Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIB/1057/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge of the Upper Tribunal Miss E. Ovey

 

Decision:   The decision of the First-tier Tribunal on 30^th August 2011 contained an error of law.  Accordingly, I allow the claimant’s appeal and I set aside the tribunal’s decision.  In exercise of the powers given by s.12(2)(b) and (3)(a) of the Tribunals, Courts and Enforcement Act 2007, I remit the case to the First-tier Tribunal and direct that it be heard by a differently constituted tribunal.

 

 

REASONS FOR DECISION

 

1. This is an appeal by the claimant against the decision of the First-tier Tribunal given on 30^th August 2011 dismissing his appeal against the decision of the decision maker made on 20^th March 2010.  That decision was a decision superseding an earlier decision awarding the claimant incapacity credits and was to the effect that he was not entitled to incapacity credits from and including 20^th March 2009.

 

2. The background to the claim is that prior to about the middle of 2008 the claimant was working as a bricklayer foreman.  His contract then came to an end and (I infer) he became unemployed.  On 29^th August 2008 he slipped and injured his head.  On 1^st September 2008 his G.P. certified that he was incapable of work.  After 196 days, the personal capability assessment became the test of his incapacity for work by virtue of sections 171B and 171C of the Social Security Contributions and Benefits Act 1992.

 

3. On 6^th March 2009 the claimant completed an incapacity for work questionnaire.  In that questionnaire he identified a wide range of physical and mental problems.  On 5^th January 2010 the claimant underwent a medical examination.  The examining doctor largely disagreed with the claimant’s self-assessment, but seems to have accepted the claimant’s statement that he had recently suffered an average of two episodes of lost consciousness every six months during waking hours and concluded:

 

“The customer’s fits result in occasional episodes of lost consciousness during waking hours that prevent them from safely continuing with any activity.”

 

The decision maker carried out the scoring process required under reg. 25 of and the Schedule to the Incapacity for Work (General) Regulations 1995 (S.I. 1995 No. 311) and decided that the claimant scored 12 points on the ground that he had had an involuntary episode of lost or altered consciousness at least twice in the last six months but that he did not satisfy any of the other point-scoring descriptors in the Schedule. 

 

6. Reg. 25 provides that a person is incapable of work in accordance with the personal capability assessment if he scores 15 points on physical descriptors or a mixture of physical and mental descriptors or 10 points on mental descriptors alone.  The claimant was therefore found not to be incapable of work and in turn not to be entitled to incapacity credits from the date of the decision.

 

7. The claimant appealed against that decision and the decision was reconsidered but not changed.  The appeal first came before a tribunal on 5^th May 2011.  It was then adjourned with directions that the clerk should obtain a copy of the claimant’s G.P. records and hospital correspondence from 1^st January 2008.  Those documents were duly obtained and showed a continuing history of complaints about dizziness, blackouts and falls by the claimant from very shortly after he suffered his head injury.  The G.P. notes record that on one occasion in November 2008 he injured his right arm on falling.  He had an MRI scan at the end of 2008 and was referred to a consultant neurosurgeon in early 2009.  A letter in May 2009 from the physiotherapist whom he was seeing for lower back pain and left foot pain says that he reported a further blackout at the time as a result of which he sustained a cut to his arm and knee.  She expressed herself as quite concerned at the frequency of the blackouts and the risk of the claimant’s sustaining further injury.  A consultant neurologist was brought in in September 2009 and the claimant gave a history of having had 8 or 9 blackouts in total, with another at about the beginning of January 2010. 

 

8. Subsequent material, after the date of the decision maker’s decision, shows that In April 2010 the claimant reported a possible loss of consciousness as a result of which he fell, hitting his leg and elbow against a bench and also hitting his head.  He had further blackouts in May, June and July 2010 and a letter “to whom it may concern” from his G.P. dated 18^th August 2011 stated that he continued to experience blackouts without warning symptoms and was awaiting review appointments with the consultant neurologist and cardiologist.  The cause of the blackouts had not been established by the time of the second tribunal hearing on 30^th August 2011.  The claimant was not represented at that hearing. 

