ADMINISTRATIVE
APPEALS CHAMBER
DECISION
OF THE UPPER TRIBUNAL JUDGE
The appeal is refused.
I find no error of law in the
decision of the First-tier Tribunal (the tribunal) sitting in Greenock on 8
June 2011.
The tribunal’s decision therefore
stands.
REASONS
1.
Permission to appeal was given by another Upper Tribunal Judge. The
appeal is not supported on behalf of the Secretary of State and after careful
consideration of all the case papers, I agree with the lack of support. The
reasoning in the Secretary of State’s response dated 23 December 2011 is
particularly detailed in addressing the points made on behalf of the
appellant. On balance, I prefer the reasoning of the Secretary of State to
that of the representative of behalf of the appellant (the representative).
Analysing the evidence
2.
The analysis of evidence is completely a matter for the tribunal and is
a matter of fact. It can be disturbed by an Upper Tribunal Judge as an error
of law only if the conclusion is one which no reasonable tribunal could have
reached. The representative submits that it is illogical for the tribunal on
the one hand to accept the findings of the Health Care Professional (HCP) that
the claimant has moderate depression and moderate anxiety and, on the other
hand, in its statement of reasons to conclude that “[the claimant’s] mental
health condition is very mild”. It is argued that there is a very significant
difference between “moderate” and “very mild”. I disagree. “Mild” is defined
as “moderate” in most dictionaries and the addition of the word “very” is
merely a matter of degree and does not turn what the tribunal said into an
error of law. As Lord Hoffman put it in Biogen Inc v Medeva plc [1996]
38 BMLR149 at page 165:
“The exigencies of daily courtroom life are such that
reasons for judgement will always be capable of having been better expressed …
reasons should be read on the assumption that unless he has demonstrated to the
contrary, the judge knew how he should perform his functions and which matters
he should take into account”.
Having regard to the above, I do
not accept that the addition of “very” to the word “mild”, against the
background of all the evidence and the findings from that evidence, in any way
suggests an illogicality in the tribunal’s approach.
Sufficiency of reasons
3.
The representative submits that the tribunal failed to give adequate
reasons on the non-applicability of various descriptors. However, adequacy of
reasons can be judged only in the context of the evidence and submissions as a
whole. On that premise, and assuming an informed reader, the reasons given
were sufficient. I deal first with the mental health descriptors. Having
regard to what the claimant told the HCP, (for example, he gets up, dresses,
watches television, uses the microwave, deals with his own finances and
correspondence, visits his parents every week and gets heroin from his
downstairs neighbour), while this may not account for every minute of the day
yet, as the claimant produced no compelling and competing evidence that he did
sit for hours doing nothing (a very serious condition one of only two
descriptors under Activity 15 (completion of tasks) justifying two rather than
one point), the tribunal gave an adequate explanation under 15(b).
4.
In Esen v Secretary of State for the Home Department [2006] SC
555, an Extra Division of the Court of Session held that an adjudicator is
required to judge credibility, and in reaching conclusions based on the
relevant evidence, is entitled to draw on common sense and an ability, as a
practical and informed person, to identify what is or not plausible having
regard to how people usually behave in certain circumstances. This is not
speculation but an aspect of the tribunal’s function in weighing and assessing
evidence. The same analysis applies to 17(b): there is no real evidence of one
who “frequently feels scared or panicky for no obvious reason”, and that the
claimant was able to attend the examination centre alone and only described
episodes of mild anxiety militated against the conclusion that a condition
significant enough to give two rather than only one point applied. That the
appellant received a lift to the assessment centre is a relevant factor but in
no way falsifies the tribunal’s conclusion. A conclusion is only an error of
law if perverse in the sense that no reasonable tribunal could have drawn that
inference from the evidence.
5.
