CB -v- Department for Communities (DLA) [2016] NICom 82 (8 June 2016)

'The Chief Commissioner would ask you to note that the decision of the Tribunal of Commissioners in JC v Department for Social Development (IB) (C10-11 (IB)(T)) (' JC') and the decision of the Upper Tribunal Judge in ST v Secretary of State for Work and Pensions ([2012] UKUT 469 (AAC)) (' ST'), both referred to the case summary submitted by the appellant's representative, have been the subject of consideration by a Three Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal in two appeals in Scotland. An oral hearing of the appeals took place on 4 February 2015 and the decision will issue in due course. The Chief Commissioner requests your views as to whether the present appeal should be stayed pending the outcome of the deliberations of the Three Judge Panel.'

14. On 10 February 2015 correspondence was received from Mr Hinton in which he distinguished the present appeal on its facts from the decisions in JC and ST but stated that he would have no objection to the proceedings being stayed. In correspondence received on 10 February 2015, Mrs Carty submitted that it would be appropriate for the appeal to be stayed pending the decision of the Three-Judge Panel. On 10 February 2015 I directed that this appeal should be stayed.

15. On 12 February 2015, and following a direction to that effect, observations on the application by Mrs Carty for a direction requiring the appellant's GP records to be made available for consideration at the oral hearing were received from Mr Hinton which were shared with the appellant and Mrs Carty on 16 February 2015.

16. On 13 January 2016 the parties to the proceedings were informed that a Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal had issued decisions in two appeals. It was noted that the reasoning in the two appeals was parallel but that the decision in FN v Secretary of State for Work and Pensions [2015] UKUT 670 (AAC) was the more comprehensive. The parties were requested to provide additional submissions as to how the principles set out in FN apply to the issues arising in the present appeal. A further submission to that effect was received from Mrs Carty on 1 February 2016 and after being shared with Mr Hinton, an additional submission was received from him on 8 February 2016.

17. In correspondence dated 1 March 2016, Mrs Carty informed me that that appellant had been awarded an entitlement to the middle rate of the care component and the higher rate of the mobility component of DLA from 26 May 2015 to 25 May 2017. Accordingly, the jurisdiction of the appeal was limited to a closed period from 27 March 2013 to 25 May 2015.

18. An oral hearing took place on 5 May 2016. The appellant was not present but was represented by Mrs Carty. The Department was represented by Mr Hinton. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

Errors of law

19. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law. What is an error of law?

20. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; ...

Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."

Analysis

21. I begin with Mrs Carty's initial ground which is that the statement of reasons for the appeal tribunal's decision is inadequate to explain a conflict in the evidence which was before it. More specifically, the conflict was between evidence contained within the report of an examination conducted by an Examining Medical Practitioner (EMP), as part of the Departmental decision-making process, and evidence from the appellant's General Practitioner (GP) both in a specific report which had been adduced in the connection with the appeal tribunal proceedings and the appellant's GP notes and records which were available to the appeal tribunal in accordance with the protocol for appeals relating to DLA (in connection with which see paragraphs 80 and 81 of my decision in C15/08-09(DLA). In reply Mr Hinton has submitted that the appeal tribunal has acknowledged the conflict and has set out, in an adequate manner, its conclusions in respect of that conflict based on its assessment of all of the evidence which was before it.

22. In her written and oral submissions, Mrs Carty made reference to a history of claims to and awards of entitlement to DLA. Previously the appellant had been awarded an entitlement to an award of the lower rate of the mobility component and the lowest rate of the care component of DLA from 27 March 2009 to 26 March 2011 and an award of the lower rate of the mobility component from 27 March 2011 to 26 March 2013. The appellant made a renewal claim to DLA for the period from and including 27 March 2013. By way of a decision dated 9 May 2013 the renewal claim was disallowed from and including 27 March 2013. To complete the picture, and as was noted above, the appellant has subsequently been awarded an entitlement to the middle rate of the care component and the higher rate of the mobility component of DLA from 26 May 2015 to 25 May 2017.

