Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CI/1859/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

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

The decision of the tribunal heard on 7 March 2013 under reference SC228/12/04482 is SET ASIDE because its making involved an error on a point of law.

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1     Although both parties agree that the Tribunal’s decision should be set aside, they did not agree on the reasons for doing so.  In the circumstances, even though neither party considered further reasons necessary, it is appropriate to give them, albeit briefly. 

2     The basic facts are that the appellant, who has lived in Spain for a number of years, has had an award of Industrial Injuries Disablement Benefit since 2005 when she was involved in an accident at work.  Her most recent award was of 25% from 27 April 2010 to 26 April 2012, final.  

3     The appellant made an application for this award to be looked at again because she felt her circumstances had changed and the effects of the accident were continuing.  She was examined by a health care professional in Spain, in whose opinion the appellant’s continuing problems resulted from the accident in 2005. 

4     His report was considered by an approved health care professional in the United Kingdom who disagreed with his conclusion on causation and found that any remaining problems were constitutional, and not due to the effects of the accident.  In other words, there was no change of circumstance and no basis to change the award, which expired by effluxion of time.  The Secretary of State accepted the ‘British’ report.  The appellant appealed from abroad, and the case was determined on the papers. 

5     The Tribunal accepted the British report and gave extensive reasons for rejecting the Spanish report.  It did consider adjourning to give the appellant a chance to obtain further evidence, but decided not to because the appellant’s evidence was contradictory, uncertain evidence had been provided so far, and the original accident appeared to have been of low impact and unlikely to have caused more than temporary impairment (paragraph [27]).  But at paragraph [11], the Tribunal said

‘it would appear that at no stage throughout this claim has anyone provided any additional evidence about the nature of the accident nor any medical treatment given thereafter.  The Secretary of State appears not to have sought to obtain medical records.  The appellant has not provided any medical evidence. The only information the Tribunal has are medical assessments based on an examination of the person at the time’.

6     In granting permission to appeal, I took the view that in the circumstances, it was arguable that the Tribunal should have adjourned to give the appellant the opportunity to produce evidence that her continuing symptoms were caused by the index accident.  This was a case in which the appellant lived abroad and had, apparently, been awarded benefit over the years on the basis of foreign reports such as that which precipitated this appeal.  A person appealing a benefit decision from outside the UK may have to cope not only with problems of language, inadequate sources of information and representation, but also lack of access to medical records and to practitioners to whom the requirements of the benefit may less opaque.

7     The appellant agreed with my view that she should have been given the opportunity to submit further evidence that her previous accident continues to be the cause of her impaired function, though she was not sure what kind of evidence that might be.  The Secretary of State, on the other hand, was not convinced that evidence to counter the approved health care professional’s opinion on causation could be produced.  He submits, however, that the Tribunal was wrong to dismiss the evidence from the Spanish doctor as being of no value. 

8     I am unable to agree with the Secretary of State’s submission.  It was up to the Tribunal to decide what weight was to be given to each report and, as I read the decision, it goes much further than rejecting the Spanish report as ‘rubber stamping’ the appellant’s own view of the cause of her impairment.  Paragraphs [13] – [26] of the Statement of Reasons set out its reasoning in detail.  The Tribunal did not pull its punches.  It should be said that, even if the Tribunal did think the report was a ‘rubber stamp’, that is a conclusion that would be open to it, so long as it gave adequate reasons for so thinking.

9     Nor do I agree that the appellant could not produce evidence on the issue of causation of greater substance than that of the Spanish doctor.  The experience of British courts is that medical practitioners often disagree most learnedly on issues of causation.

10 I therefore come back to my original ground for granting permission to appeal:  that, living abroad as she did, in circumstances where the report of the examining local doctor had never previously been disputed, the appellant was at a disadvantage.  Paragraph [11] of the Statement of Reasons sums up the appellant’s position in a nutshell, and pointed to the justice of adjourning to give her a proper chance to make her case. 

11 In the circumstances, I consider that the appeal must be allowed.  It must be remitted to a freshly composed Tribunal for rehearing.  Before the rehearing, a district tribunal judge will undoubtedly give directions.  These may include directions to the appellant to produce medical evidence (including any reports produced for the purposes of litigation) relating to the accident.  It will be up to the appellant to decide what further evidence she wishes to produce and whether she should consult a specialist who can give an opinion on causation. 

12 The appellant’s before the Upper Tribunal is no indication of the outcome of the appeal before the First-tier Tribunal. 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 22 October 2013