Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CDLA/2680/2013

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge PA Gray

The decision of the Upper Tribunal is to allow the appeal.  The decision of the Manchester Tribunal made on 18 March 2013 under number SC  946/12/03933   was made in error of law.  under section 12 (2) (a) and (b) (i) Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be referred by a fresh tribunal in accordance with the directions which appear at the end of the reasons for my decision.

The parties indicated that they did not wish for reasons for my decision beyond those I gave in granting permission to appeal. Nonetheless it seems to me that this is a case in which brief reasons may provide guidance for the FTT in their task of analysing evidence particularly in psychiatric cases, and as to the explanation of the test in section 72 (1), which relates to the care component of Disability Living Allowance.

REASONS FOR DECISION

1.               The case concerned a renewal claim for Disability Living Allowance (DLA) by the appellant which was refused by a decision made by the Secretary of State on 11 January 2012.  There had previously been an award of the lower rate of the mobility component and the middle rate of the care component in payment.  The First-Tier Tribunal (FTT) heard the appeal on 18 March 2013, and confirmed the decision of the Secretary of State.  I do not need in this decision to go into details about the appellant's medical conditions, but it aids understanding of the decision to know that she had been diagnosed with emotional personality disorder, post traumatic stress disorder and ADHD. At the time of the decision under appeal she was aged 42.

2.               The appellant's representative attended an oral hearing with her. She sought permission to appeal the decision of the tribunal on two issues. The first was due to comments made in a statement of reasons as to the appellant's credibility, which she felt were unfair in that the tribunal had not given her an opportunity to respond to allegations of deliberate evasiveness. The second point was that that insufficient consideration had been given to the report of Dr P, a consultant psychiatrist.

3.               I gave permission to appeal on a limited basis.  I did not accept the first point. Credibility findings come both from impression and inconsistencies. It is not necessary even in respect of inconsistencies of physical behaviour to put every matter to an appellant, and in relation to impressions from the oral evidence which may be being formed by the tribunal during the hearing and which may only crystallise during the post- case discussion it is not to be expected.

4.               The credibility issue did not end, however, with the tribunal being entitled to make credibility findings without putting their impressions to the appellant. Although the statement of reasons does not say clearly that it found her to be deliberately evasive, stating merely that she gave that impression, the tenor of the paragraph is clearly that they did.  However the tribunal was too quick to assume that the impression they had that the appellant was being deliberately evasive meant that she was. Where there is the possibility that such a presentation may emanate from the complexity of the diagnosed mental health problems, the tribunal must explain such a finding very clearly indeed. It has not done so. 

5.               I turn now to the second point, that insufficient consideration had been given to the written evidence of Dr P, which I felt from the outset had considerable force. 

6.               In the final part of paragraph 9 of the statement of reasons Dr P's evidence is recited but neither analysed nor evaluated. What the statement appears to be saying that the tribunal took account of Dr P's view that the appellant had certain needs, but placed that evidence in the balance against the appellant’s oral evidence of what she was able to do in deciding whether, due to her condition, she required help or support.

7.               Weighing evidence is not about placing apparently competing accounts in a balance, or setting them off against each other. In HL-v SSWP [2011] UKUT 183 (AAC) Upper Tribunal Judge Jacobs said this:

All too often, judges present the tribunal's reasons as if the tribunal had a choice between accepting the evidence of the GP or of the examining medical practitioner. There may be cases where that is so, but in many cases the reports each have their strengths and each have their limitations as an assessment of the claimant's disablement. In those cases, what a proper analysis usually requires is that the tribunal to show a balance between the value that can be distilled from each report and its limitations."

8.               This applies to apparently competing evidence from all sources.  In assessing the value of the appellant's evidence in a complex case such as this the tribunal initially needed to decide from the medical evidence what insight she had into her own condition, and therefore what weight, if any, could be put on her views. The strong impression here is that the appellant’s rather forceful presentation and her account of certain things that she had done overrode the psychiatrist's evidence of her very complex needs. If it was indeed the view of the tribunal that the appellant was a thoroughly capable woman who had hoodwinked her psychiatrist it should have said so, giving detailed and careful reasons for that finding.  To "weigh" the evidence by simply setting the competing accounts against each other, and preferring the appellant's view of her own needs was really to miss the essential point in the case, and the conclusions of fact which were drawn were irrational.

9.               The statement of reasons of the FTT in this case is inadequate in other ways. It is mainly composed of a recitation of the evidence. In the fact-finding and reasoning paragraphs, numbered 8 and 9, there are facts which are not supported by the evidence, and which are therefore unexplained.  There is also contradictory reasoning.  Some of the medical evidence appears to have been minimised in its impact owing to it being insufficiently contemporary with the date of decision, yet the tribunal relies upon matters which were occurring in the appellant's life more recently than the decision, and indeed puts firmly into their reasoning her neat physical appearance at the hearing. 

10.           The reasoning in paragraph 9 is strongly suggestive of the tribunal having applied lower standards in relation to the issue of what attention might be reasonably required than the law demands. The tenor of the paragraph is that the appellant copes with basic hygiene and food, "although with poor diet" but that is not the test.

11.           The tribunal must look at what attention is reasonably required by a disabled person to help them manage their condition so that they may, as far as is possible, live a normal life. See the judgement of Lord Slynn of Hadley in Secretary of State –v- Fairey 1997 1 WLR 799 at 815 where he said "in my opinion the yardstick of a "normal life" is important; it is a better approach than adopting the test as to whether something is "essential" or "desirable". Social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of normal life."

12.           In this case the key to what attention the appellant reasonably requires must begin with an assessment of her psychiatric condition which is graphically set out in the medical evidence.  The full statement does not show that there has been any attempt at proper analysis of that evidence to ascertain what this appellant, who is without physical problems, might require by way of attention. In particular there was a failure to consider attention that may help to motivate her to develop routines, improve her diet, get out and engage in activities of normal living and to quell her anxiety and agitation.  The approach appears to have been instead, that if she is washing, dressing and eating that is sufficient.

13.           These errors in approach, and the lack of rationally based fact-finding and adequate explanation, including the failure in a decision on a renewal claim to explain the difference in the tribunal's decision to the award previously in payment, permit me to set the decision aside as having been made in error of law, and I do so. I remit the case to a differently constituted FTT for rehearing.

14.           The following directions may be added to or changed by a DTJ reviewing the file prior to listing.

DIRECTIONS

1. The rehearing will be an oral hearing.

2. The Secretary of State shall provide a supplementary submission indicating what, if any, decisions on DLA claims have been made since the decision under appeal, 11 January 2012.  Any further awards will limit the jurisdiction of the tribunal.

3. The parties should send to the HMCTS Liverpool First-tier Tribunal office as soon as possible any further relevant written medical or other evidence.  If they cannot send that evidence within 2 weeks of the issue of this decision the parties will need to contact that office to let them know that further evidence is expected. For me to direct this does not imply that any further evidence would be of assistance.

4. The appellant must understand that the new tribunal will be looking at her health problems and how they affected her day-to-day life at the time that the decision under appeal was made, 11 January 2012.  She must consider that aspect in relation to any further evidence she wishes to file.

5. The new panel will make its own findings and decision on all relevant components and levels of DLA.  They will consider all aspects of the case afresh, but they should note in particular the evidential issues that I discuss here. As this was a renewal claim they must give reasons for the difference in any decision they make to the award which was previously in payment.

(Signed on the original) PA Gray

Judge of the Upper Tribunal

24 October 2013