Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  UK/694/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before M R Hemingway: Judge of the Upper Tribunal

 

Decision:  The decision of the First-tier Tribunal sitting at Bolton on 20 November 2014 under reference SC122/14/00352 involved an error of law and is set aside.

 

The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.

This decision is made under section 12 of the Tribunals, Courts and Enforcement Act 2012.

 

DIRECTIONS

 

Subject to any later directions by a District Tribunal Judge of the First-tier

Tribunal, the Upper Tribunal directs as follows:

 

(1) The appeal shall be considered at an oral hearing before a completely

differently constituted tribunal to that which considered the appeal on 20

November 2014.

 

(2) The appellant is reminded that the new tribunal can only deal with his

situation as it was down to 19 March 2014 (the date of the original

decision of the Secretary of State under appeal) and cannot deal with

any changes after that date.

 

  (3) If the parties have any further written material to place before the new

Tribunal, which was not before the first tribunal, this should be sent to the

appropriate tribunal office within one month of this decision being issued.

To be relevant such material will have to relate to the circumstances as

they were when the original decision under appeal was made.

 

REASONS FOR DECISION

 

Introduction

 

1. This is the appellant’s appeal to the Upper Tribunal, brought with my permission, against a decision of the First-tier Tribunal (the “tribunal”) made on 20 November 2014 to the effect that he is not entitled to a personal independence payment.  For the reasons set out below the appeal succeeds.

 

 

The background

 

2. The appellant was born on 21 September 1950. He suffers from health problems which include cervical spondylosis, joint pain and asthma. He claimed a personal independence payment on 31 July 2013 and subsequently completed form PIP2 in which he indicated difficulties with the activities of preparing food, eating and drinking, managing his treatment, dressing and undressing and walking. On 11 March 2014 he had a “face to face consultation” with a healthcare professional and a report of that date was produced.  It was the view of the healthcare professional that the appellant did not have such difficulties as to lead to the scoring of any points under the various activities and descriptors, as contained in Part 2 and Part 3 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 and which are relevant to an assessment as to entitlement.  On 19 March 2014 the respondent decided that the appellant was not entitled to any points such that there was no entitlement to either the daily living component or the mobility component of personal independence payment. The appellant sought to challenge the decision but it was confirmed, in all respects, by a mandatory reconsideration decision of 22 May 2014.  He then appealed to the tribunal, asserting that he had poor grip, restricted arm movement, arthritic pain and an inability to walk anything other than very short distances.

 

 

The appeal to the First-tier Tribunal and its decision

 

3. The appeal first came before a tribunal on 13 August 2014.  It was dismissed but the decision was subsequently set aside so it is not necessary to say anything more about that. Thereafter, the appeal came before a tribunal on 29 September 2014. That tribunal decided to adjourn so it could obtain medical records and related evidence from the appellant’s GP. The tribunal noted in its record of proceedings;

 

“T feel Med records from 1/1/13 would assist as HCP report conflicts with subsequent surgery.”

 

4. Pausing there, “T” is an abbreviation for tribunal, “Med” is an abbreviation for medical and “HCP” is an abbreviation for healthcare professional.  Finally, the appeal went before a tribunal on 20 November 2014. The appellant was not represented but he attended and gave oral evidence. The respondent was represented by a presenting officer.

 

5. The tribunal had various documents before it including the report of the healthcare professional and the further medical evidence which had been successfully obtained. It also had three letters written by three different friends of the appellant, all supporting his appeal.

 

6. The tribunal dismissed the appeal concluding, as had the respondent, that he scored no points in relation to the activities and descriptors under either the daily living component or the mobility component. It subsequently, and upon request, produced its statement of reasons for decision (statement of reasons).

 

 

The proceedings before the Upper Tribunal

 

7. I granted the appellant permission to appeal.  I subsequently received one set of written submissions from the parties and then, in response to a direction issued by me, a further submission from each.  I did not hold an oral hearing before the Upper Tribunal, neither party having sought one.  As a consequence of the submissions I have considered a number of issues which I now address below.

 

 

Analysis

 

8. I have considered whether the tribunal erred in law in its treatment of the written evidence which had been provided by the appellant’s friends. The appellant complains that, in effect, it was disregarded and that if the tribunal had wanted those friends to be present at the hearing it should have said so in advance.

 

9. The tribunal was aware of the letters and said this about them;

 

“The Tribunal also read carefully letters from friends who gave their opinions of the appellant’s difficulties. The Tribunal were unable to question the friends on their views as they did not attend the hearing.”

 

10. That comment, as Mr Whitaker, who has provided both submissions to the Upper Tribunal on behalf of the respondent points out, appears in a section of the statement of reasons in which the tribunal was referring to various different items of evidence which was before it.

