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URL: http://www.bailii.org/uk/cases/UKUT/AAC/2016/706.html
Cite as: [2015] UKUT 706 (AAC)
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JC v Secretary of State for Work and Pensions (Tribunal procedure and practice (including UT) : tribunal jurisdiction) [2015] UKUT 706 (AAC) (27 October 2015)
THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
DECISION OF A THREE JUDGE PANEL OF THE UPPER TRIBUNAL
A Decision of the Three-Judge Panel of the Upper Tribunal
1. The decision of the First-tier Tribunal dated 10 January 2013 is not in error of law. Accordingly the appeal to the Upper Tribunal does not succeed.
B The substantive issue arising in this appeal
2. What is the extent of the duties of the First-tier Tribunal when faced with an appeal against an Incapacity Benefit (IB) supersession decision, an Employment and Support Allowance (ESA) supersession decision or an ESA conversion decision where there are materials, such as reports of medical examinations or previous decisions of the First-tier Tribunal, associated with the adjudication process which have not been provided or where there may be such reports but the First-tier Tribunal is not aware of them?
C Background
3. The appellant had been entitled to Incapacity Benefit (IB) from 4 August 1995. Following receipt of an ESA50 questionnaire and the report of an examination conducted by a Healthcare Professional, a decision maker of the Department decided, on 13 February 2012 that the appellant’s award of IB did not qualify for conversion to Employment and Support Allowance (ESA). Her award of entitlement to IB was ended from and including 28 February 2012.
4. An appeal against the decision dated 13 February 2012 was received on 2 March 2012. On 30 August 2012 the decision dated 13 February 2012 was reconsidered but was not changed.
5. The First-tier Tribunal hearing took place on 10 January 2013. The appellant was present and was represented by Mr Thomson of Glasgow Welfare Rights. The First-tier Tribunal disallowed the appeal and confirmed the decision dated 13 February 2012.
6. On 12 March 2013 an application for permission to appeal to the Upper Tribunal (UT) was received. On 24 May 2013 the application for permission to appeal was granted by a District Tribunal Judge.
7. On 21 June 2013 the appeal was received in the office of the Upper Tribunal. Following the issue of Directions by the Registrar, a response to the appeal and a further submission were received from the Secretary of State and additional submissions were received from Mr Thomson.
8. On 10 December 2013 the Chamber President of the Administrative Appeals Chamber of the Upper Tribunal directed that as the appeal raised issues of general application and importance concerning the scope and extent of the obligation of the Secretary of State to produce previous medical reports, or records of them, in every case, the appeal was to be listed for oral hearing and determination before a Three Judge Panel.
9. The oral hearing of the appeal took place on 4 February 2015. The appeal was listed together with another appeal (CSE/19/14) where the issues were parallel, save that that case concerned purely the supersession of an award of ESA. The case is the subject of a separate decision. The appellant was represented by Mr Thomson. The Secretary of State was represented by Mr Webster of Counsel. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.
10. At the oral hearing, the Secretary of State agreed to provide an additional submission on several matters which arose during the course of the oral hearing of the appeal. Following the grant of an extension of time, two submissions were subsequently received from the Secretary of State which were then shared with Mr Thomson. Mr Thomson provided his own response to those submissions on behalf of the appellant.
D The submissions of the parties
11. In the skeleton argument which was prepared for the oral hearing of the appeal, Mr Thomson, for the appellant made the following submissions:
‘Rule 24(4)(b) of the Tribunal Procedure Rules 2008 states that all documents relevant to the case, in the Decision Maker’s possession, should be provided to the Tribunal. In their statement of reasons, the Tribunal do not give reasons for their rejection of the need to obtain previous reports.
There is a duty on tribunals to provide clear reasons for their decisions. R(DLA) 3/08 and SP versus SSWP [2009] UKUT 97 (AAC).
(The appellant) rejects the HCP report, refer to page 14 of the papers. The Medical Examiner himself concedes that ‘examination was limited …’ on page 56. On page 57 the Medical Examiner states, ‘I advise that a return to work could be considered within 3 months.’
The inference from this statement is that, at the time of the medical exam, (the appellant) was not able to return to work though she might be in a position to do so, in the immediate future.
There are flaws in this evidence. The Tribunal also finds that the appellant was not credible yet the Tribunal did not call for the previous medical evidence. That medical evidence may have revealed clinical findings that would have overcome the flaws identified in the evidence. The Tribunal did not provide reasons for rejecting the relevance of the previous medical reports.
The previous medical reports are for a different benefit. However the previous medical reports draw conclusions from daily activities that the person is able to perform and these conclusions are used to determine the Appellant’s fitness for work. The daily activities considered in the old benefit and ESA are similar. In some case virtually identical. In the case of Appellants who are treated as not able to work, then the regulations are identical, Regulation 27 of the Incapacity Benefit Scheme having identical wording to Regulation 29 of the ESA scheme.
For these reasons I suggest that the Tribunal has erred in law.’
12. During the course of the oral hearing, Mr Thomson repeated his submission that the First-tier Tribunal should have sought the reports of the medical examinations associated with the adjudication history relating to the appellant’s entitlement to IB and (though not relevant in the present case, a conversion case), where relevant, ESA since the date of first entitlement in 1995. He made reference to the First-tier Tribunal’s conclusions on the appellant’s credibility and submitted that where credibility is in issue there may be a greater onus on the First-tier Tribunal to call for medical evidence associated with the adjudication history. The clinical findings made during the course of previous medical examinations may have been of assistance in the assessment of evidence.
13. Mr Thomson noted that the First-tier Tribunal had been critical of him in failing to seek to obtain the relevant reports himself and agreed that he had to accept such criticism. Nonetheless, this did not obviate the duty on the appeal to call for the medical reports itself. In addition, it was his experience that the Department was much more likely to provide copies of medical reports where they were called for by the First-tier Tribunal rather than by a claimant’s representative. In the instant case, the First-tier Tribunal did not give an explanation as what might have changed to lead to a conclusion that there was no longer any entitlement. Further, the First-tier Tribunal had not explained why it had ruled out the relevance of earlier medical reports.
14. Mr Thomson made reference to paragraph 37 of the decision of Upper Tribunal Judge Wright in ST v Secretary of State for Work and Pensions ([2012] UKUT 469 (AAC) ‘ST’) and submitted that the conclusions arrived at by Judge Wright in that paragraph were clear. Although subject to exceptions, it was ‘very necessary’ for the Department to provide copies of previous medical reports. There was a particular obligation where a submission had been made that nothing had changed, particularly since the time of completion of reports of previous medical examinations. As will be noted below, however, in the instant case, there was no submission in the initial letter of appeal that nothing had changed and there is no reference to any such submission in the statement of reasons for the First-tier Tribunal’s decision. Mr Thomson also submitted that the principles set out by a Tribunal of Commissioners in Northern Ireland in paragraph 50 of the decision in JC v Department for Social Development (IB) ([2014] AACR 30, [2011] NICom 177, ‘JC’), were fully supportive of his case.
