Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the Liverpool First-tier Tribunal dated 20 April 2011 under file reference 068/10/05263 involves an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 26 February 2010 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

 

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1)        The re-hearing should be at an oral hearing.

 

(2)        The new tribunal should not involve the tribunal judge or members who sat on the tribunal that considered this appeal at the hearing on 20 April 2011.

 

(3)        If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of the HM Courts and Tribunals Service (HMCTS) in Liverpool within one month of the issue of this decision. Any such evidence will need to relate to her care and mobility needs as they were in February 2010, not today.

 

(4)        The appellant should provide a copy for the new tribunal of any letter sent to the GP which may have elicited the GP’s letter of 11 April 2011. The appellant should also provide a copy for the new tribunal of what appears to have been a social services assessment of her care needs, conducted by the local authority.

 

(5)        The Secretary of State should prepare a supplementary submission for the re-hearing. This submission should include all the documentary evidence used to make the subsequent award of the higher rate mobility and middle rate care components of DLA for the period from 20 May 2011. It should also include a copy of the appellant’s September 2010 claim for and the subsequent award of carer’s allowance.

 

(6)        The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may end up reaching the same or a different result to the outcome of the previous tribunal.

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 

DECISION OF THE UPPER TRIBUNAL

REASONS FOR DECISION

 

Summary

1.         The decision of the First-tier Tribunal (FTT) involves an error of law, for the reasons that follow. The FTT’s decision is set aside. This means it has no effect. There will need to be a fresh hearing before a new FTT. That tribunal will re-hear the appellant’s original appeal against the Secretary of State’s decision on her disability living allowance (DLA) supersession application.

 

2.         Simply because this appeal to the Upper Tribunal has succeeded on the law does not necessarily mean that the appellant will win at the FTT re-hearing on the facts. 

 

         3.                        There has been a subsequent claim and an award of DLA made to the appellant (obviously for a later period). The appellant’s representative therefore urges me to make a decision on entitlement myself on the present appeal. The Secretary of State’s representative also suggests I may wish to take this course. I explain, further below, why I have decided that is not appropriate in the circumstances of this case. Furthermore, the fact that this later DLA claim, made after the last hearing, has been successful is not in itself conclusive for the present appeal.

 

The background to this appeal to the Upper Tribunal

4.         The history of the appellant’s DLA claim, in brief, is as follows (for the benefit of the next tribunal, I refer to page numbers as e.g. doc 213). She had an award of lowest rate care (but not mobility) for the period from 11 August 2003 until 29 September 2008 (doc 213). In February 2008 she had an incapacity benefit medical assessment, confirming the diagnosis of generalised osteo-arthritis and finding certain functions to be impaired (Dr Sanderson’s IB85 report is at doc 5-21). In October 2008 the appellant applied for a supersession of her DLA award, claiming more care and mobility needs (doc 23-71).

 

5.         In December 2008 a decision maker continued the award of lowest rate care and added lower rate mobility (docs 72-85). The new award ran from 30 September 2008 to 11 December 2012. I just note that at the time a question mark was raised over the award of lowest rate care, based on the main meal test (doc 74). However, following medical advice (doc 76) that award was left in place. It might be said that this medical advice reflected a misunderstanding of the legal test for entitlement, as difficulty in bending to an oven does not necessarily suffice for eligibility.

 

6.         In December 2009 the appellant made a further application for supersession (docs 86-138), her representative including a supportive letter from a physiotherapist (doc 138). The Department arranged for Dr Ekong to conduct a home visit and report (doc 141-172). It would be fair to say that Dr Ekong and the appellant did not see eye-to-eye. It is plain from reading Dr Ekong’s report that she thought the appellant was “putting it on”. The appellant in turn lodged a formal complain about Dr Ekong’s examination (doc 199-203) to which there was a lengthy but rather inconclusive official response (doc 195-198).

 

7.         The decision maker preferred Dr Ekong’s evidence (see doc 175 and 194). The new supersession decision, taken on 26 February 2010, was that the appellant was not entitled to either component of DLA at any rate with effect from 17 February 2010 (doc 176-179). The appellant appealed to the FTT. Her representative sent in a detailed submission (doc 205-210), including a short but supportive letter from the GP (doc 211-212).

