Case Nos: CE/4111/2012

CE/3202/2013

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before: MR JUSTICE CHARLES

UPPER TRIBUNAL JUDGE LANE

UPPER TRIBUNAL JUDGE KNOWLES QC

 

 

 

Both Appellants were represented by Zoe Leventhal and Alistair Mills of counsel.

The Secretary of State for Work and Pensions was represented by Joanne Clement of counsel. 

 

 

 

DECISIONS:

 

In both cases the decision of the First-tier Tribunal is set aside and the appeal is remitted to a differently-constituted tribunal who must re-decide it in accordance with the guidance given in this decision.

  

 

 

REASONS FOR DECISION

 

 

Introduction

 

1.        These two appeals against the refusal of Employment and Support allowance (“ESA”) to two individuals were heard together by a three judge panel. This is because both appeals raise a common issue, identified in case management directions given on 5 February 2014, namely:

“…the weight to be given to the observations on mental health descriptors by a physiotherapist (or an appropriately qualified person) when carrying out a Work Capability Assessment under regulation 19 of the Employment and Support Allowance Regulations 2008 (“the ESA Regulations”)”

2.        In both cases the respective First-tier Tribunals dismissed the Appellants’ appeals against the Secretary of State’s decision that the Appellants did not meet the conditions for entitlement to Employment and Support Allowance. Each case required the tribunal to consider the Appellant’s mental and cognitive functioning as both Appellants claimed to have mental health problems which impacted upon their capability for work. In reaching its decision, each tribunal attached weight to the opinion of the physiotherapist health care processional (“HCP”) who carried out the face to face medical examination of each of the Appellants.  Each tribunal also considered such medical and other written evidence as was available to it and, where the Appellant appeared in person, also took into account that individual’s evidence and presentation to it.

 

3.        Both the Appellants and the Respondent accept that the weight to be attached to an assessment carried out by a physiotherapist is one for the tribunal on the facts of the case. However the Appellants sought to argue that an HCP report by a physiotherapist on a person with mental health problems is highly likely to be of little or no probative value or that very limited weight, if any, should be placed on such a report. They relied in that regard on the decision in JH v Secretary of State for Work and Pensions [2013] UKUT 269 (AAC). In opposing this appeal, the Secretary of State argued that HCPs of whatever professional background are selected and trained sufficiently to carry out medical examinations which raise mental health issues. Thus he submits that the decision maker and the tribunal are entitled to rely on that medical examination to the extent necessary on the facts of each case.

 

4.        These reasons will address the following matters:

a)                the legislative framework;

b)                the  recruitment, training, and assessment of health care professionals;

c)                the relevant case law;

d)                the arguments of the parties;

e)                our decision on the probative value of an HCP report carried out by a physiotherapist where mental health problems are in issue;

f)                 tribunal decision making with particular reference to fair process;

g)                and our decision in each of the appeals before us.

 

 

The Legislative Framework

 

5.        Employment and Support Allowance is a benefit for people who have “limited capability for work” because of ill health or disability, such that it is not reasonable to require them to work. The key issue is whether a claimant has limited capability for work.

 

6.        ESA was introduced by Part 1 of the Welfare Reform Act 2007. A claimant is entitled to ESA if he satisfies basic conditions, one of these being that he has “limited capability for work” [section 1(3)(a) of the Welfare Reform Act 2007].  Section 1(4) of that Act states that a person has limited capability for work if (a) his capability for work is limited by his physical or mental condition and (b) the limitation is such that it is not reasonable to require him to work. Sections 8 and 9 of the Act provide for assessments concerning entitlement to ESA and contain broad regulation making powers.

 

7.        The Employment and Support Allowance Regulations 2008 contain detailed provisions governing both a claimant’s entitlement to ESA and how that entitlement should be assessed. Regulation 19 provides that a person’s capability for work is to be determined on the basis of a “limited capability for work assessment” carried out in accordance with Part 5 of the ESA Regulations. Regulation 19(2) defines this assessment as being:

“…an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities”.

 

8.        The assessment process involves assessing the claimant against a series of detailed activities and descriptors in Parts 1 and 2 of Schedule 2 of the ESA Regulations. Part 1 refers to physical disabilities and Part 2 refers to “mental, cognitive and intellectual function assessment”. Each descriptor carries a numerical score and a claimant who scores a total of 15 points or more is deemed to have limited capability for work.

 

9.        Regulation 21 deals with the information required for determining whether someone has limited capability for work.  It is designed to give the decision maker sufficient information to decide that matter for himself or, if this is not possible, either to seek advice from an HCP on the basis of the papers or to refer the claimant for a face to face medical examination. Regulation 23(1) contains the power to call the claimant to attend a medical examination, such power being exercised by an HCP “approved by the Secretary of State”. An HCP is, by virtue of regulation 2(1), either “(a) a registered medical practitioner, (b) a registered nurse, or (c) an occupational therapist or physiotherapist registered with a regulatory body established by an Order in Council under section 60 of the Health Act 1999”. Thus each of those types of health care professional is thereby authorised to carry out a medical examination which is then considered by the Secretary of State when making his decision as to entitlement to ESA.

