Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CI/5246/2014

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 27 May 2014 is set aside.  I substitute a decision that the claimant had good cause for failing to comply with the health care professional’s request that she attend for a medical examination on 3 September 2013 and, accordingly, the Secretary of State’s decision dated 12 September 2013 is also set aside.

It remains for the Secretary of State to make a decision as to the claimant’s entitlement to disablement benefit from 1 July 2013.  He must do so in the light of my reasoning below.  In particular, in view of the history of this case, he should consider whether it is appropriate for the claimant to be referred to a health care professional for an examination or whether he has, or could obtain from other sources, sufficient evidence to enable him properly to assess, with advice from a health care professional if necessary, the extent of the claimant’s disablement from 1 July 2013 due to Prescribed Disease A8.

REASONS FOR DECISION

1. This is an appeal, brought by the claimant with my permission and substantial support of the Secretary of State, against a decision of the First-tier Tribunal dated 27 May 2014 whereby it dismissed her appeal against a decision of the Secretary of State to the effect that the claimant was not entitled to disablement benefit from 1 July 2013 because she had failed to attend a medical examination on 3 September 2013 for the reassessment of her disablement in respect of Prescribed Disease A8 (traumatic inflammation of the tendons of the hand or forearm, or of the associated tendon sheaths – commonly, but not always accurately, known as tenosynovitis). 

2. The claimant had been found to be suffering from Prescribed Disease A8 since 1 June 2008 and had been entitled to disablement benefit since 12 November 2008.  Disablement had been assessed at 15% initially (10% for impaired dexterity and 5% for impaired psychological function) but, on an appeal against a refusal to supersede the original assessment, disablement had been provisionally assessed at 20% (10% for impaired wrist function and 10% for consequential impaired psychological function) from 1 July 2010 to 30 June 2013. 

3. Because the assessment was provisional, a new assessment had to be made at the end of the period.  Atos Healthcare, who provided health care practitioners, asked the claimant to attend an examination on 30 May 2013 but the appointment was cancelled when the claimant’s husband telephoned asking why the claimant had to be examined.  Another appointment was made for 3 September 2013.  The claimant’s husband wrote a letter, countersigned by the claimant herself and dated 27 August 2013, in which he said that she was “not well enough to attend due to her mental health condition”.  Following the second failure to attend, the Secretary of State made the decision against which the claimant appealed, which was that disablement benefit was not payable to her from 1 July 2013 because she had failed to attend the medical examination. 

4. That decision was made under section 19(3) of the Social Security Act 1998, which provides –

19.–(1) Before making a decision on a claim for a relevant benefit, or as to a person’s entitlement to such a benefit, the Secretary of State may refer the person—

(a) in respect of whom the claim is made; or

(b) whose entitlement is at issue,

to a health care professional approved by the Secretary of State for such examination and report as appears to the Secretary of State to be necessary for the purpose of providing him with information for use in making the decision.

  (2) Subsection (3) below applies where—

(a) the Secretary of State has exercised the power conferred on him by subsection (1) above; and

(b) the healthcare professional approved by the Secretary of State requests the person referred to him to attend for or submit himself to medical examination.

  (3) If the person fails without good cause to comply with the request, the Secretary of State shall make the decision against him.

5. The claimant appealed on the ground that she had “good cause” for not attending the examination.  She did not appear before the First-tier Tribunal but was represented by her husband.  The grounds of appeal raised two issues.  The first was expressed as follows –

“Caroline is suffering from severe mental health problems and this is the reason she cannot attend or comply with the request to endure yet another round of Atos medical assessments, that she fears will create further harm if wrong, as they have done previously.”

The second was essentially that a further examination was unnecessary and pointless.  The Secretary of State had already accepted that she had an industrial injury and the evidence, it was submitted, showed that the condition was permanent.  Moreover, the disability arising from the condition was an inability to perform repetitive tasks because they would cause pains and swellings and that in order to prove that that was so “you are asking her to suffer harm by doing such tasks as she has been medically advised not to do”. 

