Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CIB/419/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge of the Upper Tribunal Miss E. Ovey

 

Decision:  The decision of the First-tier Tribunal given on 5^th October 2010 contained an error on a point of law.  For the reasons given below, I set it aside and remit the case to the First-tier Tribunal for reconsideration by a tribunal constituted differently from the previous tribunal.

 

 

REASONS FOR DECISION

 

 

1. This is an appeal by the claimant against the decision of the Darlington Appeal Tribunal given on 5^th October 2010.  By its decision the tribunal dismissed the claimant’s appeal against the decision of the decision-maker made on 25^th November 2009 that the claimant had failed to satisfy the personal capability assessment and that she ceased to be entitled to incapacity benefit from and including 25^th November 2009.  That decision superseded a decision awarding incapacity benefit from and including 23^rd January 2001.

 

2. The appeal is supported by the Secretary of State, with much of whose submission I agree.  The claimant, however, does not consent to the appeal’s being allowed without reasons.  Moreover, the tribunal judge granted permission to appeal on the ground that the application contains arguments that are regularly raised by the representative and a ruling by the Upper Tribunal would be of great assistance.  I am aware from other cases that some of the points raised by the representative are frequently raised before the First-tier Tribunal.  It is therefore appropriate for me to give full reasons for my decision.

 

3. The facts of the case are in some respects unusual.  The papers do not make clear on what basis the original 2001 award was made.  On 7^th June 2004 following a medical examination apparently confined to the claimant’s mental health an exemption advice form was signed based on the claimant’s severe mental illness.  The effect was that under reg.10 of the Social Security (Incapacity for Work) (General) Regulations 1995, S.I. 1995 No. 311, the claimant was to be treated as incapable of work without needing to satisfy the personal capability assessment.  The examining doctor advised that she would be expected to improve significantly in 18 months. 

 

4. As far as appears from the papers before me, however, the next relevant event was that the claimant was issued with a form IB50, an incapacity questionnaire, on 23^rd April 2009.  That questionnaire was not returned and a reminder, apparently sent on 22^nd May 2009, was apparently ignored.  It seems from the “letter history” at p.1G of the bundle that it was sent to the claimant at an address at which she certainly was not living by December 2009 and it may be that she had already moved by April 2009.  There appears to have been correspondence about an appointment in October 2009 which was sent to the correct address.

 

5. Possibly in response to the latter correspondence, the claimant attended a medical examination on 12^th November 2009.  The examination was conducted by a health care professional (“HCP”) who was a registered nurse rather than a doctor, and it is that fact which is the foundation for many of the submissions made by the claimant’s representative.  I do not need to go into the detail of the HCP’s report at this point; it is sufficient to say that the HCP found that the claimant did not satisfy any of the physical descriptors in the Schedule to the 1995 Regulations and that her mental health condition caused “mild functional impairment”.

 

6. The decision-maker than proceeded to calculate the claimant’s score under the descriptors, as required by reg. 25 of the 1995 Regulations.  This is generally done by the decision-maker on a standard form score sheet which requires a claimant’s assessment of her functional abilities as set out in a form IB50 to be entered and compared with the HCP’s assessment and then requires the decision-maker to make the final choice of appropriate descriptors.  In the present case, the decision-maker simply recorded that no form IB50 had been received.  He decided that the claimant scored 1 point on the mental descriptors, on the ground that she was scared or anxious that work would bring back or worsen her illness.  She scored no other points.  That score was nowhere near sufficient to satisfy the personal capability assessment.

 

7. Having made that calculation, the decision-maker then superseded the previous award on the ground that reg. 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, S.I. 1999 No. 991, applied.  That provision permits an award to be superseded where an incapacity determination has been made and since the decision awarding benefit the Secretary of State has received medical evidence following an examination in accordance with reg. 8 of the 1995 Regulations from an HCP.  The decision here erroneously refers to there having been a report by an approved doctor.

 

8. The claimant appealed against the decision by an appeal form dated 8^th December 2009.  She set out a considerable amount of further information about her medical condition which she said she felt had not been taken into account.  The decision was reviewed but not revised on 17^th December 2009.

 

9. The claimant obtained representation from Durham Welfare Rights and sought an oral hearing of her appeal.  She put in as further evidence a letter dated 22^nd June 2010 from a consultant in anaesthesia and pain management, a letter dated 9^th September 2010 from a consultant urologist and a letter dated 6^th September 2010 from her G.P. which enclosed a list of her current medication.  The bundle of papers also contains a web page print dated 5^th October 2010 showing that a nurse with the name of the HCP is registered but “no recordable qualifications” were found.  That page of the bundle is not date-stamped and it is not clear that the tribunal saw it.

