Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIB/837/2011

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Sunderland on 6 January 2011. For the reasons set out below I dismiss the appeal.

2. The Claimant is a woman now aged 57 who suffers from a number of medical conditions, none of which are directly relevant to the present appeal.

3. The First-tier Tribunal’s decision was to dismiss the Claimant’s appeal against a decision, made on 1 April 2010, superseding and removing with effect from that date the Claimant’s award of incapacity credits on the ground that the Claimant was not incapable of work in accordance with the personal capability assessment.

4. The First-tier Tribunal found that the Claimant scored a total of 12 points from the physical activities comprised in that assessment (3 each from the activities of bending & kneeling, standing, walking/stairs and rising from sitting).

5. I gave permission to appeal owing to the way in which the First-tier Tribunal had dealt with the activity of hearing, which was the only ground of appeal which had been put forward on behalf of the Claimant.

6. In her IB50 questionnaire the Claimant stated that she satisfied the descriptor “cannot hear well enough to understand someone talking in a normal voice on a busy street”, which is worth 8 points. She commented: “I can hear as long as television is turned up. I sometimes don’t know what people are saying clearly and have to strain to hear.”

7. The examining doctor recorded the Claimant as saying, in her description of a typical day, that she “likes to watch television most days …..” and “uses the phone for emergencies occasionally.” The doctor considered that the Claimant did not satisfy any of the hearing descriptors, and noted, under “behaviour observed during assessment”: “Heard name called in waiting room without difficulty. Heard conversational speech without difficulty.” The doctor also recorded that she “heard a spoken voice at 1 metre using both ears.”

8. At the hearing before the First-tier Tribunal the Claimant is recorded as giving evidence as follows:

“I can hear OK today. If in a busy street I probably could hear conversation, may have to ask person to repeat words once or twice.”

9. The First-tier Tribunal’s reasons in relation to hearing were as follows:

“At the Appeal Hearing the Appellant confirmed that her hearing that day was “OK”. She volunteered that if in a busy street she could probably hear conversation although she may need to ask the person to repeat words once or twice. She has not discussed this with her GP and has not considered a hearing aid. The Appellant was able to hear conversational speech at a normal volume without any difficulty and the Tribunal did not accept that she had any hearing difficulty as defined within the descriptors.”

10. The ground of appeal put forward by the Claimant’s representative relies on the fact that in CIB/590/1998 Mr Commissioner Angus said that the hearing descriptors

“had to be considered in the light of what is reasonable. It is not reasonable to say that a claimant can understand someone talking in a normal voice in a busy street if he can gain that understanding only by making frequent requests for repetition of what has been said.”

It is contended that, in the light of that statement of the law, on the evidence before the First-tier Tribunal 8 points should have been awarded for hearing.

11. Whether a person satisfies the descriptor “cannot hear well enough to understand someone talking in a normal voice on a busy street” is plainly a question of degree. It must necessarily be determined on a somewhat “broad brush” basis, for a number of reasons. First, the amount of noise in a “busy street” will vary according to how busy the street is, and what type of traffic is going past at the particular moment. Secondly, some “normal voices” may be easier to hear and understand than others. Thirdly, there is in the nature of things unlikely to be evidence, other than from the claimant himself, going directly to whether the claimant can hear in a busy street. The examining doctor and the tribunal will certainly not be able to observe the claimant attempting to hear in a busy street, as opposed to a quiet room. Fourthly, there are of course an almost infinite number of gradations between being able to hear clearly every word which is being said in a busy street, and not being able to hear any of the words. In order to “understand” someone talking it is not usually necessary to hear every word. Provided that most of the words can be heard, the rest will probably be obvious from the context. Further, an occasional need to ask for repetition cannot mean that the claimant “cannot hear well enough to understand ….”

12. In my judgment the Secretary of State’s representative is right in submitting that the First-tier Tribunal in the present case was entitled on the evidence to find that descriptor 11(e) was not satisfied, and sufficiently explained why it did so. I do not consider that the Tribunal’s reasons departed from anything said in CIB/590/1998. It should be noted that the claimant’s evidence to the appeal tribunal in that case, which the Commissioner considered the tribunal to have accepted (see paras. 5, 9 and 12 of his decision) was that “in a crowded place he would have some difficulties in hearing. He maintains that in a busy high street, if he was seeking to carry on a conversation, he would have to keep on asking persons to repeat their question”. That seems to have been a much greater difficulty than that which the Claimant in the present case claimed when she said that “if in a busy street she could probably hear conversation although she may need to ask the person to repeat words once or twice.” The flavour is of an occasional need to ask for repetition, as opposed to the need to “keep on” asking for repetition which was accepted to exist in CIB/590/1998. What amount of repetition is necessary before it can be said that the claimant “cannot hear well enough to understand someone talking in a normal voice on a busy street” is, as I have said, a question of degree. In my judgment, in the light of the precise words used by the Claimant in this case, and the other evidence to which the First-tier Tribunal referred (and in particular the lack of any medical investigation of the Claimant’s hearing, or referral for a hearing aid), the First-tier Tribunal sufficiently explained why it reached the decision it did. Indeed, it is difficult to see what further explanation it could have given. It cannot be said, in my view, that it was not entitled to make the finding which it did.

Charles Turnbull

Judge of the Upper Tribunal

17 November 2011