IN THE UPPER TRIBUNAL                                        Appeal No.  CIB/1345/2009   
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 18/2/09 under reference 013/08/03061 is SET ASIDE because its making involved errors on points of law. 

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1. From 3 November 2008, the functions of the Social Security Commissioners were transferred to the Upper Tribunal (Administrative Appeals Chamber) under whose jurisdiction this decision is now given.  The functions of the Social Security Appeals Tribunal were transferred to the First-tier Tribunal (Social Entitlement Chamber) on the same date.  

2. The appellant appeals the decision of the First-tier Tribunal (Social Entitlement Chamber) tribunal with my permission.  The tribunal confirmed the Secretary of State’s decision of 26/9/08 that the appellant was not incapable of work from and including 26/9/08, having failed to score sufficient points to pass a PCA carried out on 20/6/08.  The decision maker awarded 3 points in respect of rising, bending and kneeling, and stairs or walking.  In relation to her mental health, the appellant satisfied descriptor CTe.  This did not result in the award of a further point under the scoring system applied to the PCA. 

3. Several areas of concern arise from the tribunal’s Statement of Reasons:  (i) Did the tribunal rely on the wrong ground, or an unexplained ground of supersession in making its decision?  (ii) Can the tribunal’s rejection of the appellant’s evidence about unexplained, widespread and localised pain be reconciled with their acceptance of the diagnosis of fibromyalgia, an illness characterised by these symptoms?  (iii) Did the tribunal err in law in relying on observations without putting them to the appellant?  

4. I have come to the conclusion that the appellant cannot succeed on the first ground, but succeeds on the second and third grounds 

5. The claimant, who has been on Incapacity Benefit (IB) for some time, has been diagnosed with fibromyalgia and complains of generalised joint pains, dizziness and abdominal pain of unknown cause.  She failed a previous PCA in 2007, but this was overturned on appeal.  She failed again in September 2008, which led to the current appeal. 

The supersession issue

6. The Secretary of State superseded the appellant’s award on the basis of regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  This regulation allows him to supersede an award of IB or credits by virtue of the receipt of medical evidence following an examination carried out in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995; in other words, the PCA report.  

7. The representative submitted, however, that the tribunal did not rely (or perhaps more accurately, rely exclusively) on the PCA in coming to its decision, but instead relied largely on its own observations.  Therefore, he argued, since the tribunal did not accept the medical evidence (or all of the medical evidence) received by the Secretary of State, that evidence did not in itself lead the tribunal to conclude that the claimant was not incapable of work.  Accordingly, the tribunal’s supersession did not flow from the receipt of the medical evidence for the purposes of regulation 6(2)(g).  Justification for the supersession must have lain elsewhere, it was argued, yet no other ground of supersession was given by the tribunal.  The representative cited R(IB)2/04 [186, 10(4)] in which the Tribunal of Commissioners adopted as law the view expressed by the Court of Appeal in Wood v Secretary of State for Work and Pensions (reported as R(DLA)1/03) that 

‘a decision could only be superseded under section 10 (Social Security and Child Support (Decisions and Appeals) Regulations 1999) if there is a ground for supersession and that ground forms the basis of the supersession decision in the sense that the original decision can only be altered in a way which follows from that ground.  ‘ 

8. It is important to look at the Wood and R(IB)2/04 in context.  In Wood the claimant asked for a supersession of his existing award of DLA, which was limited to the mobility component, to include the care component as well.  He relied on a change of circumstance, viz. deterioration in his health.  Following the request, the Secretary of State acted on his own initiative to remove the mobility award and refuse to award the care component.  His view was that the claimant’s care needs were not established and that the claimant’s mobility had improved, though there was no positive finding on that.  The tribunal confirmed the Secretary of State’s decision, but made no finding that the claimant had improved in relation to mobility.  The Court of Appeal allowed the appeal.  The majority held that a decision could not be superseded unless the decision maker or tribunal found as a fact that one of the criteria for supersession in regulation 6(2) was made out.  Their lordships went on to consider, without holding formally, that establishing one of the criteria for supersession did not open a gateway giving the Secretary of State the right to revisit the merits of a decision on any basis he wanted. The decision which was finally made had to flow from the particular criteria that was established [40, 49].  