 

10. The hearing began with a legal challenge by the claimant’s representative to the validity of the decision.  He said that the claimant’s major problem was depression and that at her last medical examination she had been found to be exempt from assessment by a doctor.  He argued that the Secretary of State could not discharge the onus which was on him to show that the claimant was no longer entitled to benefit by obtaining a report from a nurse who did not hold mental health qualifications.

 

11. The tribunal chair rejected that argument on the basis that the HCP was approved under the relevant regulations and so would have received the necessary training.  In so doing he presented the claimant’s representative with his second argument.  The representative pointed out that the chair had not consulted the medically qualified panel member and raised the objection that the decision was not on a point of law which was reserved to the legally qualified chair.

 

12. The representative then moved on to apply for an adjournment to find out what training the HCP had in fact had in mental health matters, if any.  He also submitted that where a tribunal was composed of two persons, as was the tribunal before which he was appearing, both members carried equal weight and the chair, as a tribunal judge, did not have a casting vote.  The chair did not agree.  Nevertheless, the tribunal withdrew to discuss the matter and both members declined the application.

 

13. The appeal then proceeded with substantial oral evidence from the claimant.  In the event, she was awarded a further 5 points by the tribunal:  3 points for the physical descriptor that she lost control of her bladder at least once a month and a point each for mental descriptors 16(c) and (e) (that she was frequently distressed at some time of the day due to fluctuations of mood and that sleep problems interfered with her daytime activities).  She thus had a total of 6 points, but that still fell well short of the total of 15 points she required for a combination of physical and mental descriptors or 10 points for mental descriptors alone under reg. 25.  The appeal was therefore dismissed.  Again I do not need to go into the tribunal’s reasons in detail at this point.

 

14. This sequence of events produced an application to appeal in the following terms:

 

“1. The appellant suffered at the relevant time from depression.  The HCP had no qualifications in mental health.  I submit that the Secretary of State cannot discharge this onus of proof with such a report and that the tribunal erred in law by rejecting this argument.

 

2. If the above argument is rejected I submit the tribunal erred in law by refusing to adjourn to establish what, if any, training the nurse had been given in mental health.

 

3. The tribunal erred in law by deciding the first point without consultation with [the] medical member (the Judge decided the issue alone).

 

4. The Judge’s view that a Judge has, in an 02 tribunal the casting vote is I submit erroneous and has no basis in law.

 

5. The tribunal reject evidence of the GP largely on the grounds that it was some considerable time after the date of the decision.  However they have done so, failing to consider or enquire whether the appellant’s condition has improved, deteriorated or remained the same since the decision under appeal was made.”

 

15. Permission to appeal having been granted by the tribunal judge, Judge Williams gave detailed case management directions including requiring specific submissions from the Secretary of State as to the issue of training for nurses conducting mental health examinations.  He also pointed out that he had done a web search himself and found two nurses with the same name as the HCP, both living in the relevant area, one with mental health qualifications and one with none recorded.  It was unclear which, if either, was the HCP concerned.

 

16. In response to Judge Williams’ directions, the Secretary of State’s submission includes the following material obtained from the DWP Medical Policy Team in the Health, Work and Wellbeing Directorate:

 

“Recruitment and selection

 

Nurses are required to have a minimum of 3 years post registration experience together with a broad base of skills/background and undergo a rigorous selection procedure which includes a competency test assessing knowledge in both physical and mental health assessment and management.  Out of the numbers of the nurses who apply less than a quarter are successful in their application.

 

Training

 

Nurses receive training in mental health issues as part of their induction training.  The duration of this training for new recruits is 22 days and includes assessment of communication skills particularly in relation to mental health, learning disability and autistic spectrum disorders.  In addition nurses are required to engage in a programme of continuing medical education which includes modules on mental health issues.

 

Approval

 

All nurses are required to be approved by the CMA DWP.  Approval is only granted when it has been proven that they meet the required quality standards.

 

Monitoring

 

Ongoing quality audit is carried out on all HCP’s with particular emphasis on HCP’s who have recently been approved.  If a problem is identified, the HCP may be required to undertake tailored training, which may involve training in mental health issues if required.”

