Upper Tribunal (Administrative Appeals Chamber)

Appeal Nos.  CIB/1898/2011 and CDLA/1901/2011

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge S M Lane

 

 

The decision of the First-tier Tribunal on 17 March 2011 under reference 221/10/00057 (the Disability Living Allowance appeal) did not involve the making of an error of law. 

 

The decision of the First-tier Tribunal on 17 March 2011 under reference 221/10/00011 (the Incapacity Benefit appeal) did not involve the making of a material error of law. 

 

REASONS FOR DECISION

 

1     The appeals for CIB/1898/2011 and CDLA/1901/2011 were brought with my permission.  They involved an incapacity benefit appeal involving the Personal Capability Assessment (the ‘IB’ appeal) and a Disability Living Allowance (‘DLA’) appeal which were listed together.  The evidence included in the submission bundle for the DLA appeal included the PCA report, which had been passed to the Disability Benefits Unit by the incapacity benefits decision maker.  The appeals were heard without a formal break between them.  The Record of Proceedings shows that, at the beginning of the hearing, the appellant’s representative made submissions about the composition of the tribunal, which the tribunal did not accept.  The representative consented to proceed with the DLA issues being dealt with first and then the IB issues, though he plainly disagreed with holding a joined hearing, stating that the Upper Tribunal could be ‘twitchy’ about this.  The DLA issues are headed ‘DLA’, and the PCA issues heard afterwards, under the heading ‘IB’.  The Record of Proceedings does not indicate whether the disability qualified member (‘DQM’) remained present during the IB appeal.  The Record of Proceedings makes it clear that, if the DQM was present, she took no part in the hearing relating to it.

 

2     Having been unsuccessful in both appeals, the appellant’s representative appealed on the grounds that the tribunal was not composed in accordance with the Senior President’s Practice Statement on the Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 23 November 2008 (‘the Practice Statement’) and on the basis of failures to find sufficient facts and give sufficient reasons.  The facts and reasons grounds are set out in detail later in this decision.

 

3     It should be mentioned that the appellant himself did not attend the hearing.  There was medical evidence in the papers that the appellant carried a lock knife with a 69 mm blade and was prone to violence though he had not been in a serious incident or assaulted anyone in the last 6 months.  Before a previous hearing on 18 November 2011, the tribunal discussed the possibility of aggression and the possession of a weapon (albeit not technically an offensive weapon) with the appellant’s representative while the appellant waited outside.  The venue had a security guard who sat in a kitchen next to the tribunal room, but had no equipment, such as a metal detector or scanner, to check those who came in and out of the tribunal venue for weapons.  The tribunal felt that it could not risk its safety, and that of other venue users, and directed that it would not allow the appellant into the tribunal room unless he consented to be searched.  When this was relayed to him, the appellant said he did not have the knife, but declined to be searched.  Unsurprisingly, this did not reassure the tribunal.  The appellant was not permitted into the hearing room, but the hearing that day was adjourned, in any event, for further medical evidence.  At the hearing of the appeal on17 March 2011, the appellant was once again told that unless he consented to a search, he would not be permitted into the hearing room.  He once again declined to be searched and the tribunal proceeded in his absence. 

 

4     The tribunal treated the appellant as absent from the hearing by his own choice.  This was, sensibly, not raised as a ground of appeal.  The tribunal was right to put its safety and that of others at the venue, to the forefront.  Unlike court buildings, tribunal venues rarely have facilities to carry out security checks with metal detectors or scanners on those who enter the building.  The tribunal was faced with a known risk.  The only way it could ensure its safety was to ask the appellant to be searched.  This was a reasonable request in the circumstances, and the decision to treat the appellant as absent was equally reasonable. 

 

5     The tribunal did not rely directly on the power to exclude a party under rule 30(5) of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008 (the First-tier Procedure Rules) which gives it the power to direct the exclusion from the hearing of a person whose conduct the tribunal considers is disrupting or is likely to disrupt the hearing.  It noted that the appellant had never used the knife as a weapon in the past, but considered that there was always a first time, and the stresses of a hearing were such as to create a risk that it might be used.  The tribunal might have been in some difficulty justifying his exclusion on the basis it was likely that he would disrupt the hearing.  It did, however, consider that the appellant had failed to cooperate with the tribunal, which is a duty under rule 2(4)(b).  That rule does not give the tribunal any specific powers to take any particular action:  the tribunal’s power to act must be found elsewhere in the Rules.  The tribunal did also not seek to strike out the case under rule 8(3)(b).  It no doubt considered that, given the presence at the hearing of the appellant’s representative (who was able to make representations) and witness, the appellant’s failure to comply with its direction did not mean it could not deal with the proceedings fairly and justly.  

