Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/1279/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 16 March 2011 is set aside and the case is remitted to a differently constituted panel for determination.

REASONS FOR DECISION

1. This is an appeal brought by the claimant with the permission of the President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal, against a decision of that tribunal whereby it reduced an interim assessment of 70% made by the Secretary of State in respect of bilateral chondromalacia patellae, lumbar spondylosis, injury left shoulder (1978) and left supraspinatus tendinitis and substituted an interim assessment of 50% in respect of those conditions.

2. The claimant served in the Army from 1970 to 1984 and subsequently claimed disablement benefit under the predecessor of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606).  The claim seems to have been made in 1994.

3. It was accepted that the claimant suffered from bilateral noise induced hearing loss, attributable to service, but the resulting disablement was assessed at 1-5% from 20 June 1994 to 25 July 2005, at 6-14% from 26 July 2005 to 31 May 2007 and again at 6-14% from 1 June 2007 on a final assessment of indefinite duration, which meant that the condition was not tbe taken into account in assessing the claimant’s total degree of disablement (see article 42(4) of the 2006 Order). 

4. However, it was also accepted in 1994 that the claimant suffered from bilateral chondromalacia patellae, attributable to service, disablement from which was assessed at 20% from 20 June 1994 to 25 July 2005 and from 26 July 2005 to 31 May 2007, the latter assessment being upheld by a pensions appeal tribunal.  In 2007, it was accepted that he also suffered from lumbar spondylosis, aggravated by service, and an injury to his left shoulder (1978) and left supraspinatus tendinitis, both attributable to service.  A composite assessment of disablement of 50% was made from 1 June 2007 to 1 July 2008, and composite assessments of 70% were made from 2 July 2008 to 27 April 2009, from 28 August 2009 to 23 February 2010. from 24 February 2010 to 18 May 2010 and, on 2 December 2010, from 19 May 2010 on an interim long term assessment.  An award of mobility supplement was made following an examination on 24 May 2010, but I am not sure from what date.

5. It was against the assessment decision dated 2 December 2010 that the claimant appealed to the First-tier Tribunal. 

6. He also appealed against a decision given at the same time to the effect that that “soft-tissue injury to lumbo-sacral spine (2010)” was neither attributable to, nor aggravated by, service.  I need not consider whether that was properly regarded as a separate “entitlement” appeal.  It was conceded during the course of the hearing before the First-tier Tribunal that “soft-tissue injury” should be regarded as “part and parcel” of lumbar spondylosis, but it was also asserted on behalf of the Secretary of State that all back disability had already been included in the existing assessment.  On that basis, the “entitlement” appeal seems to have been unnecessary if it was not actually invalid.

7. In relation to the assessment, the First-tier Tribunal said –

“3. The Tribunal had before it the submission papers for the Assessment Appeal and the oral evidence of the appellant. The Tribunal thanks the appellant for the direct and clear oral evidence that he gave the Tribunal. The Tribunal relied on that oral evidence for reaching its decision recited at paragraph 12 below.

4. The appellant was warned by the Tribunal at the start of proceedings that the Tribunal is required to consider on an assessment appeal whether to maintain, increase, or reduce an assessment under appeal before the Tribunal. The appellant was not represented but he has himself the experience of previous appeals before Tribunals including an assessment appeal in which the assessment was reduced. The appellant confirmed that he understood and wished to continue with his appeal. The appeal proceeded as an entirely fresh hearing based only on the paper and oral evidence before it.

5. The appellant told the Tribunal that his worst problems were his lumbar spondylosis and his injury left shoulder attributed condition. The act of reaching with his left shoulder was painful. Lifting a weight was also painful. Few details were provided to the Tribunal of the limits to reaching and weight lifting experienced by the appellant and the Tribunal drew its conclusions from the over all totality of the paper and oral evidence together with its observations of the appellant during the hearing. These observations were put to the appellant during the hearing. The limit to the function of lifting put to the Tribunal was that he could not lift a bag of household table sugar. The appellant said that pain killers took away "the edge" of experienced pain. The appellant chooses not to take painkillers on a daily basis. The appellant has not taken up suggestions of a referral to a pain clinic. He is awaiting further medical advice about possible angina and the effects of any interaction between medication and pain management where angina is also present. He has had physiotherapy and a shoulder injection. The appellant said that his shoulder was "useless" but this is inconsistent with the observations of the Tribunal. The appellant demonstrated upper limb and torso facility and fluidity inconsistent with such a high level of incapacity. The appellant lifted and handled case papers. He handed a bundle of papers to his attending carer, (his niece), with forward and straight bilateral arm movements. The appellant extended his left arm forwards across the table at the venue and then diagonally across his chest with deft and fluid movements. He made rapid arm gestures and leant on his left arm on the table.