 

10.     We observe that the regulations describe the claimant’s interview with the HCP as a “medical examination”. Accordingly the ESA85 which contains the results of that examination is entitled “medical report form”. Yet the evidence we received from the Secretary of State often refers to HCPs carrying out disability assessments or work capability assessments for the purpose of entitlement to ESA.  This confusion in nomenclature does not facilitate understanding of the ESA process or of the role/qualifications of the HCP. We have used the term “medical examination” in preference to any other form of words. Where other forms of words have been used, this is by reference to the evidence from the Secretary of State.

 

 

The Recruitment, Training, and Assessment of Health Care Professionals

 

11.     In compliance with the directions given on 5 February 2014, the Secretary of State filed witness statements describing the training, supervision and assessment of Health Care Professionals. These statements were made respectively by Dr William Gunnyeon, former chief medical advisor at the Department of Work and Pensions, and by Dr James Bolton, acting chief medical advisor in the same department and Dr Gunnyeon’s successor. We summarise the matters in these statements germane to this appeal.

 

12.     Dr Gunnyeon explained that there was a general recognition by both Government and other organisations (NHS and the private health care and insurance industries) of the value in making more use of health care professionals. Thus, for example, in 2007 various legislative amendments were introduced permitting HCPs (including physiotherapists) to carry out medical examinations as part of the assessment process for incapacity benefit. Physiotherapists were deemed to have the necessary skills to undertake these medical examinations which focussed on a person’s functioning rather than their health problems.  

 

13.     HCPs are employed by Atos Healthcare, a company presently contracted by the Department of Work and Pensions to provide the medical/disability assessments and examinations required as part of the benefits claim process.  As a precursor to employment in the role of an HCP, all UK trained physiotherapists will have graduated with an honours degree; will have been registered with the relevant professional body; and will have had at least three years of post registration experience as a physiotherapist. Both Dr Gunnyeon and Dr Bolton emphasised that, post qualification, virtually all physiotherapists have had experience of treating patients with mental health problems such as anxiety and depression and would be familiar with how those conditions affected the daily lives of their patients. A letter from the Chartered Society of Physiotherapists appended to Dr Bolton’s statement explained that physiotherapists also provide treatment to patients within mental health services as well as working with those with long-term physical health problems who have increased levels of anxiety and depression.

 

14.     All Atos HCPs must pass a three part interview which includes specific questions about their training/experience in mental health and requires them to respond to a clinical scenario engaging both physical and mental health conditions. The would-be HCP must demonstrate that s/he recognises both conditions and the impact each might have. All three parts of the interview process must be passed for the would-be HCP to be offered a job and therefore to attend induction training. The 2010 independent review of the operation of assessments of capability for work conducted by Professor Harrington found that Atos had a thorough recruitment process with only 17% of applicants successfully gaining employment.

 

15.     All HCPs must then attend a training programme which, for physiotherapists, lasts 22 days. Stages 1 and 2 require HCPs to pass a multiple choice test, a written test and a clinical test. As part of the training, evidence-based Medical Protocols providing guidance on mental health conditions are used, with mentors checking completion, knowledge and understanding. Dr Bolton stated that if a mentor had any concerns about an HCP’s knowledge or understanding of any subject, this was discussed with a clinical manager. Additional training and review was then provided and, following further checks, the clinical manager had to be satisfied that the HCP had acquired sufficient knowledge and understanding in order for that person to proceed in the training. Stage 3 required the HCP to undertake supervised work capability assessments/medical examinations. Failure to meet the required quality standards resulted in the termination of the employment of that HCP. Following successful completion of Stage 3, HCPs consolidated their experience in work capability assessments with all reports being audited and mentored until their clinical manager asked for approval status. At least 4 consecutive “A” grades were required at audit for approval by the Chief Medical Officer at the Department for Work and Pensions.  

 

16.     Once approved, Dr Gunnyeon stated that all cases involving HCPs are audited to ensure they are of a satisfactory standard. HCPs must undergo annual appraisals to check their skills and are required to undertake a programme of relevant continuing professional development which is agreed with the Department for Work and Pensions. The learning material for continuing professional development includes modules on mental health problems. Additionally HCPs have access to advice from “Mental Function Champions” who are able to assist with questions or difficulties about a case involving a claimant with mental health problems.

