Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Upper Tribunal case No.  CE/1136/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: E Mitchell, Judge of the Upper Tribunal

Decision:  The decision of the First-tier Tribunal (22^nd July 2013, Liverpool, file reference SC 068/13/03542) involved the making of an error on a point of law. It is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing. Directions for the rehearing are at the end of this decision.

REASONS FOR DECISION

Summary

• The First-tier Tribunal’s initiative of including summary reasons on decision notices is commended.

• But consistency between summary reasons and those in any subsequent statement of reasons is required. Otherwise, the reasons will be inadequate.

• A Tribunal gave inadequate reasons, amounting to an error of law, because its decision notice said it placed ‘particular reliance’ on a medical report that its subsequent statement of reasons rejected.

Background

1. Mrs A’s claim for Employment and Support Allowance (ESA) was refused by the Secretary of State. He decided that she did not have limited capability for work (one of the basic conditions for ESA: section 1 of the Welfare Reform Act 2007). The Secretary of State’s decision inevitably followed from his finding that Mrs A did not score the necessary 15 points under the Work Capability Assessment (WCA). That finding was itself based on the Secretary of State’s acceptance of a report of a Healthcare Professional (HCP) who had, in the usual way, carried out an ESA-focussed examination of Mrs A.

2. Mrs A appealed to the First-tier Tribunal (“the Tribunal”). Before the hearing, her representatives arranged for her to be examined by a Dr Walker. His report was submitted to the Tribunal. Highly favourable to Mrs A, the report indicated which WCA points-scoring descriptors the doctor thought applied. The combined total was more than 15 points.

3. The Tribunal refused Mrs A’s appeal on 22^nd July 2013, following a hearing at which she gave oral evidence. The Tribunal did, however, award 6 WCA points for difficulties with social engagement.

4. Having been refused permission to appeal by the First-tier Tribunal, Mrs A applied to the Upper Tribunal.

5. I granted Mrs A permission to appeal. One of the grounds on which permission was granted related to an apparent inconsistency between the wording on the Tribunal’s decision notice and its statement of reasons. The other concerned the Tribunal’s analysis of the evidence.

Incompatibility between summary reasons on decision notice and statement of reasons

The First-tier Tribunal’s new approach to decision notices

6. I understand that the Social Entitlement Chamber of the First-tier Tribunal has recently introduced a new form of decision notice. This encourages a Tribunal to include a summary of its reasons, but not necessarily full reasons, on the decision notice itself. In this case, a summary was given. Subsequently Mrs A exercised her right to a full statement of the reasons for the Tribunal’s decision.

7. This new approach is capable of doing good. When a person’s ESA appeal is refused, the inevitable response is to ask why. Answering that question quickly and accurately is an important part of the system’s accessibility. The technical legislative language that used to form the contents of most ESA decision notices must have been bewildering for some appellants. The ‘but why?’ question would remain unanswered. I am also sure that answering that question more quickly could bring efficiency savings by reducing requests for full statements of reasons.

8. However, care must be taken when drafting the summary reasons section of a decision notice. The wording used must reflect the process of reasoning actually deployed by the Tribunal. If formulaic wording is used, there must be a check against reality. Otherwise, the purpose of the decision notices initiative will be undermined.

Comparing the decision notice and statement of reasons in this case

9. This Tribunal’s decision notice, refusing Mrs A’s appeal, was issued on the day of the hearing. It said that “in reaching its decision the Tribunal placed particular reliance upon the evidence of Dr Walker” as well as the HCP’s report. That was surprising because Dr Walker’s report was strongly supportive of Mrs A’s case.

10. I now come to the Tribunal’s subsequent statement of reasons, issued about two months after the hearing. At the beginning, it says “this statement is to be read together with the decision notice issued by the tribunal”. It goes on firmly to reject Dr Walker’s report. Paragraph 7 of the statement says “[Dr Walker’s] estimate of walking ability was not helpful as he could only test over a limited distance”. Paragraph 10 says “mental health – we did not find Dr Walker’s report particularly helpful in respect of mental health because it concentrated purely on what she told him and did not address the descriptors, which we had to consider. He did not claim to have any special knowledge of mental illness”.

The need for consistency as a matter of law

11. The Tribunal’s statement of reasons and its decision notice are to be read as one. That follows from the statement’s declaration that it is to be read with the decision notice. There is nothing wrong with this approach. The Tribunal in seeking to comply with its duty to produce a written statement of reasons for its decision is entitled to incorporate an earlier partial expression of its reasons (the duty is found in rule 34(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008).  

12. While there may be two documents involved, there can only ever have been a single reasoning process. Therefore, if the contents of the two documents are inconsistent, the Tribunal will not have given adequate reasons. No one can know exactly what the reasons were. In fact, the need for consistency applies even if the two documents are not unified by a statement that they are to be read together (see the decision of Social Security Commissioner Jacobs, as he then was, in CCR/3396/2000).

Conclusion

13. The Secretary of State does not support this ground of appeal. He says the decision notice and the statement of reasons are consistent because the Tribunal must have relied on Dr Walker’s report but “not in a positive way”.

14. This reasoning subverts the natural meaning of reliance in this context and I do not agree with it. The context is the process of weighing evidence. When lawyers speak about relying on a piece of evidence, they mean it supports a particular conclusion. Hence, it incorporates a finding that the evidence is accepted. And so I find that the only rational inference to be drawn from the decision notice was that the Tribunal accepted Dr Walker’s report and used it in a supportive way in the chain of reasoning that led to it deciding that Mrs A did not have limited capability for work. I note how clumsily that last sentence reads because it does not use the term “relied on”. That helps to prove my point.

15. If the Tribunal had wanted to convey that it considered both medical reports but preferred one it would have said something like ‘we took into account both medical reports but preferred that of the Healthcare Professional’.

16. To conclude, the inconsistency between the decision notice and the statement of reasons meant that the Tribunal’s reasons for its decision were inadequate. As Dr Walker’s report was highly supportive of Mrs A’s case, it was a material error of law. The Tribunal’s decision must be set aside.

Inadequate reasons for rejecting Dr Walker’s report

17. The second ground of appeal can be dealt with shortly. It is supported by the Secretary of State.

18. The Tribunal’s reasons for not relying on the mental health aspects of Dr Walker’s report included that “it did not address the descriptors”. This refers to the points-scoring elements of the WCA. However, this description of Dr Walker’s report was simply wrong. It clearly set out which descriptors he thought applied to Mrs A. The reasons given for rejecting the report were based on such an obviously flawed understanding of the report as to render them irrational. That is an error of law.

19. The fact that I have concentrated on only two aspects of the Tribunal’s reasoning is not to be taken as an endorsement of any other aspect of its reasoning.

What happens next?

20. There will now be a complete rehearing of this appeal before a differently constituted First-tier Tribunal. The new Tribunal will decide the appeal afresh. The previous Tribunal’s decision, as well as its findings, are irrelevant and must not be taken into account.

Directions

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, I direct as follows:

(1)   There must be a rehearing before the First-tier Tribunal of Mrs A’s appeal against the Secretary of State’s decision of 29^th August 2012. The membership of this Tribunal must not include anyone who was a member of the Tribunal whose decision I have set aside.

(2)   Mrs A is reminded that the law prevents the tribunal from taking into account circumstances not obtaining at 29^th August 2012, when the decision under appeal was taken

(3)   If Mrs A has any further evidence that she wishes to put before the tribunal, it should be sent to the First-tier Tribunal’s office within one month of the date this Decision is issued.

(Signed on the Original)

E Mitchell

Judge of the Upper Tribunal

16^th October 2014