Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CI/747/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 17 November 2010 is set aside and the case is remitted for redetermination by a differently-constituted panel of the First-tier Tribunal.  I direct that there be an oral hearing before the First-tier Tribunal and that the First-tier Tribunal consider whether it should obtain relevant x-rays taken since 23 November 2000.

REASONS FOR DECISION

1. This is an appeal, brought with my permission and the support of the Secretary of State, against a decision of the First-tier Tribunal confirming a decision of the Secretary of State to the effect that, from 13 December 2009, the claimant was not suffering from a loss of faculty resulting from an industrial accident on 23 November 2000.  Ironically, the accident occurred when she was lifting something while on a course learning how to handle and lift things properly.  The First-tier Tribunal accepted that she had pain in her neck and her left arm, but took the view that it was more likely that, at least by 2009, the pain was entirely due to constitutional degenerative disease of her spine unrelated to the relevant accident. 

2. I granted permission to appeal because it seemed to me to be arguable that the First-tier Tribunal did not give an adequate reason for its conclusion in the circumstances of this case.

3. The only clear reason it gave for considering that the claimant’s problems were entirely constitutional was that she had developed pain in areas unrelated to the original injury, which it considered was indicative degenerative problems.  It also noted that the MRI scan in January 2002 had shown small disc bulges which the First-tier Tribunal considered were more likely to be the consequence of constitutional degenerative disease than acute injury, but it is not clear to me whether it took the view that those disc bulges were constitutional because the claimant had developed pain in other areas or because it considered it inherently more likely that the disc bulges were the consequences of degeneration rather than acute injury.  The Secretary of State’s representative says that he is informed that current medical opinion is that an accident of the type suffered by the claimant would not cause discs to bulge and suggests that it is likely that the First-tier Tribunal took the view that the disc bulges were the result of degeneration rather than acute injury but he accepts that the First-tier Tribunal’s explanation left that in doubt

4. In any event, the claimant’s case was clearly, even if not explicitly, that the pain in her neck and arm could be shown to be due to the relevant accident because she had had no such symptoms before the relevant accident, the problems had started at exactly the time of the relevant accident, none of the doctors then treating her had ascribed them to constitutional causes and her general practitioner had been content to ascribe them to the accident.  Moreover, although the Secretary of State had consistently argued that the claimant’s injury had caused only short-lived symptoms and had pointed out in 2005 that the claimant’s general practitioner had not given details of the clinical findings on which her opinion was based (doc 40), his argument had twice been rejected by appeal tribunals in respect of past periods and the First-tier Tribunal in the present case had obtained the claimant’s medical records and so had relevant clinical findings before it.

5. In my judgment, the First-tier Tribunal should have explained why the fact that the claimant had developed pain in other parts of her body some considerable time after the accident – and, it would appear, from a different or unknown cause (see docs 158 and 168) except as regards her knee (see docs 140 to 144) – was regarded as more significant than the timing of the onset of symptoms.

6. The amount of reasoning required from a tribunal depends very much on the facts of the individual case and, in particular, the arguments advanced before it.  It is a good rule of thumb that the principal arguments advanced by the losing party should expressly be addressed in the statement of reasons.  This is required as a matter of fairness because it is only by giving reasons that the tribunal can demonstrate that it has in fact given proper consideration to the arguments.  I am satisfied that the decision of the First-tier Tribunal in this case is erroneous in point of law because its reasons were inadequate for the reasons given above..

7. However, I reject the claimant’s contention that it did not adequately consider her depression.  It was entitled to draw attention to factors that suggested that the effects of depression were not severe.  It did not find that the claimant was not suffering from any mental disability at all.

8. This case must now be considered by a differently constituted panel of the First-tier Tribunal.  I note that the claimant says that she told the First-tier Tribunal that the previous appeal tribunal had been helped by seeing her x-rays and the First-tier Tribunal should consider obtaining them before the hearing.. 

9. I observe that it seems unfortunate that the previous appeal tribunals did not record at least a brief reason for rejecting the Secretary of State’s submission when making provisional assessments that necessarily meant that the case would have to be considered again in the future.

Mark Rowland

24 November 2011