Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

I find error of law in the decisions of the First-tier Tribunal sitting in Newcastle upon Tyne on 5 November 2010 (the tribunal).  The two appeals relate to Incapacity Benefit (IB) and Employment and Support Allowance (ESA), the former under Tribunal Registration Number: 228/10/01898 and the latter under Tribunal Reference: 228/10/03645.  I therefore refer the cases, which are to remain linked together for a common hearing, to another tribunal for determination afresh.  Permissions to appeal were given by Upper Tribunal Judge Turnbull. The appeals are not supported on behalf of the Secretary of State but I do not agree with that lack of support.  I consider it appropriate, as did Upper Tribunal Judge Turnbull, to deal with the appeals together. Both tribunal decisions are erroneous in law in the same way and therefore it is suitable to provide a common  statement of reasons for my own decision, a copy of which will be placed in the file of each appeal. I suggest the files are put before a District Tribunal Judge before rehearing in order that the Secretary of State may be directed to provide further medical evidence.

 

REASONS FOR DECISION

 

Background

 

1. The claimant was in receipt of IB from 11 May 2001.  The cause of incapacity was originally stated as palpitations, changing to angina, then myocardial infarction.  On 2 February 2010 he was examined on behalf of the Secretary of State by a Health Care Professional (HCP).  It was the opinion of the HCP that the claimant fitted no relevant descriptor and that he was not “suffering from some specific disease or bodily or mental disablement and because of this there would be a substantial risk to the mental or physical health of any person if they were found capable of work”.  On 22 February 2010, a decision maker (DM) on behalf of the Secretary of State superseded the IB award from and including that date;  reliance was put on the claimant’s failure to reach the relevant pointage but there is no reference to the content of regulation 27 of the Social Security (Incapacity of Work) (General) Regulations 1995 (IWGR) although it is listed as part of the law. 

 

2. The claimant was then awarded ESA from and including 23 February 2010 on the basis that he was suffering from a heart problem and a stroke.  He completed a questionnaire on 6 May 2010 and on 24 June 2010 was examined by the same HCP as on 2 February 2010.  Again, it was the opinion of the HCP that there was no relevant descriptor applicable, but now under the Employment and Support Allowance Regulations 2008 (ESAR) and that there was no “substantial risk to the mental or physical health of any person if they were found not to have limited capability for work”.  On 1 July 2010, a DM superseded the ESA award as from that date, because the claimant did not have sufficient pointage to demonstrate limited capability for work; there is not even a reference to regulation 29 of the ESAR which has similarities to regulation 27 in the IB scheme.

3. The claimant appealed the DM’s adverse decision of 22 February 2001 on IB and that of 1 July 2010 on ESA to the First-tier Tribunal.  Sensibly, the appeals were directed to be heard together.  In the case of the IB appeal all previous Personal Capability Assessment (PCA) papers were certified as lost by the Secretary of State, including the completed questionnaire by the claimant in December 2009.  In the ESA case, there is such a questionnaire dated 6 May 2010.  In neither set of papers, however, because of the loss of IB papers and the very recent nature of the ESA claim, are there any medical reports other than those of the same HCP who, on 2 February 2010 (for the purposes of the PCA) and 24 June 2010 (for the purposes of the limited capability for work), had interviewed and examined the claimant.

 

4. On 24 August 2010 a common direction notice with respect to both tribunal appeals, drawn up by a District Tribunal Judge, was issued to the claimant.  The directions extend to four pages.  The first page, which gives tribunal reference numbers but not the name of the benefits in issue, reminds the appellant:

 

“It is your legal responsibility to provide the Tribunal with the information necessary to prove your case.  It is not the job of the Tribunal to prepare your appeal.

 

If the Tribunal decides you should do or provide something it has to be complied with.  You have a legal obligation to cooperate with the Tribunal”.