Again, there was no error under 17(c) or 17(e) in the tribunal relying
on the appellant’s information that he “usually managed to deal with his own
finances and correspondence” and “usually managed to make meals for himself”
and “usually finished the tasks which he had started”, and the tribunal was not
precluded from doing so because he was sometimes slow in starting a task and cooked
ready-made meals. “Avoid”, indicates that a persons refrains from carrying out
an action; it is an issue of degree but there is nothing perverse in concluding
that, in all of the circumstances of the claimant’s case, he was not in general
avoiding carrying out routine activities; similarly, whether or not the
claimant failed to start some tasks, there are others which he did not give up and
which he carried through to the finish: the inference was therefore not
perverse that there was an insufficient incidence of frequence such that he
satisfied 17(e).
6.
As far as the physical descriptors claimed are concerned, the
representative contends that there was inadequate reasoning because the
tribunal “simply rejected the claimant’s evidence wholesale”. However, this is
not the case. It was the appellant’s evidence that pain from ankylosing
spondylitis affected the physical functions of walking, standing, rising and
bending or kneeling. The tribunal relied on the HCP’s clinical findings, which
were wholly normal so far as physical function was concerned, and that the
claimant was not receiving any treatment or medication in respect of ankylosing
spondylitis, in order to find there were no restrictions as claimed. I am
unable to understand the argument: “in the particular circumstances of this
case, I submit that this inadequate”; on the contrary, to address each of the
physical descriptors individually in the particular circumstances of this case would
have been merely a formulaic and meaningless mantra.
7.
The representative further submits that:
“the appellant is left in the dark as to why the tribunal
apparently rejected all his evidence, then accepted the parts that justified
its decision not to award points. No explanation is given, and the appellant is
left to wonder why only those parts of his evidence that were not helpful to
his case were accepted.”
The tribunal had begun its
reasons for decision with the following assessment of the claimant’s testimony:
“The tribunal found the appellant evasive in his answers to
questions, inconsistent, unreliable and the evidence which he gave was
inherently improbable.
Whilst accepting that the appellant did not require any
form of corroboration, it was unanimously the view of the tribunal, that on a
balance of probabilities the appellant’s evidence could not be relied upon, was
not supported by his GP and was totally at variance with the clinical findings
and opinion of the HCP.”
Notwithstanding, the tribunal
used some of the appellant’s own evidence in support of a refusal of a
descriptor, for example, that he “had a mobile phone which he used for
texting”.
8.
The reasoning in a decision must be read as a whole without a single
passage taken out of context. I agree with the rationale set out by
Commissioner Howell QC in paragraph 11 of CIB/297/2005:
“The second
point [made on the appellant’s behalf] is that having rejected part of the
claimant’s evidence, it was inconsistent of the tribunal to use what he said
against him on another point. There is of course no conceivable error of law
in a tribunal of fact finding that a witness is telling the truth in one part
of his evidence but exaggerating in another, and this tribunal’s reasons for
doing so are in my judgment clearly explained and unchallengeable”.
It is apparent from the use of
the phrase “found the appellant evasive” that the tribunal were referring to
what the claimant told them at the hearing. What he told the HCP, before his
benefit was withdrawn, is another matter. In any event, it is highly unlikely
that anyone will be accurate in every single thing he or she says; the tribunal
is entitled to draw on common sense and deduce that, in a witness judged
unreliable, self-serving assertions are more likely to be inaccurate than ones
against that person’s own interest.
9.
There was certainly evidence that in some ways the claimant led an
active life, (for example, visits parents every week, watches television, uses
a mobile phone, deals with his own finances and correspondence), and,
contrariwise as I accept, that sometimes he did not do so, (for example, only
occasionally does the housework, shopping is usually done by his mother). The
representative therefore suggests a different assessment of that evidence to
the one taken by the tribunal, which supports further descriptors. However, in
Braintree D.C. v Thompson [2005] EWCA Civ 178, the Court
of Appeal held that a tribunal’s finding of fact is not an error of law even if
it is made against the weight of the evidence, but only if the finding is
perverse in the sense that no reasonable tribunal could have drawn that
inference from the evidence. In no way has such been shown in the present
case.
Regulation 27(b) (Reinstated)
10.