15. The Department was under an obligation to provide all of the evidence which it had in connection with a particular claimant to a specific benefit. It could not be selective as to the evidence which it provided to the First-tier Tribunal, particularly where the evidence which it decided to provide was supportive of the decision which it had made. Any argument that the provision of evidence in the form of reports of previous medical reports in the majority of appeal was prohibitive on the grounds of cost was not sustainable. It was more cost-effective to gather the evidence together at the outset of the decision-making process rather than forcing First-tier Tribunals to adjourn to obtain such evidence. It did not matter that the previous medical reports relevant to the appellant had been prepared in connection with adjudication for potential entitlement to a different benefit. There were sufficient parallels between the substantive rules for entitlement to IB and ESA. Finally, Mr Thomson submitted that the failure by the First-tier Tribunal to call for the medical reports rendered its decision as being in error of law.
16. In the skeleton argument which was prepared for the oral hearing of the appeal, Mr Webster, for the Secretary of State, set out what was submitted to be the key differences between three classes of case – supersession ‘generally’, supersession in ESA cases and conversion. In relation to supersession ‘generally’ Mr Webster made reference to the relevant legislative provisions, namely section 10(1) of the Social Security Act 1998 (‘the 1998 Act’) and Regulation 6(2)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (‘the 1999 Regulations’). He submitted that:
The content of prior medical reports may have potential relevance in supersession cases before the Secretary of State and in the First-tier Tribunal where the supersession decision proceeds on a change of circumstances’ (actual or anticipated) since the date of the original decision had effect (or in some cases, was made).
17. In relation to the second category of case Mr Webster noted that specific provision is made in Regulation 6(2)(r) of the 1999 Regulations in respect of supersession in ESA cases noting:
‘Thus, whilst supersession may proceed on a change of circumstances generally, in ESA cases, once an ESA decision has been taken, there is no need to demonstrate a change of circumstances to supersede that decision: the receipt of medical evidence alone is sufficient to permit supersession.’
18. Finally, Mr Webster submitted that a conversion cases does not entail a consideration of a change of circumstances:
‘Conversion entails a determination of whether there is an entitlement to employment and support allowance on the basis that it has been determined that the claimant has limited capability for work or is to be treated so under and in terms of the Welfare Reform Act 2007 and the regulations made thereunder relating to ESA; Existing Awards Regulations[1], reg 7.
If on determination a person in respect to whom a conversion decision is determined not to qualify for ESA the existing award of benefit terminates; Existing Awards Regulations, reg 15(2).’
19. Mr Webster made reference to paragraphs 37 and 39 of the decision of Judge Wright in ST, noting that this was an ESA supersession decision. He also referred to the decision of Upper Tribunal Judge May QC in AM v Secretary of State ([2013] UKUT 458 (AAC), ‘AM’) noting that that was a conversion decision. He submitted that Judge May QC had expressed reservations as to the analysis in ST, being of the opinion that while personal capability assessments (‘PCAs’ prepared for the purpose of assessment of entitlement to IB) may be relevant to a conversion decision, non-production of the same was not fatal in law.
20. Mr Webster submitted that the Secretary of State accepted that PCAs might be relevant to conversion decisions but that, in reality, they were unlikely to be material:
‘The process of assessment in a CWA [capability for work assessment] or a PCA may entail the ascertainment and recording of facts as to an individual’s physical abilities and that may be relevant in an assessment of credibility at a later date. However, the circumstances in which earlier reports will amount to material evidence are, it is submitted, vanishingly thin. PCAs will have been conducted, and observations made, against different criteria. The statutory tests for ESA will not have been addressed; nor would they have been in the mind of the author(s) of the report(s). The report(s) (if any) are likely to be aged. They would fall to be considered against more contemporaneous CWAs in an assessment which does not entail demonstrating a change of circumstances. They would fall to be considered against the Tribunal’s own contemporaneous observations of the claimant. Evidentially, they are likely to carry very little or no weight.’
21. Mr Webster then turned to the question of whether earlier reports should always be produced. He submitted that the decision in ST did not require capability for work assessments (CWAs) to be produced in every appeal against an ESA supersession decision. They would only be required to be produced where (i) there was a clear submission on behalf of the appellant that there had been no relevant change (or an adverse change) in condition since the appellant was awarded an entitlement to ESA or was last subject to a limited capability for work assessment and (ii) there had been no relevant supervening event such as a change in the law or, for example, a successful medical operation.
22. Mr Webster submitted that Judge May QC, in AM, had accepted the potential relevance of PCAs in appeals against conversion decisions, but did not necessitate production unless the earlier assessment(s) was or were either relevantly put in issue by the appellant (as determined by the First-tier Tribunal) or identified as relevant by the First-tier Tribunal. Mr Webster submitted that the Secretary of State was of the view that the approach of Judge May QC was correct and was equally applicable to the production of earlier CWAs in ESA supersession appeals.
23. He submitted that the decision in ST failed to distinguish between potential relevance and actual relevance and likely value. It also failed to have regard to the First-tier Tribunal’s inquisitorial role. The alternative approach of Judge May QC was:
‘… a pragmatic and proportionate settlement of the obligation of the Secretary of State to provide earlier CWAs and PCAs in any appeal, whilst at the same time recognising the ability of the claimant, or the Tribunal, to call for the same if the circumstances demonstrate likely value in so doing.’
24. In relation to the instant case, Mr Webster submitted that Mr Thomson had not made any request to the First-tier Tribunal for production of any previous reports of examinations. The First-tier Tribunal had addressed the issue and had concluded, in the statement of reasons for its decision, that no convincing argument had been presented that the appellant was in any way prejudiced in the First-tier Tribunal proceeding without sight of the earlier reports. The First-tier Tribunal was entitled to arrive at such a conclusion on that issue which was for it to determine in exercise of its judgement. Further, the First-tier Tribunal had provided clear reasons for its conclusions on the issue:
‘The First-tier Tribunal did not find (the appellant) either credible or reliable as a witness. They relied upon the objective findings of the recent HCP medical report and (the appellant’s) own medical notes. The First-tier Tribunal was entitled to conclude that old medical reports (if any) prepared in respect of an assessment of entitlement to IB dating back to 1995 were unlikely to be of sufficient materiality that, when considered against the availability of up to date medical records and objective medical report, proceeding in their absence amounted to a material prejudice to (the appellant).’
25. At the oral hearing of the appeal, Mr Webster expanded on the submissions which he had made in his skeleton argument. In connection with the principles in JC, Mr Webster submitted that he was not advocating that past material would never be relevant but, equally, he was not accepting that it required to be produced in every case. The Secretary of State’s concern had been characterised by the Tribunal of Commissioners in JC in paragraph 52 of its decision although, equally, he could see the value of what the Tribunal had said at paragraph 51, albeit he would need to take instructions upon it – paragraphs 51 and 52 of JC are set out at 30 below.
26. There was a consistency between the decisions in JC, ST and AM that not everything had to be produced. There was a rider in ST at paragraph 37. The rider was that where there was an assertion of no change there would be an expectation of production. If that was the test, however, it would be of concern to the Secretary of State. There might be the production of material which might be of no assistance whatsoever. The Tribunal of Commissioners, in paragraph 52 of the decision in JC, stated that it was not enough to say that there had been no change. There was another question which was ‘Will the material be relevant?’ Accordingly, in contrast to the test in ST, there was a rider which had been set out in paragraph 50 (vii). It was a two-stage test – are the previous reports sufficiently relevant to justify their production. The production of everything in every case cannot be right. The circumstances in which there would be a requirement to call for previous reports would be few and far between.