6. The appellant told the Tribunal that he has back pain that radiates to both legs. His G.P. refers to back problems at (37). The appellant told the Tribunal that his niece is on 24 hour call out in case he has problems with his back. On one occasion he became stuck on the bathroom floor with a back spasm. The appellant has started to use a walking stick from about a month before the hearing on 16.03.2011. He confirmed that his back problems remained about the same as at during or about the time of the decision appealed against. The Tribunal did take into account the reference in the War Pension — Review Consideration — Assessment at (2) to deterioration but clearly, in the light of what the appellant said to the Tribunal, such deterioration was insufficient to be material to the Tribunal decision.. The appellant told the Tribunal that he can walk 50 to 75 metres before he needs to stop because of pain. The appellant drives a vehicle himself for short journeys. He was driven to the venue on a 1.5 hour journey from Carlisle. He sat for this journey without a stop. The appellant sat during the hearing from 13.40 p.m. to 14.45 p.m. The appellant then stood up. He then sat from just after 14.45 until 15.35 p.m. He had walked about 75 metres from the car park to the venue reception, and then from there along a lengthy corridor to the hearing room. He said this was a slow and painful process however he was observed to walk smartly into the hearing room and to sit upright. He told the Tribunal that he does not use public transport because he is unsafe on his feet. The appellant finds stairs difficult. He has greater difficulty going downstairs than upstairs. He goes to a local shop about 150 metres away and stops once on the way. He supermarket -shops on a Wednesday each week together with his niece. He can deal with his own I laundry but his niece does the ironing. He can hoover with a cylinder hoover.

The appellant confirmed that he washes and shaves himself. He can shower with an over the bath shower and he can dry himself afterwards. He does not need help with getting over the bath for this purpose. He prepares adequate meals for himself short of preparing a full roast.

The appellant stated that his sleep was disturbed but particularly singled- out non-accepted COPD as being a cause.

The appellant did not display depressive features typical of many appellants with 70% assessed disability and depression was not claimed by the appellant to be contributory to disturbed sleep. The appellant rotated his torso whilst sitting and he leant back and forth with apparent ease. On occasion he put both arms behind his back and placed his hands on his waistline.

7. Other medical conditions referred to by the appellant included angina. However at the time of the hearing the only diagnosis as such was non specific chest pain. He referred to COPD but again there is not evidence of a confirmed diagnosis. Neither conditions are attributed conditions. The appellant said that he had been to A & E on 12 occasions during 2010 because of falls. There is no musculo/skeletal or neurological medical evidence before the Tribunal to explain why the appellant should be so prone to falls.

8. The appellant told the Tribunal that he does not go to work "because of all the problems that I have had". The observations of the appellant's movements and functioning recited above were put to the appellant to invite his comments. In response he told the Tribunal that he was having a good day on the occasion of the hearing and that his medication was working. He said that he had no choice but to sit for the duration of the hearing (and by implication for the journey to and from Carlisle). He said that he has a high tolerance to pain and that he can adapt. The Tribunal took into account that on other days the appellant might be less functional but it concluded that, on the basis of the totality of the evidence, the appellant would be unlikely on "bad days" to be materially less able to function than the level apparent on the day of the hearing.

10. In carrying out its duty to arrive at a fair and proportionate decision based on the evidence obtained within the context of an inquisitorial process the Tribunal also paid regard to the maxim of Carnwath L.J. in [2009] EWCA Civ 1043. He referred to the Armed Forces Compensation Scheme as "....a practical scheme intended to work broad justice". That maxim is equally applicable to the SPO even though the instant SPO assessment appeal is based on very different facts.

11. The Tribunal of three members is unanimous in concluding that the appellant is fully assessed at 50% as at the date of the decision appealed against by reference to the appellant's level of functionality and medical circumstances as applied to Article 42.

The Tribunal is aware that this will be a disappointment to the appellant however the interests of justice require a fair, evidence- based, correctly balanced decision to be made.

12. The decision is that the appellant is assessed at 50% from 02.12.2010 to 15.03.2013. The assessment of 50% is a composite assessment for all the attributed conditions. It is not necessary for the Tribunal to apportion assessments between the attributed conditions.”

8. The claimant sought permission to appeal on the grounds that the First-tier Tribunal had failed to refer to the medical boards’ findings and failed to record sufficient findings of fact.  The President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal granted permission to appeal –

“… because I consider it arguable that the tribunal did not attempt to carry out a sufficiently systematic assessment of disablement in accordance with article 42(2)(a) of the Service Pensions Order 2006.”

That seems to be much the same point.  The question is whether the First-tier Tribunal has given adequate reasons for its decision.

