007, I sought to summarise the relevant authorities on giving reasons for credibility findings in the following terms:

 

“52. In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately ‘the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it’.”

 

18. In the present case it is important to note that the First-tier Tribunal did not simply make a bald finding that the appellant was not a credible witness. In addition it gave some brief reasons for reaching that conclusion (see paragraph 8 above). In many cases, especially on a new claim, that may well be sufficient to dispose of the matter.

 

19. However, context is everything when assessing the adequacy of reasons, as noted by the Tribunal of Social Security Commissioners in Northern Ireland in decision R 2/01(IB)(T). The present case was one in which the appellant’s account had plainly been accepted by Dr Ao in July 2007 but equally had been disbelieved by Dr Kithan in November 2008 and by the tribunal in July 2009. In those circumstances I take the view that a rather fuller explanation was warranted than that provided by this tribunal.

 

20. Furthermore, the tribunal’s conclusion was that “there was no objective evidence to support the Appellant’s story which was not believed by the Tribunal and consequently the appeal failed”. It was certainly the case that the short report from the GP’s surgery did nothing to support the appellant’s account (although his explanation, of course, was that he had found that medication made him drowsy and so had stopped taking any). However, there was support for the appellant’s account in the report by Dr Ao (and the appellant had insisted he had given both examining doctors the same account). In particular, Dr Ao had noted that the appellant had lost teeth as a result of a fit and had expressly observed that only one upper front tooth was remaining.

 

21. Clearly the findings and opinions of Dr Ao were in no way binding on either Dr Kithan or the tribunal in the present case. However, in the circumstances of this case I have reached the conclusion that the tribunal’s decision was flawed in terms of its failure to provide adequate reasons. In particular, how did it account for Dr Ao’s earlier findings and opinion?

 

The appellant’s epilepsy and entitlement to incapacity benefit

 

22. Although I am setting aside the decision of the First-tier Tribunal, I must make it clear that I am making no finding or indeed expressing any view on whether or not the appellant (1) has a form of epilepsy; and (2) is entitled to incapacity benefit. Even if the new tribunal finds that the appellant does indeed suffer from epilepsy, it does not necessarily follow that he is entitled to incapacity benefit. That depends, in particular, on the nature and frequency of any seizures he may experience.

 

23. These are all matters for the good judgment of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact. In doing so, the tribunal will have regard to section 12(8)(b) of the Social Security Act 1998. This states that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added). This means that the new tribunal will have to focus on the appellant’s circumstances as at 9 December 2008, the date of the Secretary of State’s decision, and not the position as at the date of the new hearing. It may be difficult to think back to the position nearly 18 months ago, but that is the requirement laid down by statute.

 

24. The new tribunal will need to consider all the relevant evidence before it and decide whether the appellant does indeed have epilepsy. It will need to consider how far the assessment of the consultant neurologist in 1995 still reflects the position as it was in December 2008. It will use its combined legal and medical expertise to decide whether or not the appellant has generalised or partial seizures and, if partial, whether they are simple or complex seizures. It will need to consider the history of the appellant’s claimed fits carefully (e.g. are there witnesses?; is there any warning?; are there any known triggers?; is there loss or impairment of consciousness?; how long do the fits last?; are they accompanied by e.g. unresponsiveness, tongue biting and/or incontinence?; what is the post-ictal state?).

 

25. The tribunal will also doubtless wish to explore the treatment, if any, that the appellant has received over the years and his experiences with medication. Above all, the tribunal will need to make findings as to both the nature and the frequency of the claimed fits. The tribunal will then be in a position to determine how many points, if any, the appellant scores in relation to the “remaining conscious” descriptor at paragraph 14 of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311).

 

Conclusion

 

26. I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above.

 

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 1 April 2010 Judge of the Upper Tribunal