 

8.         The FTT held an oral hearing of the appeal on 20 April 2011, lasting for just over an hour. The FTT confirmed the supersession decision, subject to the modest adjustment of correcting the disallowance date to 26 February 2010 (doc 226). The FTT judge later issued a statement of reasons (doc 230-232). The FTT seem to have formed a similar view of the appellant as Dr Ekong (“Having had an opportunity to observe and hear from [the appellant] we assessed her as being an unreliable witness and her claims to severe and sustained disability to be grossly exaggerated” (doc 230 at [4]). The FTT also noted in this context that the appellant was the claimant of carer’s allowance in respect of her disabled husband (“her ability to fulfil the carer’s role [was] inconsistent with her claims as to the nature and extent of her own disability”).

 

9.         I should just mention here that the FTT’s statement of reasons does not use paragraph numbering. The Senior President of Tribunals has issued a Practice Statement on the Form of Decisions and Neutral Citation: First-tier Tribunal and Upper Tribunal on or after 3 November 2008. This provides that “First-tier and Upper Tribunal decisions must be prepared for delivery, or issued as approved decisions, with paragraph numbering.” As the Upper Tribunal has noted on countless occasions, compliance with the Senior President’s Practice Statement is a matter of good judicial practice, although a failure to do so is not an error of law. I have numbered the paragraphs in the statement of reasons myself and refer to them in this decision as e.g. [6] (actually the first paragraph on doc 231).

 

10.       The appellant’s representative set out four grounds of appeal. These were that: (1) the FTT had misdirected itself on the relevance of the carer’s allowance issue; (2) the FTT had failed to make proper findings or give adequate reasons (as regards the report of Dr Ekong); (3) the FTT had failed to have regard to relevant matters, including observation of the appellant at the hearing; and (4) the FTT’s record of proceedings was illegible.  The appellant now appeals to the Upper Tribunal with my permission.

 

The proceedings before the Upper Tribunal

11.       When giving the appellant permission to appeal, I made it clear I was yet to be persuaded on all these matters. I commented as follows:

 

“1.        The grounds of appeal, as set out by the claimant’s representative are arguable, in part at least. I note that the First-tier Tribunal (FTT) made a strong adverse credibility finding, and that issues of credibility are for the FTT to judge and do not normally give rise to points of law. What follows are some preliminary and provisional observations on the grounds of appeal as advanced by the claimant’s representative.

 

2.         As to point 1 of the Grounds of Appeal, it is of course possible in principle for a person both to be disabled but also to act as a carer. Having said that, the evidence on file actually rather suggests that it is the claimant’s daughter, not the claimant herself, who acts as the carer for the claimant’s husband. The FTT seem to have assumed that the claimant was indeed the primary carer, but it is unclear whether that point was really properly explored at the hearing. Of course, if the reality is that the daughter was the principal carer, that might raise questions about the claimant’s credibility, given that she claimed carer’s allowance.

 

3.         As to point 2 of the Grounds of Appeal, it may be that the FTT should have done more to discuss the significance of the complaint about the EMP report and its omission to do so might be an inadequacy of reasoning. Further, should the FTT have explained more fully its view on the effect of pain on the claimant’s ability to e.g. walk and bend? For example, it is clear that the claimant has a problem with her ankle. It is a problem which might make her virtually unable to walk (I put it no higher than that). Did the FTT explain adequately its conclusions on e.g. the onset of severe discomfort?

 

4.         As to point 3 of the Grounds of Appeal, I do not think this takes the claimant very far. The point made might be more relevant in the ESA context than the DLA context – after all, a person does not qualify for DLA simply because they need to use a table for support to get up.

 

5.         Likewise I am not persuaded by Ground of Appeal point 4. I have to say I have seen and read far more untidy handwriting by tribunal judges – with a minimal effort almost all of this note of evidence is legible.”

 

12.       Sandra Pepper, who now acts for the Secretary of State in these proceedings in the Upper Tribunal, supports the appeal, in part at least (doc 249-251). In summary, she broadly supports the appeal on grounds 1 and 3 but not on grounds 2 and 4. I shall deal with the last point first.

 

Ground 4: the record of proceedings

13.       I agree that there is no merit in ground 4, both for the reason I indicated when giving permission and for the reasons set out by Ms Pepper (see e.g. the decision of a Tribunal of three Social Security Commissioners’ decision R(DLA) 3/08 at paragraphs 27-29).

 

Ground 1: the carer’s allowance issue

14.       This is the strongest ground of appeal. The appellant’s representative is right to argue, as Ms Pepper is right to concede, that an award of carer’s allowance is not of itself inconsistent with an award of DLA being made to the person who is herself providing the care. However, as Ms Pepper correctly observes, “findings need to be made to establish the type of care provided by her to her husband and the activities involved”.

