Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CI/2748/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I remit the matter to be reheard by a new tribunal in accordance with the directions below.   

REASONS FOR DECISION

1.     This is an appeal with the leave of an Upper Tribunal judge from a decision of a First-tier Tribunal sitting in Chesterfield given on 23 November 2011.

2.     The claimant suffered a soft tissue back injury on 7 August 2001 as a result of an accident at work.   She was provisionally assessed as having 20% disablement 20 November 2001 to 31 July 2002.  Subsequent interim assessments put her disablement from the accident at between 12% and 40%.  On 30 June 2010 the claimant was again assessed and on this occasion the medical adviser described the relevant loss of faculty as impaired lumbar spine function and advised a final assessment of 20% for life, advice which was accepted by the decision maker.  The identified loss of faculty was the same as that identified in the first assessment on 22 November 2001.

3.     The claimant appealed.  At the first hearing of the appeal on 22 August 2011, which would seem to have been a hearing which was not attended by the claimant, the tribunal adjourned the matter.  In its decision it encouraged the claimant to attend the next hearing and give evidence.  It also stated “The Tribunal considers that an issue arises that the appellant may not be entitled to IIDB and has power to remove entitlement as well as increase it or confirm the existing award.  The appellant should take advice from a Welfare Benefits Adviser or the Citizens Advice Bureau.”

4.     Finally the tribunal ordered the claimant’s GP to “send to the Tribunal Service copies of the appellant’s patient notes, consultants and other reports from and including 1/1/1991.”

5.     The claimant did take advice and did attend the final hearing with a representative and did give evidence.  The record of the proceedings shows that the tribunal again gave a warning although not its exact terms and that the representative confirmed that he had had a discussion with the claimant on the tribunal being able to reduce awards.  The record says nothing about the representative saying that the tribunal could remove an award entirely, although that possibility had been made clear in the original direction of 22 August 2011.

6.     The GP had supplied computerised printouts of the claimant’s medical history, which appear to have been received by HMCTS on 21 October 2011.  On examining the tribunal file, it appears that these were supplied in accordance with a request contained in a letter from HMCTS dated 7 October 2011 asking for a computer printout of the claimant’s records from 1 January 1991 together with copies of any correspondence with consultants from that date.  I note that this was not what had been ordered by the tribunal on 22 August 2011, omitting in particular any reference to patient notes and excluding reports other than those in correspondence with consultants. In fact, the GP only supplied copies of three reports dating from 2007 and 2009, which were in respect of problems that would seem to have been irrelevant to the issue before the tribunal.  The first reference to an orthopaedic specialist appears from the notes to have been in April 2003 and there is a note of the GP in May 2002 “Low back pain back pain secondary to degenerative lumber spine.

7.     There was nothing in the computer printout to indicate that the claimant had ever seen a specialist in respect of her back problems or that that she had seen her GP about back pain until over 6 months after the accident or that she had been prescribed any form of pain relief until 2003.  In its statement of reasons the tribunal observes that the GP notes have no entry for the accident in 2001 and refers to the evidence it has gleaned from the medical evidence provided.

8.     It has become apparent on this appeal that the GP failed to supply the contemporary manuscript notes of consultations from 2001 onwards in addition to several orthopaedic reports.  It now appears that the claimant saw her GP a week after the accident when she described it and her back pain that had resulted.  At a further consultation on 29 August 2001 she was still complaining of pain.  There is a note “Refer to Physio” and other notes refer to her continuing to take Nurofen and other medication and to back exercises.  The visits to the GP continue with further notes relating to subsequent consultations, additional medication and ultimately an orthopaedic reference on 7 December 2001 (the letter of reference is at p.125).  The resulting orthopaedic report dated 30 January 2002 describes x-rays as showing multi-level degenerative changes which are described as very mild but also acute back pain which has not settled down.  It is clear that the report is not attributing the acute back pain to the very mild degenerative changes but to the accident.  There is then a further report of 8 March 2002 which refers to a future MRI scan to exclude any possibility of disc protrusion causing pressure on the nerve roots.  Neither of these reports was from a consultant.  Both should have been disclosed by the GP in accordance with the order of 22 August 2011 but neither was requested in the HMCTS letter to the GP.

9.     A third report, this time from a consultant orthopaedic surgeon and dated 13 May 2002 states that the MRI scan was essentially normal apart from age-related disc degenerative changes and that there was no evidence of nerve entrapment.  There are then several further reports in 2003, most but not all from consultants, which were not before the tribunal and which do not appear to suggest that the pain was in any way related to degenerative changes.  These reports also reveal the emergence of other problems. 

10. While I agree with the observation of Judge Wikeley in giving permission to appeal that the further medical evidence would not necessarily have made a difference, it is quite plain that there is a real possibility that it would have done so.  Contrary to the findings of the tribunal, based only on the evidence before it, the GP’s notes do have an entry for the accident a week after it happened and continuing thereafter, and the orthopaedic reports which were not before the tribunal clearly could have affected the tribunal’s findings had it been aware of them.

11. Plainly a tribunal cannot be in error of law for failing to take into account evidence that was not before it.  However, the position appears to me to be akin to that where the tribunal service has on occasions received relevant documents, such as an application for an adjournment, which it has not placed before the tribunal.  There is a procedural mishap which has resulted in a party not having a fair hearing.  So here the failure of the GP to supply all the documents which he was ordered to supply by the directions of 22 August 2011 was in part at least the result of the letter to him failing accurately to set out the terms of that order.  As a result the tribunal and the parties were deprived of medical records that were highly relevant to the claim and the claimant has not had a fair hearing.  I leave open the question as to what the position would have been had the GP known the terms of the order and still failed fully to comply with it in the same way.

12. On that account I set aside the decision of the tribunal and remit the matter to be reheard by a new tribunal which will have the advantage of what are now hopefully the complete medical records.  The claimant should be aware that the new tribunal may nevertheless come to the same conclusion as the first tribunal or reduce or remove her award on some other ground.  

13. With regard to the notice, it appears to me that the directions of 22 August 2011 made it sufficiently clear that if the claimant proceeded she could have her entitlement to benefit removed entirely.  She was able to discuss this with her representative and had three months before the next hearing to consider her position.  She then received a further warning, although the scope of that warning was less clear.  It appears to me that the warning given initially on 22 August 2011 was sufficient.  However unwell the claimant was feeling on the day of the hearing in November 2011, she had had ample time to discuss the position with her representative who could have asked the new tribunal for further information as to the possible outcome if in any doubt.

14. Had my decision turned on this issue, the claimant would not have succeeded on this appeal.

(signed) Michael Mark

Judge of the Upper Tribunal

16 May 2013