Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/234/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Nicholas Paines QC

Decision:  The decision of the First-tier Tribunal involved an error of law.  I set it aside and remit the case to a freshly constituted tribunal for redetermination.

REASONS FOR DECISION

1.              The claimant is a woman born in 1956.  In June 2009, while she was receiving the lowest rate of the care component of a disability living allowance (‘DLA’), she asked for her award to be reviewed and completed form DLA 434.

2.              In it she referred to drowsiness, blackouts, chronic back and leg pain, bilateral carpal tunnel syndrome, anxiety, depression and insomnia.  She claimed problems with walking owing to leg pain and asthma; she said she could walk 100 metres before the onset of severe discomfort, but this was variable; she needed someone with her owing to blackouts and falls.  She claimed a need for help with all the daily activities mentioned on the form, but not a need for supervision.  She attached a letter from a GP at her GP practice, which said that she was on very strong pain relief agents and struggled with walking, with poor balance and gait, compounded by her strong medication which caused blackouts and drowsiness; she was unfit for work and required help with her activities of daily living.  She had been referred to a pain management clinic.  Subsequently the claimant supplied a letter from a pain management consultant which described her as presenting with widespread chronic pain.

3.              Initially, in a DWP decision of 20 July 2009, the claimant’s award was not increased.  The claimant appealed and as a result the decision was reconsidered in October 2009.  The October 2009 decision-maker found that the claimant’s circumstances had changed since the decision awarding the lowest rate of the care component: her mobility and care needs had increased.  The claimant was awarded the higher rate of the mobility component and the middle rate of the care component with effect from the date of the application in June 2009.

4.              With regard to the mobility component, the decision-maker found that the claimant could walk up to 100 metres very slowly and in a poor manner, taking 20 minutes to do so (indicating a walking speed of 5 metres per minute); she was unable or virtually unable to walk.  With regard to the care component, it was found that the claimant had daytime care needs in the areas of washing herself, dressing and undressing, using stairs, eating and drinking, managing communication, and taking part in social activities.  The care was needed frequently throughout the day.

5.              In June 2010 the claimant was asked to complete a fresh DLA questionnaire.  She listed her disabilities as including arthritis or stiffness in her fingers and clicking of her knees.  She rated her walking ability as less than 5 metres with extremely poor balance and falls, because of which she needed to be accompanied.  She again rated herself as needing help with all the activities of daily living, as well as needing supervision. The DWP also asked her GP for a further report.  The GP reported (pages 117 onwards) that the claimant was suffering from chronic back pain, joint pain in her elbows, shoulders, wrists, knees and ankles and from depression, needed help with washing, dressing, feeding and using the toilet, had quite a poor memory – “leaves cooker on, etc” – and struggled to get around due to pain. 

6.              A DWP internal memorandum in October 2010 said the Department had received information casting doubt on the correctness of the 2009 award.  At that stage the further GP report had not been received and a hospital had reported that the claimant had failed to attend an appointment for investigation of her carpal tunnel syndrome.  The memorandum asked a DWP doctor for confirmation that a fresh medical examination report was appropriate.  The doctor agreed and the claimant was examined by an examining doctor, who made a report. 

7.              In the report, dated 6 November 2010, the examining doctor listed the claimant’s conditions as osteoarthritis/back pain, carpal tunnel syndrome, depression, asthma and high blood pressure.  The doctor noted that the claimant only saw her GP for these conditions but was due for referral in relation to carpal tunnel syndrome in her other wrist.  The doctor found her fed up and irritable but not severely depressed, with good recall; she had a full range of head, neck and lumbar spine movement and walked with a crutch with normal gait.  The doctor made a number of informal observations of the claimant’s movements during the assessment, noting a good range of movement and a strong grip on her crutch. 

8.              The doctor found the claimant’s limb function to be full, apart from slight impairment of function in the claimant’s hands.  There was no muscle wasting in the claimant’s limbs or signs of loss of use; she communicated well, was not depressed and was fully aware and orientated.  The assessment suggested the presence of osteoarthritis and carpal tunnel syndrome, but some doubt over asthma; her condition was likely to vary a little day to day, with depression in bouts every few months.

9.              The doctor found the claimant’s gait normal and her balance good on the day of the assessment, but with pain in her joints upon walking; her likely walking speed was slow, 70 metres per minute, but with no need to halt and a likely walking distance of 250 metres before the onset of severe discomfort.  The claimant reported falling, but should be safe with a crutch.  The doctor considered that the claimant could safely perform the daily living activities listed in the medical report form without help, and that her various conditions were stable. 

