IN THE UPPER TRIBUNAL                                 Case No  CI/143/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:             

 

For the Appellant:       The appellant’s daughter

 

For the Respondent:  Mr Stephen Cooper, solicitor

 

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Leeds on 9 October 2013 under reference SC007/13/00021 involved the making of an error of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 22 of the Reasons.

 

REASONS FOR DECISION

 

1. The appellant had sustained an industrial injury on 21 June 2002. She had had various awards of disablement benefit, the last of which before the matters which are the subject of the present appeal had been made by a previous tribunal on 9 July 2009 and had ended on 2 September 2012.  She was reassessed and on 8 October 2012 a decision was made adopting the medical assessor’s advice of 35% for life. This had been based on 20% for impaired spine function, 10% for impaired upper limb function and 10% for impaired lower limb function, less 5% for pre-existing degenerative changes to the neck.

 

2. The appellant had appealed to the First-tier Tribunal (“FtT”) against that decision, arguing in her letter of appeal that “none of my head/brain injury has been included in the award”.  On 9 October 2013 the FtT held an oral hearing.  The bundle was just under 800 pages.  Having given a warning, it issued a decision refusing benefit altogether.  Its decision notice was expressed in a manner which I consider confusing (for reasons explored at paras 19-21 below):

 

            “1. The appeal is disallowed.

 

            2. The decision of the Secretary of State issued on 08.10.12 is         confirmed.

 

            3. From 03.09.12 there is no loss of faculty resulting from the accident.

 

            4. The extent of the disablement is assessed at 40% with an offset of          40%.

 

            5. The appellant is suffering from significant physical disability. The           Tribunal finds that the accident from which she suffered was mild…The Tribunal finds that a period of 5 years would represent a suitable             healing time.  It has offset 40% as a result of pre-existing and             constitutional reasons and unrelated to the relevant accident.

 

            6. This is a final assessment.”

 

3. The tribunal issued a statement of reasons and in due course the appellant sought permission to appeal, attaching grounds written at very considerable length.  On 24 April 2014 Upper Tribunal Judge Wikeley granted limited permission to appeal and the case was subsequently transferred to me as the judge taking the list in Leeds.

 

4. Judge Wikeley gave permission to appeal on grounds 2, 3 and 4, which were facts and reasons challenges in relation to various different parts of the decision, discussed below.  He also added what he called ground 6, which related to the expertise claimed in the Statement of Reasons for the tribunal’s medical member, and ground 7, which related to the formulation of the decision notice (see above).  For convenience, I keep the same numbering.

 

Grounds 2/3/4

 

5. Judge Wikeley identified particular areas of concern, which I deal with in turn and will call them sub-grounds (a) to (d). 

 

6. Sub-ground (a) was the finding that the Appellant had:

 

            “little recorded in the way of symptoms during the years 2002 to 2004”       (statement of reasons at [21]) looks questionable in the light of the evidence   on file. It is possible what the tribunal meant that there was little in the way of             serious symptoms. Or they may have meant that there was little of objective             signs recorded (rather than subjective symptoms).”

 

The respondent relied substantially on the evidence from a Dr Biner or Biwer who had  conducted an assessment of the appellant in February 2004 and taken a history from her and says that this and her claim form show that her symptoms were not as severe in 2002 or 2004 as subsequently.  However, the FtT was here not making a comparative evaluation, but a finding of fact. The appellant says that Dr Biner’s evidence records symptoms and indeed it does: numbness, tingling and so on.  The relevance of the point was in relation to the tribunal’s conclusion that ”the onset of her current level of symptoms post-dates those years.”  From that I would infer that the tribunal’s concern was not with the mere number of symptoms  but with those which, by virtue of their seriousness and/or objective verifiability, carried weight.  However, Dr Biner based on this history and examination assessed the degree of disablement at 45%,   If the tribunal meant “symptoms” without more, then its conclusion was not one which could be reached on the available evidence.  If it meant “serious symptoms” it should have (a) said so and (b) explained how it reached that view having regard to, inter alia, the contemporaneous view of Dr Biner.  I consider that the FtT was in error of law on this ground.