23. Returning to the renewal claim in respect of the period from and including 27 March 2013, the appellant completed a renewal claim form. A copy of that form is attached to the original appeal submission as Tab No 1. Interestingly, attached to the claim form was a copy of what is clearly a printout from the appellant's GP records. The printout sets out details of the appellant's prescribed medication for the period from 5 October 2012 to 7 December 2012. The appellant has annotated the printout in handwriting indicating that she was due to see her GP again on 17 January 2013. As the renewal claim form was signed by the appellant on 13 December 2012, the evidence contained in the printout was wholly relevant to her medical conditions at that time.

24. In the renewal claim form the appellant has set out details of how her medical conditions affect her on a daily basis and her consequent requirement for attention in connection with her bodily functions. In her oral submissions to me, and by way of an example, Mrs Carty made reference to the entry on page 20 of the form where the appellant responded to a question concerning assistance which she required with her care needs during the day, as follows:

'I very rarely get dressed. I wear pyjamas and dressing gown. My daughter helps me out with baths and when [] is taking me out.'

25. Page 35 of the renewal claim form is headed 'Statement from someone who knows you.' This section of the form has been completed by the appellant's GP who records:

'Osteoarthritis - knees, ankles, toes - painful all the time. Difficulty mobilising, shoulders affected, problems dressing. Depression since age 15 and on medications regularly. Low mood currently and sleep poor at times. Needs encouragement to get up, washed and dressed.'

26. In connection with the renewal claim to DLA the Department sought additional evidence from the appellant's GP, asking her to complete a Factual Report. This was completed by the GP on 25 January 2013 and a copy of the report is attached to the appeal submission as Tab No 2. Amongst other things the GP has recorded:

'Osteoarthritis, Depression, poor sleep

Long h/o depression since teenager

Currently very low mood and not sleeping. Change in medications recently but no help.

Osteoarthritis affects shoulders, back, knees, hips.

Daily problems, crying all the time and poor sleep.

Pains daily, worse in morning.

Appears anxious and tearful.

Osteoarthritis of spine seen on x ray.

Reduced movement, spinal lesion.

Needs help and encouragement to get up and get washed. Rarely leaves house, stays in pyjamas.

Needs accompanied when out. Prone to falls - in house and outside.

Poor concentration and memory, low mood, weepy. Self-neglect evidence. Changed to Vensir 75 mg from Citalopram 40 mg but no help. Constant problems. No thoughts of suicide, does self-harm in the form of picking skin.

Chronic problems with no improvement and worsening of mood.'

27. As was noted above, the appellant was examined by an EMP at the request of the Department. A copy of the report of the examination is attached to the appeal submission as Tab No 3.

28. Prior to the substantive oral hearing of the appeal, the appellant's then representative submitted to the appeal tribunal a copy of a medical report dated 18 July 2013 from the appellant's GP, the same GP who had completed the statement on the renewal claim form and the Factual Report. The report is as follows:

'(The appellant) joined the practice in May 2012. She has a long history of osteoarthritis and depression with anxiety. The practice is in possession of summarised medical notes from 1974. I note the medical report from the Department Doctor concluded that severe impairment of mobility is unlikely, need for accompaniment to go out is unlikely, and need for physical assistance is unlikely.

(The appellant) informed me that she has osteoarthritis and pains affecting most joints including the back, neck, hands, elbows and shoulders. An Xray in her notes dated 2006 confirm degenerative change of the cervical spine. There are no available Xrays of the other joints. However she was in daily pain and needed regular pain relief in the form of Non-steroidal anti-inflammatory drug, Naproxen 250 mg BD, which is used for inflammatory pain. She has had chronic pain effecting movement of the hands, elbows and back. She has had several falls due to stiffness of the legs causing her to trip easily. The report available to me states she had 7 falls in the past year which is significant. In conjunction with her anxiety and depression this is enough to make her lose confidence about going out alone and has resulted in her needing accompanied to leave the house.

(The appellant has problems with anxiety and depression since a child and has been on medications continuously since age 15 ... Her mood has been deteriorating for the past year and I changed her antidepressants from Citalopram to Venlafaxine in November 2012. However this did not improve her mood, indeed made it worse, and she was changed to Fluoxetine 20 mg on 25/1/13. Her depression has caused her to have very poor motivation and as a result she needs encouraged by family to get up and get dressed or go out to appointments etc.

