Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                  Case No.  CDLA/4384/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

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

In view of the unacceptable delay in the production of the statement of reasons by the judge in the previous hearing, the First-tier Tribunal should consider expediting the rehearing of the appeal.

The appeal relates to the claimant’s entitlement to benefit from 10 February 2012, based on the evidence of her needs at the date of the decision under appeal, that is 10 November 2011.  Contrary to the advice which her mother states that she has received, it is open to the claimant to make a fresh claim for DLA at any time without awaiting the outcome of this appeal.  If such a claim is made, the tribunal should be notified and the decision it comes to will only cover the period to the day before the commencement of the period covered by the new claim.  I express no view as to the likely outcome either of this appeal or of any fresh application for benefit.

REASONS FOR DECISION

1.    In this case the claimant, who was born in 1982, has numerous health problems which I do not need to set out in full.  She had been awarded the higher rate of the mobility component of DLA and the highest rate of the care component from 29 April 2009 to 9 February 2012.  In October 2011 she made a renewal claim, but on this occasion a decision maker decided on 10 November 2011 that she did not qualify for an award of either component at any rate.  The claimant appealed and her appeal was initially heard by a tribunal on 18 May 2011, when it was adjourned because the tribunal was not ready to proceed for lack of medical evidence (file, p.165), directions being given for the obtaining of medical evidence from the claimant’s GP.  I note that the claimant appears to have thought that the tribunal on that occasion was proposing to make an award in her favour, but needed some medical back-up.  However, the decision notice makes it plain that that was not the case and indeed disqualifies the tribunal members from having any further involvement in the appeal.

2.    Medical records were obtained and the matter was relisted on 18 September 2012 before a different tribunal.  The claimant attended, gave evidence and was represented.  After adjourning to consider its decision, the tribunal gave its decision that day dismissing the claimant’s appeal.  A statement of reasons was requested in mid-October, and the request was passed to the judge chairing the tribunal on 16 October 2012.  Despite reminders, it was only in late May 2013 that the statement was prepared and it was issued only on 3 June 2013.  The excessive delay in this respect led to a complaint being made, and the regional judge concluded that while there were some mitigating circumstances, the delay fell short of proper professional standards.

3.    Regulation 2(1) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 sets out that the overriding objective of those Rules was to enable the tribunal to deal with cases fairly and justly.  Rule 2(2)(e) provides that dealing with a case fairly and justly included avoiding delay, so far as compatible with proper consideration of the issues.  Rule 34(5) provides that if an application for a statement of reasons is made by a party within a month of the date the decision notice is sent or otherwise provided to that party, the tribunal must, with one exception which is not relevant here, send a written statement of reasons to each party within one month of the date on which it received the application or as soon as reasonably practicable after that date.

4.    In giving permission to appeal I directed the First-tier Tribunal to explain why it took over 7 months to issue the decision and how the tribunal judge could be satisfied over 8 months after the hearing that the 9 pages of reasons that he eventually provided represented the reasons for the decision of the whole tribunal.  With regard to the delay, it is sufficient to say that the reasons given were wholly inadequate and that there was a clear breach of rule 34(5) and that the delay also amounted to a failure to deal with the case fairly and justly.  Fairness and justice require that reasons should be given within a reasonable time and there was no good reason why the statement could not have been provided much earlier than June 2013.  The decision had already been made on the day.  The reasons had been considered on the day and there is no suggestion that any further consultation with the other tribunal members was required or that there was any good reason why the statement could not have been provided within a month of being requested.  The judge had been sent a reminder letter on 10 December 2012, and still did nothing for 6 months despite further letters being sent out.

5.    In giving permission to appeal I questioned whether this might be a procedural irregularity which might justify setting aside the tribunal decision.  In response, the Secretary of State has referred me to a decision of Judge Paines QC in CA v SSWP [2013] UKUT 168 (AAC), where he held that delay (in that case 10 months delay) in providing a statement of reasons did not mean of itself that the statement was inadequate.  It was adequate, he held, if it told the reader why the tribunal came to its decision in sufficient detail to show whether it had applied the law correctly.  Whether it did this was a matter of looking at the content of the statement of reasons, not of when it was provided.

6.    I agree with this, but am concerned at the injustice to a losing party who is entitled to know why she has lost.  To go 7 or 10 months without benefits and without knowing why she has lost, with the consequent delay in her ability to exercise her appeal rights, is an injustice if there is no good reason for the delay.  It is also a procedural irregularity with the tribunal in breach of its own rules.  Nevertheless, I agree with Judge Paines QC that excessive delay of this sort is not enough to justify setting aside the tribunal’s decision.  That appears to follow from the decisions of the Privy Council in Cobham v Frett, [2001] 1 WLR 1775 (see in particular at pp.1783-4) and of the Court of Appeal in Bangs v Connex South Eastern, [2005] 2 All ER 316.  Before the delay can become a ground for attacking the decision, “a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay.  The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.”  I would add that in a case where the tribunal judge is giving the reasons of the whole tribunal and not just of himself for a decision given many months before, that it may also be sufficient if there is reason to suppose that the findings and reasons in the statement were not those of the tribunal but were those of the judge alone reconstructed after the event.

