ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

 

The appeal is refused.

 

I find no error of law in the decision of the First-tier Tribunal (the tribunal) sitting in Greenock on 8 June 2011.

 

The tribunal’s decision therefore stands.

 

 

REASONS

 

 

1.               Permission to appeal was given by another Upper Tribunal Judge.  The appeal is not supported on behalf of the Secretary of State and after careful consideration of all the case papers, I agree with the lack of support.  The reasoning in the Secretary of State’s response dated 23 December 2011 is particularly detailed in addressing the points made on behalf of the appellant.  On balance, I prefer the reasoning of the Secretary of State to that of the representative of behalf of the appellant (the representative). 

 

Analysing the evidence

 

2.               The analysis of evidence is completely a matter for the tribunal and is a matter of fact.  It can be disturbed by an Upper Tribunal Judge as an error of law only if the conclusion is one which no reasonable tribunal could have reached.  The representative submits that it is illogical for the tribunal on the one hand to accept the findings of the Health Care Professional (HCP) that the claimant has moderate depression and moderate anxiety and, on the other hand, in its statement of reasons to conclude that “[the claimant’s] mental health condition is very mild”.  It is argued that there is a very significant difference between “moderate” and “very mild”.  I disagree.  “Mild” is defined as “moderate” in most dictionaries and the addition of the word “very” is merely a matter of degree and does not turn what the tribunal said into an error of law.  As Lord Hoffman put it in Biogen Inc v Medeva plc [1996] 38 BMLR149 at page 165:

 

“The exigencies of daily courtroom life are such that reasons for judgement will always be capable of having been better expressed … reasons should be read on the assumption that unless he has demonstrated to the contrary, the judge knew how he should perform his functions and which matters he should take into account”.

 

Having regard to the above, I do not accept that the addition of “very” to the word “mild”, against the background of all the evidence and the findings from that evidence, in any way suggests an illogicality in the tribunal’s approach.

 

 

Sufficiency of reasons

 

3.               The representative submits that the tribunal failed to give adequate reasons on the non-applicability of various descriptors.  However, adequacy of reasons can be judged only in the context of the evidence and submissions as a whole.  On that premise, and assuming an informed reader, the reasons given were sufficient.  I deal first with the mental health descriptors.  Having regard to what the claimant told the HCP, (for example, he gets up, dresses, watches television, uses the microwave, deals with his own finances and correspondence, visits his parents every week and gets heroin from his downstairs neighbour), while this may not account for every minute of the day yet, as the claimant produced no compelling and competing evidence that he did sit for hours doing nothing (a very serious condition one of only two descriptors under Activity 15 (completion of tasks) justifying two rather than one point), the tribunal gave an adequate explanation under 15(b).

 

4.               In Esen v Secretary of State for the Home Department [2006] SC 555, an Extra Division of the Court of Session held that an adjudicator is required to judge credibility, and in reaching conclusions based on the relevant evidence, is entitled to draw on common sense and an ability, as a practical and informed person, to identify what is or not plausible having regard to how people usually behave in certain circumstances.  This is not speculation but an aspect of the tribunal’s function in weighing and assessing evidence.  The same analysis applies to 17(b): there is no real evidence of one who “frequently feels scared or panicky for no obvious reason”, and that the claimant was able to attend the examination centre alone and only described episodes of mild anxiety militated against the conclusion that a condition significant enough to give two rather than only one point applied.  That the appellant received a lift to the assessment centre is a relevant factor but in no way falsifies the tribunal’s conclusion.  A conclusion is only an error of law if perverse in the sense that no reasonable tribunal could have drawn that inference from the evidence. 

 

5.               Again, there was no error under 17(c) or 17(e) in the tribunal relying on the appellant’s information that he “usually managed to deal with his own finances and correspondence” and “usually managed to make meals for himself” and “usually finished the tasks which he had started”, and the tribunal was not precluded from doing so because he was sometimes slow in starting a task and cooked ready-made meals.  “Avoid”, indicates that a persons refrains from carrying out an action; it is an issue of degree but there is nothing perverse in concluding that, in all of the circumstances of the claimant’s case, he was not in general avoiding carrying out routine activities; similarly, whether or not the claimant failed to start some tasks, there are others which he did not give up and which he carried through to the finish:  the inference was therefore not perverse that there was an insufficient incidence of frequence such that he satisfied 17(e). 