In conclusion I do not agree with the Department Doctor's assessment that physical assistance, physical support, assistance to go out and severe impairment of mobility is unlikely, based on my knowledge of the patient and on reviewing the available notes.'

29. I am certain that when the appellant's GP makes reference to the 'medical report from the Department Doctor' she is referring to the report of the examination conducted by the EMP.

30. At the substantive oral hearing of the appeal the appellant was present, was represented and was accompanied by her daughter. The record of proceedings notes that the appellant was represented and that there was a Departmental Presenting Officer present. The record of proceedings notes that it had the following before it:

(i) the record of proceedings for an earlier adjourned hearing of the appeal;

(ii) the appeal submission;

(iii) the appellant's GP notes and records;

(iv) various items of correspondence from the appellant's representative; and

(v) the medical report from the appellant's GP dated 18 July 2013 with covering correspondence from her representative.

31. The appellant's representative is recorded as having made one contribution to the proceedings which was to refer to the report from the appellant's GP dated 18 July 2013 and to submit that the 'Examining Medical Practitioner's report was speculation'.

32. Turning to the statement of reasons for the appeal tribunal's decision, I have noted that they run, in total, and across the appeal tribunal's decision in connection with both components of DLA, to six A4 pages. In connection with entitlement to the care component of DLA, the appeal tribunal has noted that it had before it a copy of the Factual Report prepared by the GP on 25 January 2013 and the further medical report from the GP dated 18 July 2013. In three paragraphs the appeal tribunal has summarised, in a significant degree of detail, the contents of both reports.

33. In two further paragraphs the appeal tribunal summarises the contents of the report of the examination conducted by the Examining Medical Practitioner (EMP). Amongst other things, the appeal tribunal has recorded:

'... it was noted that the appellant reported a need for daily encouragement. The EMP concluded that there was no evidence of severe mental illness at interview and that her condition was managed by the GP with no recent specialist input. It was noted that no significant self-harm issues were described. The EMP accepted that the appellant's family were in regular contact but considered that it was unlikely that this was reasonably required to prevent significant personal neglect of hygiene or nutrition. The appellant indicated to the EMP that she had 7-8 falls in the past year. It was noted by the EMP that there was no evidence of a severe limb or back condition which would typically cause falls. Her arm function was noted to be normal to safeguard herself. It was considered that whilst a high level of falls was reported she did not have a condition which would typically significantly increase the risk of falls.'

34. The appeal tribunal also recorded that it had access to and considered the appellant's GP notes and records. The appeal tribunal prefaced its summary of the contents of the GP notes and records which it considered to be significant with the following statement:

'The Tribunal also considered the appellant's GP notes and records. It was considered by the Tribunal that these supported the findings on examination by the EMP.'

35. The appeal tribunal then made the following statement in connection with its assessment of the evidence:

'Insofar as there was any conflict of evidence, and taking into account the evidence given by the appellant, her daughter and her GP, the Tribunal preferred the evidence of the EMP. The Tribunal believed that the medical evidence from the Examining Medical Practitioner provided a more accurate indication of the appellant's ability to self-care. The report from the EMP was comprehensive, objective and based on clinical findings, history and observations. We also found that it was consistent with the medical evidence in the GP notes and records.'

36. Later in the statement of reasons in connection with the care component, the appeal tribunal repeated that:

'Insofar as there was any conflict in the available evidence, the Tribunal preferred this assessment by the EMP which was comprehensive, objective and based on clinical findings, history and observations. We also found that it was consistent with the medical evidence in the GP notes and records.'

37. What is immediately striking about the appeal tribunal's conclusions on its assessment of the evidence is the degree of friction between what the appeal tribunal was saying about the consistency of the evidence in the appellant's GP notes and records and that contained in the EMP report. On the one-hand the appeal tribunal is stating that the EMP report, and its inherent assessment of the evidence, was consistent with the medical evidence in the GP notes and records and, on the other, was stating that insofar as there was a conflict of evidence - and here I narrow the identified conflict to between the GP and EMP - the appeal tribunal preferred the evidence of the EMP.