 

6     There is no rule which directly covers the situation in which the tribunal found itself.  In the absence of a direct provision, the wide power in rule 5(1) which enables a tribunal to regulate its own procedure would apply, over and above the specific power to exclude a party in rule 30(5).  Rule 5(1) could not be used in a manner which infringed the right to a fair trial given to a litigant by Article 6 of the European Convention on Human Rights, but in the circumstances which arose, it would not do so.  The appellant’s likely possession of a knife was inimical to the safety of the tribunal and its ability to hear the case unconstrained by fear.  It could not be expected to conduct a hearing with the appellant present in those circumstances. 

 

A. Composition of the Tribunal

 

7     The most contentious ground of appeal relates to the composition of the tribunal.  A DLA appeal must comprise a judge, medical member and a DQM, whereas a the proper composition for a tribunal hearing an IB appeal involving the PCA (or an Employment and Support Allowance (‘ESA’) appeal involving the Limited Capability for Work Assessment or a determination that a person has a limited capability for work related activity) appeal is a judge and medical member only.  This is laid down in the Practice Statement.  The main provisions of the Practice Statement are, for our purposes, in articles 3, 4, 5 and 6: 

 

3.     The number of members of the Tribunal must not exceed three.

 

4.     Where the appeal relates to an attendance allowance or a disability living allowance under Part III of the Social Security Contributions and Benefits Act 1992, the Tribunal must, subject to paragraphs 8 to 13, consist of a Tribunal Judge, a Tribunal Member who is a registered medical practitioner, and a Tribunal Member who has a disability qualification as set out in article 2(3) of the Qualifications Order.

 

5.     Where –

 

a.     the appeal involves the personal capability assessment, as defined in regulation 2(1) of the Social Security (Incapacity for Work)(General) Regulations 1995; …

 

b.     the appeal involves the limited capability for work assessment, as defined in regulation 2(1) of the Employment and Support Allowance Regulations 2008;

 

c.      the appeal involves the determination of limited capability for work- related activity within the meaning of regulations 34 and 35 of the Employment and Support Allowance Regulations 2008;

 

(d) – (h) [not relevant]

 

6.     In any other case the Tribunal must consist of a Tribunal Judge.

 

8     The Practice Statement adopts the same composition for these tribunals as that which existed before the Tribunals Courts and Enforcement Act 2007 (TCEA 2007). 

 

9     The appellant’s representative submitted that the presence of the DQM during the IB appeal meant that the tribunal was not properly composed for the appeals.  He cites PJ v Secretary of State for Work and Pensions (ESA) [2011] UKUT 224 (AAC), a decision of Upper Tribunal Judge Williams, as authority for this proposition.  Since Judge William held in that case that the tribunal was wrongly composed if an extraneous person was present at any stage of the hearing, which in his view included preview of the case before the hearing and deliberations thereafter, he submitted that there was an error of law.  The representative made further submissions which are ‘benefit-specific’ which I will deal with later in this decision.

 

10 The Secretary of State does not support the appeals on any ground.  In relation to the composition of the tribunal, his submission is that the tribunal was properly composed:  the Record of Proceedings shows that the DLA appeal was heard first.  The issues were carefully segregated.  The IB report had been included in the DLA papers by the Secretary of State himself so that all members had access to it.  He does, however, pose the question whether, if the tribunal investigated the PCA report at the DLA hearing, that would be a separate part of the DLA appeal or of the IB appeal.  He acknowledges that the Record of Proceedings does not indicate whether the disability qualified member left the room for the IB appeal, so that it is possible that he was present for the IB hearing but submits that he would be there in his capacity as a member of the public. 

 

11 It had been the longstanding practice of the Tribunals Service (now Her Majesty's Courts and Tribunals Service) to list appeals relating to DLA and to the tests for incapacity for work (whether involving the PCA or ESA assessments) together.  Indeed, appellants frequently request that the hearings be heard at the same time. 