 

15.       The problem is that in this case the FTT failed to do just that. The only discussion of the carer’s allowance point in the statement of reasons is that noted at paragraph 8 above. The FTT seemed to have simply worked on the assumption that because the appellant had an award of carer’s allowance, she therefore could not qualify for DLA. As noted above, that may or may not be the case.

 

16.       Indeed, the treatment of the carer’s allowance issue at the oral hearing was less than satisfactory. Unusually, both the appellant and the Department were represented at the FTT hearing. Both the presenting officer and the representative made opening statements to the tribunal panel at the outset of the hearing. There was no mention then of any issue relating to carer’s allowance (and the point was not apparent from the papers). However, right at the end of the hearing, as if producing a rabbit out of her hat, the presenting officer asked the appellant whether it was true that she had made a successful claim for carer’s allowance in September 2010. The appellant confirmed that was the case. There is no record of any further evidence or questions from the FTT panel relating to the issue.

 

17.       In fact, the FTT seem to have operated on the basis of two quite erroneous assumptions. The first was the assumption that, because the appellant had an award of carer’s allowance, she therefore could not qualify for DLA. This was an erroneous assumption as to the law. The second was an assumption, without any questioning, that the appellant was providing hands-on physical assistance to her husband (who it appears was waiting for a kidney transplant). This was an erroneous assumption as to the facts. As noted when giving permission, there was evidence before the FTT that it was actually the appellant’s adult daughter who was providing most of the care. Furthermore, and in any event, the concept of “caring” is not specifically defined in the context of carer’s allowance, but is generally understood to include e.g. supervision as well as active assistance (see e.g. Commissioners’ decisions CG/006/1990 and CG/012/1991).

 

18.       This ground of appeal accordingly succeeds.

 

Ground 2: the EMP report

19.       The FTT clearly nailed its colours to the mast of Dr Ekong’s EMP report. If it found appropriate facts and gave adequate reasons for so doing, it was perfectly entitled to, notwithstanding the complaint made by the appellant. This is Ms Pepper’s position. On balance, I am not persuaded that the FTT needed to be more explicit about its own findings as to the effects of ankle and back pain. It is fairly clear what the FTT thought on those matters.

 

20.       However, I do think the FTT can be criticised for in effect just adopting those findings which were contrary to the appellant’s case – e.g. Dr Ekong’s EMP report and the findings in the 2008 incapacity benefit medical by Dr Anderson as regards upper limb function. Crucially, the FTT failed to explain its assessment of the evidence which was supportive of the appellant. Two examples will suffice.

 

21.       First, in February 2008 Dr Sanderson concluded that the appellant’s generalised osteo-arthritis “causes constant pain and this leads to severe restriction of sitting, rising and bending or kneeling” (doc 9). At that time, Dr Sanderson’s opinion was that the appellant scored 55 points on the work capability assessment for descriptors relevant to lower limb function (sitting, rising from sitting, bending or kneeling, standing and walking). It is true, of course, that Dr Sanderson’s report was conducted two years before the DLA supersession decision. However, the stark distinction between Dr Sanderson’s report and Dr Ekong’s report merited some discussion. It was not enough simply to note (as the FTT did) that Dr Sanderson had found the appellant’s anxiety and depression to be particularly bad, but that her mental health had subsequently improved.

 

22.       Second, there was the supportive letter from the GP, dated 11 April 2011 (doc 211). This was barely mentioned by the FTT, subject to the tribunal noting that the GP had prescribed multiple painkillers and referred her for physiotherapy (doc 231 at [8] and [9]). The FTT needed to explain what it made of this letter.

 

23.       To that extent I conclude that this ground of appeal succeeds.

 

Ground 3: the observations at the FTT oral hearing

24.       The appellant’s representative complains that the failed to observe and take account of the severe discomfort that the appellant was experiencing at the hearing, and the fact that she had to use the table to get up from the chair.

 

25.       Ms Pepper’s helpful submission explains that a subsequent new claim for DLA was made in May 2011, shortly after the FTT hearing. That claim was decided on 27 July 2011. The new decision was that the appellant was entitled to higher rate mobility and middle rate care for an indefinite period from 20 May 2011.

 

26.       Ms Pepper also notes that the FTT relied on their own observations and assessments of the appellant’s abilities at the hearing on 20 April 2011 (see e.g. statement of reasons at [4], [6], [7] and [10]). Ms Pepper suggests that the fact that there has been a successful new claim infers that either the appellant’s condition deteriorated significantly in the month between the hearing and the new claim or the FTT’s decision “is not safe and should be revisited”. I have to point out that she does not mention a third possibility – not that there is any evidence before me that this is the case – namely that either the new decision may be wholly wrong or the award over-generous. However, there may, of course, be highly persuasive evidence supporting the new award.