 

7. Sub-ground (b) was that:

 

            “The statement that no UK consultant had identified any specific injury or loss        of faculty due to the index accident is curious (statement of reasons at [28]).       The inference is that evidence will only be accepted if it comes from a UK         doctor of consultant status and deals expressly with causation. Surely             evidence (e.g. the evidence from New York) is to be judged on its own merits,       or lack of them, not the nationality, location or status of the doctor (although       obviously grade may have an effect on the weight to be attached)?”

 

8. Since the accident, the appellant had engaged upon a protracted search for a medical explanation for the difficulties she was experiencing, consulting in the process a large number of private doctors.  In October 2008 she consulted a hospital in New York which diagnosed “posttraumatic craniocervical instability (06/2002 injury)”  and treated it by invasive cervical traction.  It also made findings suggesting that the occipital bone, the foramen magnum, the brain stem length and the brain stem position were all abnormal to an extent, at least some of which are congenital matters.  The process leading to diagnosis and treatment was extensively documented in the bundle.  While it may be the case that no UK consultant had identified any specific injury or loss of faculty due to the index accident, it is also true that the New York hospital had done so.  The appellant asserts that the medical member of the tribunal appeared in the course of the hearing to set particular store by evidence from the UK:  there is no support for this assertion from the carefully maintained 17 page record of proceedings and I discount it, focussing only on what is said in the statement of reasons.

 

9. The respondent argues that properly read, the statement of reasons is simply saying that the New York evidence was out on a limb and outweighed by the UK evidence.  The passage in context comes after a recitation by the FtT of the outcome of ENG studies, MRI scans and other investigations (including those carried out in New York).  The statement of reasons continues:

 

            “27. The overwhelming medical evidence confirms that the doctors whom the appellant consulted, in the aftermath of the accident, held no     concerns that the accident would have caused damage of any lasting      or material significance.

 

            28. No medical consultant in the UK has identified any specific injury,       or loss of faculty, which is attributable to the index accident.”

 

10. Seen in its context, paragraph 28 which, for the reasons identified by Judge Wikeley, might seem very odd were it standing alone, in my view does form part of a wider expression of the FtT’s reasons with the effect for which the respondent contends.  The use of “overwhelming” suggests that the FtT was concerned with the balance of the weight of evidence and thus that it was well aware that there was evidence to the contrary.  The reference to “no medical consultant in the UK” has to be seen against the extensive consultations the appellant had undertaken with such people disclosed by the evidence and it was their views that were in the clear, as the tribunal saw it “overwhelming” majority.  It is not intrinsically likely that a tribunal would be approaching the matter from a seemingly irrational dislike of American medical evidence.  Rather, in my view, it was using, infelicitously,  the description of the medical consultants ”in the UK” as shorthand for the medical professionals whose view it considered predominated.  I am setting the tribunal’s decision aside on other grounds and so do not need to decide whether this was a further one.  I consider under paragraph 12 below implications for the appeal of the paucity of the FtT’s explanation.

 

11. Sub ground (c) was as follows:

 

            “Is the tribunal’s analysis of offset adequate (on which see further below     under Ground 7)?  See especially the statement of reasons at [39]-[40].  The            tribunal might have been entitled to take the view that the accident was not a     serious one and that the effects would have resolved within five years (see             [21] and [30]).  The tribunal touch on the evidence relating to degenerative changes in the neck.  But do the tribunal really explain why they think those     constitutional changes were sufficiently serious to account for the Appellant’s     current level of disability?”

 

I leave until later the FtT’s application of reg 11. In terms of the factual aspect, its conclusion (para 39) was that there was another effective cause, namely congenital and constitutional factors.  The FtT got to there by a combination of what it considered to be the lack of demonstrable consequences of what it views as an accident of a minor nature (see paras 21, 23, 24, 25 and 26 and the positive indications of congenital and constitutional matters (paras 22, 26, 31). 40% disablement is a reasonably significant degree of disablement (it equates, for example, to “loss of one eye, without complications, the other being normal” (see sch 2 to the Social Security (General Benefit) Regulations 1982/1408) but I do not find it such a startling proposition that a woman aged 58 at the date of decision with the problems affecting her neck and a history of anxiety might achieve such an assessment that it calls into question whether the reasons given by the tribunal, albeit spread across the paragraphs identified above, provide an explanation that is insufficient.  While it is certainly possible to suggest with the luxury of the time and argument available to me ways in which this aspect of the statement could have been ordered better, that is not the question and I conclude (subject to Ground 7) that it was on this aspect adequate.