 

17.     The Department of Work and Pensions has a statutory obligation under section 10 of the Welfare Reform Act 2007 to lay before Parliament an independent report on the operation of the assessments under sections 8 and 9 of that Act for the first five years after those sections come into force. Professor Malcolm Harrington CBE conducted the first three of these reviews and Dr Paul Litchfield OBE conducted the fourth review and will complete the fifth review. We note that none of the four published reviews has expressed the view that physiotherapist HCPs are not capable of carrying out examinations for those with mental health problems. Professor Harrington’s second review examined the consistency of the medical examinations by different professions and found broad consistency between the different types of HCPs with the audit results by grade being broadly comparable across different HCP types. He concluded that the data provided by Atos suggested that there was not a significant consistency issue between the three types of HCPs who carry out face to face examinations either in terms of recommendations for claimants scoring 15 or more points or recommendations for where points are scored [statement of Dr Bolton].

 

18.     The fourth review by Dr Litchfield was published in December 2013. Recommendation 28 in that report asked the Department for Work and Pensions to strengthen the requirement for all HCPs to have suitable and sufficient previous experience of dealing with people with mental health problems so that they can contextualise their findings at assessment. In his statement Dr Bolton says that this recommendation is presently being reviewed and consideration is being given as to whether any additional requirements should be put in place. In written submissions we were told that the Secretary of State is however satisfied that HCPS do at present have suitable and sufficient previous experience and the fact that he is looking at improving the situation further does not alter that conclusion.

 

19.     Recommendation 29 of the fourth review also asked for a review of the current HCP training in mental health so that it is adequate. Dr Bolton confirmed that the Department believes that the amount of time in training spent on mental health conditions may benefit from being increased and has asked Atos to consider this as part of new entrant training for HCPs.  Atos has also been asked to consider whether Mental Function Champions should play a role in the delivery of this additional training. The Secretary of State’s submission to us emphasised that he does not consider the current training to be deficient notwithstanding any consideration by him as to how the position could be further improved.  

 

 

The Relevant Case Law

 

20.     The Appellants relied on JH v Secretary of State for Work and Pensions [2013] UKUT 269 (AAC), a decision by Upper Tribunal Judge Mark. This case concerned a claimant who had been awarded ESA on the basis that he was suffering from depression. He was subsequently asked to complete another questionnaire and called for a face to face medical examination. In his form he described extreme bouts of anger and rage which led him to become very depressed and to isolate himself from his family and friends. He gave details of his GP whom he said he saw regularly and of a psychotherapist whom he was due to see the following month. He was on a waiting list for treatment. His medical examination was carried out by an HCP who was a physiotherapist, and was described by Judge Mark as having “no professional expertise in mental health matters beyond whatever she may have gleaned from whatever training she was provided to become a disability analyst” [paragraph 7]. The Secretary of State adopted her recommendations and concluded that, although the claimant had limited capability for work, he did not have limited capability for work related activities. The claimant appealed but the First-tier Tribunal dismissed his appeal without calling for any medical evidence.

 

21.     Judge Mark found that the First-tier Tribunal erred in law in failing to adjourn and direct the production of the claimant’s medical records insofar as they related to his mental health problems. He also found that the tribunal had erred in (a) failing to explain how it dealt with the hearsay medical evidence in the claimant’s letter to the tribunal and (b) failing to adjourn to obtain the evidence on which the earlier decision to award ESA had been taken [paragraph 20]. Paragraphs 21-23 contained Judge Mark’s comments on the role of physiotherapists prefaced with the word “further” and it seems to us that these comments were supplementary to the errors of law he had already identified and thus did not form part of the ratio of the decision.

 

22.     He stated that:

“21. Further, the only evidence before the tribunal, apart from the evidence of the claimant, was that of the physiotherapist. I have no doubt that the physiotherapist had received training to ask relevant questions and to make relevant observations. Subject to any question as to their accuracy, the report on what the claimant stated and on the observations made is clearly relevant evidence. Where the disability analyst possesses relevant medical expertise, any opinion expressed based on that expertise is also relevant experience.

22. Where, however, the disability analyst is a physiotherapist and the problems she is dealing with are mental health problems, the opinion of the physiotherapist as to the conclusions to be drawn have no probative value whatsoever. This is because the physiotherapist has no professional expertise in mental health matters. Although the strict rules of evidence do not apply, a tribunal can only take into account evidence that has probative value, so that, for example, the decision of another judge as to the facts is simply his or her opinion as to the facts and has no probative value (see AM v Secretary of State [2013] UKUT 94 (AAC), paragraphs 19-24, and the interim decision of Judge Turnbull in CH/1168/2011 setting aside the decision of a tribunal on the ground that it had relied in part on the findings of another tribunal which represented no more than the opinion of that earlier tribunal as to the matters).

