Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the Appellant.

The decision of the Neath First-tier Tribunal dated 13 February 2012 under file reference SC197/11/01225 does not involve an error on a material point of law. 

The decision of the tribunal stands.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

Introduction and summary

1. The First-tier Tribunal (FTT) dismissed the Appellant’s appeal at an oral hearing in Neath. The tribunal confirmed the Secretary of State’s decision dated 16 September 2011 that there was no entitlement to employment and support allowance (ESA). For the reasons that follow, I have decided that there is no error of law in the FTT’s decision. It follows that the tribunal’s decision stands.

2. The Appellant had previously scored 9 points (for difficulties with mobilising) following an ATOS medical. His representative, who helpfully was able to attend the FTT hearing with him, had also provided a written submission for that tribunal. This submission had argued that the Appellant should have been awarded 15 (not just 9) points for mobilising as well as further points for activities 2, 3 and 9.

The grounds of appeal before the Upper Tribunal

3. There were essentially two grounds of appeal to the Upper Tribunal. The first related to the FTT’s treatment of activity 2, which is concerned with standing and sitting. This was the basis on which District Tribunal Judge Collier very properly gave the Appellant permission to appeal. The present appeal was then stayed (or suspended) until the outcome of the lead case on the proper interpretation of activity 2 was known. That decision has now been issued: MC v Secretary of State for Work and Pensions [2012] UKUT 324 (AAC). It is agreed on all sides that the first ground of appeal in this case must fail because of the effect of that decision.

4. The second ground of appeal related to the FTT’s explanation of its reasoning. At paragraph 14 of its statement of reasons the FTT had stated that “The Tribunal found the Appellant to be an unreliable and untrustworthy witness save where he was speaking against interest”. The grounds continued by stating that no reasons were given for the finding of unreliability and that the expression “speaking against interest” was unclear. Both the Secretary of State’s representative (Lesley Worrall) and the Appellant’s representative (Jackie Hankins) have now made further written submissions on the appeal.

The Upper Tribunal’s analysis

5. I must deal first with the expression “speaking against interest”, which also seems to have left Ms Worrall a little unsure.  However, she assumes that it means that the FTT found the Appellant’s evidence was exaggerated in his own favour unless it was in his best interests not to do so. I am not sure this really captures the flavour of its meaning properly.

6. The expression “speaking against interest” simply means that some statements are more credible from a person than other statements by the same person – namely those statements which are against the person's own interest to make. So, for example, if a politician says that he has not misled the public, many people (perhaps depending on who the politician is) might be at best sceptical and at worst incredulous about the truth of such a statement. They might think to themselves: “well, he would say that, wouldn’t he?” However, if a politician candidly admits that he has misled the public, virtually everyone would believe him. The statement is obviously credible. Not unreasonably, they would ask themselves: “why would he lie about this? He’s speaking against his own interests, and so what he says must be true”.

7. There is no error of law here. The lesson is perhaps that tribunals should avoid using rather legalistic and perhaps slightly obscure language in their statements of reasons.

8. So the second ground of appeal really comes down to whether or not the tribunal adequately explained its conclusion that it had found that the Appellant’s evidence was unreliable. Ms Worrall has set out a number of reasons why she finds that the FTT’s reasoning was adequate. I agree with her analysis.

9. Ms Hankins argues that the second ground of appeal still has force. She refers to the GP’s letter as confirming that the Appellant had problems with mobility and that this “does not point to someone who is an ‘unreliable and untrustworthy witness’”. I do not find this argument persuasive. The reason for this is that the FTT plainly accepted that the Appellant had quite serious problems with mobilising, as they confirmed the score of 9 points. So they accepted the GP’s opinion to that extent.

10. However, the FTT had to look at the evidence in the round – the GP’s evidence, the HCP’s evidence and the Appellant’s own evidence. The weight to be attached to any particular piece of evidence was for the FTT to assess. Some FTTs are rightly criticised for failing to address positive or supportive evidence from a claimant’s GP. This tribunal did not fall into this trap – rather, it explained why it had not attached great weight to the GP’s comments. Thus the FTT noted that (i) the HCP report was much closer in time to the decision than the GP’s letter; (ii) the GP’s letter did not give any detail as to how far and how often the Appellant could walk; (iii) the Appellant’s own evidence was that he walked more than the GP’s letter might have suggested. All those were reasons why the FTT was entitled to take the view that the HCP report provided a more accurate picture. They also gave other reasons why they had difficulty in accepting some of the Appellant’s own evidence.

11. It is well established that assessments of credibility are for the FTT, who have the advantage of hearing from the parties first hand and evaluating their evidence in the light of all the evidence in the case. It is not the job of the Upper Tribunal to interfere with that process unless some error of law has been shown.

12. For example, in Secretary of State for Work & Pensions v Roach [2006] EWCA Civ 1746, the Court of Appeal, reversing the decision of Mr Commissioner Levinson (as he then was), had this to say about challenges to credibility findings on appeal (at paragraph 31):

“31. As to the substantive issue, it is trite to say that the credibility of a witness depends upon an assessment by the fact finder of a number of features. Without being exhaustive these include what is said, the way it is said, its internal consistency and the extent to which it corresponds with known facts or human experience; all this must be considered in the context of the perceptions of the witness. Further, assuming that the fact finder's analysis was open to him or her, an appellate court or tribunal can only intervene in that process based upon an error of law which is not the same as pointing to a different analysis of the evidence.”

13. The Court of Appeal went on (at paragraph 37) to warn any Commissioner (now Upper Tribunal Judge) against an “attempt to reanalyse evidence (which he had not heard) from a perspective that he preferred”. So, although I am not sure I would have been quite as dismissive as the tribunal was about the explanation given for not having previously mentioned incontinence problems, I certainly can find no error of law in its approach.

14. It follows that I conclude that the second ground of appeal also does not succeed.

15. I would just observe that the FTT’s use of a paragraph setting out its findings of fact on each issue in dispute, followed by a paragraph explaining why those findings had been made, is particularly clear and helpful.

Conclusion

16. For all these reasons, the decision of the First-tier Tribunal does not involve any material error of law. I must therefore dismiss the Appellant’s appeal (Tribunals, Courts and Enforcement Act 2007, section 11). 

Signed on the original Nicholas Wikeley

on 18 April 2013 Judge of the Upper Tribunal