DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

The decision of the Bedlington First-tier Tribunal dated 31 October 2014 under file reference SC231/14/00234 involves an error on a point of law and is set aside. 

The Appellant’s appeal against the Secretary of State’s decision dated 27 March 2014 refusing her claim for personal independence payment (PIP) is remitted to be reheard by a different First-tier Tribunal, subject to the Directions below.

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the re-hearing:

(1)        The re-hearing should be at an oral hearing;

(2)        The new Tribunal should be differently constituted from the First-tier Tribunal which considered this appeal on 31 October 2014;

(3)        The Appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal (namely 27 March 2014).

(4)        If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of the HM Courts and Tribunals Service (HMCTS) in Newcastle within one month of the issue of this decision. Any such evidence will need to relate to her mobility and personal care needs as they were in March 2014, not as they are today.

(5)        In doing so the new Tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous Tribunal. 

These directions may be supplemented by later directions by a District Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 

REASONS FOR DECISION

The decision in summary

1.       I allow the Appellant’s appeal to the Upper Tribunal, as the decision by the First-tier Tribunal (“the FTT” or simply “the Tribunal”) involves an error on a point of law. The Tribunal’s decision is set aside. The Upper Tribunal is not in a position to substitute (or to “re-make”) its own decision for the one that the Tribunal made. This means that the appeal will need to be re-heard on the facts by a differently constituted Tribunal.

2.     The outcome of the re-hearing depends on the view taken by the new Tribunal of all the evidence in the case. The fact that this appeal has succeeded on a point of law is no indicator one way or the other as to the likely result of the re-hearing, which will be determined on the facts.

The background to this appeal

3.     The Appellant has a number of conditions, including bi-polar disorder, hypermobility syndrome and low back and hip pain. She made a claim for personal independence payment (PIP) which was refused by the Secretary of State, who decided that she scored just 3 points for daily living and 0 points for mobility. That decision was confirmed by the FTT, which dismissed her appeal.

4.     The FTT’s statement of reasons is a detailed and lengthy document which makes it clear that the Tribunal did not accept that the Appellant was as disabled as she claimed to be. Reading the statement of reasons in isolation, one can quite understand why the appeal failed. On that basis, it should pass muster. However, the statement of reasons must be read in context, and in particular in the context of the evidence before the Tribunal.

The proceedings in the Upper Tribunal

5.     When giving permission to appeal, I made the following observations:

        ‘1. I am giving permission as the proposed grounds of appeal as set out in the letter of 3 December 2014 are arguable, in part at least.

        2.  It seems to me the potentially fundamental problem with this case is the way that the First-tier Tribunal dealt with the report of Mrs McCaffrey, a nurse, and ATOS HCP, dated 8 October 2013 (pp.64-83).

        3.  The First-tier Tribunal (FTT) found at [19] that “the medical evidence, which came from various different sources including 2 medical examinations and a number of doctors and Consultants treating the appellant, was inconsistent with her declared level of disability. We did not believe her and we preferred the medical evidence”.

        4.  Credibility is a matter for the FTT. However, there have to be adequate reasons. There are at least two problems with this statement at [19].

        5.  First, it is simply inaccurate as a matter of fact. It refers to the medical evidence as including the output of “2 medical examinations”, by which presumably the FTT meant the reports from two medical examinations on behalf of the DWP, e.g. by ATOS. I have looked through the appeal file but can only find the report of one such medical examination, being that conducted by Mrs McCaffrey. I can see no report of any second examination.

        6.  Second, it is wrong in a more fundamental way. Mrs McCaffrey’s report, if accepted on its own terms, would have resulted in a total of 9 points for daily living activities 1b, 3b, 4b, 5b and 10b. That would be enough to qualify for the standard rate of the daily living component of PIP. However, there was then a “supplementary advice note” by a Ms Pendrill of ATOS, also a nurse. She says “thank you for your query” (that query itself does not appear to be on file). She completed a new form and changed the previous advice, changing descriptors 1b, 4b and 5b to 1a, 4a and 5a, each of which scored 0 points. There is no suggestion Ms Pendrill interviewed the Appellant, let alone examined her. She did, however, spend 30 minutes “consideration/writing up time”.

        7.  So Mrs McCaffrey who saw the Appellant in a face-to-face assessment (consideration/writing up time 120 minutes) would have scored the Appellant at 9 points. Ms Pendrill, who did not see her, would have scored her at 3 points. The DWP decision maker accepted the latter’s advice and found that the Appellant scored 3 points for daily living. The FTT confirmed that score of 3 points but not without a great deal of reluctance ([22] and [26]).

        8.  The DWP submission to the FTT included a brief account of why the first report had been sent back to ATOS “for clarification as it was felt that the report contained contradictory findings” (p.F), giving some examples.

        9.  The Appellant’s representative, in detailed written submissions to the FTT, made two main points in this regard (see pp.107-111 and 251-254). First, he argued that Ms Pendrill’s ‘re-assessment’ was based on untested assumptions and should not be relied upon. Second, he argued that there were in any event a number of errors in Mrs McCaffrey’s report, although not such as to undermine the areas in which points had been awarded.