 

9. The tribunal said in its decision notice, when dismissing the appeal:

 

“Based on its own evaluation of the evidence, the Tribunal agreed with the Secretary of State’s selection of the descriptors applicable in the appellant’s case.

  It is noted that the appellant’s condition may have deteriorated since the date of decision.”

It is clear from the statement of reasons that the tribunal accepted the correctness of what the claimant told the examining doctor about the frequency of his blackouts.  I note that in the original claim form the claimant said that he had fits or something like them at least once a week.

 

10. As to the other descriptors, the tribunal broadly accepted what the claimant was recorded as having told the examining doctor about his daily activities, which in large measure involved effectively concluding that the claim form was inaccurate.  As will appear from what follows, I do not need to go into significant detail on this aspect.

 

11. After the hearing, the claimant obtained advice from the local community legal advice centre.  The centre applied for permission to appeal on the grounds that:

 

(1) the tribunal had given no consideration to reg. 27(b) of the Incapacity for Work Regulations.  That is a provision which has had a complex history, but for present purposes it is sufficient to say that it provides that a person who is not incapable of work in accordance with the personal capability assessment is nevertheless to be treated as incapable of work if:

 

“he suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work.”

 

(2) the tribunal had not dealt adequately with the descriptors relating to climbing stairs, hearing and continence.

 

12. Permission to appeal was refused by the tribunal judge but was granted by Judge Ward on 10^th May 2012.  In giving permission, Judge Ward said that it was certainly arguable that the tribunal erred in relation to reg. 27 and the claimant’s ability to climb stairs, although he expressed some reservations about the other grounds.

 

13. I have concluded that the tribunal did indeed err in law in relation to reg.27(b) and that in view of that error I should set the tribunal’s decision aside and remit the matter to be hard by another tribunal.  I shall therefore deal first with that ground of appeal.

 

14. The Secretary of State’s submission to the tribunal contained a brief reference to reg. 27 in paragraph 5, but I accept that there was nothing in the submission to suggest to the tribunal that reg. 27 was in issue.  The examining doctor advised that there were no exceptional circumstances.  The claimant, who was unrepresented before the present appeal, understandably made no reference to it and it finds no mention in the tribunal’s statement of reasons.

 

15. Against this background, the Secretary of State now submits that there is no duty on a tribunal to address reg. 27 unless it is clear to them on the evidence before them that any of the exceptions in the regulation is in issue, which was not the case here.  The Secretary of State relies on Commissioner’s Decision CSIB/8/1997.  The claimant’s advisers submit that not considering exceptional circumstances is an error of law and rely on the decision of Judge Sir Crispin Agnew of Lochnaw in CIB/718/2011.

 

16. It is not entirely clear what conditions the claimant in CSIB/8/1997 was suffering from and what problems they were said to cause him, but his ability to bend and kneel was obviously in issue, as was the effect of the pain he suffered and the variability of his condition.  In that context, Mr. Commissioner May said, at paragraph 12:

 

“The claimant was represented before the tribunal and there was no suggestion before them that regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 applied in this case.  That regulation deals with wholly exceptional circumstances and there is in my view no duty on a tribunal to address this regulation unless it is clear to them on the evidence before them that any of the exceptions set out therein is in issue.  If such an exception is in issue then of course the tribunal require to address it.  That was not the position here.  The examining medical officer in his report at page 85 had considered the exceptions and by his answers to the questions put determined that they did not apply.  The chairman’s note of evidence does not disclose that the claimant asserted otherwise.  I do not see that there is any substance in this ground of appeal…  It would be detrimental to the efficacy of the whole scheme if in every case where a tribunal was satisfied that a claimant did not reach the requisite number of points to satisfy the All Work Test [now the personal capability assessment] it was regarded as necessary for a tribunal to address this regulation.”

 

17. The judge in CIB/718/2011 simply stated that it was an error of law for the tribunal not to have considered reg. 27(b).  It is not clear whether that was intended to be a purely general proposition or one limited to the facts of the case, especially as the decision is short and the judge had already found another error of law.  Further, paragraph 4 of the decision implies, although it does not expressly state, that the claimant in that case was unrepresented before the tribunal.