 

5. On the second page, there are instructions to the Tribunals Service.  Then on the same page begin directions to the appellant by his name; he is told about, for example, making sure the tribunal is sent any information he considers relevant, that he may find it helpful to get advice, letting the Tribunal know in writing within one month of the direction having been sent to him whether he agrees with the HCP’s report, that he might think it important to send in other medical evidence, for example from his consultant, (and it is pointed out that if he has difficulty in obtaining such evidence, to explain in writing what the problem is and the Tribunal may be able to help), and finally told about hearing dates and adjournments and what are the claimant’s duties in this respect and the possible penalties for failure to comply.  This section makes extensive use of text in bold, including both higher case and bold, when giving instructions.  No direction appears to have been sent to the Secretary of State, for example requiring the assistance of a Presenting Officer (PO) at the hearing or that a DM obtain further medical evidence for the benefit of the tribunal.

 

 

The tribunal hearing and decisions

 

6. Sensibly, a common hearing for the two appeals was held.  There is therefore likewise a common record of proceedings.  It is clear from the files that there had been no response by the claimant to the directions sent to him (by the same District Tribunal Judge who chaired the tribunal) and it is noted on the record of proceedings:

 

“Put directions to him”

 

but no record of what he said, if anything, by way of explanation.  It is recorded further that the claimant accepted that he had had the appeal papers but he had not brought them with him.

 

7. The claimant gave evidence that he had yearly appointments with a heart consultant at Freeman Hospital; there is reference to a heart attack fourteen years previously, four cardiac arrests in total (the last three years before), a stroke and continuing angina.  The claimant described his functional ability and when it was put to him that there was no evidence to support the extent of his claimed incapacity replied:

 

“My condition is I am dying and getting worse”.

 

8. The tribunal disallowed each appeal to it.  It then provided a separate decision notice and statement of reasons for each of the two decisions although in the statement for ESA it noted:

 

“The tribunal refers to the facts contained within the Statement of Reasons prepared for Incapacity Benefit purposes.  It is not proposed to repeat the facts in any detail.  Where relevant, they are adopted for the purposes of this Statement of Reasons”.

 

9. In its IB statement, the tribunal:

 

“ … decided that previous medical reports would not assist the Tribunal in making its decision.  The Tribunal was able to take a significant amount of information from [the claimant] to enable it to come to a decision.

 

…

 

… Despite having had … directions more than 2 months prior to the date of the hearing he had taken no steps to obtain additional information for the Tribunal to consider.  The Tribunal did not need to adjourn in order to obtain additional information.  [The claimant] has had plenty of opportunity to provide the Tribunal with additional information …

 

…

 

In general the Tribunal found it very difficult to obtain clear information from [the claimant] as to when he has problems with pains in his chest . …

 

…

 

The Tribunal adopted the clinical findings of the Health Care Professional report.  The information within a typical day was accepted. 

 

…

 

The Tribunal did consider regulation 27.  The evidence given by [the claimant] does not support his claims that he does not have long to live and he is dying.  The Tribunal found it unlikely that he will have been told by the consultant that he has 5 years to live. 

 

…

 

… [The claimant] was claiming that the decision by the Secretary of State was wrong.  The Secretary of State provided evidence to explain why it (sic) had made the decision it did. 

 

The responsibility then falls clearly on [the claimant’s] shoulders to provide evidence to contradict what the Secretary of State has provided.   He has not done so …

…”

 

10. The Statement of Reasons in the ESA appeal, in addition to incorporating the findings of fact from the IB statement insofar as they were relevant, included the following:

 

“The Tribunal was not satisfied that [the claimant] has a heart problem that is going to significantly affect his health/life.  There is no evidence of any immediate danger to his life.”

 

…

 

Rule 2  of the First-tier Tribunal Rules was applied. 

 

It was not appropriate to adjourn to enable [the claimant] to obtain additional information.

 

…

 

 

The Tribunal adopted the clinical findings and typical day information contained in the Health Care Professional report.