7.    In this case I note that the tribunal judge has stated (p.292) that he was able to prepare the statement of reasons from the very detailed notes of the tribunal’s reasons and findings of fact which were written in his notebook during the deliberations which followed the hearing.  The findings and reasons are, in many respects, very full and detailed, and clearly show the influence of the medical member in particular.  I am satisfied that they are an accurate record of what the tribunal as a whole decided at the end of the hearing.

8.    There do, however, appear to me to have been errors in its approach, particularly in relation to the lowest rate of the care component.  The question there was the extent of the claimant’s care needs, which of course refers to the care needs she reasonably required, whether they were more or less than that which she received.

9.    The statement of reasons twice states that the claimant bore the burden of proving her claim.  While it is correct that the tribunal must at the end of the day be satisfied on the balance of probabilities as to the facts necessary to show entitlement to an award, it is plain following Kerr v Department for Social Development (R1/04 (SF)) that the appeal process is a co-operative process of investigation in which both parties play there part and in which it should rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof.

10. The role of the tribunal is an investigative one.  It is for the tribunal to investigate the issues which appear from the matters put before it whether or not they are clearly identified as issues by the parties, one of whom, the secretary of state, is rarely represented before it, and the other of whom, the claimant, is often in person or represented by somebody with very limited qualifications.  The burden is on the tribunal to decide the issues on the basis of the facts it ascertains, and this places on it the burden of establishing those facts without regard to any adversarial burden of proof.

11. In the present case the tribunal concluded at paragraph 22 of the statement of reasons that the claimant “had attempted to paint a picture which was the worst scenario in relation to each aspect of her mobility and care needs, a position which on careful questioning by the members of the Tribunal, particularly in relation to care matters, was one the Tribunal felt could not be maintained.”  It went on to give examples of her being able to walk using a tripod walking aid and other walking aids, and the provision of various aids in her home, under a care plan, which assisted her in being independent.

12. As far as I can ascertain from the record of the proceedings she was asked very little about her mental health problems, and very little about her use of her wheelchair.  She referred to seeing a psychiatric nurse in 2011 for her depression and to that having stopped when she moved surgery and then resumed.  There appears to have been no follow up of this line of questioning as to the degree and effects of her depression, although later in  the record she stated that sometimes due to her depression she would forget to take her medication or make a mistake – her mother who lived next door put her medication into a box for her.  She also stated that her OCD was not affecting her too much around the date of the decision and that it did not stop her doing things.  Finally she referred to hallucinations and nightmares, which, at para.28ee of the decision the tribunal found that she could deal with on her own.

13. The tribunal found (para.28qq that the claimant suffered from mild depression but this was not sufficient to affect her functioning. 

14. I can see nothing in this to show that entitled the tribunal to conclude that she was attempting in relation to her mental health issues a worst scenario picture that could not be maintained.

15. I note that claimant states in her appeal letter at p.5 of the file that the main side effect of her ulcerative colitis was that she rarely left her flat except for medical appointments and never socialised with friends any more and, at p.9, that this had remained the case when she moved to Wales to be closer to her family.  She remained indoors and was panicky and anxious.  Her depression had not lifted.  At p.16 she stated that she was too anxious and paranoid to let people into her house and this is said to have caused problems with her carers.  In her renewal claim, she stated that she needed her mother to remind her to get up (p.71) and had to be encouraged to wash and bathe because of her depression (p.73).

16. There is also a letter dated 11 January 2012 from a social worker who had known her professionally since November 2011 (around the time of the decision) and who described the claimant as having depression, paranoid episodes, OCD and various phobias which limited her independence and involvement in social engagements.  The letter (pp.110-111) stated that she was prescribed anti-depressant medication and visited a Community Psychiatric nurse on a regular basis, but that her depression had been made worse by her physical ailments and ill health, and resulted in her spending a lot of time alone indoors, further impacting on her general mood and motivation.  She required a wheelchair indoors some of the time and also out of doors and over long distances.

17. She was still in her nighclothes at 12.55pm when examined by the approved disability analyst (p.126).

18. A care plan dated 5 December 2011 and reviewed on 30 January 2011 (p.151) deals mainly with her physical needs, but in the process refers to the need to have her front path ramped so that she had better access with her wheelchair (p.152), and she indicated at p.153 the sort of activities she would like to pursue with financial assistance.  At p.171, in a statement prepared for the first tribunal hearing, the claimant points out that she needs help when out with her wheelchair and makes it plain that she cannot push it herself.  At p.173 she refers to panic caused by her OCD, and at p.181 she refers to herself as becoming more socially isolated and depressed since losing her DLA.

19. There are several medical reports, including mental health reports, of the claimant failing to attend appointments or to make contact between November 2011 and May 2012 (pp.167, 188, 189, 205 and 206) with failures to attend appointments around the date of the decision and in the following months also referred to in the medical history at pp.221-222.

