Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CA/3419/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Easy Ham on 28.02.12 under reference SC102/11/02320 involved an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

DIRECTIONS

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

(1)            The new hearing will be at an oral hearing.

(2)           The appellant is reminded that the tribunal can only deal with his situation as it was down to 25.03.11 and not any changes after that date.

(3)           If the appellant has any further evidence that he wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Birmingham Appeals Service Centre within one month of the date this decision is issued.

(4)           The First-tier Tribunal should have regard to the points made below.

REASONS FOR DECISION

1.                This is an appeal by the claimant from a decision of the East Ham First-tier Tribunal (SEC) dated 28.02.12. I will refer to this from now on as “the tribunal”. The tribunal dismissed the claimant’s appeal from the Secretary of State for Work and Pension’s decision of 25.03.11. The Secretary of State’s decision of that date was that the appellant was not entitled to Attendance Allowance (“AA”) with effect from 24.01.11 (the date of claim).

2.               Permission to appeal to the Upper Tribunal was refused in the first instance by a District Tribunal Judge on 22.08.12, however on the renewed application to the Upper Tribunal I granted the appellant permission to appeal on 20^th November 2012.  I gave permission to appeal on the following grounds:

“I consider it arguable that the First-tier Tribunal erred in law in its approach to the evidence from the GP.  In the letter of 13.05.11 (pages 62-63) the GP him or herself has given an explanation about why the form on pages 42-45 may have been inaccurate (because it failed to refer to [the appellant’s] arthritis).  That information arguably could only have been within the GP’s knowledge, and not provided to him by [the appellant]. In these circumstances it is arguable that:-

(a)   the  First-tier Tribunal’s reasons for preferring the report on pages 42-45 are inadequate because they do not address the GP’s explanation on page 63 about why the report on pages 42-45 may have been incomplete and inaccurate, nor do they address [the appellant’s] claim that the report on pages 42-45 was written by the GP’s secretary; and

(b)  the First-tier Tribunal’s reasons for rejecting the GP’s report on pages 62-63 are inadequate because they do not explain why it was “just reiterating what [the appellant] had told him”, rather than being the GP’s own opinion based (see second paragraph of GP letter on page 63) on patient’s medical records”.

3.               The Secretary of State supports the appeal in a submission dated 18.02.12 (page 98), and argues overall that the tribunal erred in law in not exploring or giving adequate reasons why it preferred the GP report on pages 42-45. I agree. He asks for the appeal to be remitted to the First-tier Tribunal to be re-decided.

4.               The appellant in his observations in reply, dated 14.03.13, asks for reasons to be given for the Upper Tribunal’s decision but other than this makes no further comments.

5.               No oral hearing of this appeal to the Upper Tribunal is sought by either party.

6.               In my judgment, and on further reflection, I am satisfied that the tribunal did err in law,  in the main for the reasons I suggested when I gave permission to appeal. Given the parties agreement that the tribunal erred in law and that the appeal ought to be remitted I do not consider I need say much more.

7.               This was a case where there was a difference, even a stark difference, between the appellant’s GP’s report provided direct to the DWP on its standard form constructed for that purpose (pages 42-45) and the GP’s letter on pages 62-63.  The former, dated 22.03.11, did not refer to arthritis at all and if “Yes” means “no problems”, suggested that the appellant had no significant restriction with self-care or walking.  The latter, on the other hand, was dated 13.05.11, and referred to right hip pain which was worse on walking, a diagnosis of osteoarthritis of the hip from 1995, a diagnosis of knee arthritis from 2004, problems with bending and walking, and the page 62-63 version of the letter offered an explanation about why the GP report form on pages 42-45 did not mention arthritis.

8.               It is fair to note at this point that the letter on pages 62-63 was the second, or an updated, version of the letter.  The first version of the letter is dated 14.04.11 and appears on pages 3-4 of the appeal bundle.  It is identical in content to the letter on pages 62-63 save for the date and the omission of the explanation for why the GP report form on pages 42-45 did not mention arthritis.  In fairness to the appellant his covering letter that came with the letter on pages 62-63 explained that the updated letter “sets out to explain the reasons for the apparent conflict in the earlier submission  made by my GP”, by which he seems to mean the GP report on pages 42-43. 

9.               I agree with District Tribunal Judge Wyatt’s comment when refusing permission to appeal that there was a conflict in the GP report on pages 42-45 and that on pages 62-63.  I disagree with her, however, that the tribunal have explained adequately why they preferred the first report over the second. 

