IN THE UPPER TRIBUNAL Case No  CDLA/2024/2010

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Sunderland on 31 March 2010 under reference 236/09/03417  involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 16 of the Reasons.

REASONS FOR DECISION

1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. 

2. The claimant had been refused Disability Living Allowance.  On appeal his representative indicated that he was seeking the mobility component at either rate and the lowest rate of care component based alternatively on attention needs or the cooking test.

3. He had been examined by a Health Care Professional (HCP), who confirmed the existence of “an essential tremor of outstretched hands”, noted the existence of slight impairment of the hands, feet, knees and hips but concluded that the claimant could both deal with his bodily functions without the need for attention and carry out the activities involved in cooking a main meal.

4. Atos Healthcare, who provide the HCPs, operate a procedure where a complaint has been made about an HCP. It contains an Independent Medical Quality Review, the stated purpose of which is:

“The Independent Medical Practitioner is to provide Atos Origin Medical Services with an expert opinion as to whether the relevant medical report considered as part of the complaint investigation has been completed by the Healthcare Professional (HCP) in accordance with Medical Services quality and professional standards; and that the Independent Medical Practitioner will, in reviewing the substance of the medical report, the advice contained therein and the documents provided in File 435 reach a judgment on the following specific issues, and comment on each whether the medical report provided was :

●Fair and impartial in accordance with the Department for Work and Pensions Equal Opportunity Policy

● Medically correct

● Complete, justified and consistent

● Within the consensus of current medical opinion

It is not within the remit of the Independent Medical Adviser to resolve any dissatisfaction with the outcome of the Decision on entitlement to benefit resulting from the medical report.  That is for the formal appeal process to determine.”

5. The reviewer commented (among other matters) that although the form requesting the HCP’s report did include the condition of tremor of the hands:

 “the HCP did not dwell on the effects of this condition and it would   have been difficult for the DM to have been able to evaluate this. The form POID1v2 is signed by the customer and this demonstrates   marked tremulous handwriting.  One would therefore have expected the tremor to have had some effect on manual function.”

6. The reviewer adds:

“In my view any decision maker or appeal body would have found it difficult to form any conclusion on the level of disability in this customer.  I find [the report] somewhat scanty and ambiguous with no real explanation that would resolve the ambiguities…In this case it is my view that the report was completed to a basic acceptable level but it gives the impression of being hurried and not well reasoned.  Based on the four criteria I have to consider it would meet three of the conditions but would fail on being “complete, justified and consistent”.

7. The papers from the Independent Medical Quality review were before the tribunal.

8. The tribunal for its findings of fact relied on the evidence of the HCP, stating that:

“We did not overlook the appellant’s evidence, but we took it into account and it did not in our view outweigh the [HCP] report because that was carried out by an independent expert who has no personal interest in the outcome of the appeal, and who took a formal history, and carried out a clinical examination and then formed an opinion which was consistent with the findings arising from the examination.”

9. As issued, the statement of reasons made no mention of the outcome of the cooking test part of the claim, merely indicating that the submission that the claimant was entitled to it. The claimant appealed on this ground and also on its approach to the HCP’s evidence, given the findings of the Independent Review.

10. The tribunal judge’s response was to reissue the reasons with the addition of the line:

 “He can prepare a cooked main meal for himself given the ingredients. He is not therefore entitled to DLA care component.”

This was said to be a correction under rule 36, which is the power to correct “any clerical mistake or other accidental slip or omission”.  The initial omission of reasoned discussion of the cooking test calls into question whether the tribunal had in fact considered it but failed to mention that it had done so, but even if that were the case, I have considerable doubt  whether its failure to mention it could be cured under rule 36.  However, as I am setting the decision aside on other grounds, I do not need to decide this point.

11. Permission to appeal was refused, the refusal also asserting (for the first time) that:

 “the tribunal took all of that [i.e.the criticisms made of the HCP report by the ATOS complaints procedure] and weighed the evidence. After doing so they preferred the [HCP] opinion.”

Again, I have reservations about whether it was permissible to supplement the reasons for decision in this way, but do not need to decide the point.

12. I have set the tribunal’s decision aside, because even if one takes into account the additional comments in the decision notice refusing permission to appeal, the reasons still do not engage with why it was appropriate to rely on the report, even though it had been adjudged by an independent reviewer not to be “complete, justified and consistent”, that it was appropriate to rely on it. The reasons which the tribunal gave were in essence formulaic.  They were insufficient and the tribunal was thereby in error of law.

13. The tribunal was further in error of law in relation to the cooking test.  There was an acknowledged tremor of the hands yet, as the independent reviewer found, the HCP did not dwell on the effects of this condition and it would have been difficult for the DM to have been able to evaluate this.  Again, even if one takes into account the amendment purportedly effected under rule 36, the tribunal offers no explanation as to how it was able to conclude that the claimant was able to prepare a meal of the relevant type despite his hand tremor.  There are moreover insufficient findings of fact as to what tasks it was that the claimant was able to accomplish. The insufficient findings and reasons give rise to a further error of law.

14. Both the grounds on which I am setting the decision aside are supported by the Secretary of State.

15. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

16. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (31 July 2009) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

17. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)

C.G.Ward

Judge of the Upper Tribunal

20 January 2011