 

17. Armed with that information, I return to the grounds of appeal.

 

18. The first ground, as I understand it, raises the question whether as a matter of law a medical report prepared by a registered nurse who has no qualifications in mental health can ever be sufficient to discharge the onus of proof on the Secretary of State that a claimant no longer satisfies the conditions of entitlement to benefit where the report is the only evidence relied on.  The claimant’s representative says that as a matter of law such a report cannot constitute sufficient evidence.

 

19. It appears to me clear that, expressed in that way, the first ground of appeal must fail.  Reg. 6 of the 1999 Regulations clearly enables the Secretary of State to supersede a decision on incapacity benefit in the light of the medical evidence constituted by a report prepared following an examination by an HCP in accordance with reg. 8 of the 1995 Regulations.  Reg. 8 provides that where it falls to be determined whether a person is capable of work he may be called by or on behalf of an HCP approved by the Secretary of State to attend for a medical examination.  I have found nothing in the statutory framework which would prohibit the Secretary of State as a matter of law from relying on such a report in the case of a mental illness unless the HCP, if a nurse, had “qualifications in mental health”.  It is therefore fortunately not necessary to go into the concealed question of what that expression might mean, particularly in the light of the information set out above as to selection and training of nurses as HCPs.  The HCP was clearly a health care professional within the definition in reg. 2 of the 1995 Regulations and it has not been suggested that (contrary to the statement in the report itself) she was not approved by the Secretary of State. 

 

20. On the footing that this issue is a pure point of law, there was no error by the chairman in deciding it without discussion with the medically qualified panel member and the third ground of appeal therefore also fails.

 

21. This conclusion does not, of course, entail that the claimant’s representative could not properly submit that the evidence contained in the report was not sufficient to discharge the onus on the Secretary of State of showing that the claimant no longer satisfied the conditions for entitlement to incapacity benefit.  It is certainly not the case that an award must be superseded because a medical report has been received which, if accepted in full as a correct statement of the claimant’s physical and mental abilities, shows that she does not score sufficient points on the personal capability assessment to satisfy that assessment.  The Secretary of State has to weigh the report against the other available evidence, including any evidence of the claimant that her condition remains unchanged or has deteriorated.  This point is considered at some length in the annotated Social Security Legislation 2010/11 at para. 2.310 (which also records Baroness Hale’s deprecation of references to concepts such as the burden of proof in Kerr v. Department of Social Development [2004] UKHL 23, [2004] 1 WLR 1372) and I do not need to pursue it further.  The essential point is that a claimant is undoubtedly entitled to make submissions as to the weight to be attached to such a medical report.

 

22. Turning to the second ground of appeal, it follows from the above that, in principle, a claimant may ask for an adjournment in order to obtain evidence going to the HCP’s competence to produce a particular report and thus the weight to be attached to the report.  That discretion is of course to be exercised in accordance with the usual principles and in particular having regard to the overriding objective set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, S.I. 2008 No. 2685, of enabling the tribunal to deal with cases fairly and justly.

 

23. I find it very difficult to see that in any other than an exceptional case it could be appropriate to grant an adjournment solely on the ground that the HCP was a registered nurse rather than a registered medical practitioner and that the case involved mental health issues in which there was no evidence that the HCP had particular qualifications.  I do not attempt to speculate on what might be an exceptional case.  The present case is one in which the mental illness involved is anxiety and depression, which, unhappily, cannot be said to be rare.  In such circumstances, it seems to me that a tribunal would not normally start from either the point that weight could only be attached to the HCP’s report if the HCP could be shown to have mental health qualifications or from the point that weight could not be attached to the report if she could be shown not to have mental health qualifications.

 

24. Rather, the question for a tribunal faced with an application to adjourn to establish what training in mental health issues an HCP who is a registered nurse has received is whether evidence of the level of training will help it in evaluating the weight to be given to the report.  It is far from obvious that such evidence will assist.  The material produced by the Secretary of State certainly shows that HCPs who are nurses will have shown some competency in mental health issues in order to be selected, will have received initial and continuing training in mental health issues and will not have been approved unless they have reached a certain quality standard.  In a broad sense this is of course helpful, since it shows that the ability of a nurse who is an HCP to deal with mental health issues will not have been ignored.  One might reasonably have expected, however, that that would be the case.  General evidence of selection and training procedures will not necessarily be of assistance in showing whether or not a particular report prepared by a particular HCP contains reliable evidence.  It might possibly help if it could be said that the selection and training procedures are not sufficient to ensure that a nurse without specialist mental health qualifications is competent to deal with cases involving mental health issues, but clearly no such conclusion could be reached on the material I have seen and it does not seem to me realistic to expect a First-tier Tribunal to adjudicate on such an issue.  To do so would require a much greater volume of evidence ranging much more widely than an individual claimant or representative could conceivably produce or respond to.  The issue is essentially one for the Department of Work and Pensions itself, which will no doubt keep under review the level of training that is given and whether the specialist nature of mental health assessments should require the adoption of a practice under which only registered nurses with specified mental health qualifications should conduct medical examinations in certain types of case.  It is of course the case that such qualifications are available and that mental health is a specialist field.