38. It seems to me that the appeal tribunal has readily accepted consistency between aspects of the evidence in the appellant's GP notes and records where that coincided with the clinical findings on examination made by the EMP. Thus, for example, the appeal tribunal has listed extracts from the appellant's GP notes and records relating to unremarkable x-ray results and other tests results which were normal. On the other hand it has readily (and arguably too readily) ignored the conflicts between the GP evidence, both in the notes and records, and, more specifically, in the Factual Report prepared on 25 January 2013 and in his further medical report of 18 July 2013. While some of those conflicts are subtle, what the appeal tribunal has failed to do is specify and resolve clear and outright conflicts in the evidence of the EMP and the GP.

39. The apotheosis of that conflict is to be found in the medical report of 18 July 2013. It is important to note that this report was adduced by the appellant's then representative in the context of the pending oral hearing of the appeal. It is clear that the appellant's GP had been forwarded a copy of the EMP report. As was noted above, the GP has confirmed this in the opening paragraph of his response. It is equally clear that the GP has read the EMP report as she sets out the EMP's conclusions. The GP then sets out her own record of the appellant's medical conditions, based on what the appellant has stated to her and the other evidence contained within the notes and records available to the GP.

40. The GP sets out details of the treatments undergone by the appellant, including x-rays and the prescription of medication. The GP describes the effects of the appellant's medical conditions on her ability to function describing, for example, that her problems with depression cause her to have poor motivation with a resultant requirement to be motivated to get up, get dressed or go out to appointments. Most significantly of all, the GP states that he does not agree with the assessment undertaken by the EMP (the Departmental Doctor) in several key areas and states that she bases his disagreement on his knowledge of the appellant and after reviewing the available notes.

41. In my view, the content of the GP report of 18 July 2013 is wholly consistent with the further medical evidence from the appellant's GP which was available to the appeal tribunal and with the appellant's own evidence. As was noted above, attached to the appellant's renewal claim form was a copy of what is clearly a printout from the appellant's GP records. The printout sets out details of the appellant's prescribed medication for the period from 5 October 2012 to 7 December 2012. The appellant had annotated the printout in handwriting indicating that she was due to see her GP again on 17 January 2013. That has been confirmed by the contents of the GP report of 18 July 2013 which notes that the appellant was seen in November 2012 and January 2013 and that there was a requirement to change her medication regime. The report is also wholly in keeping with what the GP noted at page 35 of the renewal claim form - 'Statement from someone who knows you' - and the contents of the Factual Report of 25 January 2013.

42. I have already stated that the appeal tribunal did make reference to the GP evidence, including the Factual Report of 25 January 2013 and the further medical report of 18 July 2013. In three paragraphs the appeal tribunal has summarised, in a significant degree of detail, the contents of both reports. That, however, is as far as it goes. The appeal tribunal has done nothing more than recite the evidence. Recital of evidence is not an assessment of evidence. There has been no allusion whatsoever as to the how the appeal tribunal resolved the clear and obvious conflict in the evidence.

43. Although I cannot be certain, the statement made by the appeal tribunal that it '... preferred this assessment by the EMP which was comprehensive, objective and based on clinical findings, history and observations' has the tenor of being standard or formulaic wording purporting to validate evidence which was supportive of the appeal tribunal's conclusions.

44. In CIB/563/2001, the appeal tribunal was also faced with what the Deputy Social Security Commissioner in Great Britain described as two expert medical reports which were in conflict. One was a report of an examination conducted by a Benefits Agency Medical Services or 'BAMS' doctor as part of the decision-making process giving rise to the appeal. The other was a report from an associate specialist in rheumatology at the appellant's local hospital which the appellant had submitted in evidence. The Deputy Social Security Commissioner said the following, at paragraphs 6 to 8 of his decision:

6. The crux of the tribunal's reasoning in this case appears in their statement of reasons:-

"In this case the tribunal must decide between two sets of conflicting evidence namely the findings of the (BAMS doctor) as against the verbal and written evidence of the appellant and the report of (the associate specialist). In reaching their decision the tribunal preferred the (BAMS doctor's) report. This is because this report is from an independent source and follows a full clinical examination and verbal assessment of the appellant."