 

11. The tribunal did not make any further reference to those letters. In my judgment, though, its having referred to the letters, it is right to conclude that it took their content into account in reaching its overall conclusions.  It cannot be said they were disregarded.  It may be that it attached less weight to them than it would have done to oral evidence from the authors but that would have been dependent upon what it may have made of any such evidence.  If it did attach reduced weight to them as a result of the authors not attending, which is not clear in any event, it was open to it to do so.  It was not required to send out some form of signal to the appellant that he should bring his friends along rather than simply supply letters or that there was a risk less weight might be attached to them than if they did not attend.  It was for the appellant to decide whether to bring witnesses to the hearing or not.  I have concluded the tribunal did not err in its treatment of the letters.

 

12. I have considered whether the tribunal erred in failing to explain its view that the appellant’s evidence was “at times inconsistent”. At paragraph 16 of its statement of reasons it simply said it had taken such a view.  However, it is necessary to read the tribunal’s decision as a whole.  It had noted, at paragraph 10 of its statement of reasons, that the appellant had said he would often drop pans when trying to prepare a meal, due to a loss of grip but had also said that he drove a motor car, the tribunal inferring that, as a consequence, he would grip the steering wheel, pull on the brake and use gears.  At paragraph 12 of its statement of reasons it noted that, whilst he had said in his form PIP2 that he had difficulty motivating himself to deal with his medication, he had made no reference to depression or any other condition likely to cause any poor motivation.  At paragraph 14 it had noted his evidence that he would stumble but only use a home made walking stick for assistance, the tribunal taking the view that had he stumbled as frequently as he suggested he would have used something which would afford more assistance than a mere home made stick.

 

13. In these circumstances I conclude that, when read as a whole, it is clear from the tribunal’s statement of reasons as to why it did consider his evidence to be inconsistent in part and that it was open to it to reach that view.

 

14. I have next considered whether the tribunal erred by assessing matters as at the date of claim rather than as at the date of the decision under appeal.  Clearly, in this context the tribunal was required to consider the circumstances down to the date of the original decision under appeal as a consequence of the operation of section 12(8) of the Social Security Act 1998.  In this case the decision had been made on 19 March 2014.  As part of its penultimate paragraph (paragraph 15) the tribunal said this;

 

“On 22 May 2014, the consultant orthopaedic surgeon stated that his exercise tolerance was 20 yards. From the GP records it appears that his mobility worsened around 23 April 2014 when he returned to his GP. However at the date of claim 31 July 2013, the Tribunal agreed the appellant was able to stand and walk safely for at least 200 metres. The tribunal did not accept he fell; although he referred to falls he told the examining nurse he did not do so. He also told her that he walked to the shops, visited the supermarket and market and that he could pace his walks over 10 to 15 minutes, resting for short intervals. The Tribunal agreed that in 10 minutes the appellant would walk approximately 400 metres. No points are awarded for mobility.”

 

15. And then, as part of its closing paragraph (paragraph 16), the tribunal said this;

 

“They [the tribunal] accepted that by 22 May 2014 his mobility had worsened. He had been referred back to the orthopaedic consultant on 23 April 2014. Deterioration in the right knee was noted on 27 March 2014 when the GP noted “joint slightly swollen”; the Tribunal accepted this referred to the right knee, the deterioration in the right knee, affecting mobility did not occur until the end of March 2014, eight months after the date of claim. The Tribunal agreed any claim for mobility component was not satisfied on over 50% of the days of the required period (Regulation 7). In any case, the Tribunal shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

 

16. That does seem to me to be rather confused.  Mr Whitaker accepts that if the part of paragraph 15 quoted above were to be read in isolation that might indicate that the tribunal was looking at how the claimant was at 31 July 2013 alone.  However, he says that when that is read in conjunction with paragraph 16, it is apparent that what the tribunal was actually seeking to do was to explain what it made of the appellant’s condition from the date of claim all the way down to the date of decision.  He submits that, were that not so, the tribunal would not have found it necessary to refer to the content of the healthcare professional’s report which had been prepared on 11 March 2014, just a week prior to the decision date, yet eight months after the date of claim.  Further, there would have been no need for the tribunal to have referred to the deterioration of the appellant’s condition at all, as it did in paragraph 16, if all it was concerned with was the situation as at the date of claim.

 

17. The tribunal’s closing words do appear to suggest that it had the content of section 12(8) in mind with respect to its observation that it was not able to take into account circumstances not obtaining at the time when the decision appealed against was made. Further, it might be thought to be surprising that a specialist tribunal would lose sight of the fundamental principle that matters are to be assessed as at the date of decision.  Indeed, had the tribunal not said anything about the relevant assessment date at all I would probably simply have assumed that it had the correct one in mind.