 

18. In my view, the true position lies somewhere between what might appear from either of those decisions read in isolation from any background context.  I agree that tribunals are not under an obligation in all cases in which the claimant fails the personal capability assessment to consider whether reg. 27 applies.  To take a common type of example, the outcome of the assessment may revolve round whether the claimant can walk for more or less than 200 metres without stopping or severe discomfort, can sit comfortably for more or less than 30 minutes without having to move because of discomfort and can never rise from sitting to standing without holding on or can sometimes do so.  In the absence of something further, it is difficult to see that reg. 27(b) could possibly have any application and if a represented claimant does not put it in issue it is difficult to conceive of circumstances in which a tribunal would make an error of law by not expressly dealing with it in the statement of reasons.

 

19. By contrast, if there is undisputed evidence of a serious condition which falls only slightly short of entitling the claimant to incapacity benefit and the condition is inherently one which is capable of giving rise to risk of injury in a work environment there is likely to be an error of law if the tribunal does not consider reg. 27(b).  That is particularly the case when the claimant is unrepresented, when there is obviously a much greater risk that a good point will go by default.  This approach is, I think, largely consistent with CSIB/8/1997.  The tribunal, exercising its inquisitorial function if necessary, should deal expressly with reg. 27(b) in any case in which by failing to deal with it the tribunal might be failing to deal with a point which is arguably open to the claimant on the evidence and which is capable of making a material difference to the outcome of the proceedings.

 

20. In the present case, it was accepted that the claimant suffered from episodes of unconsciousness of a degree of frequency which entitled him to 12 points.  The examining doctor said that those episodes prevented him continuing safely with any activity.  As set out in paragraph 7, there was evidence of injuries from falls and the physiotherapist at least expressed concern about the risk of injury.  The claimant’s previous work had been as a bricklayer foreman, so that his work environment might reasonably be supposed to be that of a construction site, as pointed out by Judge Ward.  It is very understandable that the claimant may have been wholly unaware of the existence of reg. 27(b) and accordingly unable to put it in issue.  In my view that is sufficient to have imposed on the tribunal an obligation to consider the applicability of reg. 27(b).  It follows that there was an error of law on the part of the tribunal.

 

21.  Having reached that conclusion, it is, as I have said, not necessary for me to deal in detail with the other grounds of appeal.  In this connection, however, I comment that it is clear from the statement of reasons that the tribunal relied not only on the findings of the clinical examination but also on the claimant’s account of a typical day.  I note that although the statement of reasons includes a statement that the tribunal judge went through the statements in the medical report with regard to the claimant’s description of a typical day and records some disputed statements, none of that appears in the record of proceedings. 

 

22. That is unfortunate, because one of the statements in the account of a typical day is “occasionally manages to climb up and down stairs holding banister”.  If that statement is to be understood as it would be understood in the ordinary use of language, the implication is that the claimant finds it very difficult to climb up and down stairs but is occasionally able to do so if he holds on to the banister.  It might possibly have meant, however, that the claimant occasionally holds the banister when he climbs up and down stairs.  As the claimant’s representative points out, if the statement is to be understood in the former way and is accepted, he would in any event be entitled to a further 3 points, which would take his total to the essential 15 points.  The apparent implication of the statement of reasons is that the undisputed statements to the examining doctor were accepted.  There is nothing in the statement to explain why that should not have been the case in relation to climbing stairs and if so, why the claimant was not awarded a further 3 points.  It may be that the record of proceedings would shed some light.  As the matter stands, the absence of reasons constitutes a further error of law.  On this basis also I would set the decision aside and remit the matter to a new tribunal, since it is impossible to be confident what the statement meant and what the claimant apparently said about it.

 

23. Like Judge Ward, I am less persuaded that there was any error of law in the way the tribunal dealt with the descriptors relating to hearing and continence.  It is not necessary, however, to express a concluded view on those points.

 

24. For the reasons I have given, I allow the appeal and remit the matter to a tribunal to be constituted differently from the previous tribunal.  The new tribunal should have regard to the points I have discussed.

 

 

 

(Signed) E, Ovey

Judge of the Upper Tribunal

 

(Dated) 31^st October 2012