 

12 The most obvious reason for listing the hearings together is that both types of appeal concern claimants who have claimed benefits based on underlying ill health and disability.  They both involve the assessment of medical and disability matters which are, in many respects, common to both.  In practice, DLA and IB tribunals may ask the same kinds of questions to understand how an appellant’s physical and mental functions are affected by the various conditions which affect him.  An IB tribunal may, for example, ask the appellant whether he can cook a meal for himself.  The tribunal does not do this because it is part of the tests for incapacity for work, but because it is an everyday activity which most people perform and from which the tribunal can get an idea of various physical and mental functions including manual dexterity, shoulder, back, lower limb, and the ability to concentrate and complete tasks.  As it happens, an ability to prepare a main meal for oneself forms one test for entitlement to the lowest rate of the care component of DLA which tribunals frequently need to address.  These factors also show that it would be artificial to separate ‘DLA’ questions from ‘PCA’ questions.  Each may be relevant to the other.  It is plainly convenient for such appellants to attend on one occasion to put their cases, rather than two. 

 

13 All members of a DLA and IB tribunal must, of necessity, evaluate a wide range of reports from medical practitioners from many fields and at every level, as well as reports from a wide variety of sources including those of occupational therapists, social workers, psychologists, community mental health teams, schools and, indeed, PCA and ESA reports which have been commissioned by the Secretary of State in connection with a question of incapacity for work.  Medical and disability qualified members are also required to decide appeals relating to DLA in which medical and disability expertise may play a small, or no, part, such as an overpayment of benefit.  Specialist members are therefore not only entitled, but required, to participate in the resolution of issues beyond their specialism. They are expected to develop the skills necessary to deal with unfamiliar areas, albeit not to the same extent as the legally qualified tribunal judge who presides at hearings.  It is therefore an underestimation of the skills of a DQM to suggest that he lacks the expertise to deal with a PCA report.  The only thing the DQM lacks is an express right to be a member of the tribunal for the IB appeal.  

 

14 In this context, it is worth emphasising that First-tier Tribunals in the Social Entitlement Chamber, as other Tribunal Chambers, have the power to regulate their own procedure, subject to conforming with the provisions of the Tribunals Courts and Enforcement Act 2007 (‘the Act’) and other enactments.  For the Social Entitlement Chamber, this is in rule 5(1) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 (‘the Rules’). 

 

15 The Rules do not play any direct role in the composition of a tribunal.  That is regulated by powers given by different provisions in the TCEA 2007 than those relating to composition.  The power to make procedural rules is under sections 9(3), 22, 29(3) and (4) of, and Schedule 5 to that Act whereas the composition of tribunals is determined under section 145(1) and paragraph 15 of Schedule 4 by powers delegated from the Lord Chancellor to the Senior President of Tribunals.

 

16 From a purely procedural point of view I do not see any material objection to the practice of joining hearings.  It is conformity with the overriding objective of tribunals to deal with cases fairly and justly.  In the Social Entitlement Chamber, this is expressed in rule 2 of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008:

 

2. (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

 

(2) Dealing with a case fairly and justly includes—

 

(a)   dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b)   avoiding unnecessary formality and seeking flexibility in the proceedings;

(c)   ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d)   using any special expertise of the Tribunal effectively; and

(e)   avoiding delay, so far as compatible with proper consideration of the issues.

 

(3) the tribunal must seek to give effect to the overriding objective when it –

(a) exercises any power under these Rules; or

(b)interprets any rule or practice direction.

 

17 Listing and hearing DLA and IB appeals together satisfies every element set out in sub-paragraph (2).  It also ensures consistency in decision making by having matters which are associated determined by the same tribunal.  To have one tribunal decide, for example, that a claimant is entitled to DLA because of significant physically disabilities which render him virtually unable to walk and in need of high levels of care in relation to his basic bodily functions whilst another decides on materially similar evidence relating to materially the same period of time that he does not suffer from any significant physical or mental disablement sufficient to renders him incapable of work, undermines public confidence in tribunals.  In my view, the fulfilment of the objectives in rule 2 provides a strong reason for interpreting the Practice Statement in a way which facilitates efficient hearings.

 

18 It should also be noted variations in the composition of tribunals within a particular Chamber are not unique to the Social Entitlement Chamber.  In the Upper Tribunal (Asylum and Immigration Chamber), for example, a judge may deal with a bail application without sending out a non-legal tribunal member who, with the judge, is required to hear the substantive issue in an appeal, but not the related bail application.  The situation is dealt with by explaining to the parties which judicial personnel will be participating in which decision. 

