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RI [2009] UKUT 144 (AAC) (17 July 2009)
Incapacity benefits
other

IN THE UPPER TRIBUNAL Appeal No. CIB/946/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Deputy Judge of the Upper Tribunal Miss E. Ovey

Decision: The decision of the First-tier Tribunal given on 30^th January 2009 contained an error on a point of law. Accordingly, the claimant's appeal against the decision is allowed. I remit the matter to be heard by a new tribunal constituted, differently from the previous tribunal, under Part I of the Social Security Act 1998. I give the directions set out in paragraph 24 below.

REASONS FOR DECISION

1. This is an appeal by the claimant against the decision of the tribunal given on 30^th January 2009. By its decision the tribunal disallowed the claimant's appeal against the decision of the decision maker made on 17^th September 2008 (wrongly identified by the tribunal as a decision issued on 23^rd August 2008) that the claimant was not entitled to incapacity benefit from and including 17^th September 2008.

The history of the claim

2. It is stated in the Department's submission to the tribunal that the claimant became incapable of work and entitled to incapacity benefit on 3^rd November 1999. The ground of his incapacity was depression. His inability to work was originally assessed by the own occupation test. After 196 days (that is, from 20^th May 2000), the own occupation test ceased to be the applicable test and he fell to be assessed by the personal capability assessment: see sections 171B and 171C of the Social Security (Contributions and Benefits) Act 1992.
3. The submission states that for the purpose of the assessment the claimant completed a Form IB50 but that the claimant's GP did not provide a Form Med. 4 confirming the diagnosis or stating the period for which the incapacity was expected to last. It appears, however, that the decision maker made a decision on 25^th August 2000 awarding incapacity benefit from and including 20^th May 2000, that being the decision which was superseded by the decision of 17^th September 2008 (p.55). The papers do not show whether any medical evidence was obtained at that time.
4. In unexplained circumstances, but possibly as a matter of routine, the claimant was examined by an examining medical practitioner for the purposes of a personal capability assessment on 8^th February 2006. The report, on Form IB85, is included in the papers at pp.1K-16. It was not suggested that the claimant had any relevant physical problems, so the assessment was in effect an assessment of whether or not he satisfied any of the mental descriptors set out in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, S.I. 1995 No. 311. In order to satisfy the assessment and to be determined to be incapable of work, he had to score 10 points in respect of those descriptors: see reg. 25(1) of the Regulations.
5. The assessment in the report was that the claimant satisfied one descriptor (that he gets irritated by things which would not have bothered him before coming ill), for which he would have scored one point. Clearly, therefore, on the basis of that report, he failed the personal capability assessment.
6. In fact, however, the claimant continued to be entitled to incapacity benefit until the decision of 17^th September 2008. In the Department's submission to the tribunal, this anomaly is explained as follows:

"The previous IB85 dated 08/02/2006 is attached at pages 1 to 16. The Decision Maker has considered this report and is of the opinion that it has no bearing on the current assessment. At that time [the claimant] did not meet the threshold for Incapacity, the decision to disallow was revised by the Tribunal. A copy of their decision is not held on file. The current assessment gives a more recent picture of the claimant's current level of incapacity based on their general/most of the time functionality."

In other words, following the report dated 8^th February 2006, the claimant's entitlement to incapacity benefit was initially terminated, as one would expect, but he appealed against that decision and his appeal was allowed, so that the original decision awarding him benefit was restored. It is obvious that the tribunal would only have so acted if it had additional and very different medical evidence which it preferred or if it had other grounds for believing that the medical report was a substantially inaccurate assessment of the claimant's capacity for work and for finding that he was not capable of work. The claimant himself, in his present appeal, refers to medical reports which accompanied his previous appeal (p.77).

7. On 23^rd June 2008 the claimant completed a further Form IB50. He explained that his depression had been precipitated by an operation for testicular cancer followed by radiotherapy. Since he did not suffer from physical problems or problems with his senses, he followed the instructions on the form and went straight to the part of the form dealing with mental problems. He said:

"My depression causes low mood and lack of motivation. I feel tired and fatigued and have difficulty finding motivation to get out of bed in the morning often not getting up until between 10 and 11. I feel lethargic and do not want to engage in anything. I am very irritable and restless and often feel very agitated. I don't want to mix with people and have difficulty socialising. I find it difficult to make simple decisions and suffer from anxiety. I have a lack of concentration and I am becoming forgetful.

I feel physically tired all the time and often sleep for more than 11 hours."

He also gave details of family illness which had, he said, contributed to deepening his depression.