 

12. Sub-ground (d) was that:

 

            “On first analysis it may be the tribunal’s dismissal of the explanations based          on vestibular symptoms ([33]), POTS [34]) and cognitive and memory     deficits ([35]) were sufficient. However, did the tribunal deal adequately with the diagnosis based on cranial-cervical instability? This was plainly a matter             which impressed the previous tribunal in 2009, so arguably required greater           attention from this tribunal if they were to take a different position. Has the       tribunal explained why it rejected the Appellant’s argument that the New York findings provide the main explanation for her disability? Moreover, did the             tribunal deal adequately with the possibility that there was a somatoform    explanation (see [31])? The tribunal found that “she was susceptible” to such       a condition. But does that really answer the question as to whether such a           disorder would have manifested itself if the accident had never happened?”

 

I agree with Judge Wikeley’s views, expressed to be “on first analysis” in relation to the adequacy of paras 33, 34 and 35.  However, I also share his concerns as to what was needed in relation to the diagnosis of cranial-cervical instability.  Unusually for an appeal in which the claimant had in substantial measure been successful, the file contains at pp 574-577 a statement of reasons for the decision of the tribunal on 9 July 2009, from which it is evident that the New York evidence was analysed with some care by the 2009 tribunal and replied upon to support both its conclusions regarding the seriousness of the appellant’s condition (statement para 12) and those in relation to the appropriate offset (para 11).  The respondent says that the 2013 tribunal preferred the view of the UK experts and was entitled to do so.  That may have been so, but in my view, if it was going to do that, it needed to explain in general terms why it took a different view of the significance of the evidence from the previous decision-taker (in this case the 2009 tribunal), as it was not reasonably obvious: see R(M)1/96.

 

13. I also agree with Judge Wikeley in relation to the somatoform issue  The statement of reasons does not go so far as to say, as the respondent invites me to conclude, that the appellant had a pre-existing somatoform disorder which would have manifested itself even without the index accident.  Indeed, it is hard to know what the tribunal was saying on this issue. It records the presence in the bundle of the evidence of Drs Thompson and Holden, noting their respective roles  in the civil litigation in which the appellant had earlier been engaged.  Dr Thompson’s diagnosis of a somatoform disorder quoted by the tribunal (and presumably considered important because he was the appellant’s own expert) was in fact changed by him at p132.  The tribunal’s recitation of Dr Thompson’s evidence neither goes so far as to provide the explanation which Judge Wikeley identified as necessary nor indeed was an accurate reflection of his views in any event.  While Dr Holden did contend for the condition being somatoform, it is not his evidence that is recited, nor does the FtT make any attempt to address the views of the two doctors who, in their final position, were not in accord on this issue.

 

14. For both parts of sub-ground (d), I conclude the tribunal was in error of law.

 

Ground 6

 

15. This relates to the claim in the statement of reasons that “The Tribunal included a consultant orthopaedic surgeon, with a particular expertise in this area.”  The appellant asserts that, rather, it is a variety of other medical specialties that are the relevant ones for considering her case and, having looked up the medical member on the internet, there is little or no reason to suppose that he has such specialist knowledge.

16. The member of the tribunal, as a registered medical practitioner, is undoubtedly qualified for appointment as a member of the First-tier Tribunal under paras 2(1) and (2)(a) of the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008/2692.  One then has to go to the provision regulating the composition of the panel.  That is to be found in the Practice Statement entitled “Social Security and Child Support cases in the Social Entitlement Chamber on or after 01 August 2013”, which provides:

      “5. Where –

            …

            the appeal raises issues relating to severe disablement allowance under section 68 of the Social Security Contributions and Benefits Act             1992 or industrial injuries benefit under Part V of that Act (except for an             appeal where the only issue is whether there should be a declaration of            an industrial accident under section 29(2) of the Social Security Act             1998);

 

the Tribunal must, subject to paragraphs 7 to 14, consist of a Tribunal Judge and a Tribunal Member who is a registered medical practitioner.”