10.           In a decision dated 22 November 2010 a DWP decision-maker found that the October 2009 decision was made in ignorance of material fact.  The November 2010 decision-maker contrasted the evidence available to the October 2009 decision-maker – which, it was noted, was not accompanied by clinical findings – with the evidence from the examining doctor.  The November 2010 decision-maker also noted that the October 2009 decision-maker had accepted that that the claimant could only walk 100 metres in 20 minutes in a poor manner and that she needed frequent attention throughout the day.  The decision-maker contrasted that view of the facts with the recent findings and observations of the examining doctor, including that the claimant had full function of all limbs, apart from slight impairment in her hands, was fully aware and orientated and had good memory and recall.

11.           The decision-maker concluded that the claimant’s pain was “distinct from severe discomfort or an inability to perform tasks involved with self-care” and that the criteria for the award that was made in October 2009 would have been regarded as not satisfied if the October 2009 decision-maker had been fully aware of the medical facts.  The October 2009 decision was superseded and neither component of DLA was awarded with effect from 22 November 2010.

12.           In January 2011 the claimant supplied a letter from a GP in the claimant’s GP practice dated 11 January (page 175), saying that she had dizzy spells, had pins and needles in her right hand and legs, was unable to walk more than 50 yards, had difficulty in performing her daily activities and was helped by her children; a list of recent medication was attached.  The decision was reconsidered but not changed. 

13.           The November 2010 decision-maker does not appear to have noticed that the claimant had had an award of the lowest rate of the care component prior to the October 2009 decision; nor did the decision-maker who reconsidered the November 2010 decision.

14.           The claimant appealed, saying that she could not cook a main meal, needed help with personal care and was virtually unable to walk outdoors.  She attached a further letter from another GP in the practice dated 19 January 2011 (page 3), listing her conditions and saying that she struggled with mobility, walked a maximum distance of 50 metres with a crutch and struggled with personal care, most of which was done by her daughter.

15.           In March 2011 the claimant’s representative supplied a further letter from another GP in the practice dated 21 February (page 183 onwards), again listing the claimant’s medical problems and saying that she was being investigated in hospital for blackouts and faints and that she claimed to be unable to cook a hot meal; her carpal tunnel syndrome caused pain in her hands and arms most of the time and she claimed to have constant pain in her legs and back and found it difficult to go up and down stairs.  A list of her medication was supplied. 

16.           The appeal came before the First-tier Tribunal in September 2012.  The claimant attended with her representative; the DWP was represented by a presenting officer.  There was debate about whether the case was one of ignorance or mistake as to material facts or simply one of different views of the facts being taken in October 2009 and November 2010; in addition, the claimant gave evidence.  The tribunal dismissed the appeal and confirmed the November 2010 decision.  They found that there had been “ignorance or mistake as to a primary fact” in October 2009 and that if it had been known then that the claimant had been “able to perform all her bodily functions without help from another, cook and prepare a main meal and had the mental competence to carry out all those tasks and that she was able to walk 250 metres before the onset of severe discomfort” then it was likely that no award of any component of DLA would have been made.

17.            In summary, they concluded that the evidence of the claimant’s diagnoses, medication and treatment and the report of the examining doctor contradicted the finding that she had been entitled to DLA in 2009.  The tribunal made some findings about the claimant’s activities, including driving a car with manual transmission, and her functional abilities both physical and mental.  Their conclusion was that she did not meet the criteria for any award of DLA.

18.           The tribunal gave reasons for preferring the examining doctor’s report to the GP’s report of October 2010.  These were that the GP relied heavily on what the claimant had told him about her needs.  The tribunal did not suggest that a GP should not rely on what a patient said, but the GP did not appear to have clinical findings to support the contentions in the report about the claimant’s limitations.  The tribunal noted that the claimant had been discharged from the pain clinic and was taking Pregabalin; it did not seem that she was being treated for uncontrollable and unremitting pain.

19.           The claimant’s representative sought permission to appeal.  A First-tier Tribunal judge refused permission.  The claimant sought permission from the Upper Tribunal, adding further criticisms of the examining doctor’s report and the tribunal’s consideration of it.  Judge Turnbull gave permission to appeal, finding two of the points made in the representative’s first letter to be arguable but professing himself ‘very doubtful about the remainder of the grounds’.  The two grounds he found arguable were (a) that the tribunal had not dealt with the evidence from GPs at pages 3 and 183 onwards and (b) that they had found it unlikely that the claimant suffered blackouts without dealing with the evidence that the claimant was being investigated for blackouts in hospital.