9. The appeal in R(IB)2/04 arose from the Secretary of State’s initial reliance on regulation 6(2)(g) to support a supersession on the basis of the first application of the PCA to a claimant.  For reasons which do not concern us here, the Tribunal of Commissioners considered, without deciding, that while regulation 6(2)(g) was inapplicable in such circumstances [126] there was no error of law which justified setting the decision aside because another ground of supersession was clearly made out.  The application of the PCA amounted to a change of circumstances under regulation 6(2)(a).  It was in this context that the Tribunal of Commissioners confirmed that the ground which is found to exist under regulation 6(2) must form the basis of the supersession decision in the sense that the original decision can only be altered in a way which follows from that ground [186].  

10. The principle in Wood and R(IB)2/04 is stated more broadly than necessary to decide the appeals with which they were respectively concerned.  Neither case involved the precise mechanism by which regulation 6(2)(g) works, though both cases refer to (g) in contrast to regulation 6(2)(a).  Indeed, in Wood, Rix LJ notes specifically the need to establish a change of circumstance under 6(2)(a) whereas (g) only requires the receipt of medical evidence as defined [21, 22].  In R(IB)2/04, the difference is similarly noted at [125].  

11. For the purposes of practical comparison, the relevant paragraphs of regulation 6 are:

(1)	Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) – (4).

(2)	A decision under section 10 may be made on the Secretary of State’s … own initiative … on the basis that the decision to be superseded –  

(a)	is one in respect of which

(i) there has been a relevant change of circumstances since the decision had effect’…’.

(g) ‘is an incapacity benefit decision where there has been an incapacity determination … and where, since the decision was made, the Secretary of State has received medical evidence…’

12. Regulation 6(2)(a) only operates if there is a relevant change of circumstance.  It provides the trigger for exercising the power of supersession (the change of circumstance) and points towards an outcome which will follow if the relevant circumstance is established.

13. Regulation 6(2)(g) operates differently.  While it contains a trigger - the receipt of the correct medical evidence, it does not envisage any particular outcome.  The ‘receipt of evidence’ is entirely neutral.  The PCA report may indicate that the claimant has gotten worse, better or stayed the same; or perhaps that while the clinical findings are the same as those in a previous report, the conclusions drawn by the present approved healthcare professional are different.  The latter would not constitute a change of circumstance as interpreted in PCA case law, but would enable the Secretary of State to supersede the existing decision if he so wished under (g).

14. Because sub-paragraph (g) does not lead anywhere in particular, it is difficult to apply to it the principle that the decision ultimately made must flow from it.  It appears that (g) is another instance of the lack of ‘happy and consistent meaning that can be given to the word ‘superseding’ and its related forms throughout the relevant provisions of the Act and its regulations’: Wood [50].  It may not be strictly necessary to do so, given that the case law on the point did not consider the issue directly, but it is possible if the principle is looked at broadly.

15. The obvious way of approaching the problem in (g) is to acknowledge that it envisages a two stage analysis:  (i) has the correct evidence been received and (ii) is the claimant, in fact, capable of work.  This is the approach taken by Judge Jacobs in CIB/1509/04 [11] [12], which I consider to be entirely correct.  In order to undertake the second stage, the decision maker must consider not only the current PCA but any other relevant evidence.  This is why previous favourable assessments may also be relevant to the decision maker.  The decision maker will then decide whether to supersede the existing award, refuse to supersede it, or (as is commonly done) acknowledge the change but maintain the award as it is.  