 

19 The issue boils down to this:  is a person who is physically present on the tribunal ‘bench’ to be taken, for that reason alone, to be a member of the tribunal? 

 

20 In my view, hearing a DLA and IB appeal together does not, in and of itself, offend against the Practice Statement; and in the particular circumstances of this appeal, it certainly did not do so. 

 

21 A tribunal can, in my view, act in two distinct capacities during one joined hearing, subject to its having explained its procedure to the parties.  In this, I disagree with Judge Williams in PJ v Secretary of State for Work and Pensions (ESA) and accordingly set out the factual background and reasoning in that decision at some length. 

 

22 PJ v Secretary of State for Work and Pensions (ESA) related to the hearing of a DLA and ESA appeal at the same time.  PJ underwent a Limited Capability for Work Assessment in July 2009 but was found not incapable of work.  The appellant lodged an appeal and produced a report from his GP in support of his physical and mental health limitations.  He made a claim for DLA shortly thereafter and submitted the report prepared by his GP for the ESA appeal in support of his DLA claim.  The representative did not make any written submission about the ESA appeal to the DLA tribunal.  The appellant attended the hearing, but was not represented.  The Secretary of State did not attend. 

 

23 As set down in the Record of Proceedings, the judge explained to the appellant at the outset that the appeals would be heard together, and that the DQM would take account of all the evidence but not play any part in the decision on the ESA appeal.  The appellant consented to this course of action.  There were two Records of Proceedings, but one of them simply referred to the full Record taken in the other.  The evidence in the full Record did not distinguish between the submissions or evidence made in relation to the ESA and DLA appeals.  The appellant lost both appeals.  The tribunal gave one Statement of Reasons for both in one document.

 

24 The main ground of appeal from appellant’s representative was that the procedure adopted was a breach of the Practice Statement on the assumption that the appeals were heard concurrently with all three members present before deciding the appeals.  The Secretary of State supported the appeal against the ESA decision but did not support the appeal against the DLA decision.

 

25 Judge Williams held that it was an error of law for the two appeals to be heard together rather than consecutively, though there would be no objection to the appeals being heard during the same session with overlapping members [19].  One of the justifications for this was that it could not be assumed that a DQM had any relevant expertise about ESA and that the tribunal can only hear the appeal properly if all members have equal access to all the submission and evidence for that appeal, and only to that evidence.  In the DLA appeal before Judge Williams, the ESA report was not included by the decision maker.  It appears to have been accepted that, by implication, it could not be relied on unless either the parties or the tribunal itself admitted it formally (which may not have happened).  It was questioned whether the DQM had full access to ESA report, since it was not in the DLA bundle.  Moreover, the PCA report had been contested for the purposes of ESA, but as the DLA appeal was heard first, it had neither been tested in the ESA appeal nor would the DQM have known about that challenge.  This was also said to be an error of law [23] [24].  A further objection was that the appellant was not warned that the tribunal might consider the ESA report.  These procedural problems did not affect the ESA appeal, which was heard second.

 

26 With great respect, I am unable to accept his reasoning.  It places too much weight on form instead of substance and, as I have already indicated, is based on a misconception of the full role of the DQM in judicial decision making. 

 

27 It would follow from Judge Williams decision that, no matter how clear the explanation to the parties, however punctilious the tribunal is about admitting and testing the evidence, however experienced the DQM, however informed the appellant’s consent (if, indeed, it is needed at all having regard to the tribunal’s wide powers to regulate its own procedure), the tribunal would inevitably err in law unless there was a formal separation between the two hearings, however short the break between them.  Since Judge Williams also considered at [19] that the Practice Statement applied to the whole process on the hearing day, not merely the final decision making, it could be argued that any presence of the DQM during the standard pre-hearing preview of the ESA appeal would constitute an error of law as well, even if the DQM took no part in the preview and reviewed his other papers for the day. 

 

Substance, not form

 

28 Separating the appeals in the formalistic way envisaged by PJ v Secretary of State for Work and Pensions (ESA) injects artificiality into the proceedings without any benefit.  The better approach is to ask whether the tribunal functioned in substance as two differently composed tribunals rather than focussing on the number of members physically present in the hearing room at any particular stage or on a formal demarcation between hearings by a recess. 