Paragraphs 7 to 14 add nothing material for present purposes.  The tribunal was, therefore, correctly constituted.

 

17. I am not in a position to judge whether or not the medical member could claim “particular expertise in this area” and do not do so.  What “this area” is is in any event ill-defined and a matter as to which there is scope for differing views.

 

18. Reading the statement of reasons, I am uncertain why it was felt necessary to make the point.  The statement contains few references to use of the medical member’s expertise and such as there are (para 20 – that a medical examination would not assist and para 30 – anticipated healing time) are not phrased in terms that suggest that reliance was being placed on something that only a specialist would know and a registered medical practitioner without such specialism would not.  One can imagine, for instance, the position of a panel member who could say something like “In my career as a consultant in X I have conducted more than 200 procedures of the  type you have undergone, without ever having noted the consequences you claim”.  It seems to me that it is only in the latter circumstances that it might be appropriate to mention the specific specialism of the panel member (and fairness would require the particular knowledge to have been put to the parties for comment).  To claim a specialism is always liable to be a hostage to fortune when there is widespread use of the internet.  But while I consider it both ill-advised and unnecessary, I do not think the claim of specialism for the medical member in this case had any material effect on the tribunal’s decision and so I do not regard it as an error of law.

 

Ground 7

 

19. As to this, Judge Wikeley’s grant of permission observed:

 

            “This is a rather technical point which understandably the Appellant has not            identified. The tribunal concluded (decision notice (3) and (4), p.808) that (i)           from September 2012 “there is no loss of faculty arising from the accident”       while at the same time (ii) the disablement was assessed at 40% with an             offset of 40%. In strict legal terms this looks like a contradiction in terms. This        is because in the absence of any loss of faculty there simply cannot be an     assessment of disablement. This is in turn because the disablement that must       be assessed is that which results from the loss of faculty. An offset only arises             if it is accepted that the accident is A cause of the present disablement but             there is also another cause which must also be considered. The tribunal’s            conclusions may simply be poorly expressed. However, they may reflect a fundamental underlying conceptual confusion.

 

            Thus a tribunal might conclude that an accident was so minor and happened         so long ago that any ill effects would have expired years ago. If so, the    conclusion is there is simply no loss of faculty (and, e.g., any disablement is      the result of some congenital factor). Alternatively, a tribunal may decide that        an accident was serious, with long-lasting effects, but that the claimant has a significant pre-existing condition which meant that she would be just as           disabled now, even in the absence of suffering the index accident. That     second approach requires some analysis of the nature of the pre-existing   condition and why it would produce the effect the tribunal found. Did this           tribunal really distinguish between those two scenarios? Or was it saying that        both applied – which might, logically, be rather difficult to sustain     conceptually?

 

20. I respectfully agree with the above analysis of the correct legal approach : see Social Security Contributions and Benefits Act 1992, s.103(1) and sch 6, para 1(b) and Social Security (General Benefit) Regulations 1982 reg 11. Mr Cooper agrees.  However, he submits that it makes no difference in that the tribunal’s view was evidently that there was no loss of faculty as a result of the index accident and as such does not constitute a material error of law.

 

21. As I am setting aside the decision on other grounds, it matters not whether the tribunal’s apparent confusion amounted to a further, distinct error of law.  What matters is that when the case comes back before the First-tier Tribunal, the provisions I have cited should be properly applied, in accordance with Judge Wikeley’s explanation above.

 

Directions

 

22. I direct that the file be referred to a District Tribunal Judge for case management directions.  The tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  The appellant is put on notice that the possibility that the tribunal may reach a decision which is less favourable to her than the DWP’s decision under appeal – or one that is equally or more favourable – continues to exist.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

 

Concluding note

 

23. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

 

 

 

CG Ward

Judge of the Upper Tribunal

26 February 2015