6. A considerable amount of written evidence, including medical reports, was provided to the First-tier Tribunal on the claimant’s behalf.  The medical reports had been obtained for various purposes, including a previous appeal relating to employment and support allowance.  They included a psychiatric report dated 7 February 2013 in which it was said that the claimant had –

“… for the last four years presented with symptoms of a severe depressive episode” …  Her current mental health difficulties seemed to have been precipitated by bullying at work.  They have been perpetuated by a repetitive strain injury which has caused her difficulties with day to day activities which has reinforced her feelings of hopelessness and being a burden to others.”

The claimant’s husband also provided the decision notice issued by the First-tier Tribunal on the employment support allowance appeal on 21 August 2013, in which it found that the claimant had had good cause not to attend the medical examination and added –

“The Respondent is requested to consider, on the basis of the medical evidence which has been produced in connection with the appeal, whether the Appellant should be assessed on scrutiny as having Limited Capability for Work/Work Related Activity either because she satisfies relevant descriptors or because she satisfies Regulation 29 or 35.  If not, it should consider whether on the basis of the same evidence a domiciliary visit should be arranged.”

7. Nonetheless, in the present case, the First-tier Tribunal dismissed the claimant’s appeal and found that she did not have good cause for failing to attend the appointment for the medical examination.  It did so in the light of evidence from the claimant’s husband that she attended other medical appointments, including fortnightly appointments with her counsellor, at least monthly visits to her general practitioner and occasional appointments with her psychiatrist, none of those appointments being very local.  It concluded that she “had taken a view with regard to the medical appointment relating to Industrial Injuries Disablement Benefit that she did not wish to attend that appointment” and that that frustrated the attempts of the Department to reassess her condition. 

8. In her grounds for appealing to the Upper Tribunal, the claimant, through her husband, emphasised again the point made in her appeal to the First-tier Tribunal that she considered that the process of claiming benefits – or, more precisely, the experience of unfavourable medical examinations against which she had had to appeal to gain the benefits – had contributed to her mental health problems.  She provided further documents relating to the employment and support allowance case which show that the decision of 21 August 2013 had been made following remittal of the case by the Upper Tribunal, an earlier decision having been set aside by the Upper Tribunal, on file CE/2179/2012, where Upper Tribunal Judge Ward said –

“2. I have set the tribunal’s decision aside, because in my judgment that tribunal erred by failing to address (or at least to explain how it had addressed) the impact on the claimant (a person who was at the material time mentally ill) of the perceptions apparently held (whether rightly or not) of the medical examination process based on her previous experiences.  The fact that there may have been therapeutic interventions or other appointments in her own interests which she had been able to attend, which the tribunal relied on, does not necessarily provide an answer to why she had not attended the medical examination, as preserving her award of benefit would also have been in her interests.  Nor does it address the misgivings which the Secretary of State’s representative acknowledges it may be reasonable for people to have in view of the adverse publicity which has attached to medical examinations in recent years.”

9. When I granted permission to appeal in the present case, I said –

“The grounds of appeal merit consideration by the Upper Tribunal.

The Secretary of State’s decision was made under section 19(3) of the Social Security Act 1998.  It is arguable that, where it is claimed that a mental disorder amounts to good cause for not attending an examination, the fact that the claimant does not have a rational reason for not attending may not be decisive against him or her. 

Of course, the integrity of the social security scheme depends upon the Secretary of State having good evidence before making an award, but it is arguably wrong to suggest that it is impossible to make a decision in respect of entitlement to disablement benefit if a person does not attend and submit to a medical examination.  There may be other sources of information that are sufficiently reliable to form a basis for a decision both that a person still suffers from a prescribed disease and that the extent of disablement has not diminished, most obviously from the claimant’s own doctors.  If there is no such evidence, the lack of evidence may justify a determination adverse to the claimant.  But that is not the same as making a decision under section 19(3).”

10. The Secretary of State supports the claimant’s appeal.  His representative submits that the First-tier Tribunal erred in failing to show that it had given any consideration to the decision of 21 August 2013 relied upon by the claimant.  It seems to me that, while there is force in the Secretary of State’s submission, the more obvious way of describing the error of the First-tier Tribunal is that it failed to apply the approach taken by Judge Ward in the Upper Tribunal.  In other words, it failed to consider whether the claimant’s refusal to attend the examination was a consequence of perceptions about that particular type of examination held by her at least partly as a result of her mental illness.  It is for that reason that I am satisfied that the First-tier Tribunal erred and that its decision must be set aside.