23. I can only express my surprise that in a case where the only issue was the mental health of the claimant and its effect in relation to the mental health descriptors, the report was prepared by a physiotherapist following a 15 minute interview. It is plainly important that questions of mental health should be assessed by a disability analyst with appropriate mental health qualifications if their opinion is to be of any evidential value. Even then tribunals should beware of placing too much weight on such reports, based as they are on a very short interview with a claimant and without access to medical records. Given the evidence that the claimant was irritable and abrupt at a 15 minute interview, and given a history of frequent loss of control of his temper, and the absence of medical records, I do not see how any competent mental health professional could have expressed any firm opinion as to the risks if the claimant was found not to have limited capability for work related activity. The opinion of somebody with no mental health qualifications in such circumstances should have carried no weight at all. I would add that in addition I am not even clear how far the physiotherapist was aware of what those work related activities would be.”

 

23.     These obiter comments arguably suggest that observations on mental health descriptors made by HCP physiotherapists could have “no probative value whatsoever”. We note however that Judge Mark did not appear to have available to him evidence as to the recruitment, training and supervision of HCPs, and of HCP physiotherapists in particular. By the time of the hearing before us, the Appellants had accepted that Judge Mark was incorrect in asserting that the evidence of an HCP physiotherapist as to mental health descriptors could never have any probative value.

 

24.     The Secretary of State relied on the approach adopted by Upper Tribunal Judge Ovey in JF v Secretary of State for Work and Pensions [2011] UKUT 385 (AAC). This was not an ESA case but one under the old scheme of personal capability assessments for Incapacity Benefit. In that case the claimant argued that a medical report prepared by a registered nurse who had no qualifications in mental health was not sufficient to discharge the onus of proof on the Secretary of State that a claimant no longer satisfied the conditions of entitlement to benefit where the report was the only evidence relied on. Judge Ovey allowed the appeal but not on that ground which she rejected for this reason:

“19. It appears to me clear that, expressed in that way, the first ground of appeal must fail. Reg. 6 of the 1999 Regulations clearly enables the Secretary of State to supersede a decision on incapacity benefit in the light of medical evidence contained in a report prepared following an examination by an HCP in accordance with reg.8 of the 1995 Regulations. Reg. 8 provides that where it falls to be determined whether a person is capable of work he may be called by or on behalf of an HCP approved by the Secretary of State to attend for a medical examination. I have found nothing in the statutory framework which would prohibit the Secretary of State as a matter of law from relying on such a report in the case of a mental illness unless the HCP, if a nurse, had “qualifications in mental health”. It is therefore not necessary to go into the concealed question of what that expression might mean, particularly in the light of the information set out above as to selection and training of nurses as HCPs. The HCP was clearly a health care professional within the definition in reg. 2 of the 1995 Regulations and it has not been suggested that (contrary to the statement in the report itself) she was not approved by the Secretary of State”.

 

25.     Judge Ovey went on to hold that her conclusion did not mean that a claimant’s representative was not entitled to make submissions as to the weight to be attached to such a medical report [paragraph 21]. Upper Tribunal Judge Gray made much the same point in PF v Secretary of State for Work and Pensions [2013] UKUT 634 (AAC) when criticising a tribunal for preferring an HCP physiotherapist’s report to a report from a claimant’s treating psychiatrist without giving reasons for its preference [paragraph 13]. In R2/04 (IB)(T) the Tribunal of Social Security Commissioners (Northern Ireland) allowed a claimant’s appeal precisely because the tribunal had not engaged with the claimant’s criticisms of a report by an Examining Medical Practitioner (the equivalent of an HCP). The claimant had argued that the EMP report was of no value because the EMP was not a qualified psychiatrist and thus could not properly comment on his mental health problems. The Commissioners held that:

“ 17…the Tribunal must consider carefully the whole of the evidence and in the event of conflict of evidence, decide which it prefers, and explain why, whether that evidence be from the EMP, the claimant, other doctors or any other source. The hearing before the Tribunal is an appellant’s chance to make good his case. The Tribunal is required to make its own findings having regard to the accepted evidence. As already explained, in this particular case, it must deal with serious criticisms of the EMP’s report and it is a matter for the Tribunal whether it accepts or rejects the criticisms and what reliance it places on that report”

That paragraph neatly summarises the proposition that the weight to be given to evidence from any source is a matter for the tribunal which must explain in its reasons why it has given weight to some evidence but not to other evidence.

 

26.     The Commissioners in R2/04 (IB)(T) came to similar conclusions as Judge Ovey about the qualifications of the HCP. As long as the HCP had been approved by the Secretary of State that was sufficient.  He or she was not carrying out a course of treatment and did not have to be versed in a speciality which dealt with the problems a particular person suffered from [paragraph 14].Additionally they drew attention to the practical impossibility of ensuring that those who are examined are examined by appropriately qualified specialists. Many of those who undergo assessments have multiple problems which would mean the examination would have to be conducted by two or more specialists [paragraph 14].