E The relevant jurisprudence
27. In JC the Tribunal of Commissioners in Northern Ireland were considering an appeal from a decision of an appeal tribunal which had upheld a decision of the Department of Social Development and which, in turn, had decided that the appellant did not satisfy the personal capability assessment (PCA), superseded an earlier decision of an appeal tribunal and disallowed the award of incapacity credits which that appeal tribunal had made. The supersession was made under regulation 6(2)(g) of the 1999 Regulations. It is important to note that the 1999 Regulations are the substantive procedural regulations for appeal tribunals in Northern Ireland and do not contain an equivalent to rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (‘TPR’).
28. The Tribunal of Commissioners concluded that the purpose of regulation 6(2)(g) was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession of an IB decision. Accordingly, there was no requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede such a decision. In light of that preliminary analysis, the Tribunal went on to explore the circumstances in which an appeal tribunal was obliged to consider the reports of examinations conducted in connection with previous PCAs as part of the adjudication history giving rise to the decision under appeal.
29. The Tribunal of Commissioners summarised its analysis in paragraph 50 of its decision, as follows:
‘50. The implications of the introduction of the Great Britain equivalent of regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999 and, more particularly, the effect of the introduction of that provision on the requirement to consider previous adjudication history, have been considered by the Social Security Commissioners in Great Britain in a number of well-analysed and thorough decisions. From those decisions we derive and accept the following principles:
(i) there was a clear purpose to the introduction of regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, which was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession;
(ii) accordingly, there is no requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an IB decision;
(iii) there is a difference between the evidential requirement to determine the ground for supersession and the evidential requirement to establish whether an individual is incapable of work in connection with the all work test or personal capability assessment;
(iv) it is no longer[2] necessary as a matter of law for an appeal tribunal to have before it and to consider the evidence of the claimant’s previous assessments in connection with the all work test or personal capability assessment;
(v) an appeal tribunal is entitled to call for whatever evidence it considers to be relevant to the proper determination of the issues arising in an appeal;
(vi) the requirement for an appeal tribunal to consider the evidence associated with previous favourable assessments in connection with the all work test or personal capability assessment depends entirely on the relevance of the earlier assessments to the determination of the claimant’s incapacity for work at the date of the supersession decision;
(vii) an appeal tribunal will be required to consider the evidence associated with previous favourable assessments where an appellant asserts that there has been no change in his medical condition or disablement and that the evidence associated with previous assessments is relevant to that continuing medical condition or disablement. In such circumstances the last previous assessment is likely to be of more relevance than earlier ones and the relevance of any particular assessment is likely to diminish with the passage of time;
(viii) details of the basis of the claimant’s previous assessments in connection with the all work test or personal capability assessment may be relevant evidence of the claimant’s overall capacity, particularly where the claimant has a variable condition. Variability may increase the relevance of older assessments carried out before the last previous assessment;
(ix) details of the basis of the claimant’s previous assessments in connection with the all work test or personal capability assessment may be of no relevance in a case, for example, where there is evidence that the claimant’s condition has changed in a way that renders the details of the earlier assessment irrelevant;
(x) where the evidence associated with a previous favourable assessment in connection with the all work test or personal capability assessment is no longer available, it does not follow that the award of entitlement to benefit or credits, based on that favourable assessment, should automatically continue, simply because a comparison cannot be made. The appeal tribunal must reach a decision based on whatever evidence is available to it;
(xi) the value of the evidence associated with a previous favourable assessment in connection with the all work test or personal capability assessment may be minimal. This may be the case where an appeal tribunal has replaced a decision of the Department with its own decision, and there are no relevant findings in fact or reasons for the appeal tribunal’s decision because the success of the appeal obviated the requirement to call for these;
(xii) an appeal tribunal may call for evidence associated with a previous unfavourable assessment in connection with the all work test or personal capability assessment. It follows that where evidence of previous assessments is of relevance in cases, for example, where the claimant’s condition is variable, the evidence may assist in determining the claimant’s overall capacity.’
30. The Tribunal of Commissioners, in paragraphs 51 to 53 of its decision considered some of the practical consequences of the principles set out in paragraph 50, as follows (emphasis added):
‘51. We realise, as did Miss Commissioner Fellner in CIB/1972/2000 and CIB/3667/2000 that there are practical implications arising from the principles which we have set out above. Following a request to that effect, the Department has confirmed to us, however, that “… it should be straightforward in most cases to list details of all previous PCA determinations within a current claim from computer records”. We recommend that this course of action is adopted. We have noted that appeal submissions for appeals concerning disability living allowance routinely contain information concerning previous adjudication history in connection with the claimant and we advocate the adoption of a similar practice in appeal submissions for appeals concerning IB, and its successor benefit, employment and support allowance.
52. The Department has baulked somewhat at the idea that the paperwork associated with previous determinations in connection with the all work test or personal capability assessment may have to be made available. We allay those fears, as follows. While recommending that details of the previous adjudication history are set out in the appeal submission, we do not assert that the associated paperwork is made available in each case. The previous adjudication history will not be relevant in every appeal concerning IB. As set out above, the previous adjudication history will become relevant where the appeal tribunal determines that to be so. That will be, in our view, in a limited class of case, where there is an assertion that there has been no change in the claimant’s condition, and where the evidence associated with the previous adjudication history is relevant to that submission or, for example, where the claimant’s medical condition, and the evidence associated with the previous adjudication history assists in the assessment of the claimant’s overall capacity.
53. We would note, however, as did Mr Commissioner Williams in CIB/378/2001 that the practical difficulties associated with the location and provision of paperwork should not be permitted to thwart the appeal tribunal’s requirement to have before it evidence which is relevant to the issues arising in the appeal. There are also duties, however, for appellants and their representatives. Appeal tribunals should not be overwhelmed with submissions that there has been no change in the appellant’s medical condition and that, accordingly, the evidence associated with previous determinations in connection with the all work test or personal capability assessment should be produced. As was noted above, it will only be in a limited class of case where the previous adjudication history will be relevant. In any event, the relevance of the previous adjudication history will ultimately be a matter for the appeal tribunal to determine.
31. In ST, Judge Wright identified the following, as the issue arising in the appeal:
‘… whether there is a breach of natural justice and the appellant’s right to a fair hearing enshrined in article 6(1) of the European Convention on Human Rights (“the Convention”) when a previous ESA85 medical report was not put before the First-tier Tribunal considering an appeal from a Secretary of State’s decision that arises from a subsequent ESA85 medical report concerning the same claimant. In addition, may such a breach arise even if the appellant had the previous ESA85 medical report but did not put it before the First-tier Tribunal?’
32. The judge began his substantive analysis by examining the role of the Secretary of State. In paragraph 23 he stated:
‘The role of the Secretary of State’s decision makers in this assessment process, both at the initial decision making stage and on appeal, is therefore not one where the decision maker is adverse to the claimant/appellant, but is rather one where he or she is assisting, as far as the decision maker can, in deciding the correct level of benefit for the claimant or appellant. And, crucially for present purposes, that will include providing information which the Secretary of State holds.’
33. In support of this reference was made to the decision of the House of Lords in Kerr –v- Department of Social Development ([2004] UKHL 23, R 1/04(SF)). The judge thought that this perspective on the role of the Secretary of State was given ‘added force and focus’ when one considered the requirements of First-tier Tribunal’s procedural rules. He referred to section 22(4) of the Tribunals, Courts and Enforcement Act 2007 and rule 24(4)(b) of the TPR which provides:
‘The decision maker must provide with the response …. copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise.’