11. However, the Secretary of State appears not to accept my suggestion that it might be open to a decision-maker to assess disablement on the basis written material without an examination.  He further submits that I should accept that the claimant has established good cause not to attend her medical examination on 3 September 2013, should direct a domiciliary visit and should remit the case to the First-tier Tribunal.  The claimant’s husband, on the other hand, objects to there being any further examination and, I infer, wishes the Upper Tribunal to make an assessment of disablement.  These submissions require some further consideration of the assessment of disablement, the nature of decisions under section 19(3) of the 1998 Act and the powers of the First-tier Tribunal on an appeal against such a decision.

12. In arguing that assessing disablement on the papers is not an option, the Secretary of State says –

“In any disability assessment the objective is to medically assess the functional effects of a person’s condition in terms of what the person can or cannot do compared to a non-disabled person.  In my submission the medical advisors are contracted by the Department to provide medical advice to the Secretary of State and are therefore trained to assess the functional effects in the context of the benefit claim.  I submit that any evidence provided by the claimant’s GP, for instance, will be of limited probative worth because it does not give such advice and instead just generally advises as to the medical conditions and subsequent treatment.”

I agree with the first two of those sentences and would agree with the third if it suggested that evidence of a claimant’s general practitioner “may be”, instead of “will be”, of limited probative worth.  Of course many cases cannot be satisfactorily determined without a medical examination but it seems to me to be equally obvious that there must be some cases where written evidence is available and either does adequately address the issues arising under the relevant legislation or enables a trained advisor to do so. 

13. It is not clear to me quite how broadly the Secretary of State puts his case but if it is intended as a general proposition applying to all cases where medical issues are raised, including cases where regulation 19 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) might apply, it is inconsistent with the Secretary of State’s well-established practice of determining some employment and support allowance cases in favour of claimants “on scrutiny”.  Nothing in the legislation suggests that that practice is unlawful.

14. More importantly, I can see nothing in the legislation relating to disablement benefit that has the effect that an assessment of disablement cannot be made without the claimant being examined.  Indeed, even in the days when the “disablement” questions had to be referred to adjudicating medical authorities for determination, which in practice involved an examination, the legislation allowed the adjudicating medical authority, if appropriate, to determine the case in the claimant’s absence – and therefore without an examination being carried out – provided that the claimant consented (see regulation 29(8) of the Social Security (Adjudication) Regulations 1986 (SI 1986/2218)).  Section 19(1) of the 1998 Act is in permissive terms so that it is clearly not a legal requirement that a claimant of disablement benefit be referred to a medical advisor (i.e., a health care professional) for examination and report at all.

15. That is not to suggest that the practice of making such a reference where an assessment of disablement has to be made is not generally highly desirable and, indeed, necessary if proper standards of decision-making and the integrity of the social security system are to be maintained.  However, where a claimant would, or might, have a good cause for not attending an examination based on a condition likely to last some time, it must follow from the lack of any statutory requirement that there be an examination that the Secretary of State is entitled to, and should, consider whether an examination is really necessary in that particular case.  There is nothing to prevent him seeking advice from a health care professional on that question or seeking advice from a health care professional as to the assessment of disablement without the claimant being examined.  As I said when granting permission to appeal, if the Secretary of State is satisfied that a claimant cannot reasonably be expected to attend for an examination but also considers that there is insufficient evidence upon which to make a decision awarding benefit, it may be appropriate for him to make a decision not to award the benefit.  However, such a case is likely to be extremely rare.

16. The present case is not as straightforward as the claimant’s husband has suggested.  First, he is wrong to suggest that an examination would be effective only if the claimant was required to perform activities that caused her pain.  Examinations often largely consist of asking a claimant questions and observing him or her.  Secondly, even if he is right in stating both that the claimant’s condition is permanent and that it is inherently unlikely that there will be any significant change in the extent of the impairment of her wrist function, that does not address the question whether there might be some change in the consequential impairment of her psychological function, which has been taken into account in the assessment of disablement.  Indeed, it may well be that element of the assessment of disablement that led the First-tier Tribunal to make the previous assessment provisional. 