20.           The Secretary of State does not support the appeal.  He submits that the tribunal were entitled to find that the October 2009 decision had been erroneous on the basis that the clinical findings of the examining doctor in November 2010 were not consistent with the level of needs claimed by the claimant in 2009, and that the tribunal were entitled to make the findings of fact they made on the basis of the examining doctor’s evidence.  He submits that the tribunal had given adequate reasons for disagreeing with the evidence of one of the GPs and, since the evidence of the other GPs was similar to that, any error in not dealing specifically with it could not have affected the outcome.

21.           In reply the claimant’s representative points out that the “information which casts doubt on the correctness of the current award”, referred to in the internal memorandum has not been produced (I can see no reason why it ought to have been; it is for the DWP to decide what evidence adverse to a claimant it puts before a tribunal).  The representative submits that the examining doctor’s opinions are not facts.  A number of criticisms are made of the examining doctor’s report and of the DWP’s decision under appeal.

22.           I directed the Secretary of State to make a submission on whether the tribunal had erred in law either because (on my then understanding of the case file) it did not have before it the material relied upon by the October 2009 decision-maker or because it had confused ignorance of fact with the reaching of an opinion which the tribunal did not share. 

23.           The Secretary of State submits that the tribunal did not do that, referring to R(S) 4/86 and CDLA/2160/2003 where a distinction is drawn between findings of ‘primary’ fact about what a claimant can and cannot do and the finding of ‘secondary’ fact as to whether a claimant is or is not entitled to an award of benefit.  He also informs me (having checked the position) that the material relied on in October 2009 was the form DLA 434 and the letters from the GP and the pain management consultant referred to in paragraph 2 above.  The claimant’s representative made a submission in response, again criticising the examining doctor’s conclusions.

Grounds for supersession

24.           Cases, like this one, of supersession on the basis that the facts are different from what they were accepted to be in the decision being superseded, raise some conceptually difficult issues.  In the present case the difficulty is compounded by the fact that three successive decisions are in issue:  the October 2009 decision superseded the then existing award (which I shall refer to for convenience as ‘the first decision’), substituting the middle rate of the care component for the lowest rate and adding the mobility component at the higher rate.  The decision presently under appeal – making a nil award – did not merely supersede the October 2009 decision; it superseded it with a decision that also superseded the first decision by taking away the award that the first decision had made.  Judge Turnbull’s decision in R(DLA) 1/06 establishes that in these circumstances grounds for supersession must exist not only in relation to the October 2009 decision but in relation to the first decision also.

25.           The distinction between a difference of opinion and a mistake or ignorance of fact is an elusive one.  The decisions referred to in The Secretary of State’s submission in response to my direction (see paragraph 23 above) are valuable in illuminating the position, as is the decision of the Court of Appeal in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, reported as R(DLA) 6/01.

26.           Supersession is in principle available on the grounds that a change of circumstances has occurred since the previous decision (regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) or that the previous decision was made in ignorance of, or was based upon a mistake as to, some material fact (regulation 6(2)(b)(i) of those Regulations).  Cases occur – like the present one – where a decision-maker forms the view that a claimant’s condition is not such as to entitle the claimant to an award made in a previous decision.  That decision-maker may or may not have information about why the earlier favourable decision was made; that will depend on what records are available.  A tribunal hearing an appeal from a supersession decision are in the same position.  In the present case there is information about why the October 2009 decision was taken, but not about why the first decision was taken.

27.           Where there is information about why the previous decision was taken – for example, in this case, evidence that the October 2009 decision-maker considered that the claimant could only walk 100 metres at a speed of  one metre in five minutes – it is in principle open to a decision-maker or a tribunal that has concluded that the claimant can now (i.e. as at the date of the supersession decision) walk 250 metres to reason that either the previous decision-maker was mistaken or the claimant’s walking ability has improved; they do not need to decide, in a situation where supersession is to be prospective, which of those two things is the case. 

28.           Inevitably, the decision-maker or tribunal’s view of the claimant’s walking ability will be an opinion.  Health professionals very often have to form opinions about a patient’s condition and physical or mental abilities on the basis of what they find on clinical examination, what they observe and what a patient says about their condition and their activities.  It is not a valid criticism of the conclusion reached to say, as the claimant’s representative does, that it is an opinion. 