 

18. On the other hand, though, it is difficult to read paragraph 15 in isolation, as suggesting anything other than that the tribunal was assessing the appellant’s situation as at the date of his claim.  There was no reference, there, to the date of the decision at all and it might be thought that the tribunal had no need to say anything about how the situation was “at the date of claim” if it was not assessing matters at that date.  As to paragraph 16, it expressed the view that there had been deterioration affecting mobility at the end of March 2014 and observed that that was “eight months after the date of claim”.  If it was focusing upon the date of decision it is quite difficult to see why it felt it necessary to make the point that the deterioration was eight months after the date of claim or, again, to refer to the date of the claim at all. Surely, if it thought the deterioration had come too late for it to be considered it should have said that its onset had occurred at some point after the date of decision.

 

19.  Mr Whitaker makes a valiant attempt to support the tribunal’s decision but I do not think it right to say, had it erred in focusing upon the date of claim, it would not have felt it necessary to refer to evidence contained within the healthcare professional’s report.  That report was an important piece of medical evidence which was before it and which had been relied upon by the respondent.  Further, it was, potentially, capable of informing as to what the situation had been at the date of claim. Thus, the tribunal’s reference to it is entirely explicable even if it had erred about the date of assessment.  Further, its reference to post-claim deterioration was entirely explicable too. It seems to me it was simply making the point that his condition had deteriorated but that, since the deterioration was after the date it thought it was assessing matters at, it could not take it into account.  I would also add that very often tribunals do refer to post-decision deterioration in any event even though, strictly speaking, it might not be necessary to do so.  I appreciate it possible that the statement of reasons has simply been unfortunately drafted.  Such can certainly and understandably happen as a consequence of pressure of work.  However, I cannot simply make assumptions.  I have to go by the words the tribunal chooses to use.  In so doing I consider that, when assessing the appellant, the tribunal was looking at how he was at the date of claim, as opposed to the date of decision, and that it did, thereby, err in law.

 

20. I have gone on to consider whether that error was material.  The tribunal, at one point, seemed to say that the appellant’s ability to mobilise had reduced around 23 April 2014 but then suggested that such deterioration, at least with respect to his right knee, had occurred at the end of March 2014.  The date of decision was, of course, 19 March 2014.  One approach might be, therefore, to say that since the tribunal found the deterioration had only occurred at the end of March it would not have manifested itself on 19 March so that, even if it had been looking at the correct assessment date, the outcome would have been the same. However, there was evidence before it, to which it referred, suggesting that the consultant orthopaedic surgeon’s view on 22 May 2014 was to the effect that his exercise tolerance was, at that date, limited to only 20 yards. That was, of course, only some two months after the correct assessment date. The appellant’s GP had noted some slight swelling to what the tribunal accepted as being his right knee, on 27 March 2014 which was a mere 12 days after the date of decision. It is possible, of course,  that there had been sharp deterioration from 20 March 2014 to 22 May 2014 but I do not feel that I can safely conclude that, had the tribunal been directing itself correctly as to the assessment date, given the evidence of the severity of the situation in May 2014, it would inevitably have decided that he could not have satisfied, at least, descriptor 2(c) under “moving around” which would, of course, have lead to the awarding of 8 points and the standard rate of the mobility component.  I do conclude, therefore, that the error I have decided the tribunal made was a material one such that its decision falls to be set aside.

 

21. On one view it is not necessary to say anything further because any other errors of law the tribunal may have made will be subsumed by the fresh hearing which will now follow. However, there was a particular issue addressed in submissions which I would like to deal with so that the matter will be clear for the new tribunal which will have to re-hear this appeal.

 

22. The documentation before me appeared to suggest that the appellant would sometimes walk without his homemade stick but would sometimes, perhaps most of the time, walk with it.  The tribunal found, as at the date it thought it should be assessing matters, that the appellant was capable of standing and moving more than 200 metres such that he, in its view, did not score any points under the descriptors relating to the activity of moving around. It did not distinguish between walking undertaken by him which was aided and walking which was unaided.

 

23. The relevant activity and descriptors are as follows:

 

Activity	Descriptors	Points
2. Moving around.	a. Can stand and then move more than 200 metres, either aided or unaided.	0
	b. Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided	4
	c. Can stand and then move unaided more than 20 metres but no more than 50 metres.	8
	d. Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres.	10
	e. Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided.	12
	f. Cannot either aided or unaided, -
	i) stand or ii) move more than 1 metre.	12

 

 

24. That activity and those descriptors are contained within Part 3 of Schedule 1. Part 1 of Schedule 1 contains these definitions;

 

“aided” means with –

a) the use of an aid or an appliance; or

b) supervision, prompting or assistance;

 

“unaided” means without –

 

a) the use of an aid or appliance; or

b) supervision, prompting or assistance.