17. On the other hand, the claimant’s depression clearly had causes other than her loss of wrist function and the assessment of disablement in respect of Prescribed Disease A8 presumably took account of disablement due to the claimant’s depression only to the extent that that prescribed disease had made it worse.  It is unlikely that any assessment of disablement on that basis could be founded on anything other than a broad judgement.  Moreover, in terms of the amount of disablement benefit payable to the claimant, unless the claimant had an assessment in respect of some other industrial accident or disease, it makes no immediate difference to her whether the overall assessment is 14%, 24% or anything in between.  The claimant does not appear to have been seeking a higher assessment than the 20% she had previously had.  In these circumstances, had the Secretary of State had in his possession in the summer of 2013 the psychiatric report later provided to the First-tier Tribunal, it might have been open to a health care professional to advise him that a further provisional assessment of 20% could be made without the claimant being examined.

18. I turn, then, to the question of the decision I should give on this appeal. 

19. Normally, when the First-tier Tribunal allows an appeal under section 19(3), it simply sets aside the decision of the Secretary of State and leaves the Secretary of State to refer the claimant to another heath care professional for examination, who will make a fresh request for the claimant to attend for, and submit to, an examination.  That is plainly appropriate where the claimant’s good cause for not attending an examination was specific to the particular examination he had been asked to attend for.  It is also a legitimate approach to decision-making (see R(IS) 2/08). 

20. However, it is implicit in both parties’ submissions that, when allowing an appeal against a decision given under section 19(3), the First-tier Tribunal need not leave the Secretary of State to make a fresh decision but is entitled to determine itself the issues that were to be considered in the light of the examination that the claimant did not attend.  Otherwise there would be no purpose in this case being remitted to the First-tier Tribunal, as the Secretary of State submits should be done, and the Upper Tribunal would have no power to award disablement benefit, as the claimant’s husband submits it should.  Moreover, it is only if the First-tier Tribunal is exercising its own power under section 20(2) of the 1998 to refer a case to a health care professional that it may direct a domiciliary visit.  If it leaves it to the Secretary of State to make a fresh decision, it has no power to direct that a health care professional carry out a domiciliary visit, although it may make a suggestion to that effect.

21. I accept that the First-tier Tribunal does have power to make the substantive decision when setting aside a decision made under section 19(3), because it has the power to make any decision that the Secretary of State could have made (R(IB) 2/04) and the Secretary of State could have determined the claimant’s case without referring the claimant to a health care professional.  However, in my judgement the power should only rarely be exercised because there will seldom be any particular advantage in doing so since an adjournment is likely to be required anyway; either because it will be appropriate for the claimant to be referred for examination and report, or because it will be necessary to give the Secretary of State an opportunity to make submissions on the questions that arise for determination or the question whether an examination might be unnecessary in the particular circumstances of the case, which he will usually, quite reasonably, not have addressed in his submissions on the original appeal.  I would also point out that, if the First-tier Tribunal were to make a decision on the substantive issues, it would not be entitled to take account of any circumstances not obtaining at the date of the Secretary of State’s decision, whereas if the Secretary of State is left to make a fresh decision, he will be entitled to take into account any circumstances obtaining up to the date of that new decision.

22. In the present case, however, I do not accept the submissions of either party as to the decision to be made on this appeal.  Because I accept that a decision could be made without any examination in this case, I consider it inappropriate to direct that there be a domiciliary visit as the Secretary of State has suggested.  Furthermore, I am not sure that the claimant would agree to a domiciliary visit.  Because, quite reasonably, the Secretary of State has not made submissions either as to whether a decision should be made without an examination in this particular case or as to the assessment of disablement, neither I nor the First-tier Tribunal could properly make an assessment of disablement without giving the Secretary of State an opportunity to make such submissions.  In the event of a dispute, it would be more appropriate for the First-tier Tribunal, which would include a doctor among its members, to determine the case than for the Upper Tribunal to do so.  In all these circumstances, it makes more sense for the Upper Tribunal to leave the Secretary of State to make a decision against which the claimant can appeal to the First-tier Tribunal if necessary, than for it either to remit the case to the First-tier Tribunal or to adjourn until further submissions have been received. 

23. Accordingly, I accept the Secretary of State’s concession that the claimant had good cause for not attending the examination on 3 September 2013 but I leave other matters to be determined by the Secretary of State in the light of this decision.

Mark Rowland

16 July 2015