16. The receipt of the medical evidence is a trigger which enables the exercise of the power to supersede and leads to a second stage of analysis through which the decision maker decides, on the basis of all of the relevant evidence, whether the claimant is, in fact, incapable of work.  It does not matter whether the decision maker or tribunal accepts the PCA in part or in whole, or rejects it entirely.   The possibility that they will do so is part of the process of judicial decision making.  Insofar as it is necessary to show that that the supersession decision flows from (g), it can be said, broadly, that it does.  The decision, whichever way it goes, proceeds from the initial receipt of evidence which triggered the process.

Ground (ii)

17. Can the tribunal’s rejection of the appellant’s evidence about unexplained, widespread and localised pain be reconciled with their acceptance of the diagnosis of fibromyalgia, an illness characterised by these symptoms?  No, it cannot.  The tribunal’s view was that the effects of fibromyalgia were limited to fatigue.  This is not in conformity with the symptoms generally recognised by the medical profession as present in the condition, as found on numerous websites including that of the NHS.  As the tribunal were not accepting the standard view, they were obliged to explain why.  This is an error of sufficient gravity to warrant setting aside the decision.

18. It might be further added here that the tribunal’s reliance on the appellant’s misunderstanding of the cause of her abdominal pain did not logically support the conclusion that she was fabricating it, whether or not that evidence is taken in conjunction with the failure of her doctors to find a medical cause for her pain.  The appellant is not a doctor.  She was just relating to the tribunal what she thought she had been told.  It hardly needs stating that laymen may not understand technical medical matters.   

Ground (iii)

19. Did the tribunal err in law in relying on observations without putting them to the appellant?  The Secretary of State submitted that the tribunal only relied on its own observations as a confirmation of a conclusion that the tribunal would have reached anyway, it was unnecessary to put the observations to the appellant.  The Statement of Reasons showed that the tribunal relied on four observations:  (i) the appellant sat without any obvious discomfort or pain; (ii) she displayed an excellent ability to concentrate; (iii) she was able to rise from her chair by holding the arms and with her husband’s assistance and (iv) she was able to walk to and from the tribunal room slowly and without obvious difficulty.  

20. The tribunal did not specifically accept the PCA report.  They gave the appearance of ignoring it almost entirely and appeared to have relied to an extent on their observations. However, with regard to sitting, I consider that their observation only confirmed what they would otherwise have decided by reference to the appellant’s evidence of her travelling activities, which required an amount of sitting inconsistent with her claims.  In relation to rising from sitting, however, their observation may have been a ‘tie breaker’, given that the appellant claimed 7 points and they confirmed, without explanation, that only 3 points were due.  The observation in relation to walking was not particularly significant, since the appellant claimed only 3 points and these were awarded.  Her walking while on holiday had obviously swayed the tribunal and the walking that was observed was a mere confirmation.  The representative’s submission that the tribunal must have observed the claimant after she left the tribunal room is fanciful, as is her submission that the tribunal engaged in ‘directed surveillance’ or ‘covert surveillance’.  What is more important is that the tribunal did not bother to explain why they awarded no points for stairs, for which the claimant felt entitled to 7 points, instead of the 3 for walking.  On the whole, I have come to the conclusion that the observations may have led to the tribunal withholding points which would have been sufficient for her to have passed the PCA, possibly on physical descriptors alone.  It is unnecessary to go into the tribunal’s failure to deal with the mental health descriptors that the appellant specifically raised.

21. The decision of the tribunal must accordingly be set aside.  I am unable to make the necessary findings of fact to substitute my own decision, so the appeal must be remitted to a freshly constituted First-tier Tribunal.  The tribunal will have to make full findings of fact in relation to the disabilities caused by the appellant’s conditions, and be aware that an inability to diagnose a problem does not necessarily mean that it does not exist.  

23. The appellant should note that the tribunal can only look at her condition as at the date the Secretary of State’s decision was made.  It is up to her to supply any further medical evidence upon which she may wish to rely.  

[Signed on original]		S M Lane
		Judge of the Upper Tribunal 
[Date]		14 July 2010