 

27.     Finally the Appellants referred us to the case of MM & DM v Secretary of State for Work and Pensions [2013] UKUT 259 (AAC), so far as is relevant a decision upheld by the Court of Appeal (see [2013] EWCA Civ 1565). In that case the Upper Tribunal had before it detailed evidence from mental health charities about the difficulties faced by those with mental health problems in the ESA process. At paragraph 125 the Upper Tribunal accepted this evidence which, amongst other matters, identified a problem of dealing with assessors with little or no experience of mental health problems in what was a short assessment time. This provided little opportunity for assessors without proper training and knowledge to identify the many symptoms of a condition and its impact on a person’s needs. We note that this case was an application for judicial review where it was contended that the process of assessment for entitlement to ESA discriminated against claimants with mental health problems by reason of the Secretary of State’s failure to obtain further medical evidence about them in breach of his duty under section 20(3) of the Equality Act 2010.

 

 

The Arguments of the Parties

 

28.     These can be summarised briefly. Both the Appellants and the Secretary of State accepted that, by virtue of regulation 23 of the ESA Regulations, opinion evidence from a physiotherapist HCP is relevant evidence for the Secretary of State’s decision maker and, in turn, for the First-tier Tribunal. Both also accepted that the question of weight to be attributed to this evidence in any given case will, ultimately be a matter for the decision maker and for the First-tier Tribunal. Both accepted that the exact weight to be attributed to this opinion evidence will depend on the facts of each individual case.

 

29.     The Appellants however contended that opinion evidence from an HCP physiotherapist in respect of a person with mental health problems was highly likely to have little probative value and should thus be accorded little weight in the First-tier Tribunal’s decision. This was because physiotherapists have limited mental health knowledge and experience. Further the inherent difficulties which a physiotherapist will have assessing an individual with mental health problems were compounded by the extremely limited time – one occasion only – which HCPs spent with claimants suffering from mental health problems.

 

30.     The Secretary of State submitted that the Appellant’s case was contrary to the intention of Parliament which had expressly provided that all HCPs could carry out medical examinations and that HCPS included physiotherapists. He relied on the extensive training, assessment and supervision of all HCPs including physiotherapists, which he stated had produced an HCP who could carry out assessments when mental health issues are raised. Ultimately the weight to be attached to a physiotherapist HCP report was a matter for the relevant decision maker and for the tribunal.

 

31.     With respect to the individual appeals before us, it was common ground that case CE/3202/2013 should be remitted for re-hearing by a differently constituted tribunal. The Appellants argued that case CE/4111/2012 should also be remitted for rehearing on the basis that, amongst other matters, the tribunal had made inadequate findings of fact as to the relevant descriptors. Remittal was opposed by the Secretary of State who argued that adequate findings had been made on the evidence before the tribunal.  

 

 

Our Reasoning and Decision: HCP Reports by Physiotherapists in Mental Health Cases

 

32.     The difference between the parties narrowed during the course of oral submissions. In our view inevitably and correctly the Appellants conceded that the question of the weight to be accorded to an HCP physiotherapist’s report was ultimately a matter for the tribunal and that no additional gloss as to the probative value of such a report in a mental health case was justifiable.

 

33.     That concession accords with our view that the assessment of the probative value of an HCP physiotherapist’s report, like other reports and evidence is a matter for the decision maker and, in turn, for a tribunal seised of an appeal. It thus follows that the obiter comments by Judge Mark in JH set out in paragraph 21 above are wrong if and to the extent that they purport to create a rule of law or starting point that observations on mental health descriptors by HCP physiotherapists are of no probative value whatsoever or are highly likely or likely to have little probative value and thus should be accorded no or little weight by the decision maker and the First-tier Tribunal.

 

34.     Our reasoning is as follows. First, the statutory scheme established by Parliament authorises HCPs - including physiotherapists – to carry out medical examinations in order to assist the Secretary of State in determining whether a claimant has limited capacity for work [see regulation 23(1) and regulation 2(1) of the ESA Regulations 2008]. There is nothing in the statutory scheme which draws any distinction between an HCP’s ability to assess mental health descriptors as opposed to physical descriptors. All that is required is that the HCP is registered with a regulatory body and approved by the Secretary of State. Any ruling suggesting that an HCP report by a physiotherapist has no probative value in a mental health case would frustrate the statutory framework. It thus follows that Judge Ovey’s reasoning in paragraph 19 of JF is correct [see paragraph 23 above] as is the reasoning of the Commissioners in R2/04 (IB)(T) [see paragraph 25 above].