20. Finally, there are specific references to the claimant’s mental state in the medical records in May and June 2011 (p.218), July and August 2011 (p.214 – the letter referred to at the entry on 1 July does not appear to be on file) and on 25 November 2011 (p.221) where the claimant was seen in a psychiatry clinic and was to be referred to a CBT group because of her depression and confidence issues with an option of “mindfulness2”.  There are further entries relating to her mental state and the proposed ways of dealing with it in two entries for 16 December 2011.

21. It appears to me that very significant mental health problems are suggested by this evidence which the tribunal failed to deal with adequately.  It is plain that those caring for her including both doctors and social workers considered that she had mental health problems which called for treatment.  That treatment – what she reasonably required rather than the very limited resources available to her on the NHS – was attention in connection with her bodily functions.  There is a suggestion that her problems with toilets had led to her having difficulties at least at times dealing with her ileostomy bags, and there is evidence that she had significant problems motivating herself to do basic things such as getting up and getting dressed and keeping appointments as well as getting out to shop or visit friends or go swimming – an activity she has stated that she wanted to do to improve her strength.  Some of this evidence postdates the decision under appeal but may well provide an indication of her reasonable needs at that time.  Again, what the tribunal is concerned with is what she reasonably required and not what she was actually receiving.

22. In addition, she clearly appears to have needed help with her manual wheelchair and this is also assistance in connection with her bodily functions as was made clear in Mallinson v Secretary of State, reported as R(A) 3/94, where Lord Woolf states at pp.32-33:

“Consistently with his submission, Mr. Ouseley argued that, while a onelegged man who was supported when walking or standing if he received assistance from someone else would be receiving attention, the person who has lost the use of both his legs and was therefore pushed in a wheelchair rather than supported would not be receiving attention in respect of his bodily function of walking because he was incapable of performing the function of walking.  Such a result is obvious nonsense and does not cease to be nonsense because there is a different allowance which can be paid for lack of mobility.  The fact that your disability is so severe that you are incapable of exercising a bodily function does not mean that the attention you receive is not in connection with that bodily function.  The attention is in connection with that bodily function if it provides a substitute method of providing what the bodily function would provide if it were not totally or partially impaired.”

23. If the claimant cannot push herself in her wheelchair and it is reasonable for her to use it, then on those occasions she would seem reasonably to require assistance from another person with her wheelchair and that would be assistance in connection with her bodily functions.  That aspect of her needs does not appear to have been dealt with at all by the tribunal.

24. The claimant’s need for assistance by way of encouragement to overcome her depression and by way of pushing a wheelchair to enable her to get to places to which she cannot reasonably be expected to walk are to be judged in the context of the yardstick of a normal life, and it was for the tribunal to make findings as to how much such attention was reasonably required and as to the facts on which those findings were made and the reasons for them (Secretary of State v Fairey, R(A)2/98, at p.41).

25. In my judgment in the present case, the tribunal erred in law in failing to make adequate enquiries as to the claimant’s mental health problems, and as to what was reasonably required to by way of attention in relation to her bodily functions including walking, pushing the wheelchair and dealing with those mental health problems and their consequences.  Further, the evidence of the claimant’s condition that postdates the date of the decision is relevant insofar as it evidences her needs at the relevant date.  For example, the series of failures to attend appointments appears to have started around this time.  While a single failure as at the date of the decision may not have any relevance, if it has proved to be the start of a series of such failures there could be an underlying cause that existed at the date of the decision but could only be identified from the subsequent evidence of repeated failures to attend appointments.  So too the decision of the claimant to give up her car in January 2012 because it was too painful to drive may be the result of a deterioration in her condition that had already existed at the date of the decision.

26. It also appears to me that attention in connection with all her physical and mental ailments, if of a sufficiently close and intimate nature, should be taken into account, including attention from doctors and nurses.  I note that around the date of the decision there appear to have been a significant number of such appointments which are likely to have involved attention in connection with bodily functions.  These also need to be considered as part of the general picture, even though by themselves they would not give rise to any entitlement.  .

27. I therefore set aside the decision and I remit the case for rehearing by a new tribunal.  While I am not satisfied that there was any other error of law in the tribunal’s findings, all issues will be open to the new tribunal.  The fact that the tribunal under appeal has made some findings that I have not found to be wrong in law does not mean that the new tribunal is bound by them and it will be for the new tribunal to come to its own conclusions on the quality of the claimant’s evidence and that of her carers and doctors as well as that of the approved disability analyst.  It will also be open to both the claimant and the DWP to adduce new evidence at the new hearing.  In particular, I am not clear why the tribunal concluded that the care plan, insofar as it provided for support that involved attention in connection with the claimant’s bodily functions and for protection against the risk of falling (p.160), was based only upon what the claimant told the care worker without any form of testing.

(signed)

                        Michael Mark

                        Judge of the Upper Tribunal

                        21 May 2014