 

In regulation 2 there is this definition –

 

“aid or appliance” –

 

a) means any device which improves, provides or replaces C’s impaired physical or mental function; and

 

b) includes a prosthesis.

 

 

25. C is simply an abbreviation for the word “claimant”.

 

26. The issue relates to the possible applicability and the interpretation of descriptor 2(c) under the activity of moving around.  That is the only one of that set of descriptors which enables the scoring of points and which does not contemplate the possibility of a claimant being aided in some way.  In looking at the wording of that descriptor, in isolation, it would appear that if a claimant is capable of standing and moving unaided for more than 20 metres but no more than 50 metres he will score 8 points, thereby establishing entitlement to the standard rate of the mobility component, no matter how far he is subsequently able to move using an aid such as, for example, a stick.  If that is how the descriptor is to be read then it would follow that a tribunal dealing with a claimant who had some ability to walk unaided but could also use an aid to walk further, would have to specifically address and decide how far that claimant could walk unaided rather than simply reaching a view as to the overall distance he could manage by, in part, moving without an aid and in part moving with one.  This tribunal did not do that.

 

27. As Mr Whitaker points out, such an interpretation would seem to lead to an anomaly.  As he says, if a claimant can walk unaided for, to take the example he gives, 1000 metres, then he or she would not satisfy a scoring descriptor. If the claimant could walk aided all the way for 1000 metres, then, similarly, no scoring descriptor would be satisfied.  However, if the claimant could walk 50 metres but no more, unaided, and could then manage a further 950 metres aided then that claimant would satisfy 2(c) under moving around and would establish entitlement.  That would be despite the fact that an arguably worse off claimant who needs to be aided in order to move, all the time, would score no points at all.  It would, as Mr Whitaker again points out, create a special category of claimant – the person who can manage unaided for some of the journey and aided for the rest – who receives unusually generous treatment in the context of the descriptors.

 

28. If descriptor 2(c) is not looked at in isolation, though, matters appear somewhat different.  All of the descriptors set distance boundaries.  2(a) is more than 200 metres, 2(b) is more than 50 metres but no more than 200 metres, 2(c) and 2(d) are more than 20 metres but no more than 50 metres, 2(e) is more than 1 metre but no more than 20 metres and 2(f) is no more than 1 metre.  So, if 2(c) were to be capable of being satisfied by the claimant able to achieve a distance of more than 200 metres albeit not able to achieve a distance of more than 50 metres unaided, then that descriptor would be operating in a different way to all of the others with respect to the distance boundary set.  Further, it does appear that the intention of 12(c) and 12(d) was to capture claimants who are limited to walking more than 20 but no more than 50 metres and giving differing points based on the way they cover that distance, that is to say, either with an aid or appliance or without one.  Specifically it would seem 2(c) was intended to capture claimants who are limited to walking more than 20 but no further than 50 metres and no further even if they have an aid.  That might, for example, apply to a claimant who suffers from severe breathlessness or excessive fatigue. Thus, and logically, the arguably worse off claimant who needs an aid or appliance to achieve a distance of more than 20 but no more than 50 metres scores 2 more points than the one who can do so completely unaided.  That represents a way of understanding and rationalising the descriptors which does not require the interpretation which would create the above anomaly.

 

 

29. In light of the above, therefore, I accept Mr Whitaker’s submission that once the tribunal had found that the appellant was able to walk more than 50 metres then it mattered not how that was achieved.  He had passed from one threshold to another and that was the end of the matter.  It follows that the tribunal did not err in law in considering only the distance the appellant was able to achieve although, for the reasons set out above, that does not save it from having its decision set aside.

 

 

What happens next?

 

30. My having decided to set the decision aside I have also decided to remit the case to a new and entirely differently constituted tribunal.  This is because there are further facts to be found and that task is best undertaken by an expert fact-finding body which will have the benefit of medical and other expertise. There will, therefore, be a fresh hearing before the new tribunal.  That will be a complete rehearing.  The new tribunal will make its own findings of fact and reach its own conclusions on the basis of the evidence before it.  It will not be bound in any way by the findings and conclusions of the first tribunal.  The appellant will note that I have directed an oral hearing.  He attended the first one, so I imagine, he will wish to attend the new one.  Whether he does or does not decide to take his friends who have written letters, as witnesses, will be a matter for him.  However, if he does intend to do so it would be of assistance if he could write to the tribunal notifying them of that intention in case that affects its view as to what time estimate should be given for the new hearing.

 

 

Conclusion

 

31. The appellant’s appeal to the Upper Tribunal succeeds. The First-tier Tribunal’s decision of 20 November 2014 is set aside.  The appellant’s appeal against the respondent’s decision of 19 March 2014 will have to be re-heard by a new tribunal.

 

 

(Signed on the original)

 

M R Hemingway

Judge of the Upper Tribunal

 

Dated 23 September 2015