34. In paragraphs 25 and 26, Judge Wright concluded that:
‘25. The key word here is “relevant”. The use of the word “must” also makes clear that the Secretary of State’s decision maker is under a legal obligation to provide the Fist-tier Tribunal with copies of all documents relevant to the case that he has in his possession: an obligation that is not on its face cut down by consideration of what the appellant might have in his or her possession and be able to put before the tribunal …
26. So, as far as I can see, the Secretary of State’s decision maker is obliged to provide the tribunal with all relevant documents in his possession, or at least explain to the tribunal which documents are not in his possession and why they are not.’
35. The judge then made reference to regulation 6(2)(r)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 which permits the supersession of an ESA decision where ‘… since the decision was made the Secretary of State has received medical evidence from a health care professional approved by the Secretary of State.’ He noted, as did the Tribunal of Commissioners in JC, that the introduction of regulation 6(2)(r)(i) means that there is there is no requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an ESA decision.
36. The judge doubted, however, any proposition that ‘mere receipt’ of medical evidence from a health care professional, in the form of a report of medical examination (in his case an ‘ESA85’ medical report), established the grounds for superseding an earlier limited capability for work decision. The outcome decision made by the Secretary of State is whether or not the claimant is entitled to ESA on the basis of whether he or she has limited capability for work:
‘That question can only be answered, in my judgment, by considering the contents of the ESA85 medical report and all other relevant evidence so as to decide whether on the facts and the law the person has “limited capability for work”.’ (paragraph 35)
37. In the view of Judge Wright, receipt of medical evidence from a health care professional was a necessary condition for supersession but was not also the ‘sufficient condition’:
‘That depends upon the decision maker going further and saying why the contents of the ESA 85 medical report, whether taken with or in preference to other relevant evidence, establish on the facts and under the ESA legal rules (usually Schedule 2 to the Employment and Support Allowance Regulations 2008) that the person does not have limited capability for work’ (paragraph 36)
38. The judge thought that the medical evidence received by the Secretary of State from the healthcare professional could not be the only relevant evidence:
‘What other evidence is relevant will depend on the facts of each case. However, where, as here, it is plain from what is being said by or on behalf of the claimant that she is no better (and maybe even worse) since she was last awarded ESA or was last subject to a limited capability for work assessment, and where (as here) there has been no relevant supervening event such as a change in the law or a successful medical operation, I cannot see any lawful basis for the Secretary of State or his decision makers denying to the First-tier Tribunal the previous ESA85 medical reports concerning the appellant (or at least the knowledge that such existed, and the ESA decision(s) made subsequent to them, if they are lost and no longer in his possession).’ (paragraph 37)
39. Judge Wright recognised, however, that a line needed to be drawn. The Secretary of State did not have to provide to the First-tier Tribunal all of the documents which he held in relation to a particular appellant. What was key were documents which were relevant and it was for the Secretary of State to decide what was relevant:
‘… it seems to me that the Secretary of State and his decision makers ought in all appeal responses to at least refer the First-tier Tribunal to all the documentary evidence in the Secretary of State decision maker’s possession that he considers may be relevant, whilst always providing that tribunal with copies of previous ESA85 medical reports (if still in the Secretary of State’s possession) in the circumstances referred to in the closing sentence in paragraph 37 above.’ (paragraph 39)
40. The circumstances referred to in the final sentence of paragraph 37 where the claimant was submitting that there had been no change in circumstances (or an adverse change of circumstances) since the last award of entitlement to ESA and no relevant supervening event.
41. On the facts of the case before him, the judge found that there was no good evidence that the appellant had been provided with a copy of a relevant ESA85 medical report at the time of the making of her appeal to the First-tier Tribunal or at the hearing of her appeal. Accordingly, the ‘clear and important duty imposed by rule 24(4)(b) of the TPR had not been obviated. This meant that:
‘Accordingly, the breach of that duty by the Secretary of State’s decision-maker means that the decision arrived at by the First-tier Tribunal was erroneous in point of law.’
42. It is to be noted that Judge Wright did not consider the decision of the Tribunal of Commissioners in JC, although it is not clear whether he was aware of that decision.
43. The decision in ST was considered by Judge May QC in AM, although, once again, and for reasons which are unknown, he did not address the decision in JC. In AM, the judge was considering an appeal against a decision of the First-tier Tribunal which affirmed a decision of the Department which, in turn, had determined that an existing award of incapacity credits did not qualify for conversion to an award of employment and support allowance and that the entitlement to incapacity credits should cease. It was, therefore, an ‘ESA conversion’ decision.
44. The Secretary of State did not support the appeal to the Upper Tribunal but made a submission, in the following terms:
‘I do not accept the claimant’s argument that the tribunal were required to take into account previous medical reports in relation to his Incapacity Benefit (IB) claim. Recent case law, for example in ST v Secretary of State for Work and Pensions (ESA) [2012] UKUT 469 (AAC), suggests that where the claimant was claiming ESA and the papers relating to an earlier WCA were not placed before the tribunal, it may be an error in law. There were some circumstances fairly unique to the particular case in question, but the UT Judge’s general conclusions on what evidence the Secretary of State should present to a tribunal, as given in paragraphs 38 and 39 of that decision, are binding in all cases.
However, in the instant case the claimant was being reassessed for ESA from a position of being entitled to National Insurance (NI) credits by way of being found incapable of work under the old Incapacity Benefit (IB) scheme. In order to continue receiving NI credits under that scheme, he needed to be found incapable of work under the Personal Capability Assessment (PCA), either by being found to have a specific medical condition which would have automatically allowed him to pass the PCA or passing a medical assessment. However, the ESA Work Capability Assessment is a completely different assessment, based on different descriptors and with a different scoring system, and, whilst the clinical findings and observations made under the PCA may have ongoing significance to, for instance, a stable condition, its relevance overall is limited. It should also be pointed out that PCA reports are becoming increasingly old as PCAs ceased on a widespread basis in 2011. Thus while PCA reports are still available to decision makers and Health Care Professionals do consider such reports at file work or examination, such reports will only be presented to a First-tier Tribunal if their relevance as evidence is considered significant.
As a final point on this issue, I should state that there is an alternative view as to the relevance of IB papers to an ESA claim contained in CE/2796/12, where the Upper Tribunal Judge considers that PCA reports do not assist a tribunal at all and may even impede its reasoning.’
45. Judge May QC was of the view that the intention and purpose of the whole scheme and the legislation was to permit a decision maker, at first instance, and a First-tier Tribunal, should an adverse departmental decision be appealed, to take a ‘fresh look’ as to whether the conditions of entitlement to ESA, or, in appropriate cases, IB credits, are satisfied without the former burden of determining whether there had been a change of circumstances since the award of entitlement to ESA or award of IB credits.
46. Having set out the conclusions of Judge Wright in paragraphs 34 to 36 of his decision in ST, the judge indicated that he had the following reservations about the analysis. Firstly, he was of the view that when the terms of regulation 6(2)(r)(i) were strictly read, it is the receipt of the medical evidence which is the ground for supersession. The judge was of the view that Judge Wright was ‘reading into’ the statutory provisions what he called the ‘sufficient condition’.