 

…

 

The evidence does not support the application of regulation 29 …”

 

 

 

 

 

 

 

 

Appeal to the Upper Tribunal

 

11. The claimant appealed the tribunal decisions to the Upper Tribunal.  Permission to appeal was refused by the District Tribunal Judge. The claimant’s grounds of appeal to the Upper Tribunal essentially express dissatisfaction with the facts as found by the tribunal.  However, Upper Tribunal Judge Turnbull gave permission to appeal in both cases, for the following reasons:

 

“It may be arguable that, notwithstanding the Directions which had been made by a First-tier Tribunal Judge on 23 August 2010, there were unusual features of this case which, as a matter of natural justice, required the Tribunal which sat on 5 November 2010  to adjourn that hearing so that the Claimant’s medical records and/or a report from his GP could be obtained.  The unusual features were (i) that the Claimant had been in receipt of incapacity benefit since 2001 (ii) that the documentation relating to previous incapacity for work determinations had been lost (iii) that the Claimant was clearly in receipt of continuing treatment in respect of a heart condition, and had been treated by specialists and (iv) that there was no medical evidence whatsoever before the Tribunal from doctors who had actually treated him”.

 

12. The Secretary of State does not support either of the appeals. Unsurprisingly, there is repetition within the submissions, one lodged for each case.  In the IB submission, the representative on behalf of the Secretary of State acknowledges that it was unfortunate that no medical documentation other than the HCP assessment was before the tribunal but points out that “ … during assessment each HCP approaches the examination afresh …”.

 

13. With reference to each appeal, it is emphasised that the claimant had been informed about the importance of supplying  the First-tier Tribunal with medical evidence in support of his appeal.  The common submission is made:

 

“ … the Upper Tribunal Judge has questioned whether the First-tier Tribunal should have adjourned the hearing for the claimant to obtain a GP’s report bearing in mind the loss of the previous medical papers [for incapacity benefit] and that the claimant was continuing treatment for his heart condition.  However, I submit that in the absence of the First-tier Tribunal harbouring any doubt that there was sufficient evidence before it, the onus was on the claimant to provide any evidence which he considered was necessary to support his case and I further submit that he had sufficient time to obtain such evidence”.

 

14. After reference in each submission to the description of a typical day, as given by the claimant in each of the HCP’s relevant reports, the findings on clinical examination in each of those reports and the two summaries by the HCP of the claimant’s functional ability, all of these matters particularised to the appeal in issue, identical concluding remarks are made by the Secretary of State in both of the two submissions:

 

“The First-tier Tribunal have made a clear and detailed examination of the facts and have comprehensively explained their decision in their statement that leaves the claimant in no doubt as to how they arrived at their decision.  They have explained fully where they placed greater weight on the HCP’s report and why they took the view that the claimant’s evidence in some respects was not to be relied upon.  I submit that there is no error in the way that the First-tier Tribunal dealt with the facts of this case.

 

… It is clear from the reasons given that the basis upon which the First-tier Tribunal made their decision was upon acceptance of the extent of the disabilities set out by the HCP.  They have provided an account in their statement of facts and reasons, which I submit, gives clear and obvious reasons why the claimant was unsuccessful in his appeal.  I submit that the reasons given by the First-tier Tribunal was sufficient to explain why they preferred such evidence and reached such conclusions as they did.  Accordingly, I submit that the minimum test as to the adequacy of reasons has been fulfilled and that there was no error of law in reaching this decision”. 

 

Discussion of  the submissions

 

Adjournment

 

15. Whether or not to adjourn a tribunal hearing involves the exercise of a judicial discretion and can only be impugned on appeal if the exercise of that discretion was unreasonable. There are many factors which, in general, militate against adjourning but, as Rule 2(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (Rule 2) puts it:

 

“The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly”.

 

16. In the particular circumstances arising here, failure to adjourn with a direction to the Secretary of State to obtain, for example, hospital case notes, was erroneous in law.  The Procedure Rules give the First-tier Tribunal wide case management powers and issuing prehearing directions are very useful in appropriate cases.  However, in the IB HCP’s report, the claimant is described as having worked as a shotblaster and a spraypainter; in the ESA HCP’s report, his last occupation is given as that of a security man.  He is unrepresented.  It must be very debatable whether such a claimant would read all of the direction notice sent to him which could unintentionally appear somewhat complex, lengthy and intimidating to one who may not previously have had any contact with a formal adjudicative process.