 

6.               As far as the physical descriptors claimed are concerned, the representative contends that there was inadequate reasoning because the tribunal “simply rejected the claimant’s evidence wholesale”.  However, this is not the case.  It was the appellant’s evidence that pain from ankylosing spondylitis affected the physical functions of walking, standing, rising and bending or kneeling.  The tribunal relied on the HCP’s clinical findings, which were wholly normal so far as physical function was concerned, and that the claimant was not receiving any treatment or medication in respect of ankylosing spondylitis, in order to find there were no restrictions as claimed.  I am unable to understand the argument: “in the particular circumstances of this case, I submit that this inadequate”; on the contrary, to address each of the physical descriptors individually in the particular circumstances of this case would have been merely a formulaic and meaningless mantra.

 

7.               The representative further submits that:

 

“the appellant is left in the dark as to why the tribunal apparently rejected all his evidence, then accepted the parts that justified its decision not to award points.  No explanation is given, and the appellant is left to wonder why only those parts of his evidence that were not helpful to his case were accepted.”

 

The tribunal had begun its reasons for decision with the following assessment of the claimant’s testimony:

 

“The tribunal found the appellant evasive in his answers to questions, inconsistent, unreliable and the evidence which he gave was inherently improbable.

 

Whilst accepting that the appellant did not require any form of corroboration, it was unanimously the view of the tribunal, that on a balance of probabilities the appellant’s evidence could not be relied upon, was not supported by his GP and was totally at variance with the clinical findings and opinion of the HCP.”

 

Notwithstanding, the tribunal used some of the appellant’s own evidence in support of a refusal of a descriptor, for example, that he “had a mobile phone which he used for texting”.

 

8.               The reasoning in a decision must be read as a whole without a single passage taken out of context. I agree with the rationale set out by Commissioner Howell QC in paragraph 11 of CIB/297/2005:

 

“The second point [made on the appellant’s behalf] is that having rejected part of the claimant’s evidence, it was inconsistent of the tribunal to use what he said against him on another point.  There is of course no conceivable error of law in a tribunal of fact finding that a witness is telling the truth in one part of his evidence but exaggerating in another, and this tribunal’s reasons for doing so are in my judgment clearly explained and unchallengeable”.

 

It is apparent from the use of the phrase “found the appellant evasive” that the tribunal were referring to what the claimant told them at the hearing.  What he told the HCP, before his benefit was withdrawn, is another matter.  In any event, it is highly unlikely that anyone will be accurate in every single thing he or she says; the tribunal is entitled to draw on common sense and deduce that, in a witness judged unreliable, self-serving assertions are more likely to be inaccurate than ones against that person’s own interest.

 

9.               There was certainly evidence that in some ways the claimant led an active life, (for example, visits parents every week, watches television, uses a mobile phone, deals with his own finances and correspondence), and, contrariwise as I accept, that sometimes he did not do so, (for example, only occasionally does the housework, shopping is usually done by his mother).  The representative therefore suggests a different assessment of that evidence to the one taken by the tribunal, which supports further descriptors.  However, in Braintree D.C. v Thompson [2005] EWCA Civ 178, the Court of Appeal held that a tribunal’s finding of fact is not an error of law even if it is made against the weight of the evidence, but only if the finding is perverse in the sense that no reasonable tribunal could have drawn that inference from the evidence.  In no way has such been shown in the present case.