 

29 This requires us to recognise two things:  (i) First-tier Tribunals can be trusted to act in conformity with their legal duties.  This is no more than an affirmation of judicial integrity which applies to all those who sit in a judicial capacity at all stages of the hearing.  I do not consider that a reasonable person to whom the procedure of the tribunal was explained would think otherwise; and (ii) a person may be properly present before, during and after a hearing without being present in his capacity as a member of that tribunal.  A DQM must be permitted to be present in order to discuss features of the appeal which require common input., but there is no reason to believe that a person acting in a judicial capacity would participate inappropriately, or would be tainted by evidence relating to the IB case, unless there is clear evidence that this happened. 

 

30 It follows from this that I do accept the Secretary of State’s submission that the DQM would simply be present as a member of the public during the IB part of the hearing.  A member of the public would not be sitting with the other tribunal members or to be present at a preview or deliberations. 

 

31 In the instant appeal, I cannot see any error of composition of the DLA tribunal at any stage.  At the preview, the tribunal would have rightly discussed the pros and cons of the PCA report as relevant to DLA issues.  The DQM would have had no interest in technicalities of the report specific to IB only.  At the hearing, the DLA tribunal would have had to deal with disputes about the PCA report, whether or not the IB appeal was heard at the same time, since it had already been put in issue.  The DLA and IB specific issues were kept separate.  After the DLA part of the hearing, it would generally make no difference if the DQM remained in the hearing room as a non-participant since the PCA issues relevant to DLA were already aired.  The ‘IB specific’ issues would be of no interest to him, though consistencies or inconsistencies in subsequent evidence which were relevant to DLA issues, would be.  There were, in essence, two distinct tribunals hearing two distinct appeals during the course of one hearing.  At the deliberation stage, there was no reason to suppose that the DQM intervened improperly in matters which were specific to the IB decision.

 

32 I would add that, since an appellant is notified that he is to have a joined hearing, he will come prepared to dispute the contents of the PCA report, as will his representative (if he has one).  The representative will normally be aware of the different requirements of the two benefits.  Whether represented or not, the appellant himself will have become aware of the main requirements of the benefits, if only in broad outline, through the appeal processes, if not before.  It is not easy to envisage a situation where an appellant who has been refused DLA and has failed a PCA would be genuinely taken by surprise by the use of the PCA report in the DLA context.  If it appears to the tribunal that he is genuinely taken by surprise, it has the power to adjourn to give him the chance to consider his position.

 

33 In the appeal before me, it would be possible to maintain that there was an error in the IB appeal because the DQM remained present, but my reasoning is that presence is not the same as membership of a tribunal.  Since there is nothing on the facts to suggest any impropriety, ‘tainting’ or unfairness, there has been no material error of law.

 

34 If I am wrong in my conclusion, I would not have set aside the decision anyway.  The Record of Proceedings satisfies me that the DQM did not play any part in the Incapacity Benefit hearing and I have no reason to believe that any unfairness occurred. 

 

35 Tribunal judges at joined hearings must, of course, explain carefully that although the appeals will be heard together, they are differently composed and that the DQM will be not participate in the IB hearing.  The tribunal judge should make a note of his explanation on the Record of Proceedings but the absence of a written note should not lightly be taken to mean that the tribunal failed fundamentally in its elementary duty to explain how the joined hearings would be run.  At the end of the explanation, it should be clear to the appellant that there are two separate appeals to which different legal requirements apply but for which the same evidence may be relevant.

 

B. The other grounds of appeal

 

36 The representative submits that the tribunal (i) failed to make sufficient findings of fact because it did not have the right medical evidence and should have adjourned to get it; (ii) it should not have relied on the PCA report because it did not know the qualifications of the health care professional who wrote it;  (iii) misunderstood the meaning of ‘disability’, (iv) failed to apply the correct test relating to the lower rate of the mobility component; (v) failed to apply the correct test relating to the lowest rate of the care component on the basis of an inability to prepare a main meal and (vi) this resulted in a failure to give adequate reasons for the decision.  Factors (i) – (iii) and (vi) relate to both DLA and Incapacity Benefit.  The representative does not make any specific criticisms of the reasoning behind the descriptors for which points were awarded in the PCA.

 

37 The Secretary of State made a comprehensive response which it is unnecessary to set out in full.  I will, however, set out his views where they add materially to my decision. 