 

35.     Second, there is a fundamental difference between a medical examination carried out as part of a process of diagnosis and treatment and the medical examination carried out by the HCP during the ESA process. The latter examination concerns itself with whether a claimant has limited capability for work or for work related activity and considers how any condition the claimant may have impacts upon his/her functional capacity.  We note that Professor Harrington’s First Review also acknowledged the distinction between a medical examination focussing on diagnosis and the medical examination carried out by the HCP which concentrated on functional capability [paragraph 36 of his report]. The remit of the medical examination required by regulation 23(1) does not require the HCP to be a specialist in all of the physical or mental problems presented by the claimant. Were this indicated, it would create insurmountable problems for the assessment process given that many claimants have a constellation of both physical and mental problems and might then require assessment by specialists in each area of difficulty.

 

36.     What is however required of the HCP is that s/he has a sufficient understanding of a claimant’s medical conditions and the difficulties flowing from these. That informed understanding will influence the conclusions of the HCP medical examination. Developing that understanding is a matter of adequate training and supervision as directed by the Secretary of State and implemented by those responsible for employing HCPs to carry out their duties. We pass no comment on the programme of recruitment, training and supervision for HCPs which we have outlined in this judgment other than to observe that (a) the independent reviews have not criticised the performance of physiotherapists in mental health cases relative to HCPs from other disciplines and (b) the content of training for HCPs insofar as it relates to mental health problems is presently subject to review with the aim of increasing the knowledge and understanding of these problems for all HCPs.

 

37.     Third, the First-tier Tribunal is required to make its own findings having had regard to all the evidence before it. It is a specialist tribunal which, in ESA appeals, consists of a legal and a medical member. That expertise can and should be deployed so as to evaluate all the evidence before it and decide what weight to attach to evidence from different sources in each particular case. Case authority such as JH suggesting that HCP reports from physiotherapists in mental health cases have no probative value whatsoever fetters the First-tier Tribunal from using its own judgment in assessing the evidence before it in a particular case. This is not the correct approach. Instead the starting point should be that identified by Judge Ovey in paragraph 25 of JF namely that :

“…the report is prepared by an HCP who has been trained (whether as part of the training as an HCP or through other training) at least to the level thought appropriate by the Department of Work and Pensions for carrying out examinations where mental health issues are raised. In other words the selection and training procedures ought to have produced an HCP who can conduct a mental health examination competently. It follows that evidence that the HCP has not undergone separate specialist training should not of itself have any effect on the weight which the tribunal attaches to the report…”

Following this approach will mean that it will be unnecessary for the tribunal to adjourn for further particulars as to the qualifications and experience of an HCP.

 

38.     In assessing the weight to be given to any report addressing the functional impact of any medical condition on a claimant, a First-tier Tribunal should consider (a) the level of the author’s expertise (for example, an HCP or a consultant psychiatrist) and (b) the knowledge of the claimant possessed by the author (for example, knowledge gained from a one-off assessment or that gained as a treating clinician). Additionally the date of the evidence, its comprehensiveness, and its relevance to the issues the tribunal has to determine are also key matters for the tribunal to consider. Importantly the tribunal should explain its reasoning for attaching weight to one type or piece of evidence rather than to another.

Tribunal Decision Making: Adequate Reasons

 

39.     Though this matter was not the basis upon which this appeal was listed before a three judge panel, it became apparent to us that the case of CE/4111/2012 raised issues about the adequacy of the tribunal’s reasons. Given that the grant of permission to appeal was not limited in this case to the issue of HCP physiotherapists, we considered that these issues should be addressed in our judgment in order to provide guidance to First-tier Tribunals.

 

40.     It is important to note that the ESA regulations were amended with effect from 28 January 2013 and those regulations referred to and quoted below are the earlier version which was in force at the time of the decision in both cases. This is relevant as, for example, the continence activity was subject to amendment with effect from 28 January 2013.

 

 

Case CE/3202/2014

 

41.     It is common ground between the parties that this appeal should be remitted for re-hearing by the First-tier Tribunal. In those circumstances and because we did not hear argument about the tribunal’s decision-making, we do not propose to comment further. We allow the appeal and remit the matter for re-hearing before a differently constituted First-tier Tribunal.

 

 

Case CE/4111/2012

 

42.     The claimant in this case was 31 years old at the time of the Secretary of State’s decision to refuse her ESA in December 2011. The report by the HCP had awarded her 6 points for the mental activity “getting about” on the basis that she was unable to get to a specified place with which she was unfamiliar without being accompanied by another person. She appealed the Secretary of State’s decision raising issues regarding (a) standing/sitting (b) speaking/writing (c) understanding messages (d) bladder control (e) mental functions such as panic/anxiety. She said she rarely left her home or associated with others. In April 2012 the decision maker awarded her 9 points for “getting about” on the basis that she was unable to get to a specified place with which she was familiar without being accompanied by another person. No explanation was given for the decision to increase her points from 6 to 9.

 

43.     The First-tier Tribunal hearing took place on 10 October 2012. It confirmed both the grant of 9 points for “getting about” and the Secretary of State’s decision to refuse ESA. It considered the physical activities of mobilising, sitting/standing and continence and the mental activities of initiating action, coping with change, getting about and coping socially. It awarded the claimant no additional points for any of these activities.