47. As was noted above, Judge Wright cited the decision in CIB/1509/2004 as support for his conclusions in paragraph 36 of his decision, including his ‘sufficient condition’ principle. Turning to the decision of Mr Commissioner Jacobs (as he then was) in CIB/1509/2004, Judge May QC cited paragraphs 8 to 10 of the decision, which read as follows:
‘8. There are two ways that a decision-maker can use regulation 6(2)(g). I suspect that the way it works in practice in this. The evidence relevant to the claimant’s capacity for work is collected. This will typically consist of the claimant’s self-assessment, a report from the claimant’s GP and the medical adviser’s report. The evidence is put to the decision-maker, who considers it and decides whether the claimant is still incapable of work. If the claimant is still incapable of work, the decision-maker leaves the award in place and makes no decision on supersession. Regulation 6(2)(g) is irrelevant. But if the claimant is no longer incapable of work, the decision-maker undertakes a supersession. Regulation 6(2)(g) authorises that process. It does not dictate the outcome of the supersession. That is determined by the decision-maker’s analysis of the evidence and the conditions of entitlement.
9. The other possibility is that the evidence is referred to a decision-maker who always undertakes a supersession on the authority of regulation 6(2)(g). If the claimant remains incapable of work, the decision taken is not to supersede the existing award. If the claimant is no longer incapable of work, the decision taken is to terminate that award.
10. On either approach, regulation 6(2)(g) merely authorises a supersession procedure. It does not determine the outcome. It merely recognises that evidence has been produced that may, or may not, show that the operative decision should be replaced. The outcome is determined by the conditions of entitlement for an award.’
48. Mr Commissioner Jacobs was, of course, analysing the effect of regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, which as in JC, provides for supersession in IB cases. Judge May QC thought that the analysis set out by Mr Commissioner Jacobs was:
‘… a pragmatic solution to enable a fresh look at entitlement to incapacity benefit (or credits) or employment and support allowance (or credits) and avoiding the consequence of applying the statutory provisions as they are written. My view is fortified in that regard because paragraphs 8 and 9 of Mr Commissioner Jacob’s decision are expressed as alternatives, thus demonstrating uncertainty as to the proper course … This explanation is important as it explains in supersession cases how the decision maker and in the event of appeal the tribunal is able to look at the merits as to whether the claimant satisfies the conditions.’ (paragraph 11)
49. Judge May QC was not clear whether the submission made by the Secretary of State on the binding nature of the principles in ST applied to conversion cases or was restricted to ESA supersession cases:
‘Whilst I accept in conversion cases that the medical reports used for decision making are related to a different assessment, based on different descriptors, with a different scoring system it is logical that if what the Upper Tribunal Judge says in S T v SSWP is right it would apply to conversion cases as well as supersession under regulation 6(2)(r)(i), though it is quite clear from that authority that the Upper Tribunal Judge is dealing only with supersession cases. The reason for that is that such reports will deal with diagnosis and function. The claimant will also have been clinically examined for the purpose of the report.’ (paragraph 13)
50. Nonetheless, the judge thought that Judge Wright had gone ‘too far’ in:
‘… seeking to impose the obligation on the Secretary of State contained in the last sentence of paragraph 39. I do not consider that in determining an appeal on a point of law from a tribunal in one case it is open to the Upper Tribunal to impose general obligations on the Secretary of State in respect of the provision of evidence in other cases. That seems to me to go way beyond the powers given to the Upper Tribunal in determining appeals by section 12 of the Tribunals, Courts and Enforcement Act 2007. I am further not persuaded if the Secretary of State did not provide such reports to a tribunal that would render that tribunal’s decision erroneous in law if it proceeded to determine an appeal without them. This is particularly so because the intention of supersession under 6(2)(r)(i) is to enable the decision maker to have a fresh look as to whether the conditions are satisfied and in conversion cases to look for the first time as to whether the claimant satisfies the statutory conditions. The absence of previous reports both for the purposes of employment and support allowance and incapacity benefit in my view only becomes an issue if it is asserted by either of the parties or is considered by the tribunal that the content thereof is material to the decision that requires to be made. Absence, and indeed the reasons for their absence, is something that requires to be considered by the tribunal when determining how to proceed. If such reports are before the tribunal then whether they would impede the tribunal as suggested by the Upper Tribunal Judge in CE/2796/2012 in paragraph 10 would be a matter for the tribunal to determine.’ (paragraph 14)
51. The judge was of the view that the approach proposed by Judge Wright had been ‘too prescriptive’ and ran contrary to the intention of the legislative provisions in both supersession and conversion. In the case before him, the First-tier Tribunal had considered that it had sufficient evidence before it to determine the issues arising in the appeal without calling for reports of previous medical examinations. The judge thought that this was a matter for the tribunal and he could find no error in law on the part of the tribunal in proceeding to determine the issues on the basis of the evidence which was before it.
F Analysis
52 .As was noted above, the principles set out by the Tribunal of Commissioners in Northern Ireland in JC were summarised in paragraph 50 of the Tribunal’s decision although additional important remarks were made in paragraphs 51 to 53 in connection with the practical consequences of the conclusions which had been reached.
53. We are conscious that the Tribunal of Commissioners in JC was concerned with appeals from decisions made under regulation 6(2)(g) of the 1999 Regulations. Such decisions are IB supersession decisions. As was noted above, the Tribunal of Commissioners thought that there was a clear purpose to the introduction of regulation 6(2)(g) which was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession. The Tribunal also found that, accordingly, there was no longer a requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an IB decision.
54. In ST Judge Wright was concerned with an appeal from a decision made under regulation (6)(2)(r)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 Such decisions are ESA supersession decisions. Judge Wright does not find controversial a principle that on its face, regulation 6(2)(r)(i) had done away with the need for the Secretary of State, as initial decision maker to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an ESA decision.
55. In AM, Judge May QC was concerned with an appeal from an ESA conversion decision. In his analysis of the effect of regulation 6(2)(r)(i), the judge makes reference to the conclusions of Judge Wright in ST on the manner in which the regulation operates in practice. As was noted above, Judge Wright did not accept any proposition that ‘mere receipt’ of medical evidence from a health care professional, in the form of a report of medical examination (in his case an ‘ESA85’ medical report), established the grounds for superseding an earlier limited capability for work decision.
56. Judge May QC set out the thinking of Mr Commissioner Jacobs in CIB/1509/2004 on the practical operation and application of regulation 6(2)(g) (the parallel ground for supersession in IB cases). As was noted above, Mr Commissioner Jacobs thought that there were two ways in which regulation 6(2)(g) could be used by a decision maker. The first was to collect all of the available evidence, weigh and assess it and determine whether the claimant is still incapable of work. If so, the extant award is kept in place and no decision on supersession is taken. If not, the decision maker undertakes a supersession. The second possibility was that having been referred to the evidence, the decision maker always undertook a supersession either not to supersede or to supersede and remove entitlement.
57. It seems to us that the key finding by Mr Commissioner Jacobs on the practical operation of regulation 6(2)(g) was as set out in paragraph 10 of his decision. To repeat:
‘On either approach, regulation 6(2)(g) merely authorises a supersession procedure. It does not determine the outcome. It merely recognises that evidence has been produced that may, or may not, show that the operative decision should be replaced. The outcome is determined by the conditions of entitlement for an award.’
58. Judge May QC thought that Judge Wright had endorsed and approved the approach set out by Mr Commissioner Jacobs, thereby achieving a pragmatic solution to the practical application of regulation 6(2)(g) and, by implication, regulation 6(2)(r)(i).