29.           A decision-maker and a tribunal have to do much the same, on the basis of what health professionals have reported and, in the case of a tribunal, on what they see of a claimant at the hearing and what the claimant tells them.  It is part of the function of a tribunal to reach conclusions of fact in this way.

30.           Doing so will often require the tribunal to choose between conflicting medical assessments; it is a matter for the tribunal to decide what expressions of opinion they find persuasive. 

31.           But, in order for supersession to be permissible on the grounds set out in regulation 6(2)(a)(i) or 6(2)(b)(i), the decision-maker or tribunal must be able, having reached their conclusion as to what the facts now are, to say that those facts have either changed or been assessed wrongly in the previous decision.  Social security decision-making can often involve reaching decisions on questions that are matters of impression and/or involve applying standards that are inevitably imprecise; whether a claimant needs attention ‘frequently throughout the day’ would be an example.  Borderline cases can arise in which different decision-makers could reach the same conclusions as to (for example) the extent of a claimant’s disability but nevertheless come to opposite conclusions on whether the claimant’s disability entitled them to a particular rate of DLA or not.

32.           For this reason, a decision-maker or tribunal dealing with a supersession decision must be able to say that the facts are different from how the previous decision-maker assessed them, and to exclude the possibility that the previous decision-maker took the same view of the facts but regarded them as falling on the other side of the line between entitlement and non-entitlement.  In that second situation it would not be possible to say either that the previous decision-maker had been wrong about the facts, or that they had changed.

33.           This should not be too difficult where the decision-maker or tribunal has a record of the previous decision-maker’s findings of fact.  It will be possible to compare the previous findings with the new findings.  The position is more difficult where no record of the previous findings is available.  In that situation the decision-maker or tribunal will have to consider whether the facts as they now appear are ones on the basis of which no reasonable decision-maker could have made the award that was made on the previous occasion.  If that is the position, the decision-maker or tribunal can assume that either the previous decision-maker assessed the facts wrongly or they have changed.  That is because it is improbable that the previous decision-maker reached an irrational decision, making it more probable that the facts were mis-understood or have changed.

34.           This is not an easy exercise to undertake.  Human nature is such as to make it easy to under-estimate the extent to which another decision-maker might come to the opposite conclusion to one’s own on whether a claimant with a particular set of disabilities is entitled to an award of benefit. 

35.           That is the judgment the tribunal ought to have made in this case in respect of the award to the claimant of the lowest rate of the care component in what I have called the ‘first decision’, before they could supersede the October 2009 decision with a decision that superseded the award at the lowest rate made in the first decision.  They did not attempt to make that judgment, because R(DLA) 1/06 was not drawn to their attention. That was an error of law, with the consequence that I must set aside their decision unless I decide that the error could not have affected the outcome.  I am not in a position to decide that the error could not have affected the outcome or to take the decision myself, for reasons that I go into below. I therefore set the decision aside and remit the case to a new tribunal.

36.           I consider that the present tribunal identified an adequate basis for superseding the award of the higher rate of the mobility component that was made in the October 2009 decision.  They record the claimant’s assertion in form DLA 434 that she could only walk 100 metres in about 20 minutes (though it would have been preferable to record the October 2009 decision-maker’s finding to that effect, which appears on page 62) as well as their own finding, on the basis of the examining doctor’s findings and opinion, that the claimant could walk 250 metres before the onset of severe discomfort.  (It will, of course, be for the new tribunal to make its own assessment of the claimant’s walking ability in November 2010.)  Having made that finding, the tribunal did not consider whether the claimant’s walking ability had improved, but there was nothing to suggest that it had.  They therefore concluded that the claimant’s walking ability had been assessed wrongly in 2009. 

37.           The tribunal’s process of reasoning in relation to the care component was less thorough.  They did not refer to the findings of the October 2009 decision-maker as to the care activities with which the claimant did or did not need help, recorded at pages 62-63 of the papers, referring only to her assertion on form DLA 434 that she had problems making light snacks because of numbness and had chronic leg pain and breathlessness.  They stated a sweeping conclusion that the claimant needed no help at all, in the terms that I have quoted in paragraph 16 above.  It would have been preferable for the tribunal to have engaged with the 2009 findings.  A further difficulty with the statement of reasons is that the tribunal later say that the claimant “would be able to do most things for herself as far as her self caring is concerned” (my emphasis), apparently admitting of the possibility that she did have some care needs.  This apparent contradiction of the earlier statement leaves the reader unclear as to precisely what assessment the tribunal made of the claimant’s abilities. 