 

38 Ground (i) The medical evidence:  The Secretary of State had already provided a PCA report. The representative had provided a significant amount of medical evidence.  At a previous hearing which was attended by the appellant’s representative and Mr Knox, the care manager of the Head Injuries Service of the hospital the appellant attended (pp 86 – 92), the tribunal expressed its concerns about that evidence.  It then gave specific directions, with a clear explanation, about obtaining hospital notes and test results (pp 115-6).  The representative explained by letter that could not get anything more. The tribunal would have been entitled to proceed on the evidence as it stood, but instead gave directions to obtain notes and test results from the Head Injuries Service at the hospital the appellant attended.  The details were given by Mr Knox himself.  By doing so, the tribunal more than fulfilled any inquisitorial duty it had. 

 

39 Mr Knox did not provide the evidence requested by the tribunal.  He gave a general explanation of the problems the appellant had and summarised existing medical evidence.  It did not add anything to what the tribunal already knew. 

 

40 The representative now submits that the tribunal should adjourned to get the evidence it wanted from the appellant’s GP, and that in consequence of that failure, it failed to make sufficient findings of fact and to give sufficient reasons for the decision. 

 

41 This submission is not made out.  The obligation to obtain the necessary evidence is on the appellant.  Insofar as the tribunal had an inquisitorial duty to seek out the further medical evidence itself (which on the circumstances of this appeal was doubtful), it certainly did not have a duty to write time after time to obtain evidence on an appellant’s behalf.  The time had come for the tribunal to analyse the evidence it had.  If, at the end of the day, the evidence was evenly balanced, the tribunal would be forced to fall back on the burden of proof.  In this case, that burden was on the appellant, who did not discharge that burden.

 

42 The tribunal wrote some 29 paragraphs comparing and contrasting the evidence and drawing its conclusions.  It decided that the two reports which withstood scrutiny were from Dr Bevan, a neuropsychiatrist, and from the health care professional, Dr Lake (a registered medical practitioner) who examined the appellant for the IB appeal. The reports were in line with each other, whereas the other reports were general, not evidence based and were conflicting.  The tribunal also considered the difference in the qualifications of the neuropsychiatrist and clinical psychologist in deciding to prefer the former.  I consider that there were ample reasons for preferring Dr Bevan and Dr Lake’s reports to the others. 

 

43 The representative submitted that the tribunal erred by rejecting the appellant’s medical evidence because it did not exhibit a sufficient evidential basis for the opinions given in them, and that this disadvantages claimants, whose doctors may not be inclined to take a legalistic approach.  If put forward as a general principle, this need only be stated to be rejected.  Judges act on evidence.  If a practitioner, medical or otherwise, fails to support his opinions with relevant groundwork, his opinion is not likely to carry much weight. 

 

44 Ground (ii) The representative submits (and submitted to the First-tier Tribunal) that the tribunal should have enquired about the professional background of the health care professional who wrote the PCA, citing CDLA/2466/2007.  The First-tier Tribunal did not accept this because [79 – 82] the term disability analyst pre-dated the term health care professional, and the tribunal could not impose a requirement for qualifications beyond those laid down by law for a health care professional before accepting his evidence.  The tribunal emphasised that its task was to weigh the value of the report.  The tribunal’s first reason is probably not to the point, but its next two reasons are correct.  Any error the tribunal might have made by giving an answer based on terminology is inconsequential.

 

45 The fundamental problem with the representative's argument is that CDLA/2466/2007 related to advice about a claimant given by an ‘approved disability analyst’ about whom nothing (except his name) was known.  His advice on likely disability was formulated on the basis of the claimant’s medical conditions as listed in the papers.  Upper Tribunal Judge Jacobs asked what the title ‘approved disability analyst’ signified and what the individual’s qualifications were, since none were stated.  The Secretary of State’s response in that case left no one any the wiser:  all that could be gleaned was that the term would include a doctor or ‘health care professional’. 

 

46 As currently drafted, the Social Security Act 1998 (ss 19 and 39), Social Security and Child Support (Decisions and Appeals) Regulations 1999 (reg 19), and Social Security (Incapacity for Work) (General) Regulations 1995 (reg 2) define and/or and permit examinations for benefit purposes by, health care professionals including (a) registered medical practitioner, (b) a registered nurse, (c) an occupational therapists or physiotherapist registered with a certain regulatory bodies or (d) other health-care professionals (such as a chiropractor, osteopath, dentist, optometrist and midwife) whose members are regulated by specified professional bodies.  For DLA examinations, opticians and optometrists are permitted to examine certain claimants.  For  Employment and Support Allowance, only a person who falls within (a), (b) or (c) may be approved (reg 2,. Employment and Support Allowance Regulations 2008).