59. We accept this analysis and although we are not asked to consider the practical application of regulation 6(2)(g) or 6(2)(r)(i), we re-emphasise that the purpose of both provisions is to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession and that, accordingly, there is no longer a requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an IB or ESA decision. More importantly, however, we accept and endorse what was said by Mr Commissioner Jacobs in paragraph 10 of CIB/1509/2004. What both provisions do is to authorise a supersession procedure but do not determine the outcome. What determines the outcome is a decision by the decision-maker (initially) or the First-tier Tribunal (on appeal), after an assessment of all of the relevant evidence, as to whether the substantive tests (incapacity for work or limited capability for work) are satisfied.
60. We turn to the substantive issue arising in the appeal, that is the extent of the duty on a First-tier Tribunal, when considering an appeal against a regulation 6(2)(g), 6(2)(r)(i), or, as in the instant case, an ESA conversion decision, to call for reports of medical examinations associated with the adjudication history relating to the appellant’s entitlement to IB, including credits, or ESA. We limit the issue to ‘call for’ because it is axiomatic that the First-tier Tribunal is obliged to consider such reports as part of the available evidence if they are before it.
61. In ST, Judge Wright set out, in paragraph 37, certain principles with which we agree. In confirming that the making of a regulation 6(2)(r)(i) decision includes the substantive question of whether a claimant has limited capability for work, depends on weighing the evidence (in the form of an ‘ESA85’ medical report) which was obtained to mandate the supersession process, and all other relevant evidence, the judge has set out principles with which we agree. That conclusion is in keeping with the principles set out in the decision of the Tribunal of Commissioners in JC – see paragraph 50 (vi) and (vii). Judge May QC did not demur from that position in AM.
62. It seems to us, however, that Judge Wright was concerned with the duties on the Secretary of State. As was noted above, in paragraphs 22 to 26 of his decision, the judge set out what he considered to be the role of the Secretary of State in the social security adjudication process. He concluded, on the basis of the relevant authorities, that the function of the adjudication system was to assess correctly a claimant’s benefit entitlement. The Secretary of State’s role is not one which is adverse to the claimant. Rather the Secretary of State is there to assist, and in the process of investigating an individual’s entitlement to benefit, is obliged to provide all relevant information which he holds. Further, rule 24(4)(b) of the TPR obliges the Secretary of State to provide the First-tier Tribunal with all relevant documents in his possession and explain to the First-tier Tribunal which documents are not in his possession and why. As far as this analysis goes, we cannot disagree with it.
63. To repeat, however, the analysis is about the duties of the Secretary of State. We set out below what is our understanding of the response of the Secretary of State to this aspect of the decision in ST. What we are concerned with is the responsibilities of the First-tier Tribunal where the Secretary of State does not fulfil the obligations imposed by Judge Wright in ST, that is does not provide all relevant documents in his possession as part of the response to the appeal or omits to make reference to documents which have the potential to be of relevance. More particularly, we are concerned with the responsibilities of the First-tier Tribunal when faced with an appeal against a regulation 6(2)(g), 6(2)(r)(i), or an ESA conversion decision where there are reports of medical examinations associated with the adjudication process which have not been provided or where there may be such reports but the First-tier Tribunal is not aware of them.
64. In paragraph 37 of his decision, Judge Wright arrived at the following conclusion:
‘… However, where, as here, it is plain from what is being said by or on behalf of the claimant that she is no better (and maybe even worse) since she was last awarded ESA or was last subject to a limited capability for work assessment, and where (as here) there has been no relevant supervening event such as a change in the law or a successful medical operation, I cannot see any lawful basis for the Secretary of State or his decision makers denying to the First-tier Tribunal the previous ESA85 medical reports concerning the appellant (or at least the knowledge that such existed, and the ESA decision(s) made subsequent to them, if they are lost and no longer in his possession).’
65. Once again, we cannot disagree with those conclusions but note that the emphasis is, once again, on the duties and responsibilities of the Secretary of State. In paragraphs 38 to 39 he limits the Secretary of State’s duty to provide ‘… only the documents that are relevant to the decision under appeal that this obligation attaches to.’ It is, in the judge’s view, for the Secretary of State to decide what is relevant but bearing in mind that the tribunal may not know what the Secretary of State has in his possession that may be of relevance.
66. It is only at paragraph 43 of his decision that Judge Wright addresses the consequences for the First-tier Tribunal for any failure by the Secretary of State to provide documentation which was relevant to the decision under appeal to it. He stated:
‘Accordingly, the breach of that duty by the Secretary of State’s decision-maker means that the decision arrived at by the First-tier Tribunal was erroneous in point of law.’
67. If Judge Wright intended that a decision of a First-tier Tribunal would always be in error of law where the Secretary of State fails, in his response to the appeal, to provide documentation in relation to the decision under appeal, where there has been an assertion of no change, then that is a principle with which we cannot agree. In paragraph 14 of AM, Judge May QC doubted whether a First-tier Tribunal would necessarily always err in law in proceeding to determine an appeal in a case where the Secretary of State had not provided all relevant documentation. In JC the Tribunal of Commissioners concluded, in paragraph 50(iv) that it was no longer necessary, as a matter of law, for a tribunal to have before it and consider the evidence of a claimant’s previous assessment in connection with the all work test.
68. We emphasise that a First-tier Tribunal is entitled to call on whatever evidence it considers relevant to the proper determination of the issues arising in the appeal which is before it – see paragraph 50(v) of the decision in JC. It is for the First-tier Tribunal to determine what evidence is relevant to the issues arising in the appeal and whether, accordingly, that evidence should be called for. We can envisage a situation where a First-tier Tribunal considers that it has sufficient relevant evidence before it to determine the issues arising in the appeal without the requirement to call for evidence which is missing because the Secretary of State has failed in his duty to provide it.
69. There are significant practical consequences for the work of a First-tier Tribunal if Judge Wright is correct in stating that its decision will be in error of law if it proceeds to determine an appeal without evidence which the Secretary of State has failed to supply. The temptation will be to adjourn to obtain the evidence in order to avoid error. Our view is that the first choice for the tribunal should not be to adjourn but to get on with the task of determining the issues arising in the appeal when satisfied that it has the necessary relevant evidence before it. It might be the case that having weighed and assessed the appellant’s oral evidence, the tribunal might be satisfied that the evidence is credible, should be accepted and the appeal be allowed. It is our experience that appellants, for the most part, and having waited for their appeal to come to the tribunal, are keen for the tribunal to proceed to determine the appeal.
70. It is also relevant to examine what the consequences are where the Secretary of State has not only failed to provide documentation associated with the adjudication history but also omits to even refer to the existence of such assessments and reports in the response to the appeal. Will a tribunal be obliged to enquire in each and every case about that adjudication history and the possibility of the provision of assessments and reports which might or might not be relevant?
71. It seems to us that the decision in ST should be confined to a description of the duties and responsibilities of the Secretary of State in the preparation of a response to an appeal in an ESA supersession appeal. We agree with Judge May QC in AM, and the Tribunal of Commissioners in JC, that it is not necessary, as a matter of law, for a tribunal to have before it and consider the evidence of a claimant’s previous assessment in connection with the WCA or PCA in each and every case.