 

25. I therefore conclude that the tribunal’s starting point should be that the report is prepared by an HCP who has been trained (whether as part of the training as an HCP or through other training) at least to the level thought appropriate by the Department of Work and Pensions for carrying out examinations when mental health issues are raised.  In other words, the selection and training procedures ought to have produced an HCP who can conduct a mental health examination competently.  It follows that evidence that the HCP has not undergone separate specialist training should not of itself have any effect on the weight which the tribunal attaches to the report.  In the absence of other circumstances, then, it is difficult to see on what basis a decision not to adjourn in order to obtain general evidence about the training of nurses who are HCPs could be criticised.

 

26. The position may be different if the adjournment is sought to obtain evidence that the HCP does have specialist qualifications and the report is thus to be given the weight appropriate to a report by a person with those qualifications. A claimant might possibly wish to adduce such evidence if there are conflicting reports and the more favourable report or reports have been produced by an HCP with such qualifications.  The tribunal might feel it would be assisted by such evidence, although it might very well be the case that other material is available, including the terms of the relevant reports, which enables the tribunal to reach its decision without evidence of qualifications.

 

27. The present case appears to me to be one in which the representative wished to have the adjournment so that evidence of a rather more formal nature than a copy of a web page could be produced to show that the HCP had no qualifications other than those resulting from the selection and training procedures for nurses who are HCPs and, possibly, so that the limitations of that training can be demonstrated.  As far as appears from the record of proceedings, the basis of the application was that in the absence of evidence of the HCP’s training, the tribunal would proceed under an assumption.  Unfortunately the record does not state what the assumption was said to be and the tribunal’s statement of reasons gives no reasons for the refusal of the adjournment unless it is to be implied that the tribunal’s earlier statement that the HCP was “approved under the Regulations and [had] undertaken the necessary training” was to be regarded as a sufficient answer to this point also. 

 

28. In those circumstances, I conclude that this case was one in which the tribunal could properly decide, in the exercise of its discretion, that an adjournment would cause delay and that evidence of the kind which was intended to be obtained by the adjournment would not assist it (or at least, would not assist the claimant by showing that little weight was to be placed on the report).  It may be that strictly the tribunal erred in law in not making its reasons clearer, but as I shall explain later, in my view the tribunal erred in law on the substance of the appeal.  It is therefore not necessary to determine whether there was an error of law in the tribunal’s failure to give clear reasons for the exercise of its discretion to refuse an adjournment.

 

29. It does not seem to me that the fourth ground of appeal can have any bearing on the outcome of this appeal.  It raises, in the context of the application for an adjournment, the issue of whether the legally qualified chair of a tribunal has a casting vote when the tribunal consists of two persons and their views differ.  In fact the two members agreed on refusing the adjournment (and indeed on the substantive outcome of the appeal).  Since the point has been raised, however, I should say that it is clear from art. 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008, S.I. 2008 No. 2835, set out in the Secretary of State’s submission, that where the votes of the members of a tribunal are equal, the presiding member has a casting vote.  This provision is not repeated in the Senior President’s Practice Statement about the composition of tribunals to which Judge Williams referred in his case management directions.  The Practice Statement does, however, provide in paragraph 12 that the legally qualified chairman, who is a tribunal judge, will be the presiding member.  It follows that what the chairman said in the present case was correct; if there had been a disagreement between the two members of the tribunal, he as the presiding member would have had a casting vote.

 

30. Having disposed of the various preliminary issues, I now come to the merits of this appeal.  I do so on the footing that the tribunal properly approached the case on the basis that the HCP had received the training necessary to enable her to deal with claimants with mental health problems.  The evidence of the web site page, if it was before the tribunal, did no more than imply that she did not have additional qualifications and there is no trace of the tribunal’s having assumed that she was in any way particularly qualified to deal with the claimant’s case.  For present purposes, it is thus immaterial whether she was the nurse identified at the tribunal stage or the nurse subsequently discovered by Judge Williams, or indeed neither of them.

