Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/2419/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 21 March 29012 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided.

REASONS FOR DECISION

1. The claimant appeals, with my permission and the support of the Secretary of State, against a decision of the First-tier Tribunal whereby it dismissed her appeal against a decision of the Secretary of State superseding an award of income-related employment and support allowance and terminating it with effect from 13 July 2011, although it “revised” the Secretary of State’s decision to the extent of deciding that she scored 9 points under descriptor 2(b)(i) in Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI 2008/794).

2. The claimant had produced two supportive letters from her general practitioner, Dr Ryan.  In respect of those reports, the First-tier Tribunal said –

“14. Dr A J Ryan records in his report, dated 3 august 2011, that [the claimant] has quite severe depression but we noted that [the claimant] was not on a high dose of antidepressants.  Furthermore, Dr Ryan records that [the claimant] has poor concentration.  [The claimant] has not claimed that she suffered from poor concentration and there was no evidence to that effect by the health care professional who recorded that [the claimant] had adequate memory and concentration.  On the balance of probabilities we preferred the health care professional’s report to that of Dr Ryan because of the inconsistencies referred to above.

15. We did not overlook the second report of Dr Ryan, dated 8 December 2011, but did not take it into account because it was not timely with the Secretary of State’s decision.”

3. The First-tier Tribunal also said –

“16. Throughout, we preferred the evidence of the Health Care professional to that of [the claimant] because the Health Care Professional is medically qualified and trained in assessing whether the medical evidence fulfils the requirements which must be satisfied to obtain an award of ESA.”

4. I gave the following reasons for giving permission to appeal.

“It seems to me to be arguable that the First-tier Tribunal’s reason for rejecting Dr Ryan’s report of 8 December 2011 was inadequate.  It is arguably unclear whether it thought that it could not have regard to the report simply because it was written after the date of the Secretary of State’s decision, which would be wrong, or whether it considered that it was not relevant to the question of the claimant’s condition as at the date of the Secretary of State’s decision, in which case there is arguably inadequate consideration as to whether the claimant’s condition might have significantly deteriorated during the intervening period.

It is also arguable that paragraph 16 of the statement of reasons suggests bias.  If that is an adequate ground by itself for preferring the evidence of a healthcare professional, how could a claimant ever succeed?”

5. The Secretary of State agrees with the points I made and also observes that, contrary to what the First-tier Tribunal said in paragraph 14 of the statement of reasons, the claimant had claimed to have poor concentration in the submission she submitted with her appeal.  In relation to Dr Ryan’s later letter, it was plainly relevant, despite being written some time after the date of the Secretary of State’s decision, because Dr Ryan expressly took issue with the healthcare professional’s opinion on various issues, presumably well aware of the date of the healthcare professional’s assessment.  In particular, Dr Ryan commented on the pain the claimant suffered when moving about and pointed out that the claimant did not have a wheelchair and that “I would find it inappropriate for [the claimant] to use a wheelchair because I wish her to try to keep her mobility as much as possible”.  (On this issue, I draw attention to DM v SSWP (ESA) [2012] UKUT 376 (AAC) and MG v DSD (ESA) [2013] NICom 8, which may well be reconcilable on the basis that an assessment of the type contemplated in the latter case would no doubt have taken into account the impracticality of using a wheelchair mentioned in the earlier one.)  Dr Ryan also took issue with the description of the claimant’s medication as being of average strength, which the First-tier Tribunal appears to have adopted but which Dr Ryan described as “totally false” for reasons that were fully set out in the letter.

6. The First-tier Tribunal did give further reasons for its decision when addressing individual descriptors.  However, I do not consider that its decision can stand when it has failed properly to consider Dr Ryan’s evidence and has exhibited bias in favour of accepting the healthcare professional’s assessment.  Dr Ryan’s evidence should have been taken into account when evaluating the healthcare professional’s assessment.  The First-tier Tribunal was not obliged to accept Dr Ryan’s views or to accept that they undermined the assessment, but it was required to address them in its reasoning and refusing to take those views into account merely because of the date of the letter was not permissible.

7. Neither party has asked me to substitute a decision for that of the First-tier Tribunal and I therefore remit the case.

Mark Rowland

2 May 2013