9. The Secretary of State resists the appeal.  It is submitted that the observations recorded by the First-tier Tribunal “do not concur with the various board reports”, which it is submitted “depended largely on his self reporting and performance on the day”.  It is also submitted that “[t]he tribunal’s observations, radiological evidence, nature of the disablements and employment history (he drove coaches until 2005) cast some doubt as to whether there is significant overlap and double counting in terms of his back and lower limb function”.  In particular, it is observed that there is no more specific diagnosis in respect of the claimant’s knees than chondromalacia patellae, which merely means “pain in the knees”.

10. In his reply, the claimant points out that, although a previous assessment (presumably that from 28 August 2009) had been reduced to 50% by the First-tier Tribunal on 28 January 2010, the decision of the First-tier Tribunal had itself been set aside on review under section 9 of the Tribunals, Courts and Enforcement Act 2007 and subsequently the Secretary of State had made it clear that he was defending an assessment of 70%, rather than 50%.  The fresh hearing of that case had apparently not taken place by the time of the hearing in the current case.  I am not sure what the current position is.  It is not clear why the cases were not listed together.  Now the Secretary of State appears to be taking a different approach and to support an assessment of 50%.

11. There is some force in the Secretary of State’s points.

12. However. it can be said that the First-tier Tribunal’s observations “depended largely on … performance on the day” in just the same way that the various medical officers’ – strictly speaking, a single medical officer does not constitute a “board” (see article 43(b)(i)) –  observations and clinical findings would have done and, although the medical officers did record a considerable amount of what the claimant said, medical officers are also expected to record informally “observed activities” and take account of them in making their assessments.  It is noteworthy that, although the First-tier Tribunal observed the claimant sitting without apparent discomfort for long periods, the medical officer who examined him on 17 June 2009 observed him sitting on a chair “with obvious discomfort” (doc 19A), although it is fair to say that no such discomfort was recorded as having been observed on 8 October 2010 (doc 47A).  Moreover, the medical officers also recorded clinical findings made after physical examination, which might be expected to be reasonably objective.

13. In any event, the greater difficulty with the Secretary of State’s case is that the reasons now suggested by the Secretary of State in support of the First-tier Tribunal’s decision were not reasons either expressly given by the First-tier Tribunal or necessarily to be inferred from its decision.  The first question that arises on an appeal to the Upper Tribunal is whether the decision of the First-tier Tribunal is wrong in law.  A tribunal errs in law if it fails to give adequate reasons for its decision, even if the decision it gave may have been correct.  Inadequate reasons may not matter if the tribunal reached the only decision open to it, but that cannot be said in this case.  The Secretary of State’s arguments may be relevant to the question of what decision should be substituted for the First-tier Tribunal’s decision if it is set aside because it is wrong in law, but I do not consider them to be relevant to the question whether the decision is wrong in law.

14. The First-tier Tribunal has given ample reasons for not entirely accepting all that the claimant said.  It found him able to do some things that he had suggested that he could not do.  However, given that it accepted that the claimant’s abilities were limited, if it did not accept they were as limited as he said, they needed to make their own findings as to how limited they were.  I appreciate that it is not possible to be precise about such matters.  However, there were two obvious issues in this case.  The first was the extent of the claimant’s ability to lift and carry things.  The First-tier Tribunal rejected the suggestion that the claimant could not lift a bag of sugar.  Interestingly, that suggestion appears only in the judge’s note of evidence.  Both the other members record him as saying that he could not lift a carrier bag full of shopping.  He may well have said both things, but the First-tier Tribunal made no finding as to his ability to lift a carrier bag full of shopping.  The other similar issue is concerned with his ability to walk.  It is not entirely clear whether the statement “He goes to a local shop about 150 metres away and stops once on the way.” Is a recitation of the evidence or a finding of fact.  If the former, the First-tier Tribunal has not made any finding as to the limits of the claimant’s ability to walk.  If the latter, which would not be inconsistent with its observations, the First-tier Tribunal’s assessment of disablement may have required more explanation.

15. As far as the 2006 Order goes, the First-tier Tribunal was right in saying that it is not necessary to apportion a composite assessment of disablement between the relevant conditions.  However, it may be important to make assessments in respect of individual elements of a composite assessment in order adequately to explain the composite assessment.  Quite a lot can be implied from the apportionment in any particular case and, by the same token, the exercise of apportioning the overall disablement between the relevant conditions can help to focus the medical officer’s or tribunal’s mind on the proper relationship between the conditions and the correctness of its overall assessment.

16. In assessing disablement, it is important to remember that 100% represents the degree of disablement necessary for receipt of the maximum amount of disablement pension, described in article 42(5) of the 2006 Order as “total disablement” but actually less than that because Part V of Schedule 1 to the Order makes it clear that very severe, but less than total, disablement attracts an assessment of 100%.