I do not accept that the tribunal failed to make sufficient findings
about the range or type of work of which the claimant was capable. The
tribunal found that the appellant could work as a general labourer; the
representative’s contention, “that a heroin addict with ankylosing spondylitis
would have no realistic prospect of obtaining work as a general labourer”, is
flawed given the tribunal’s premise that the latter condition caused no
functional impairment whatsoever. This was enough to justify the conclusion
that there is work which would not give rise to any substantial risk, backed up
by the information that he had been a general labourer in the past and when he
was also a heroin addict. Whether the representative or the Secretary of State
is right that assembly line work is barred because of drug testing, or possible,
there was a sufficient underpinning of an inference that regulation 27(b) was
not satisfied by the finding in respect to his capacity as a general labourer.
11.
There is no suggestion, expressed or implied, in the tribunal’s
reasoning, that a perceived ability for the claimant to come off heroin was in
itself a bar to satisfaction under regulation 27(b); the primary plank of its
reasoning was that, because in the past he had worked, despite being a heroin
addict, with no indication that this gave rise to any substantial risk, that
therefore this remained the probable position as a heroin addict at the
relevant date. The representative is correct that the application of relevant
statutory criteria must be considered as at the date of the decision under
appeal. However, the main issue under regulation 27(b) is whether there is
work which the claimant could safely perform; insofar as a claimant is
necessarily not working at the date of the decision under appeal, this
inevitably looks to the future. Consequently, it is rational for a tribunal to
consider what would, or could, be the claimant’s situation in the event he took
up work. Once the tribunal decided that, because the claimant had been able to
stop taking heroin in the past there was no reason why he could not do so
again, this inevitably affects the range of jobs potentially open to him when
looking forward from the date of the relevant decision.
12.
A tribunal frequently uses several factors as material from which to
draw conclusions; having regard to the tribunal’s reasoning overall, there was
no error when including future prospects because one is looking at the expected
health consequences of a claimant returning to the workplace. Taking account
of the future, to this limited degree only, can assist a claimant’s case just
as much as go against it; to use an illustration I gave at paragraph 40 of CSIB/33/2004:
“Thus, for example, if a claimant sustains the relevant
risk because she has to get up quickly in the morning to go to work, rather
than pace herself as would be the situation if no such necessity arose, this is
a pertinent factor for consideration”
Such a claimant might have no equivalent
risk while not working but such a risk could arise in the changed circumstances
of having to get quickly to a job. The latter could only arise after the date
of the relevant decision but is nevertheless a pertinent factor in the
assessment of ‘substantial risk’.
Summary
13.
For the above reasons, in my judgement, no error of law is demonstrated
and therefore the tribunal’s decision stands. The tribunal did not apply any
wrong legal test. It made adequate findings of fact having regard to the
totality of the evidence before it, and sufficiently explained why it took the
view of the evidence it did. There was no unreasonable approach to any item of
evidence. In my judgement, the tribunal gave sufficient regard to all the
relevant information in the case and took no account of irrelevant factors. In
no respect was its decision perverse having regard to the evidence before it.
14.
An attempt to re-open the facts through an appeal on a point of law is
to be deprecated. As Laws LJ put it in A J (Cameroon) v Secretary of State
for the Home Department [2007] EWCA Civ 373, in a judgement with which his
two colleagues agreed:
“15. … It is elementary that
a fact finder does not have to deal with every piece of material or even every
point.
16. … [T]he AIT explained
the conclusions they reached. They are not summarising the evidence as such.
It is inevitable, or almost inevitable, that in performing the exercise of
giving their reasons they should concentrate on those aspects of the material
before them that have moved their decision.
…
22. … I have concluded
that this case is a particularly stark example of what in this field has become
an intractable problem: that is the misuse of factual arguments, sometimes
amounting to little more than nuance, and often points of small detail, as a
basis for assaulting the legality of a decision. This court, as everyone
practising in the field knows, is exercising a jurisdiction on law only. Of
course public law principles extend to ideals of reasonableness and fairness,
and that is elementary. But there must be limits to the extent to which fact
can be turned into law and the jurisdiction of this court extended beyond what
Parliament has provided or what good sense would contemplate.” (original emphasis)
(Signed)
L T PARKER
Judge of the Upper Tribunal
Date: 20 January 2012