38.           The law requires the tribunal to give an adequate statement of the reasons for their decision.  A statement of reasons is adequate if it tells the reader why a tribunal reached the decision they reached, in sufficient detail to show whether they applied the law correctly.  The reasoning in relation to care needs does not do so, as it leaves the reader in doubt as to what the tribunal’s findings were. 

39.           I have referred to the tribunal’s failure to consider whether grounds for supersession existed in relation to the first decision awarding the lowest rate of the care component.  In the absence of information about the basis upon which that decision was reached, the test that the tribunal ought to have applied is the one that I have discussed in paragraphs 33 to 35 above.  I cannot say that the tribunal’s failure to apply it could not have affected the outcome, because I cannot exclude the possibility that, if they had asked themselves whether no reasonable decision-maker could have awarded the lowest rate of the care component, they would not have been able to say that that was the case.  That is particularly so in view of the sentence that I have discussed above, appearing to recognise some care needs.

40.           Nor do I consider that it would be appropriate for me to attempt decide the question myself.  DLA decision-making at First-tier Tribunal level involves panel members with medical and disability expertise not available in the Upper Tribunal.  I must therefore remit the case to a freshly constituted First-tier Tribunal, which should determine all the issues afresh.

41.           The Secretary of State should investigate whether records of what I have called the ‘first decision’ exist and, if so, produce them to the new tribunal.  It may be possible to simplify the new tribunal’s task.

42.           I shall only deal briefly with some of the claimant’s representative’s other grounds of appeal, to the extent that doing so might assist the new tribunal. 

Criticisms of the examination report

43.           Paragraph 6 on page 224 of the papers refers to the printed form of DLA examination report, which asks whether the claimant can safely do a number of things, either with or without help.  The claimant’s representative suggests that, because the word ‘safely’ is not part of the statutory criteria, it is an error of law for tribunals to accept the answers.  There is no force in this.  The reference to safety is plainly intended to enable the reporting healthcare professional to record a need for supervision.  Tribunals must of course apply the statutory criteria, but they can have regard to the answers given on this page of the form.

44.           Various other criticisms are made of the examining doctor’s reasoning.  It will be for the new tribunal to assess the report.  Discussion of whether this tribunal’s handling of it was within the bounds of the law will not assist the new tribunal in deciding, as judges of fact, what conclusions they should draw from it.

The tribunal’s treatment of the material from the claimant’s GP practice

45.           Two complaints are made here: that the tribunal failed properly to evaluate the claimant’s GP’s report and (a ground that Judge Turnbull found arguable) that the tribunal did not deal with the later correspondence from other GPs in the practice.

46.           The later correspondence was three letters dated 11 and 19 January and 21 February 2011.  I have summarised their contents in paragraphs 12 and 15 above. The statement of reasons dealt with the GP’s report of October 2010, which I have also summarised above, but did not deal with the 2011 letters.  All of these documents were written by different GPs in the practice. 

47.           Again I do not consider that the new tribunal would be assisted by a discussion of whether the tribunal’s handling of the GP’s report of 2010 was within the bounds of the law.  They will reach their own conclusions on the medical issues.  I agree with Judge Turnbull that the tribunal ought to have dealt with the later GPs’ letters; the new tribunal should do so. 

Rejection of the claimant’s evidence about her level of pain

48.           It is not the case that the tribunal gave no reason for not accepting the claimant’s assessment of her level of pain.  The words quoted in paragraph 18 of the grounds are not well expressed, but amount to saying that the level of the claimant’s pain medication was not such as to suggest that she was being treated for a high level of pain.  The new tribunal will reach their own conclusion on this.  The claimant’s representative has referred to Judge Jacobs’s well-known decision CDLA/902/2004; I do not consider that the new tribunal need any particular guidance from me.

Blackouts

49.           The GP’s letter of February 2011 also contained the information that the claimant was being investigated for blackouts.  Judge Turnbull found it arguable that the tribunal erred in failing to deal with this.  On further consideration I do not consider that there was an error of law here.  The tribunal dealt with the issue of blackouts in the statement of reasons, where they pointed out that the claimant had not been told not to drive on account of blackouts, and was still driving.  The tribunal were entitled to consider that, if the investigation referred to by the GP (which presumably took place in 2011, the year before that of the hearing) had shown that the claimant suffered recurrent blackouts, she would have been told not to drive; this had not happened.  This is not to be taken as any sort of direction to the new tribunal as the conclusion they should reach on the issue.

Judge Nicholas Paines QC

24 January 2014