        10. All this is plain from a cursory review of the file. None of this is obvious from the FTT’s statement of reasons. Anyone who read that statement of reasons would assume that Mrs McCaffrey’s report did not support any award of PIP. The outstanding disagreements over the first report do not seem to be resolved, insofar as they may have been relevant. So the FTT’s decision would appear to be flawed as regards adequacy of reasons. The DWP was putting forward two competing assessments, conducted under different circumstances. The FTT had to address the arguments that the Appellant’s representative had made in this regard but appears to have failed to do so.

  11. In GS v Secretary of State for Work and Pensions (ESA) [2010] UKUT 244 (AAC) Judge Jacobs dealt with an employment and support allowance appeal where an HCP report had been amended on audit. The circumstances were rather different there, as the way the report had been presented was plainly unsatisfactory. Judge Jacobs found there was no error of law on the part of the FTT in that case, but did comment that:

23.  The Secretary of State may, of course, submit any evidence on any appeal. That evidence may be contrary to, or supportive of, the report of the healthcare professional. But the provenance of the evidence should always be clear so that the tribunal may properly assess it. That is true of all evidence, whether from the Secretary of State or the claimant, and whether it has been changed or not.

        12. The problem in the present case is that that process of proper assessment does not appear to have been carried out by the FTT.

13. The Appellant’s representative raises several other points. I will just comment on one. He complains that the FTT appear to have placed great store on the fact that the Appellant had been offered a particular job, in a demanding role. That job offer was apparently made in August 2014 (see [18]). The decision under appeal had been taken in March 2014. Had the FTT properly considered the impact of section 12(8)(b) of the Social Security Act 1998?’

6.     Both parties have now made further written submissions on the appeal.

7.     Mrs Helen Hawley, the Secretary of State’s representative, agrees with the first and principal error of law identified in the observations accompanying the grant of permission to appeal. On that basis she supports the appeal and argues that the case should be remitted for re-hearing by a fresh tribunal.

8.     Mr Paul Walton, the Appellant’s representative, welcomes the Secretary of State’s concession. He argues that I should re-make the original decision under appeal rather than send the case back for re-hearing before the First-tier Tribunal.

The Upper Tribunal’s analysis

9.     Mr Walton had twice made detailed written submissions on the Appellant’s behalf explaining why (with certain qualifications) Mrs McCaffrey’s original report should be accepted by the Tribunal, and certainly why it should be preferred over Ms Pendrill’s subsequent desk-based ‘re-assessment’. The Tribunal simply failed to engage with that disagreement between the two HCPs. Given that Mrs McCaffrey’s report would have resulted in the award of 9 points, the Tribunal needed to recognise that conflict and explain why it was departing from that assessment. It could not simply brush it aside. Its failure to recognise and satisfactorily resolve that conflict on the Secretary of State’s own evidence amounted to an error of law by the Tribunal.

10.   I therefore have no hesitation in allowing this appeal for the primary reason identified when giving permission to appeal. I accordingly set aside the Tribunal’s decision.

11.   I need not decide the secondary point, namely the Tribunal’s apparent reliance on the Appellant’s participation in an air cadet camp in France in June 2014 and the offer of employment as a staff nurse she was made in August 2014. These were both “circumstances not obtaining at the time when the decision appealed against was made” (i.e. in March 2014) within section 12(8)(b) of the Social Security Act 1998. However, the Tribunal may have regarded these matters as indicative of her ability in March 2014. It is also possible that (the primary issue aside) there was otherwise sufficient fact-finding to support the Tribunal’s decision, such that any reliance on these later matters was not material.

12.   Mr Walton makes a number of cogent points in support of his argument that I should re-make the decision under appeal, not least that time has passed and the evidence may be stale. He also argues that the Appellant has set out her case in detail already. While I sympathise with those points, I take the view that a new Tribunal will need to re-hear the appeal afresh. This is a fact-heavy case in which credibility is important. The new Tribunal should make appropriate findings of fact on the balance of probabilities as to all the matters in dispute. In doing so the new Tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous Tribunal. The new Tribunal may also need to consider the application of both regulation 4(2A) and regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377), which will require careful fact-finding.

13.   Finally, I observe that Ms Pendrill’s supplementary advice note argued that no points should be awarded for daily living activities 1 (preparing food), 4 (washing and bathing) and 5 (managing toilet needs or incontinence). The explanation for this disagreement with Mrs McCaffrey’s original report is brief. It suggests that because the Appellant was a student nurse and attended University and was also involved in the air cadets that she could necessarily manage all these activities without the use of aids. It seems to me Mr Walton makes some good points about the quality of this justification. Certainly the logic in Ms Pendrill’s supplementary advice note is not easy to follow. On the other hand, the weakness of her desk-based review does not mean that Mrs McCaffrey’s original report must be preferred. It must be assessed on its own merits. It may be unpersuasive in other ways. Obviously the weight to be attached to those respective reports (and the rest of the evidence) is a matter for the FTT’s judgement.

Conclusion

14.     I conclude that the decision of the First-tier Tribunal involves an error of law for the reasons summarised above. I therefore allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case is remitted for hearing by a new tribunal subject to the directions and guidance above (section 12(2)(b)(i)). 

Signed on the original                                  Nicholas Wikeley

on 18 June 2015                                            Judge of the Upper Tribunal