IN THE UPPER TRIBUNAL Case No  CE/2894/2011

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Manchester on 29 June 2011 under reference SC946/11/00570 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 10 of the Reasons.

REASONS FOR DECISION

1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. The claimant had been in receipt of disability living allowance (“DLA”) , at the higher rate of the mobility component and the lowest rate of the care component, pursuant to an indefinite award made in 2003.  So far as employment and support allowance was concerned, following a medical examination by Healthcare Professional (“HCP”), a registered nurse, on 29 October 2010, the claimant was awarded 0 points under the Work Capability Assessment.

3. The claimant appealed, submitting a copy of the HCP’s report, on which she had written her comments.  The comments included instances where she disputed that she had performed the task she had been recorded as having performed or that she had displayed abilities which were recorded as noted on examination.

4. The tribunal indicated that it “preferred the evidence in the report from the Health Care Professional because she was an experienced Health Care Professional  because she had nothing to gain by misrepresenting the facts.”

5. The Secretary of State accepts that the tribunal should have recorded why they rejected the claimant’s evidence and that in failing to do so it erred in law.  It must follow that he considers that the explanation that was given was insufficient.

6. When I granted permission, I queried (among other matters) whether the tribunal was entitled to rely on its assertion that the HCP was “experienced” when, so far as I could see, there was no evidence of this.  The definition of a “health care professional” for this purpose is in regulation 2(1) of the Employment and Support Allowance Regulations 2008 and is (so far as relevant) “ ‘health care professional’ means (a)…; (b) a registered nurse; or (c)….”  The person who conducted the examination was a registered nurse, which fulfilled the requirement.  The Secretary of State submits, and for the purposes of this decision I accept, that to be appointed as an HCP,  the registered nurse would have had to have gone through the necessary training to enable her to perform examinations.  It seems to me that there is no basis for inferring a requirement of “experience” (as opposed to qualification) from the statutory scheme and the Secretary of State submits that such a person will have to be trained, but again, no mention is made of experience.  I consider that the tribunal was in error for having no evidence to conclude that the HCP was “experienced” and that the error was material.

7.The tribunal further erred in law by  not considering the possible relevance of the existing award of DLA or, if they did consider it, by indicating what they made of it.  While the tests for the two benefits are not the same, there is sufficient common ground that one may provide material evidence for the other.

8. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

9. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (1 December 2010) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

10. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)

C.G.Ward

Judge of the Upper Tribunal

11 July 2012