 

31. The limitations of this approach must, however, be noted carefully.  Judge Williams in his case management directions envisaged that a claimant might put a particular nurse’s competence in issue if supported by evidence such as a complaint about the way the particular examination was conducted.  Nothing I have said is intended to suggest that that is not a possibility.  The facts that a nurse has received certain training, and even that there is continuing training and a monitoring system, do not irrefutably prove that the nurse is competent.

 

32. In many cases, however, the claimant may not need to put the nurse’s general competence in issue (in the absence of such a short cut as the representative here sought to follow by his point of law), but can simply challenge the weight to be given to the particular report.  Both the claimant and her representative clearly put the report in issue and the challenge was supported by evidence from the claimant and further medical evidence.

 

33. It is here that the tribunal, in my view, fell into error.  In paragraph 7 of the statement of reasons it is said:

 

“The Tribunal accepted the clinical findings and clinical observation as set out in the examination.  The Tribunal is satisfied that the examination was of sufficient length and undertaken by a person of sufficient medical qualification.”

 

34. Having said that, however:

 

(1) in paragraph 8, the tribunal awarded the claimant 3 points for satisfying descriptor 13(f) (she having given considerable detail about her problems with continence, supported by evidence from a consultant urologist and her G.P., although the medical evidence was not specifically mentioned), although the HCP said that she had discussed continence with the claimant, who stated that there was no problem in that area;

 

(2) in paragraph 10 the tribunal awarded the claimant 1 point each for two mental descriptors neither of which the HCP had identified.  Very little is given by way of reasons for those awards, but clearly the fact that they are consistent with the HCP’s report was not part of the reasoning process;

 

(3) the tribunal, having correctly reminded itself that it was concerned with the claimant’s functional abilities at 25^th November 2009, the date of the decision appealed against, appears largely to have disregarded the G.P.’s evidence because of the date of the letter without considering the possibility, raised by the use of the word “chronic” four times, that it described conditions which existed before 29^th November 2009 and had simply continued thereafter;

 

(4) the tribunal made no reference to the evidence of the consultant in anaesthesia and pain management, although it speaks of the claimant having been treated “over the years” with medications which were “not very successful”, although the claimant gave oral evidence about her leg pains and although she relied on that physical condition to say that she had relevant problems with the physical activity of sitting.

 

35. These points are very similar to those identified in the provisional views of Judge Williams and those on the basis of which the Secretary of State supports this appeal.  I agree that they demonstrate that the tribunal made insufficient findings of fact (since it cannot be sufficient simply to adopt wholesale clinical findings and observations with which the tribunal then disagrees in part) and gave inadequate reasons for its decision (since it is not clear on what basis the tribunal accepted some parts of the HCP’s report and did not accept others and the tribunal did not deal adequately with the further medical evidence before it).

 

36. I add to the foregoing the fact that there was significant material to suggest that however competent the HCP might be in general, she had not performed this particular examination competently.  I say that because:

 

(1) the report lists as conditions medically identified anxiety and depression, asthma and vertigo.  No mention is made of the claimant’s bladder problems, which led to her having an operation (for which she was apparently already waiting at the time of the 2004 medical report and which took place later that year, according to her oral evidence) for the insertion of a permanent neuro-modulator and for which she seems to have been under the care of the consultant urologist for at least six years.  The claimant gave oral evidence of having told the HCP twice that she needed to go to the toilet and could not hold on and it is very hard to imagine that if she had been properly questioned she would not have told the HCP about this condition.  The tribunal’s own decision shows that it very rightly accepted at least some of the claimant’s own evidence and the further medical evidence on this point.  Indeed, the tribunal’s general comment on the claimant was that she was clearly doing her best to assist the tribunal and give clear unequivocal evidence of her conditions;

 

(2) similarly, no mention is made of the claimant’s leg pains, despite the fact that she had been receiving treatment for the pain “over the years”.  She raised this when she wrote her letter of appeal and again it is very hard to imagine that she would not have mentioned these pains if properly asked.  She gave oral evidence that she had told the HCP what she told the tribunal;

 

(3) the HCP has recorded under the “Description of a Typical Day” heading the statement “Completed the IB50 without difficulty.”  That is plainly wrong, since it is clear that no IB50 was completed, and such a complete misstatement casts doubt on the accuracy of all the other statements said to have been made by the claimant.

