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[2008] UKUT 39 (AAC) (12 December 2008)

 


IN THE UPPER TRIBUNAL Case No CIB/2177/2008

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision: The appeal is allowed. The decision of the appeal tribunal which sat at Basildon on 26 November 2007 involved the making of an error on a point 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 8 of the Reasons.

REASONS FOR DECISION
1. This appeal is (save as indicated below) supported by the Secretary of State. The tribunal made a number of errors of law, as further set out below.

Background

2. The claimant has been in receipt of Incapacity Benefit from and including 26 November 1998. In 2005, he had met the threshold under a Personal Capability Assessment ("PCA"), obtaining 8 points in respect of the physical descriptors (hearing) and 18 in respect of those for mental health. Following a further PCA, a decision was taken on 17 April 2007 that he obtained 10 physical points (again for hearing) but this time only 5 points in respect of his mental health. Because of the rules in regulation 26 of the Social Security (Incapacity for Work) (General) Regulations 1995, the claimant's aggregate score of 5 points in respect of the mental health descriptors, being less than 6, fell to be disregarded altogether. However, if he had obtained one more point under the mental health descriptors, his aggregate score in respect of them would have been treated as 9, which, when added to the 10 physical points, would have meant that he would have met the PCA threshold.

The adjournment request

3. The claimant's appeal came before the appeal tribunal on 26 November 2007. On 21 November, the claimant had been to see the Welfare Rights Department of a local firm of solicitors. Whether he had seen them previously I do not know. They had written that day to the claimant's GP, indicating that the claimant considered that he had further difficulties of mental health than those that had so far been allowed and seeking the view of the GP. No reply was received in time and so the claimant attended the tribunal with a submission (61) summarising the issue, exhibiting the letter which had been sent to the GP, and inviting the tribunal to consider adjourning. (The submission is wrongly dated 26 October 2007, but that is merely a clerical slip.) The appeal tribunal went ahead, confirming the decision as regards the mental health points, and, as regards hearing, substituting descriptor (e) ("Cannot hear well enough to understand someone talking in a normal voice in a busy street") for descriptor (d) ("Cannot hear well enough to understand someone talking in a normal voice in a quiet room"), thus reducing the physical points from 10 to 8, but making no difference to the outcome.
4. While the record of proceedings records on its front-sheet that the submission was before the tribunal, nowhere does the record of proceedings or the statement of reasons indicate that any consideration was given to the adjournment request, much less the appeal tribunal's reasons for not granting it. I gratefully adopt the observations of Mr Commissioner Jacobs, the tenor of which was cited with approval in the subsequent judgment of the Court of Appeal, in R(IB)6/03, that:

"In some circumstances, the reason for a refusal [sc. of an adjournment] may be obvious. The most obvious example is if no reason is given for the application. In most cases, a reason is needed. However, those reasons need not be elaborate. They must be read against the background of the terms of the application and the circumstances of the case. They need not set out every factor that the tribunal took into account. It will usually be sufficient to set out in a sentence the principal factor that the tribunal took into account. That reason need not be set out in the full statement of the tribunal's decision. It is sufficient if it appears from the record of proceedings or the decision notice".

A decision whether or not to adjourn is for the discretion of the tribunal but it is not a discretion wholly without limits. In this case, the failure to give reasons to the standard required by the words quoted above makes it impossible to discern whether any refusal was within or outside the bounds of the tribunal's discretion and so caused the decision to be in error of law.

Scope of Activity 11 "hearing with a hearing aid or other aid if normally worn"

5. The claimant further appeals on the ground that the appeal tribunal failed to give sufficient reasons for replacing hearing descriptor 11(d) with (e). The Secretary of State does not support the appeal on this point. I do consider that there was an error of law in relation to hearing, but prefer to put it on the footing (which, after further submissions, the Secretary of State does support) that the tribunal failed to make sufficient findings of fact. The claimant's evidence was at one point "I hear O.K. no prob[lem]" but at another "hearing – I lip read". In my judgement, the wording of activity 11 makes it imperative to distinguish between (on the one hand) what a claimant can actually hear with the aid of a hearing aid or other aid if normally worn (which is relevant for the purposes of the hearing descriptors) and (on the other) ways in which a claimant may compensate for his or her hearing impairment to achieve understanding, such as lip-reading or the use of sub-titles to aid understanding of a television programme (which are not relevant for the purposes of the hearing descriptors). I consider that this follows from the wording of descriptors (b), (c), (d) and (e), in that the test is not whether the claimant is unable to "understand someone talking in a loud voice in a quiet room" (or as the case may be), which might be achieved with the aid of lip-reading, but whether a claimant "cannot hear well enough to understand someone talking in a loud voice in a quiet room" (emphasis mine). It also follows from the wording of activity 11 in the Schedule to the 1995 Regulations "Hearing with a hearing aid or other aid if normally worn", in that the word "hearing" is in this context not apt to extend to activities which are alternatives to hearing and the sort of "aid" referred to is an aid to "hearing" so understood.
6. In the present case, the tribunal failed to establish how much the claimant could actually "hear" in the sense described above and how much of his ability to understand was achieved through the alternative strategy of lip-reading and so was in error of law.

Treatment of mental health descriptors in issue

7. Criticisms are also made of the tribunal's reasoning in relation to additional mental health descriptors which had been put in issue by the claimant. The tribunal should have made findings of fact in relation to those descriptors and shown adequate reasons for their conclusion on the descriptors in issue. These would need to have addressed, among other matters both any variability in the claimant's condition and, if their conclusions differed from those of the decision in 2005 following an earlier PCA, why they did so. By failing to do so the tribunal was in error of law. As I am setting aside the decision on other grounds, I do not regard it as necessary to explore this aspect in any further detail.

Directions

8. I direct therefore that the question of whether the claimant satisfies the PCA is to be looked at by way of a complete re-hearing in accordance with the legislation and this decision. Unless otherwise directed, the claimant or his representative must ensure that any further written evidence is filed with the First-tier Tribunal no less than 21 days before the hearing date. The tribunal will need to make full findings of fact on all points that are put at issue by the appeal in relation to both physical and mental descriptors. If the tribunal rejects the claimant's evidence, it must provide a sufficient explanation why it has done so and must give adequate reasons for its conclusions. The tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on 17 April 2007- see section 12(8)(b) of the Social Security Act 1998 - but may have regard to subsequent evidence or subsequent events for the purpose of drawing inferences as to the circumstances obtaining at that time: R (DLA) 2/01 and 3/01.
9. While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing. The decision on the re-hearing is a matter for the First-tier Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.

(signed)

C.G.Ward

Judge of the Upper Tribunal

12 December 2008