 

44.     During argument before us, it became clear that the tribunal’s approach to the evidence in this case, and in particular to the activities of continence and coping with social engagement, was flawed. We deal with each of these activities and the relevant descriptors in turn. Before we do so, it appears to us that the tribunal failed in two important respects in its approach to the evidence.

 

45.     First, this Appellant had a diagnosis of depression and anxiety recorded on the fit note submitted by her GP as part of the ESA assessment process.  In addition a letter from the GP stated that the Appellant had  suffered “from agoraphobia/depression/anxiety and panic attacks for many years now” and had seen two counsellors in the past who had recommended that she receive psychiatric help. He confirmed that the Appellant was on a waiting list for such help.  She was also on a low dose of anti-depressant medication. When addressing the mental health descriptors invoked by the Appellant, the tribunal said in paragraph 27 of its statement of reasons: “The appellant claims a longstanding mental health problem”. This statement suggests to us that the tribunal not only did not accept the Appellant’s evidence but also did not accept the medical evidence from her GP.  Though such a conclusion would have been one open to the tribunal to make, it required reasons explaining why, for example, the tribunal attached no weight to her GP’s evidence. There were none.

 

46.     By taking this approach to the rejection of the Appellant’s claim that she had a longstanding mental health problem, the tribunal erred in law because it failed to take into account relevant evidence (and so factors) or it failed to explain how it had taken them into account. This flawed approach infected and was effectively repeated in its approach to each of the mental health descriptors and thus the tribunal’s approach to the existence, nature and effect of the mental health problems claimed by the Appellant. It repeatedly stated, relying on the mental state examination by the HCP, that “there were no abnormal mental health findings” yet failed to put the mental state examination into context, having regard to the rest of the evidence. In our view, this has the result that its conclusions on all the mental health descriptors in play were founded on an incorrect approach in law.

 

47.     Second, the tribunal failed to stand back and consider the case in the round. By this we mean that the tribunal did not consider (a) how an award of points for one descriptor might have implications for its consideration as to whether another descriptor for a different activity was satisfied [see paragraph 50 below] and (b) whether the apparent links between some of the mental health descriptors may have been relevant [see paragraph 54 below].  We have sympathy for tribunals in this respect as the whole structure of Schedule 2 operates on the basis that points are scored for satisfaction of descriptors and thus encourages consideration of descriptors in isolation from each other. Nevertheless, insofar as (b) is concerned, it seems clear to us that there is a link between activity 15 “getting about” and activity 16 “coping with social engagement”. For example, the descriptors for “getting about” suggest that a person who, by reason of mental illness or disablement, “cannot get to any place outside the claimant’s home with which the person is familiar” may also have problems coping with social engagement. Likewise, for example, a person, whose engagement in social contact with persons either unfamiliar or familiar is either not possible for the majority of the time or is always precluded, may also have problems getting about. The conceptual leap between the two activities is not great.

 

48.     We now turn to the tribunal’s treatment of continence and coping with social engagement.

 

49.     As far as continence is concerned, the tribunal found that the Appellant’s evidence was unreliable. Their reasons read as follows:

“23. In her claim pack the appellant states that she has to change her clothes less often than once per month because of bowel and bladder problems. She refers to some more recent accidents but, on her own claim, this was not occurring monthly but less often

24. She wears liners. Her GP is aware of the recent problem but has instigated no investigations. The appellant attributes her recent problem to the gallbladder surgery which she says has made her bowels loose. The accidents she described at the oral hearing never occurred when she was out of the house but only at home.

25. The Tribunal finds that the appellant’s evidence on this descriptor is unreliable. Her claim pack says accidents occur less than once a month. Her appeal refers to bladder problems, her oral evidence to bowel problems occurring as a result of gall bladder surgery. This is medically unlikely.

26. The Tribunal finds that she was not, at the relevant date, at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder. She is able to use appropriate aids. The tribunal finds that she does not satisfy any of the definitions within this descriptor”.

 

50.     From our overview of the evidence, it appears that the tribunal criticised the appellant for inconsistency [paragraph 25] but itself overlooked relevant evidence from the HCP which stated that the Appellant “sometimes had accidents with her bowels if not able to reach the toilet on time”. These problems pre-dated her gall stone surgery as the HCP report makes clear. The Appellant’s appeal letter did indeed make reference to bladder problems but the tribunal’s reference omits to mention the remainder of the sentence which reads: “I told the doctor at Lawnswood medical that I’d had a few accidents lately due to not making the toilet etc. therefore I’ve had to change my clothing yet I received no points”.  “Lawnswood medical” is a reference to the examination by the HCP at which the Appellant is recorded as speaking about bowel problems. At the very least, there was some ambiguity about whether the Appellant had made an error in her appeal letter or whether the HCP had made an error in her report by speaking of bowel problems rather than bladder problems.