7. I find this formula, variations of which I have seen in other cases, to be irrational. BAMS doctors are trained and paid by the Secretary of State, who is one of the parties to the proceedings, to provide expert evidence to assist in determining, amongst other things, incapacity for work. In this case an associate specialist has been paid by a Solicitor acting on behalf of another party to the proceedings to prepare an expert report. I do not understand the basis on which a tribunal can, consistent with its judicial function, prefer the report of the BAMS doctor on the ground that it is "independent". As to the other reasons given, there is no suggestion that the associate specialist did not conduct a full clinical examination or that he failed to take account of the appellant's history in reaching his conclusions.

8. I therefore conclude that the reasoning of the tribunal is inadequate; that their decision is erroneous in law; and that the case must be reheard.'

45. In the instant case, the implication of the appeal tribunal's statement is that the EMP report was '... comprehensive, objective and based on clinical findings, history and observations' and that those of the GP were not. If that was what the appeal tribunal intended then its reasoning is in error. Having examined all of the GP evidence, I do not see how it could not be said to be comprehensive, objective and based on clinical findings, history and observation.

46. I would add that the appellate authorities, including the Social Security Commissioners and the Upper Tribunal have been consistent in warning appeal tribunals about the consequences of adopting standard or formulaic paragraphs. In CIB/511/05, for example, the Social Security Commissioner in Great Britain stated the following, at paragraph 3 of his decision:

'... Tribunals ought in my view to take particular care to satisfy themselves that reports presented to them in this form really do represent considered clinical findings and opinions by the individual doctor whose name they bear, based on what actually appeared on examination of the particular claimant. Tribunals who fail to identify and deal with apparent discrepancies such as those shown up here run an obvious risk that their own consideration of the case may be criticised as insufficient, especially if standard phrases such as the wording this one used - "The Tribunal preferred the evidence of the medical advisor which was based on clinical examination and findings." - are given as the reason for rejecting the claimant's own account of his disabilities.'

47. For these reasons, therefore, I have concluded that the decision of the appeal tribunal is in error of law and is set aside.

48. In this situation, I do not have to consider the appellant's other grounds for appealing. To fail to address these at all would do a great deal of disservice to Mrs Carty's advancement of issues which are of significance not only in this appeal but in the wider system of appeal tribunal adjudication in appeals in Northern Ireland where the social security benefit at issue is DLA. As Mrs Carty has noted, in this geographical jurisdiction the appeal tribunal usually has access to the appellant's GP records and where, as in the instant case, there has been a previous benefit entitlement history, the appeal tribunal will often have access to the paperwork relevant to that record. In her written and oral submissions Mrs Carty made effective and cogent points about these idiosyncratic aspects of the appeal tribunal DLA jurisdiction in Northern Ireland and pressed me to provide guidance to appeal tribunals on the issues which are raised. I have, with respect of her efforts, declined to do so. That is because any remarks which I might make will clearly be obiter and, more significantly, I am of the view that the issues raised should be addressed, in an appropriate case, by a Tribunal of Social Security Commissioners in Northern Ireland. I would add, however, that I am satisfied that I have addressed many of the issues relating to GP notes and records in my decision in C15/08-09 (DLA) and in determinations in other cases before the Social Security Commissioners in Northern Ireland.

49. Finally, at the oral hearing of the appeal, I made reference to what was then the extant application for a direction, made by Mrs Carty immediately prior to the hearing, and referred to above. At the oral hearing, Mrs Carty confirmed that the requirement for the direction had, by that stage, fallen away.

Disposal

50. The decision of the appeal tribunal dated 30 January 2014 is in error of law. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

51. I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i) the decision under appeal is a decision of the Department, dated 9 May 2013 in which a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 27 March 2013 ;

(ii) Mrs Carty has confirmed that the appellant was awarded an entitlement to the middle rate of the care component and the higher rate of the mobility component of DLA from 26 May 2015 to 25 May 2017. Accordingly, the jurisdiction of the appeal is limited to a closed period from 27 March 2013 to 25 May 2015 - C20/04-05(DLA) ;

(iii) it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal ; and

(iv) it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed): K Mullan

Chief Commissioner

19 December 2016

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	Northern Ireland - Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> CB -v- Department for Communities (DLA) [2016] NICom 82 (8 June 2016) URL: http://www.bailii.org/nie/cases/NISSCSC/2016/82.html Cite as: [2016] NICom 82

Northern Ireland - Social Security and Child Support Commissioners' Decisions