72. What, then, is the extent of the duties of the First-tier Tribunal when faced with an appeal against a regulation 6(2)(g), 6(2)(r)(i), or an ESA conversion decision where there are reports of medical examinations associated with the adjudication process which have not been provided or where there may be such reports but the First-tier Tribunal is not aware of them? By way of answer, we accept and endorse the principles set out by the Tribunal of Commissioners in JC. We are conscious, of course, that those principles were set out in the context of an appeal against an IB supersession decision. We have no hesitation in confirming that the principles are equally applicable to appeals against ESA supersession decisions where the issues are parallel. In the instant case the appeal was against an IB conversion decision. We consider that the issues are sufficiently parallel to those which arose in JC to permit the cross-application of the principles in that case. As will be noted below, we place a great emphasis, as a core principle, on the determination by the First-tier Tribunal of the relevance of reports of medical examinations associated with the adjudication process to the issues arising in the appeal. We accept, however, that in an appeal against an IB conversion decision, such as in the instant case, the adjudication history, and associated assessments and reports, with different substantive tests, might not have the same degree of relevance, though there may still be room for argument, depending on for instance, the provision of the IB regulations a claimant was held to have satisfied and the continuing existence – or – not of that or a similar provision in the ESA regulations. For example – and it is only one such example - there is considerable overlap between regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 and regulation 29 of the Employment and Support Allowance Regulations 2008.
73. We have set out above that a First-tier Tribunal is entitled to call on whatever evidence it considers relevant to the proper determination of the issues arising in the appeal which is before it and that it is for the First-tier Tribunal to determine what evidence is relevant to the issues arising in the appeal and whether, accordingly, that evidence should be called for. To that we add what was said in paragraph 50(vi) to (xii) by way of a description of the relevant principles on the substantive issue arising in this appeal.
74. In paragraph 52 of the decision in JC, the Tribunal of Commissioners concluded that the previous adjudication history, and the documentation associated with such a history would relevant:
‘… in a limited class of case, where there is an assertion that there has been no change in the claimant’s condition, and where the evidence associated with the previous adjudication history is relevant to that submission or, for example, where the claimant’s medical condition, and the evidence associated with the previous adjudication history assists in the assessment of the claimant’s overall capacity.’
75. Those principles are not out of keeping with what Judge Wright stated in ST, in describing the duties of the Secretary of State in preparing the appeal response. He too limited his analysis to cases where there had been an assertion of no change in the appellant’s condition and where the previous adjudication history was relevant to that assertion. The difference between the decisions in JC and ST lies in the description of the consequences for the tribunal where the Secretary of State fails in his duty to set out the relevant adjudication history and/or provide the documentation associated with that adjudication history. The decision in AM is also consistent with the principles in JC. Indeed it is arguable that the decisions in ST and AM are not inconsistent in their outcomes. The decision under appeal to the First-tier Tribunal in AM was an ESA conversion decision. It is arguable that the adjudication history, and associated assessments and reports, with different substantive tests, might not be as relevant.
G Practical consequences
76. During the course of the oral hearing before us, we asked Mr Webster to outline for us the Secretary of State’s response to the decision of Judge Wright in ST. Mr Webster confirmed that the decision had not been appealed. He also made reference to paragraph 23 of his skeleton argument, where he stated:
‘However it is to be noted that the Secretary of State in guidance to officials requires in second and subsequent decisions as to whether a claimant has limited capacity for work that are appealed to the First-tier Tribunal, in limited and defined circumstances, to provide to the Tribunal in the response, so far as possible the earlier papers (or explain why that cannot be done). Thus the departmental document Submitting appeals to Her Majesty’s Courts and Tribunals Service provides, inter alia:
‘4255 In second or subsequent PCA/LCW cases where there has been an award and there has been no clear change or the appellant says that their condition has not changed or has worsened since that award, the earlier PCA/LCW papers should be included. If they cannot be produced an explanation should be provided. Where storage contractors have destroyed earlier PCA/LCW papers (they are routinely destroyed after 15 months) include this information as part of the explanation.’
77. It seems to us that this is a pragmatic response to the requirements on the Secretary of State set out by Judge Wright in ST.
78. In JC, the Tribunal of Commissioners had been informed by officials from the Department for Social Development in Northern Ireland (DSDNI) that “… it should be straightforward in most cases to list details of all previous PCA determinations within a current claim from computer records”. The Tribunal of Commissioners, in paragraph 51, recommended that this course of action should be adopted. As was noted, the Tribunal of Commissioners allayed the fears of DSDNI officials, who had baulked at the idea that that the paperwork associated with previous determinations in connection with the all work test or personal capability assessment may have to be made available, by concluding that the previous adjudication history would only become relevant in the limited class of case referred to above.
79. In the instant case, we asked Mr Webster to provide an additional written submission on the practical consequences of a recommendation that the Secretary of State in Great Britain routinely includes, in the appeal response, details of a previous adjudication history and an indication as to whether assessments and reports associated with such a history are available for consideration by the First-tier Tribunal. After setting out details of the variety of database systems which are utilised within the Department, Mr Webster submitted that:
‘It is submitted that if this Tribunal is minded to determine that to comply with rule 24(4)(b), TPR more information ought to be produced by the respondent to inform the claimant and the Tribunal of potential existence of potentially relevant material it is submitted that obligation would be met by a short statement of known decisions and referrals from the new DMACR and MSRS interrogation screens, which failing a print out from those screens.’
80. In the written submissions the ‘DMACR’ and ‘MSRS’ systems were described as follows:
‘The main programs that can be accessed by DMs when preparing for an appeal which would provide information on the issue of medical examinations are Decision Making and Appeals Case Recorder (DMACR) and Medical Services Referral System) MSRS.
DMACR is a stand alone system and is used solely to record decisions and is not joined up with other DWP computer systems.
To comply with data protection principles, DMACR only retains information for the preceding 14 months on a rolling basis (reflective of the period in which a claimant may appeal a decision). If within that period there has been a decision following a medical examination, the decision (but not the medical report) ought to be identifiable and readily accessible on DMACR.
On inspection of DMACR, the DM should be able to identify for any claimant a benefit type (e.g. “ESA”), a date of decision and a very short narrative (e.g. WCA-LCW Disallowance Following Med Exam” … The decision itself ought to be capable of being printed off. The report of the medical examination would not.
The reporting to the Tribunal, from DMACR, of the existence of a decision would at least give notice as to the possible existence of a medical examination report within the 14 month period of the database, for the parties to request the Tribunal, or the Tribunal itself, to order production of the decision or the medical report, if available and if considered relevant.
MSRS is essentially a record of medical referrals. DMs can access a screen that lists medical referrals that have been requested … It can identify when a medical examination was requested. For each entry it further permits access to additional information, including the possibility of the drawdown of a PDF of subsequently obtained medical reports if a PDF of the report was made at the time … However not all medical reports are available in PDF format. Further still, MSRS is also a time limited database.
MSRS could, however, be used to identify a summary of medical referrals for the period of the database that would at least identify the possibility of medical reports sought that, if determined to be relevant, a claimant could request and the Tribunal order production of, if available.
The ascertainment of whether there are potentially relevant decisions earlier than the rolling 14 month period covered by DMACR or medical reports not available through MSRS requires DMs to either (a) access an earlier version of DMACR; or (b) recall of the claimant’s file(s) from storage.’