 

51.     Additionally the tribunal appears to have overlooked the oral evidence given by the Appellant to the effect that (a) her bowel problems (diarrhoea) had been worse before her gall stone surgery; (b) she had had to go to the toilet all the time and (c) medication had not helped. She went on to say that once or twice a week she did not make it to the toilet in time and, as a result, she would have to wash and change her underwear and outerwear [bundle page 70]. She said that as soon as she ate or drank she had to go to the toilet; that she wore a liner at home but used a bigger towel and spare knickers (presumably when she went out). No analysis of this evidence appears in the tribunal’s reasoning though it is arguably highly relevant to the continence descriptor 9(b) in force at the date of the hearing, namely whether the claimant was “at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly”.

 

52.     The tribunal makes reference to the Appellant’s accidents occurring only within the home rather than outside. We read this reference as undermining of the extent of the Appellant’s problems. It appears to us that the tribunal ought to have considered that accidents in the home were more likely to occur when an Appellant had a problem with going out as this Appellant clearly did. The tribunal appears to have failed to consider the bigger picture.

 

53.     In summary, the tribunal erred in law because it overlooked relevant evidence or failed to give adequate reasons for reaching its conclusion having regard to it and it failed to give the Appellant the opportunity to clarify what it considered to be an ambiguity or inconsistency which it then used to undermine the reliability of the Appellant’s evidence. Finally its failure to look at pertinent evidence about other activities (the Appellant’s ability to get about and social isolation) and its flawed approach to continence) led it into error. Had the Tribunal explored the latter properly, this Appellant may have satisfied descriptor 9(b) which, when added to her pre-tribunal award of 9 points, would have taken her over the points threshold for an award of ESA.

 

54.     As far as coping with social engagement is concerned, the tribunal found that the Appellant was able to engage in social contact largely because it appeared to the tribunal that she had no difficulty relating either to the HCP or to the members of the tribunal.

 

55.     The Appellant told the tribunal that she last went out socially 10 years ago: “petrified, thinks something bad will happen; doesn’t like a lot of people” [bundle page 68]. The last time she went out alone was 10 years ago; she last spoke to her friends a year and a half ago though she saw a friend in Hull once or twice a year [bundle page 69]. She would not even go out socially with her partner as there were “too many people” [bundle page 69]. She explained that she went to the medical examination with the HCP because “had to do it alone – he [her partner] was not allowed in the room” [bundle page 69]. She was very clear that, if her partner had not been available, she would not have attended the tribunal hearing [bundle pages 67-68]. In its reasons the tribunal stated:

“45. Her family come to visit and she enjoys spending time with them. She was keen to emphasise at the oral hearing that she had no friends at all but referred variously to a friend in Hull, and to a local friend who was going to accompany her to a therapy group and to cousins with whom she keeps in touch.

46. She was willing to attend a women’s therapy group last year. It was finances rather than an inability to cope with the social context which precluded her attendance.”

Careful scrutiny of the record of proceedings has revealed no written record of either cousins or her local friend in the Appellant’s oral evidence.

 

56.     We consider that the tribunal’s reasons are flawed and amount to an error of law. First, it is apparent that the tribunal rejected the Appellant’s evidence though it did not explain why it had done so. Second, the reasons elevated the Appellant’s engagement in both the ESA claim process and the tribunal process as sufficient evidence in themselves that she could cope with social engagement. That snapshot approach ignored evidence that the Appellant had difficulties with other types of social engagement. Moreover it failed to consider whether this Appellant could engage in social contact within the meaning of the activity if and when called upon to so, that is, with reasonable regularity. Third, the tribunal failed to analyse the quality and nature of her various communications so as to form a view about whether this Appellant could cope with social engagement with others, either familiar or unfamiliar [see the guidance on “coping with social engagement” contained in paragraphs 24-39 of JC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 352 (AAC)].

 

57.     The tribunal’s failure to give adequate reasons for its decision on this activity is material since, on the evidence, it is arguable that this Appellant may have satisfied descriptor 16(c) namely, “engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual”. An award of points under this descriptor would have qualified the Appellant for ESA.

 

58.     In conclusion and for all these reasons, we are satisfied that the tribunal’s decision in this case is erroneous in law and we therefore remit it for rehearing by a differently constituted First-tier Tribunal. Further case management directions in each appeal may be given by the relevant District Tribunal Judge in the First-tier Tribunal.

 

 

 

 

 

MR JUSTICE CHARLES

Chamber President of the Administrative

Appeals Chamber of the Upper Tribunal

 

 

SHELLEY LANE

Judge of the Upper Tribunal

 

 

GWYNNETH KNOWLES QC

Judge of the Upper Tribunal

 

 

5 December 2014.

 

[signed on the original as dated]