 

47 In light of the scope of those who may be approved as health care professionals, there will be situations in which it is relevant to know the individuals qualification when assessing the advice he has given.  The opinion of a practitioner on a matter outside his expertise may carry less weight than that of an expert in that field. 

 

48 In this appeal, however, the health care professional who prepared the PCA is expressly stated to be a registered medical practitioner.  That is, of course, a sufficient basis for his approval by the Secretary of State for examining in for the PCA and ESA.  Given that the registered medical practitioner will also be familiar with assessing disability, at least for the purposes of IB and ESA, and his medical knowledge, the tribunal would be entitled to accord significant weight to his report in incapacity for work appeals.  A Tribunal would also be entitled to accord weight to his opinions where they bore on DLA issues. 

 

49 Since the qualification of the health care professional was known, I do not see any force in this submission.

 

50 It is worth emphasising that it is not the numbers of qualifications held by a practitioner, or the heights he has reached in his profession which determine the weight to be given to his report, but its contents and their relevance to the issues to be determined.  A psychiatrist’s report might, for example, be technically perfect but give no assistance to the tribunal in deciding whether his patient can cook a meal for himself.  The health care professional’s report might, of course, be equally unsatisfactory.  It might superficially address the right issues but be flawed by poor selection of supporting evidence or inconsistency.  At the end of the day, the tribunal is left to make its decision on the basis of a rational analysis of the evidence using it medical and disability knowledge.  

 

51 Ground (iii) The representative submits that the tribunal misunderstood the meaning of ‘disability’ in relation to IB and DLA.  The tribunal stated that, in real life, disability does not vary according to the benefit the appellant is claiming [24] but the representative submits that the meaning of disability for Incapacity Benefit is different from that in DLA.  In Incapacity Benefit, he submits, disability is directed towards specific tasks (descriptors) whereas in DLA is it not. 

 

52 This objection places far too great a weight on the tribunal’s use of simple words to explain itself.  While it is often useful (and sometimes necessary, as in Disablement Benefit) to break down disability into constituent parts of a disease or condition of a body part (or the mind), which leads to its impaired function and consequent inability or ability to do something specified in the legislation, it will not usually be significant in DLA or Incapacity Benefit if the terminology is not used with perfect accuracy.  What matters is whether the Tribunal asked itself the right questions.  In this case, the Tribunal did ask itself the right questions when dealing with each benefit, as discussed in the next paragraph. 

 

53 Ground (iv) The representative submits that the tribunal failed to apply the correct test relating to the lower rate of the mobility component because it asked whether the appellant could manage to get himself back to Berwick-upon-Tweed from Edinburgh, which would require the use of transportation rather than walking, at which the lower rate of the mobility component is aimed.

 

54 This takes one paragraph from several pages of analysis out of context. The tribunal meticulously eliminated any condition by reason of which the appellant would require supervision or guidance in order to take advantage of the faculty of walking out of doors for the purposes of s.73(1)(d) having regard to the further requirements of regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991.  It referred to the appellant’s ability to get himself back to Berwick from Edinburgh to buttress one of its relevant conclusions: that he had the necessary intellectual ability to work out how to make the journey and ask for directions. 

 

55 Ground (v) The representative also submits that the tribunal failed to apply the correct test relating to the lowest rate of the care component on the basis of an inability to prepare a main meal because the tribunal did not deal with the specifications for that meal, citing R(DLA)2/95.  I reject this submission for much the same reasons.  The tribunal came to the conclusion that there was no physical or mental reason why the appellant could not cook a main meal for himself after an extensive analysis of the evidence, medical and oral.  The conclusion was not based, as the representative seems to suggest, on Mr Knox’s statement in oral evidence that the appellant ‘probably could cook a meal for himself’.  R(DLA)2/95 adds nothing to the argument in the circumstances. 

 

56 My conclusion is that the tribunal made more than sufficient findings of fact on the evidence before it to support its conclusions in respect of both appeals. 

 

 

 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 11 June 2012