10.            It is important to note that nowhere in this case has anyone alleged, let alone held, that the GP letters on pages 3-4 and 62-63 were other than from the GP’s office. In other words, no-one is suggesting that the appellant has manufactured these letters. If that point had been made it would have been easily tested by sending copies of the letters to the GP’s office and asking for confirmation that they were from that office.

11.             The tribunal’s reasons for accepting the report on pages 42-45 as accurate and preferring it over the letters on pages 3-4 and 62-63 do not, however, “hang together”. They are, in short, contradictory and inadequate.  There are three main reasons for this.

12.            To start with, the tribunal’s claim that the GP report on pages 42-45 was “accurate” is itself undermined by the tribunal’s findings of fact that the appellant had osteoarthritis of the hip diagnosed in 1995 and knee arthritis diagnosed in 2004.  Those findings could not have come from the GP report on pages 42-45 because it made no mention of arthritis (the appellant’s precise criticism of it).  I therefore fail to understand how it can be an “accurate” report when, on the tribunal’s own findings of fact, it was manifestly incomplete.  Moreover, as far as I can see the findings of osteoarthritis and knee arthritis can only have come from the GP letters on pages 3-4 and/or 62-63. However, the tribunal have failed to explain why it found those letters persuasive as a source of evidence in one respect but not on others.

13.            Secondly, the tribunal’s criticisms of the GP’s letter on pages 3-4 fail to address the explanation for the difference between that letter and the report on pages 42-45 that the GP subsequently gave in the updated letter on pages 62-63.  Moreover, when the tribunal does address that last letter it makes no mention of the explanation or what it made of it. That was a serious omission in terms of the tribunal’s reasoning given the letter on pages 62-63 gave an (at least credible) explanation why the report on page 42-45 was not reliable. Further, if that explanation was accepted the diagnoses of arthritis gave some explanation for why the appellant may have had problems getting out of bed and with other self care needs (an issue the tribunal had with the letter on pages 3-4).

14.            Lastly, the tribunal use the regrettably overused mantra that the page 62-63 GP’s letter’s  explanation of the appellant’s restrictions in terms of self-care and walking was of less evidential worth than the views expressed on page 44 because it was “just [the GP] reiterating what the appellant had told him”. This finding appears in many First-tier Tribunals’ statements of reasons but rarely, in my experience at least, with proper findings of fact or evidential base to back it up or a proper explanation as to why the tribunal drew this inference (or, indeed, an exploration with the appellant about why his or her GP may simply be saying what he or she had been told by the appellant).  A claimant’s GP is just as professional as any other doctor or health care professional who gives evidence to a tribunal, and, save where a proper explanation is given as to why he or she would do this, should not be assumed to simply be a vehicle for repeating what the claimant has told the GP as opposed to offering the GP’s professional opinion. 

15.            Moreover, GP’s can express their evidence in careful terms if it is no more than what they are being told. For example, they may say “Miss Smith tells me that she cannot walk more than 20 metres without having to stop due to pain”. That statement, of course, may still have some evidential worth as evidence of what Miss Smith says she cannot do, but it would have little or no worth as evidence of the GP’s observation or opinion. On the other hand, if the GP, on this example, says “I have been Miss Smith’s GP for 10 years and see her regularly, and in my opinion due to her hip and knee arthritis she can only walk 20 metres before she has to stop due to pain”, absent evidence that shows that this was not the GP’s opinion, in my judgment it has to be taken as evidence of the GP and given appropriate weight.

16.            The GP’s letter on pages 62-63 was far closer to the latter example than the former. For example, he writes that “[d]ue to his hip and knee osteoarthritis and low back pain [the appellant] has poor stability reduced while walking”. On its face that seems to be an expression of the GP’s opinion based on his 21 year knowledge of the appellant as his patient and his medical records. At the very least, if it was instead a statement based just on what the appellant had told his GP (and on which the GP did not agree or did not wish to express a view, which is the plain implication of tribunals finding in paragraph 14 of the statement of reasons), then the tribunal’s reasons had to explain why the tribunal came to that view. The failure of the tribunal to do that here on a central piece of evidence renders its decision erroneous in law.

17.            For the reasons I have already given I would venture to suggest that First-tier Tribunals ought not to use the phrase “just reiterating what he has been told by his patient” (or any similar version of this phrase), save where it is justified on the evidence; and in any case where the phrase is used a proper explanation needs to be given for its use.

18.            It is for all these reasons that the tribunal’s decision dated 28.02.12 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.

19.            I add for the sake of completeness that the Secretary of State’s point about the tribunal having erred in law for not putting to the appellant in the hearing that he was exaggerating (page 98) is not a good one.  The authorities on which the Secretary of State relies for this proposition, and especially CSDLA/268/2006, in fact say the reverse.

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 14^th May 2013