17. It is also important to remember that disabilities may interact or overlap with each other so that a composite assessment may be either greater than, or less than, the sum of the assessments that would be made in respect of the individual conditions were they to be assessed separately, as is recognised in Part V of Schedule 1.  Thus, for instance, the loss of two eyes is obviously more than twice as disabling as the loss of one eye.  On the other hand, the additional effect of a condition that affects a part of the body that has already been affected by another condition may be less than the effect of the first condition alone would be.  Moreover, individual assessments of 20% or more must be certified as a percentage which is a multiple of 10 (article 42(5)) which may involve an element of rounding up and assessments of less than 20% are usually expressed as assessments of 1-5%, 6-14% or 15-19% and this practice is generally applied to the assessments of individual conditions in respect of which a composite assessment is made.  Adding together assessments that might more precisely have been expressed at the lower end of the range covered by figures for the individual assessments may well produce a total assessment of less than the total of the figures for the individual assessments.

18. It is not compulsory to make an assessment in respect of disablement that is not due to service, but doing so may again help to explain a decision, because it will show what proportion of a claimant’s disablement has been accepted as due to service.  Moreover, it is important to remember that, because a 100% assessment does not in fact represent total disablement, the fact that a claimant is suffering from a disabling condition that is not due to service does not necessarily have the effect that the assessment of disablement due to service must be less than 100%.

19. Part V of Schedule 1 also provides useful comparators, enabling medical officers and the First-tier Tribunal to carry out a quick reality check of an assessment by asking themselves whether, taken in the round, the claimant in any particular cases is more disabled or less disabled that a person suffering from one of the injuries in respect of which an assessment of the same percentage is prescribed.

20. In the present case, the Secretary of State’s composite assessment of 70% was based on assessments of 30% in respect of the chondromalacia patellae, 20% in respect of the lumbar spondylosis and 20% in respect of both the injury to the left shoulder and the left supraspinatus tendinitis, which were presumably considered broadly to affect the same part of the body.  Doc 90, which appears to show the assessment made by the First-tier Tribunal on 28 January 2010 (mentioned in paragraph 10) shows a composite assessment of 50% where 30% was the assessment in respect of the chondromalacia patellae, 6-14% was the assessment in respect of the lumbar spondylosis (including pain in both hips regarded as part and parcel of that condition) and 20% was the assessment in respect of both the injury to the left shoulder and the left supraspinatus tendinitis.  I do not know what the reasoning behind that assessment was, because a copy of the First-tier tribunal’s decision has not been included in the documents before me, but the composite assessment would be consistent with a view either that two or all three of the individual assessments were at the lower range covered by the figures for those individual assessments or that the assessment in respect of the lumbar spondylosis should be treated as substantially overlapping with the assessment in respect of chondromalacia patellae.

21. One can see from the First-tier Tribunal’s decision that it regarded the Secretary of State’s composite assessment as too high, but the lack of findings and the lack of any explanation of the weight attributed to the different conditions in reaching the First-tier Tribunal’s composite assessment makes it impossible to say whether or not it the composite assessment was reasonable and was reached in accordance with the law.  It may well have been both reasonable and lawful, but that is by no means clear and the claimant is entitled to reasons that did make it clear.  This is particularly the case where, as here, the First-tier Tribunal has made an assessment that is lower than that made by medical officers on four occasions.

22. I agree with the Chamber President that a systematic assessment was required in this case.  It was important to make findings as to the claimant’s loss of mobility because very limited mobility itself justifies a substantial assessment, whether it was attributable in this case to the pain in the knees, the chondromalacia patellae, or to the pain in the hips due to the lumbar spondylosis.  The lumbar spondylosis was said not merely to cause loss of mobility but also to cause discomfort when at rest and, unless that assertion was wholly rejected, would justify some additional assessment of disablement.  The shoulder injury and tendinitis together give rise to entirely separate disablement.  The rejection of the claimant’s assertion that he could not lift a bag of sugar is insufficient to explain how disabled the claimant was and it is impossible to tell from its decision whether the First-tier Tribunal thought the claimant had been over-assessed at 20% in respect of his inability to reach and lift or not.

23. I am therefore satisfied that the First-tier Tribunal’s decision is erroneous in point of law.  The lack of findings makes it impossible for me to substitute my own assessment without an oral hearing and such an assessment would in any event be far more appropriately made by the First-tier Tribunal.  Accordingly, I remit the case to the First-tier Tribunal.  If there is still another outstanding assessment appeal before the First-tier Tribunal, consideration should be given to the cases being heard together.

Mark Rowland

21 February 2013