8. The claimant underwent a further medical examination on 14^th August 2008 which again in effect dealt solely with his mental condition. As a result of the report of that examination, the decision maker assessed the claimant as scoring two points on the basis that mental stress was a factor in making him stop work, one point for being anxious that work would bring back or worsen his illness and one point for irritability again. This gave a total of four points. Inevitably, therefore, the claimant was found no longer to satisfy the personal capability assessment, which led to the termination of his award by the decision of 17^th September 2008.
9. The claimant appealed against the decision, supporting his appeal with a detailed letter making criticisms of the contents of the medical report and complaining that the decision maker had not considered his recent Form IB50 or any medical information from his GP. The decision was reconsidered but was not revised. When the appeal came before the tribunal, it was dismissed, as I have already said.

The tribunal hearing

10. The claimant explained in his appeal letter that he had chosen a paper hearing rather than an oral hearing because he could not cope with the stress of attending in person. It is obvious from the tribunal's reasons that, however understandable that course of action was, it left the tribunal in some difficulty. The following extracts from the statement of reasons show how the tribunal proceeded:

"We took into account what the Appellant had said in that lengthy letter but were not persuaded by the representations made by him which appear largely to be limited to semantic attacks upon the registered nurse's observations …

In places the Appellant appeared to be basing considerable aspersion upon the integrity of the registered nurse, for instance when he repeatedly stated he was not asked specific questions. [We are] therefore left with the difficult task of attempting establish whether we accepted the registered nurse of effectively being dishonest in completion of the form IB50 or whether we accepted the Appellant's evidence in this respect.

Without having the registered nurse and the Appellant before us we found this a particularly difficult point but on balance we preferred to take the view that the registered nurse had acted appropriately and asked all appropriate questions. We came to this conclusion based upon the detailed information in the Form IB50 and we reviewed that there was simply no reason for the registered nurse to act dishonestly. We accepted it was possible that the Appellant had simply misunderstood the questions asked by the nurse but on balance were of the view that the report had been completed appropriately and professionally as evidence in the document before us.

In places what the Appellant said we fully accepted, for instance when he stated about medical evidence, "my own Doctor was not obtained and used for this assessment". We took the view that was not a matter for the registered nurse and certainly not for the Tribunal. It was for the Appellant to present whatever evidence he wished to present either from his General Practitioner or otherwise and we took the view that given the lapse of time between the date of the decision and the hearing we had no other sufficient opportunity to do so. [sic]

On balance therefore we were then [sic] persuaded by the representations made by the Appellant and attempted to consider the other documentation before us.

We had regard to the report of [the previous doctor] completed on the 8^th February 2006. This report was clearly expert and was based upon observation, examination and questioning of the Appellant. However, we noted that the report of [the doctor] was completed over 19 months prior to the date of the decision under consideration and for that reason we felt considerable caution needed to be exercised in reliance upon it.

Ultimately the evidence which we accepted in reaching our decision was that of the registered nurse … This report was expert, contemporaneous to the date of the decision by largely over one month and was based upon observation, examination and questioning of the Appellant. The report contained specific clinical findings and observations in support of its conclusions and there was nothing inherent within it which led us to have any concerns as to either its accuracy, its completeness or its integrity."

The appeal

11. The claimant sought permission to appeal by letter dated 22^nd March 2009 but permission was refused on 26^th March 2009. The claimant renewed his application by a form dated 15^th April 2009. His grounds of appeal were, in summary, as follows:

(1) in previous examinations medical reports were obtained from his GP but that was not done on this occasion. Reliance had been placed on the report of 8^th February 2006, but the tribunal had not been told of the successful appeal against the resulting decision or supplied with the medical reports used on that appeal;

(2) the claimant had not intended to cast aspersions on the integrity of the registered nurse, but the statements she had used to justify her assessments as recorded on the Form IB85 were not sufficient to do so. One statement she had used four times was contradicted by another elsewhere;

(3) some of the questions were not matters of medical opinion but questions of fact which the claimant answered in his appeal letter.

12. Permission to appeal was granted by Judge Jupp on 6^th May 2009. In giving permission to appeal, the judge raised the question whether, in view of the difficulty felt by the tribunal in weighing the evidence, the appeal should have been adjourned to give the unrepresented claimant an opportunity of attending to give evidence.
13. The substance of the Secretary of State's submission on the appeal is that the tribunal was entitled to decide what evidence it preferred and that the tribunal had considered all the evidence and made clear what it preferred and why. Although the tribunal might have found it difficult to weigh the evidence, it had not found itself unable to do so and there would have been no useful purpose in directing an adjournment. The submission included the following:

"I submit for the purposes of the mental health test the examining officer conducts an interview with the customer with an indirect questioning approach to determine how mental health problems affect the four areas of activity. The interview gathers information, not by asking direct questions using the mental health statements as a check list, but by obtaining relevant information about everyday activities and experiences. To ask direct questions would invariably produce false results, both positive and negative.