 

17. The legal burden of proof to make out the propriety of the supersession lay on the Secretary of State in each case.  A ground to supersede may have been provided by the HCP’s medical examination but it was still for the Secretary of State to show, on a balance of probabilities, that having regard to all the evidence, the claimant no longer satisfied the relevant tests for each respective benefit.  The claimant clearly has an evidential onus but what that involves in any particular appeal is dependent upon the circumstances. 

18. As the Secretary of State was not able to produce prior IB documents, and the medical condition claimed is one where regulation 27 (for IB) or regulation 29 (for ESA) is usually for consideration, (despite the fact that the DM in neither case expressed any overt regard to the application of these regulations other than a mechanical citation of them), this is a case where the interests of justice surely required an attempt to obtain medical evidence from other than one single HCP.  Both parties have a duty under rule 2 to “help the Tribunal to further the overriding objective”, yet no prehearing directions had been sent to the Secretary of State in the IB appeal.  In all the circumstances, adjournment was required so that, for example, a report from the claimant’s GP could be obtained by the Secretary of State, with incorporation of any letters to the GP from the consultant.

 

Inadequate facts and reasons

 

19. Both sets of regulations (regulation 27 IWGR and regulation 29 ESAR) allow a claimant to satisfy their respective tests if

 

“he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person [if he were found capable of work/if the claimant were found not to have limited capability for work]”.

 

20. These regulations are always likely to be in issue for a claimant whose incapacity in his IB history was last recorded as “myocardial infarction”. The tribunal’s findings and reasons, however, are insufficient in this respect.  A fundamental problem is that relevant evidence is often narrated rather than findings being made from it and having regard to the burden of proof: for example, “[the claimant] referred to problems with his heart/stroke, leg, arm, vision and underactive thyroid”, “ … indicated that he has a coronary heart problem …”, “ … referred to having a stroke”, “ … referred to problems of circulation in his legs and feet which he states have been getting worse for the last six or seven years”,  “… did indicate that he was taken to hospital twice in the last three years”; but there are no primary findings about the number of cardiac arrests or strokes which the claimant has sustained and over what period or how often he gets chest pains.  Adopting the clinical findings in the HCP reports and what he said to the HCP about a typical day was insufficient because information on the above matters was in the history given to the HCP and, in any event, differs between the two reports. 

 

21. It is accepted that the tribunal found it difficult to obtain clear information from the claimant on, for example, when he had problems with pains in his chest, but this only underscored the need for better medical records, and undermined the tribunal’s statement that:  “it had sufficient information”, particularly with reference to the possible application of regulation 27 or of regulation 29.  No findings at all are made by the tribunal as to the kind of work which the tribunal could reasonably have in contemplation when considering the application of those regulations.  As the Court of Appeal said in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42:

 

“The decision-maker must assess the range or type of work which a claimant is capable of performing sufficiently to assess the risk of health either to himself or to others”.

 

22. Moreover, the issue is not, as the tribunal seemed to think, whether the claimant’s condition is so serious that “he does not have long to live and he is dying”.  As it was put in CIB/1064/2006:

 

“I must consider whether there is evidence that a job of the kind which it is likely the claimant would be required to be available for would result in consequences for his health which, although not necessarily life-threatening, would be substantial having regard to both the likelihood of occurrence and degree of harm”.

 

Summary

 

23. The appeals are therefore remitted to a new tribunal to begin again.  It is emphasised there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with the guidance above; the determination of the claimant’s case in each of the two appeals on the merits is entirely for that new tribunal.  Although the claimant has been successful in his appeals limited to issues of law, the decisions on the facts in his case remain open. 

 

 

 

 

 

 

(Signed)

L T PARKER

Judge of the Upper Tribunal

Date: 15 September 2011