Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/1490/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  1. The appeal is allowed.   I set aside the decision of the tribunal and I remit the case to be reheard by a new tribunal in accordance with the directions below.

REASONS FOR DECISION

1.     This is a supported appeal with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 27 September 2012 upholding a decision of a decision maker that the claimant’s existing award of income support based on incapacity did not qualify for conversion into an award of ESA.   That was the effect of the decision (file, p.112), although I note from paragraph 70 of the statement of reasons that the tribunal appears to have thought that it was dealing with a decision superseding an earlier award of ESA.

2.     The grounds of appeal are essentially that (1) the tribunal failed properly to deal with a request for the appeal to be postponed or adjourned pending the outcome of a formal complaint about the conduct and report of the approved disability analyst who examined the claimant and prepared the medical report in the file. and (2) the tribunal gave full weight to the findings of the approved disability analyst without having regard to the criticisms of the claimant and her representative which were in the file before the tribunal.

3.     A written request for a postponement of the hearing dated 8 August 2012 is in the file (p.94).  It would appear from the tribunal papers that this was considered by a tribunal judge who directed on 28 August that the hearing should be listed for the first available date after 25 September to give ATOS 7 weeks from the date of the complaint to respond.  That decision does not appear to have been communicated to the claimant or her representative and does not appear in the tribunal hearing file.  No response had been received from ATOS by 14 September when there was a further letter from the claimant’s representative (p.74) enclosing further evidence and again seeking a postponement.  That letter does not appear even to have been considered by a tribunal judge.

4.     The response of ATOS to the complaint had not been received by the date of the hearing but the hearing appears to have proceeded without any consideration of whether an adjournment was appropriate.

5.     The medical evidence submitted by the claimant indicated that she suffered from RyR1 disease and from non-specific polyarthralgia and widespread musculoskeletal pain.  The record of the medical examination showed that the disability analyst was a physiotherapist and that the examination took 22 minutes.  The first part of the complaint to ATOS was that the examination in fact took only 10-15 minutes most of which time was spent by him googling RyR1 disease of which, perhaps unsurprisingly, he knew nothing.  It was also alleged that he had not read the documents or seen the ESA50 which had been completed by the claimant.

6.     Secondly it was said that no medical examination of any kind took place and the entire assessment was conducted with the claimant seated.  There was also said to be further evidence which the claimant brought with her that was not read, although the tribunal appears to have been unable to identify what that evidence was and it is not spelled out in the letter of complaint.  The complaint then goes on to allege discrepancies between what the claimant told the physiotherapist and what he reported and to assert that the physiotherapist could not properly have come to the conclusions to which he came without a physical examination.

7.     It was plainly the duty of the tribunal to consider whether to adjourn the hearing in those circumstances and to give reasons for its decision in that respect.  It failed to do so.  Further, once it did proceed, and given the weight which it placed on the report, it was obliged to consider the objections of the claimant and resolve any factual disputes with reasons or explain why they were not relevant.  It did deal with the alleged failure to read documents pointing out that the documents before the tribunal either took matters no further or had only come into existence after the date of the decision.  It also dealt with the complaint that there was no physical inspection, stating that the nature of the examination “did not involve much physical contact with the individual, and much of the information is gathered from observation.”  This does not deal adequately with her point that the examination only took 10-15 minutes which she spent sitting in a chair, and that for most of the time the physiotherapist was googling RyR1 with which he was unfamiliar.  Further, while it would generally be the case, as the statement of reasons points out, that a physiotherapist is well placed to examine those with musculo-skeletal problems, he is less well placed if he is faced with a rare condition with which he is unfamiliar and the claimant spends her time in a chair while he tries to find out about it using Google.

8.     The dispute as to the time the examination took is disposed of by a finding that it took 22 minutes without any reference to the claimant’s contentions, still less an explanation why they were not accepted.  The tribunal “gave full weight to the evidence of [the physiotherapist].”  Reasons given included that the report appeared to have given appropriate consideration to all the evidence, including a clinical examination, and the conclusions appeared to be coherent and evidence-based.  Exactly what clinical examination took place despite the contentions of the claimant is not explained, nor is it clear what conclusions the tribunal came to as to her allegation that she spent the time sitting in a chair, or why it came to those conclusions.  The report indicates that there was a clinical examination of her back and limbs (pp.37-39).

9.     For these reasons, it appears to me that the tribunal was in error of law and I set aside its decision and remit the matter for rehearing.

10. I should emphasise that while a tribunal does need to consider whether to adjourn because an ATOS report had not yet arrived, it does not follow that it has to decide to adjourn.  It needs to consider all the matters in issue in the complaint, the likelihood of their being resolved or at least further illuminated by the report, the relevance of the complaints to the matters before it and the likely relevance of any possible response by ATOS in addition to any other relevant matters.  Having considered all relevant matters it needs to decide whether it was better to proceed or to adjourn in order to deal with the case fairly and justly in accordance with the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 (see further MA v SoS [2009] UKUT 221 (AAC)).  It also needs to give reasons for its decision.

11. If, for example, the only complaint is that the reasoning in the report is irrational, it seems to me that there would be no need for an adjournment.  The question of rationality could be considered by the tribunal without the views of ATOS on the question.  Other complaints, for example as to rudeness, may also have no impact on the matters that the tribunal needs to address.  Complaints that relate to the accuracy of factual statements in the report, on the other hand, or as to the failure of the disability analyst to read what should have been read, may or may not result in relevant findings by ATOS.  For example, the analyst may be asked to comment and may concede certain issues or provide explanations as to disputed matters in the report. 

12. The response to the complaint to ATOS in the present case was by letter dated 5 October 2012, just over a week after the hearing.  It is plain that the customer relations medical adviser had read and assessed the report but had made no attempt to resolve any factual issues as to what took place at the examination.  The justifications for the conclusions are described as poor, not really explaining or addressing the descriptor choices in any detail and it was found to be a weak report which suggested that the ESA report was not read properly and that there were some legitimate grounds for concern.  It will be for the new tribunal to decide whether the justifications for the conclusions are poor and whether they address the descriptor choices.  It will also have to resolve the factual issues raised by the claimant, and it will need to consider what the analyst ought to have done, and the extent to which the analyst did what he ought to have done, by way of reading the ESA50 and carrying out the examination and preparing the report.  If it disagrees with the conclusions of ATOS it will need to explain why, but it is also open to it, while disagreeing with the conclusions of ATOS, to conclude that, despite any identified errors it agrees with the conclusions for reasons which it should give.  Even if the tribunal accepts that the report is a poor one and should be disregarded or given little weight, it will still have to determine, on the basis of all the evidence before it, whether the claimant is entitled to convert her previous award to an award of ESA.

(signed) Michael Mark

Judge of the Upper Tribunal

4 December 2013