 

Regulation 27(b) (Reinstated)

 

10.            I do not accept that the tribunal failed to make sufficient findings about the range or type of work of which the claimant was capable.  The tribunal found that the appellant could work as a general labourer; the representative’s contention, “that a heroin addict with ankylosing spondylitis would have no realistic prospect of obtaining work as a general labourer”, is flawed given the tribunal’s premise that the latter condition caused no functional impairment whatsoever.  This was enough to justify the conclusion that there is work which would not give rise to any substantial risk, backed up by the information that he had been a general labourer in the past and when he was also a heroin addict.  Whether the representative or the Secretary of State is right that assembly line work is barred because of drug testing, or possible, there was a sufficient underpinning of an inference that regulation 27(b) was not satisfied by the finding in respect to his capacity as a general labourer.

 

11.            There is no suggestion, expressed or implied, in the tribunal’s reasoning, that a perceived ability for the claimant to come off heroin was in itself a bar to satisfaction under regulation 27(b);  the primary plank of its reasoning was that, because in the past he had worked, despite being a heroin addict, with no indication that this gave rise to any substantial risk, that therefore this remained the probable position as a heroin addict at the relevant date.  The representative is correct that the application of relevant statutory criteria must be considered as at the date of the decision under appeal.  However, the main issue under regulation 27(b) is whether there is work which the claimant could safely perform; insofar as a claimant is necessarily not working at the date of the decision under appeal, this inevitably looks to the future.  Consequently, it is rational for a tribunal to consider what would, or could, be the claimant’s situation in the event he took up work.  Once the tribunal decided that, because the claimant had been able to stop taking heroin in the past there was no reason why he could not do so again, this inevitably affects the range of jobs potentially open to him when looking forward from the date of the relevant decision. 

 

12.            A tribunal frequently uses several factors as material from which to draw conclusions; having regard to the tribunal’s reasoning overall, there was no error when including future prospects because one is looking at the expected health consequences of a claimant returning to the workplace.  Taking account of the future, to this limited degree only, can assist a claimant’s case just as much as go against it; to use an illustration I gave at paragraph 40 of CSIB/33/2004:

 

“Thus, for example, if a claimant sustains the relevant risk because she has to get up quickly in the morning to go to work, rather than pace herself as would be the situation if no such necessity arose, this is a pertinent factor for consideration”

 

Such a claimant might have no equivalent risk while not working but such a risk could arise in the changed circumstances of having to get quickly to a job.  The latter could only arise after the date of the relevant decision but is nevertheless a pertinent factor in the assessment of ‘substantial risk’.

Summary

 

13.            For the above reasons, in my judgement, no error of law is demonstrated and therefore the tribunal’s decision stands.  The tribunal did not apply any wrong legal test.  It made adequate findings of fact having regard to the totality of the evidence before it, and sufficiently explained why it took the view of the evidence it did.  There was no unreasonable approach to any item of evidence.  In my judgement, the tribunal gave sufficient regard to all the relevant information in the case and took no account of irrelevant factors.  In no respect was its decision perverse having regard to the evidence before it. 

 

14.            An attempt to re-open the facts through an appeal on a point of law is to be deprecated.  As Laws LJ put it in A J (Cameroon) v Secretary of State for the Home Department [2007] EWCA Civ 373, in a judgement with which his two colleagues agreed: 

 

“15. … It is elementary that a fact finder does not have to deal with every piece of material or even every point. 

16. … [T]he AIT explained the conclusions they reached.  They are not summarising the evidence as such.  It is inevitable, or almost inevitable, that in performing the exercise of giving their reasons they should concentrate on those aspects of the material before them that have moved their decision.

…

 

22. … I have concluded that this case is a particularly stark example of what in this field has become an intractable problem: that is the misuse of factual arguments, sometimes amounting to little more than nuance, and often points of small detail, as a basis for assaulting the legality of a decision.  This court, as everyone practising in the field knows, is exercising a jurisdiction on law only.  Of course public law principles extend to ideals of reasonableness and fairness, and that is elementary.  But there must be limits to the extent to which fact can be turned into law and the jurisdiction of this court extended beyond what Parliament has provided or what good sense would contemplate.” (original emphasis)

 

 

 

(Signed)

L T PARKER

Judge of the Upper Tribunal

Date: 20 January 2012