81. Mr Webster submitted that the production of a comprehensive adjudication history beyond the time limited summary information drawn from MSRS as to medical referrals made and any PDF copy reports stored and the time limited summary information provided DMACR as to decisions following medical examinations would be unproductive in terms of additional workload for decision makers and time involved.
82. Mr Thomson’s response to the additional submission and the description of the disparate systems which exist within the Department was to submit that similar problems did not exist within the systems for adjudication in respect of Disability Living Allowance (DLA). Further, it was his experience that ESA medical assessments were usually recorded in electronic form and are readily available to DWP Presenting officers. He thought it unusual that these were not more readily available. He added that previous reports seemed to be available to healthcare professionals carrying out assessments and were often called for by First-tier Tribunals.
83. It does seem to us that the systems described by Mr Webster are unwieldy and cumbersome. We also find it unusual that there does not appear to be a single electronic database which records the adjudication history relating to an individual claimant. Further it is our understanding that the completion of assessments by healthcare professionals in connection with ESA is undertaken in electronic format. We are unsure why the requirement to have a readily available copy of the report of an assessment undertaken by a healthcare professional is dependent on whether the report was converted to a .pdf format.
84. The decision of Judge Wright imposed requirements on the Secretary of State in connection with the preparation of a response to an appeal against an ESA supersession decision. That aspect of the judge’s decision is binding on the Secretary of State and it is for him to ensure compliance with it. For our purposes, we repeat the recommendation which was made in paragraph 51 of JC, namely that details of the previous adjudication history are set out in the response to the appeal to the extent that this information is available to the Secretary of State. We endorse the comments of Judge Wright in paragraph 23 of ST. In setting out the role of the Secretary of State in the appeal process, he stated:
‘This was described by Baroness Hale in Kerr –v- Department of Social Development [2004] UKHL 23, R 1/04(SF), at paragraph [62] as follows:
“What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced”.
The decision in Kerr turned on whether any of the claimant’s siblings were in receipt of a relevant social security benefit at a particular time - information which only the Department for Social Development held – hence the focus of the language used by Baroness Hale in the last sentence. However, in my judgment the principle in Kerr is wider than this, and is to the effect that in the cooperative process of investigating a person’s entitlement to benefit the Department (or Secretary of State for Work and Pension in this case) is obliged to provide to that investigation all relevant information that it or he holds.’
85. We would also emphasise that there are parallel duties and obligations on the representatives and appellants. In the instant case, the First-tier Tribunal was critical of Mr Thomson is failing to seek copies of the reports of previous assessments during the three-month period from his instructions in the appeal and the date of the tribunal hearing. At the oral hearing before us, Mr Thomson accepted that this criticism might have been justified. Representatives will also have to be proactive in alerting First-tier Tribunals to evidence which it is submitted is relevant to the issues arising in the appeal and where it is possible to do so to seek that evidence on behalf of appellants. In paragraph 53 of JC, the Tribunal of Commissioners warned that:
‘… Appeal tribunals should not be overwhelmed with submissions that there has been no change in the appellant’s medical condition and that, accordingly, the evidence associated with previous determinations in connection with the all work test or personal capability assessment should be produced.’
That guidance remains apposite in the present appeal.
H The application of our analysis in the instant case
86. In her letter of appeal against the decision of the Secretary of State, the appellant made no reference to previous assessments in connection with incapacity for work nor the reports of medical examinations associated with any such assessments. More significantly, the appellant did not make a submission that her medical condition had not changed since the date of her award of entitlement to IB or since the date of any assessment conducted in connection with such an entitlement. Such a submission could not also be implied from the content of the letter of appeal.
87. In the statement of reasons for its decision, the First-tier Tribunal noted that it had before it the ‘ESA50’ form, completed by the appellant on 3 January 2012, a report of an examination conducted by a healthcare professional on 3 February 2012 and copies of the appellant’s General Practitioner (GP) records for the period from 15 September 2003 to 18 October 2012. A copy of all of that documentary evidence is in the file of papers which is before us. The GP records are computer based and run to over twenty pages. The First-tier Tribunal was also able to take oral evidence from the appellant.
88. The First-tier Tribunal noted that Mr Thomson had made a submission that the Secretary of State was relying on the report of the assessment conducted by the healthcare professional on 3 February 2012 notwithstanding that the appellant had been in receipt of IB since 1995 and that the reports of any other such assessments should have been produced as part of the appeal response. The First-tier Tribunal concluded:
‘On questioning by the Tribunal, he confirmed that he had been in receipt of the Appellant’s papers since October 2012 and had made no effort to obtain any reports himself nor, indeed, any GP’s report other than the medical records of the Appellant which had been produced and referred to above. No convincing argument had been presented before the Tribunal that the Appellant was in any way prejudiced by the Tribunal proceeding on the basis of the Health Care Professional’s Report dated 3rd February 2012 and upon which the Decision Maker’s Decision was partly based.’
89. It is clear that the First-tier Tribunal was alert to the possibility of the existence of reports of previous assessments conducted in association with the adjudication history in connection with entitlement to IB. Given that there was an entitlement to the benefit from 4 August 1995, it is not implausible that the appellant was subject to assessment as part of the ongoing entitlement process. The issue of the relevance of the reports of previous medical examinations associated with the adjudication process was one for the First-tier Tribunal to make. What the First-tier Tribunal was concluding was that there was no requirement to adjourn the proceedings in order to determine whether reports of such assessments existed and whether they should be called for in order to decide whether they were relevant to the determination of the issues which were before it. The decision of the First-tier Tribunal was rational and coherent and in keeping with the relevant principles set out above.
90. We have already noted that the decision under appeal to the First-tier Tribunal was an IB conversion decision. As was noted above, the adjudication history, which went back as far as 1995, and associated assessments and reports, with different substantive tests, might not have been relevant. We have also observed that there was no submission that there had been no change in the appellant’s condition from the date of first entitlement or an interim assessment date. Significantly, the First-tier Tribunal had before it detailed evidence from the appellant’s GP records and the appellant’s own oral evidence. In these circumstances the First-tier tribunal was wholly justified in getting on with the task of determining the issues arising on the basis of the sufficient and relevant evidence which was before it.
91. The First-tier Tribunal undertook a rigorous and rational assessment of all of the evidence before it. The tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did. Any conflict in the evidence before the tribunal has been clearly resolved and explained. The tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence. None of the tribunal’s findings are irrational, perverse or immaterial. All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the tribunal in conformity with its inquisitorial role. Read as a whole, the statement of reasons for the tribunal’s decision provides a detailed explanation of the basis on which the tribunal arrived at its conclusions on the issues before it.
92. We have noted that the Fist-tier Tribunal found the evidence of the appellant to be lacking in credibility and, accordingly, was lacking in weight. In CIS/4022/2007, after analysing a series of authorities on the issue of the assessment of credibility, including R3-01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:
The reasoning of the First-tier Tribunal in the instant case is in keeping with those principles.
I Disposal
93. The decision of the First-tier Tribunal dated 10 January 2013 is not in error of law. Accordingly the appeal to the Upper Tribunal does not succeed.
(Signed)
KENNETH MULLAN
JUDGE OF THE UPPER TRIBUNAL
Date: 27 October 2015
(Signed)
CHRISTOPHER WARD
JUDGE OF THE UPPER TRIBUNAL
Date: 27 October 2015
(Signed)
J T LUNNEY
JUDGE OF THE UPPER TRIBUNAL
Date: 27 October 2015