 

27.       I find this ground of appeal made out, but not for the reasons advanced by either representative. The FTT, sitting in April 2011, was concerned with an appeal against a supersession decision taken in February 2010, more than a year before. As Ms Pepper correctly points out, this meant the FTT had to consider the evidence as it stood at the date of the supersession request (late 2009) and in particular at the date of the decision appealed against (26 February 2010). The FTT neglected to disentangle the evidence as to the appellant’s abilities at various dates. It may be that her condition was the same in February 2010 as in April 2011, but there was no finding to that effect.

 

28.       This ground of appeal succeeds to that limited extent.

 

The Upper Tribunal’s conclusion about the FTT’s decision in summary

29.       For the reasons explained above, the FTT’s decision involves an error of law.  I therefore set aside the tribunal’s decision, which now has no effect.

 

What happens next?

30.       I now have to decide whether to re-make the appellant’s appeal against the Secretary of State’s supersession decision myself or send the matter back for re-hearing before a new FTT. The appellant’s representative urges me to do the former. Ms Pepper suggests that I may wish to do so and has helpfully offered to obtain the evidence relating to the successful new claim for DLA, if that would be of assistance.

 

31.       There is something to be said for re-making this tribunal decision myself. The appeal is now concerned with a closed period, namely that from 26 February 2010 to 19 May 2011. If the evidence to support an award was available on file, I would not hesitate in agreeing to the course of action proposed by both parties.

 

32.       However, I am not satisfied that this is appropriate in the present case. I am conscious that the FTT in question made a very strong adverse finding as to the unreliability of the appellant’s evidence. That finding was consistent with Dr Ekong’s opinion (although not with that of Dr Sanderson in 2008). In those circumstances I think the right approach is to direct a re-hearing on the facts.

 

33.       The appellant’s representative directs me to the GP’s supportive letter at doc 211 as warranting an award of the middle rate of the care component. Ms Pepper concedes that the letter supports the appellant’s case “to some extent”, certainly so far as the lowest rate care component is concerned.

 

34.       I am not prepared myself to re-make the decision on the basis of the GP’s letter. I say that for three reasons. First, the GP’s letter is brief and certainly short on clinical findings. It says nothing about the appellant’s mobility (other than that she has severe arthritis affecting her feet). Second, the GP’s letter is dated April 2011, more than a year after the date of the decision under appeal. It is unclear how far it refers to the position in February 2010. Third, it is unclear what prompted the letter. Did the appellant simply ask her GP for a letter of support? Or did the representative write asking for the GP to provide some medical evidence (in which case the FTT needs to see the representative’s letter).

 

35.       For those reasons I am making no decision on the issue of whether or not the appellant is entitled to an award of DLA and, if so, which component(s) and at what rate, for the closed period concerned. That is a matter for the fact-finding and judgment of the new tribunal.

 

36.       The issues for the new tribunal are not the appellant’s care and/or mobility needs as at the date of the re-hearing later in 2012 (or even early in 2013). This is a re-hearing of the original appeal. The tribunal will therefore have to focus on the appellant’s care and/or mobility needs as they were in particular in February 2010.

 

37.       The Secretary of State should prepare a supplementary submission for the re-hearing at the new FTT. This submission should include all the documentary evidence used to make the subsequent award of DLA with effect from May 2011. It should also include a copy of the appellant’s September 2010 claim for, and the subsequent award of, carer’s allowance.

 

38.       The appellant’s representative also should provide a copy for the new tribunal of any letter sent to the GP which may have elicited the GP’s letter of 11 April 2011. The appellant’s representative should in addition provide a copy of what appears to have been a social services assessment of the appellant’s care needs, conducted by the local authority (see e.g. doc 191, 209).

 

39.       The new tribunal may find it helpful to have sight of copies of the appellant’s medical notes from the GP for the period in question. However, that is a matter left to the good judgment of the District Tribunal Judge responsible for making any further re-listing directions in the light of local knowledge.

 

Conclusion

40.       I therefore allow the appeal on grounds 1, 2 and 3 (but not ground 4) for the reasons set out above. I set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for rehearing by a new tribunal subject to the directions listed above (section 12(2)(b)(i)).   

 

 

 

Signed on the original                                              Nicholas Wikeley

on 10 September 2012                                             Judge of the Upper Tribunal