Using clinical judgment, the medical officer selects appropriate responses to the questions under each area of activity. He would also have taken into account the customer's appearance at the interview, behaviour and mood, thought content and insight into the condition.

The mental health assessment statements interlink over the four areas of activity to provide a complete picture on which the opinion can be based. No question stands alone. Therefore, I submit this disposes of the claimant's argument that the statements within the medical report do not provide answers to the direct questions.

I agree with the FtT's findings that the claimant has misunderstood how the test is conducted and that the report was completed appropriately and professionally … There is no evidence to support any concerns over its accuracy, its completeness or its integrity. …

The preference of evidence is a matter for the FtT. I submit the FtT considered all the evidence and made it clear which evidence they preferred and why. Whilst they had regard to the previous medical report it was completed in February 2006 some 3 years prior to the date of the decision under consideration and therefore they could not rely on it."

14. The claimant made observations in reply dated 2^nd July 2009 referring to the previous tribunal decision and submitting that all the medical evidence should be considered.
15. I have no doubt that the claimant feels a justified sense of grievance over the way the 2006 medical report has been used in this case. I do not understand why the Department included with the tribunal papers a report which the decision maker thought had no bearing on the current assessment. The passage quoted in paragraph 6 above does not explain in any way the decision to do so. While I realise that the practice is, rightly, to include previous assessments where the claimant is likely to say that there is no reason for departing from the previous award, it does not appear to me helpful to do so where it is obvious that the award has been continued in the teeth of the previous assessment in question and that that assessment has been found to be seriously inaccurate, however competently it may have been performed. It is not clear whether the Department had available the medical evidence on which the previous tribunal proceeded, even if it did not have a copy of the decision itself. If it did have that evidence, then, in my view, it ought as a minimum to have included it with the papers.
16. Any shortcomings on the part of the Department in that respect, however, would have been immaterial if the tribunal had clearly been aware of the position. Unfortunately, the way in which the tribunal dealt with the previous report in its decision suggests that it was not. The passage I have quoted shows that the tribunal had regard to the report, which was said to be clearly expert, and the tribunal's only hesitation about it seems to have been that it might be outdated. There is no recognition that the picture painted by that report was subsequently found to be significantly wrong.
17. Since the tribunal was not in a position to know on what basis the claimant had previously been found to satisfy the personal capability assessment, and thus in what respects the previous report had been found to be inaccurate, it had no clear foundation for having regard to the previous report at all, even if it did exercise considerable caution in relying on it. I therefore conclude that the tribunal erred in law in having any regard to the 2006 report.
18. I also conclude that the error was a material one, leading to a further error of law. The tribunal ought to have started from the basis that the claimant had an existing award and that it was for the Department to justify its supersession decision by showing that there was a relevant change of circumstances. A new medical report expressing an opinion inconsistent with the basis of an existing award is not itself a change of circumstances, although it may provide a good foundation for a finding that such a change has taken place: see Cooke v. Secretary of State for Social Security [2001] EWCA Civ 734; R(DLA) 6/01. Although the decision notice at p.55 does not identify the exact head of reg. 6 of the Social Security (Decisions and Appeals) Regulations 1999, S.I. 1999 No. 991 under which the original decision was superseded, it seems to me to follow from the words that the claimant "no longer meets the threshold of Incapacity" that it was a change of circumstances on which the decision maker relied. Since the tribunal had no idea on what evidence the previous tribunal had relied when deciding that the claimant did reach that threshold, it is difficult to see how it was to approach its task. The reference to the 2006 report in its reasons strongly suggests that it did not approach the matter in that way but dealt with the case almost as if it were a new claim, with a little relevant evidence in the form of an elderly medical report which was consistent with the new report, even if outdated. The fact that regard was had to the report at all seems to me to show that the tribunal approached its task in the wrong way and did not consider whether there was indeed a change of circumstances.
19. It follows that I have power under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 to set aside the tribunal's decision, and it appears to me clearly appropriate to do so in order that the claimant's case can be given fresh consideration on the basis of all the relevant medical evidence. Even if the Department has not retained the evidence which was before the previous tribunal, it seems that the claimant does and will take steps to ensure that all the medical evidence which he regards as relevant is before any new tribunal. In those circumstances, the proper course is for me to remit the case to be heard by a new tribunal.
20. That is sufficient to dispose of the appeal, but in the light of the other matters which have been raised it is right that I should deal with some further points. First, it seems to me clear that the claimant did not appreciate the indirect nature of the questioning used in cases involving the mental descriptors, as explained in the Secretary of State's submission. I am concerned that the tribunal does not seem fully to have understood this. It is evident that the claimant was perfectly correct in saying in his appeal letter that certain questions had not been asked and it is understandable that if he was not aware of the indirect technique he should have made that point. The paragraph in which the tribunal refers to the apparent casting of aspersions by the claimant seems to imply that the tribunal regarded itself as having to choose between the claimant's evidence that questions were not asked and the nurse's completion of the form as if they had been. That was a false dichotomy; the claimant correctly said that questions were not asked and the nurse may well have filled in the form appropriately, professionally and honestly as the tribunal found. I am left with a serious concern that the tribunal reached its decision on the basis of a demonstrably unjustified assessment of the claimant's credibility, in whole or in part. If necessary, I should regard that as a further error of law requiring the decision to be set aside, on the ground that the tribunal gave no adequate reasons for what appear to have been adverse findings about the claimant's credibility.
21. In addition, it is now well established that tribunals need to exercise considerable care in looking at reports in the computerised IB85 form used here: see the discussion in Social Security Legislation 2008/09, vol. 1, p.746. The fact that the assessment of the 2006 report was found to be significantly wrong shows that difficulties can arise even when the forms are completed in what appears to be an expert way. In my view, there are justifiable objections to the phrases "occasionally can easily" do housework, use the washing machine, iron, use the oven and other cooking appliances or cut the lawn. Those statements appear primarily to be directed to physical abilities, which the claimant says was the context in which the relevant questions were asked and (to the extent that they are used at all) are used in the mental health assessment only in support of the conclusion that the claimant cares about his appearance and living conditions. Since the obvious meaning is that usually the claimant cannot easily do housework, use the washing machine or iron, it is difficult to see what useful evidence they provide. It is also difficult to see why these statements are included in the description of a typical day, unless it is to make the point that a typical day would not include the occasional activities of housework and the other matters so described.
22. It is not necessary for me to consider in detail the various criticisms advanced by the claimant; the example given above illustrates both why the tribunal described them as "largely semantic" and why such statements, produced through use of an electronic form, require careful consideration. I do, however, draw attention to a number of points which particularly raise questions about the accuracy of the assessment:

(1) the registered nurse stated that the dosage of Reboxeline being taken was normal, while the claimant asserts that that is factually incorrect and he is taking the maximum allowed dose;

(2) reliance has been placed on one of two conflicting statements. The way in which the form works, as explained in Social Security Legislation, means that the claimant is unlikely to have made one of those statements once and the other four times, as the form might suggest. It is not clear why one was treated as more accurate than the other;

(3) the claimant asserts that the nurse has misunderstood what he said about going out for a meal in a pub in recording the statement that he likes to socialise every week. That statement has been relied on at various points;

(4) the claimant also asserts that the nurse did not record what he said about difficulties with concentration, and there seem to be other points on which fuller information might have shed a different light.

23. It is understandable that a tribunal, dealing with this appeal on paper, may have found its task of weighing the evidence a very difficult one. The absence of any evidence as to the basis on which the award had been continued after the 2006 report, however, made that task, to my mind, virtually impossible. I cannot accept the Secretary of State's submission that there would have been no useful purpose in directing an adjournment. On the contrary, it seems to me that a very useful purpose indeed would have been served, since it would have enabled further medical evidence to be adduced and would have given the claimant the opportunity of attending the hearing and giving oral evidence. The claimant was unrepresented before the tribunal and in my view the tribunal made an error of law in not reaching the conclusion that it could not deal fairly with the case without further medical evidence as a minimum, and if it all possible, evidence which would deal with the claimant's condition in 2006. There was no reason to suppose that such evidence could not have been obtained from the claimant's GP even if the documents containing the evidence before the previous tribunal were no longer available.

Final points

24. I therefore direct that the Department should add to the bundle before the new tribunal any papers it has retained relating to the 2006 appeal, so that the new tribunal has as clear an understanding as possible of the basis on which the claimant's award continued until 17^th September 2008. The new tribunal will have regard to the various matters considered above in making its decision.
25. I do not give any formal directions to the claimant, but I express the hope that, in his own interests, he will do as he says in his observations dated 2^nd July 2009 and will attend the new tribunal hearing with a representative and with detailed medical evidence.

(Signed on the original) E. Ovey

Deputy Judge of the Upper Tribunal

17^th July 2009