 

These points were not identified by the tribunal and they add force to the submission that the tribunal erred in the weight it gave to the HCP’s report compared with the other medical evidence.

 

37. I recognise that the absence of the form IB50 may have put the HCP as well as the claimant at a disadvantage.  She certainly did not have the further evidence which was before the tribunal.  It seems likely, however, that the claimant was seriously disadvantaged, since her side of the case was not before the decision-maker when the decision was made.  That may have been the claimant’s fault, but it may also have been, as I said at the outset, that the form was sent to the wrong address.

 

38. In the light of all the foregoing matters, I have no doubt that fairness to the claimant requires me to exercise my power under s.12 of the Tribunals, Courts and Enforcement Act 2007 to set aside the decision of the tribunal.  Equally, I have no doubt that the case should be remitted to the First-tier Tribunal for reconsideration.  The parties may well wish to put in further evidence and the claimant should have the opportunity to give further oral evidence if she wishes to do so.  It is obviously of importance that the evidence as a whole, including any further evidence, should be considered by a tribunal which will necessarily include a medically qualified member rather than a judge of the Upper Tribunal alone.  In all the circumstances, I take the view that it is preferable that the tribunal should be differently constituted from the previous tribunal and I so direct.

 

39. Some care will be required to ensure that this appeal is dealt with fairly in the future.  In my view, there is still a lack of clear evidence from the claimant’s perspective of her physical and mental condition in November 2009, such as there would have been if she had completed a form IB50.  It is not for me to tell the claimant how to conduct her appeal, but she may wish to consider, with her representative, producing a statement explaining as best she can why she did not respond to the request in April and May 2009 to complete a form IB50 and setting out, having regard to the questions which would have been asked in such a form, her physical and mental state at that date.  She may also wish to consider obtaining a further statement from her G.P. covering her physical and mental health from 2001 onwards.  I add that in reading the papers I have found it particularly difficult to know when the claimant was under the care of a consultant psychiatrist or other specialist, as appears to have been the case from time to time, when she was receiving counselling, when she was simply on medication and what strength drugs were prescribed for her from time to time.  The claimant might find it helpful if she is able to shed further light on that.

 

40. The Secretary of State is of course able to require the claimant to attend for a further medical examination, but will no doubt wish to consider whether the evidence of such an examination by an HCP who does not know the claimant will shed significant light on her condition in November 2009, and in particular on her mental condition.  It is possible that the claimant’s G.P. will be much better placed to provide any further evidence which may be thought helpful.

 

41. The tribunal rehearing the matter will of course pay careful attention to what is said above, including the matters of concern which I have identified in relation to the report of the HCP.  As the case has raised a number of general points, I summarise those points as follows:

 

(1) the Secretary of State is not precluded as a matter of law from relying on the report of a registered nurse who has no specific qualifications in mental health issues over and above the training given to all HCPs who are registered nurses as containing sufficient evidence to establish that a claimant no longer satisfies the conditions for an award of incapacity benefit;

 

(2) whether or not the particular individual does have specific qualifications in mental health may be relevant to the weight to be attached to a report by an HCP who is a registered nurse.  The tribunal’s starting point, however, should be that the HCP has been trained to at least the level regarded as necessary by the Department of Work and Pensions if the HCP is to be competent to carry out a mental health assessment;

 

(3) where an adjournment is sought so that evidence about the HCP’s qualifications can be obtained, the matters to be taken into account by the tribunal should include how it is said that the relevant evidence will help it in assessing the weight to be given to the report in question;

 

(4) the issue before the tribunal will be whether reliance can be placed on the particular report.  Evidence from within the report itself or other evidence relating to the particular claimant may therefore be more helpful in assessing the weight to be given to the report than general evidence about the level of training which has been received. 

 

42. It is understandable that concern is felt about the training and qualifications of registered nurses who are carrying out assessments involving mental health issues.  As Judge Williams said in his case management directions, mental health nursing is a separate nursing specialism and assessment of the mental descriptors for incapacity benefit purposes is notoriously difficult.  Nothing in my decision should discourage the Department of Work and Pensions from a practice of ensuring that mental health assessments, when carried out by HCPs who are registered nurses, are carried out only by those registered nurses who do have specialist qualifications.

 

 

 

(Signed) E. Ovey

Judge of the Upper Tribunal

 

(Dated) 23^rd September 2011