DECISION
OF THE UPPER TRIBUNAL
ADMINISTRATIVE
APPEALS CHAMBER
CPIP/2651/2015
Before: Upper Tribunal Judge Paula Gray
DECISION
This
appeal by the claimant succeeds.
In
accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts
and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure (Upper
Tribunal) Rules 2008 I set aside the decision of the First-tier Tribunal
sitting at Warrington and made on 16 January 2015 under reference SC
078/15/00119. I refer the matter to a completely differently constituted panel
in the Social Entitlement Chamber of the First-tier Tribunal for a fresh
hearing and decision in accordance with the directions given below.
DIRECTIONS
- These
directions may be amended or supplemented by those of a District Tribunal
Judge at the listing stage.
- The case will
be listed before a differently constituted panel as an oral hearing.
- The panel
will take into account my observations in remitting the case set out below;
it will, however, take a fresh view of the evidence and come to its own
conclusions on the issue of eligibility for a Personal Independence
Payment.
REASONS
Background
- This matter
concerns the question of the appellant’s eligibility for a Personal
Independence Payment. He had made a claim on 20 August 2014, and was
awarded the standard rate of the mobility component in the decision under
appeal, which was dated 16 January 2015. The award was made until 4 July
2017, which seems unusual being a period of not quite 3 years from the
date of claim. As I am remitting the case for a fresh decision and the
issue of the length of the award is (under section 88(2) Welfare Reform
Act 2012) a matter entirely for the fresh FTT, that is not a matter which
needs to trouble me.
- The decision
had been made by a decision maker on the basis of an assessment carried
out on 5 January 2015 by a health professional (HP), Nurse Snell. That
assessment was clearly accepted by the decision maker. Nurse Snell was of
the opinion that the appellant could stand and move more than 20, but no
more than 50 metres. That scored the appellant sufficient points for the
standard rate of the mobility component. In relation to activities of
daily living, he was felt to merit 2 points because he needed an aid or
appliance to wash or bathe and further 2 points in relation to a similar
requirement dressing and undressing. No other needs were identified within
the descriptors, and the level of need was insufficient for an award of
that component.
- The appellant
was contending for entitlement beyond that awarded, and he appealed to the
FTT.
Proceedings
before the First-Tier Tribunal
- The
appellant had sought advice about his appeal, and a representative of the
Benefit Information Services (perhaps Mr Brennan who has supplied the
submission to the Upper Tribunal, but the name is absent) had made a
written submission on his behalf.
- Key
points in that the submission were that the appellant had in his
questionnaire identified a number of activities with which he had difficulties,
the "constant thread" being that activities took "longer to
perform" which in the context undoubtedly means longer than one would
expect in a person without disabilities. Comments were made as to the
notes of the clinical examination carried out by Nurse Snell being in
effect contradicted by the scores that she recommended. A specific point
was made as to a perceived link between cognitive difficulties and the
need for prompting.
- The
matter had been listed as an oral hearing; however the appellant did not
attend and the FTT, having established that he had been given sufficient
notice of the hearing, quite reasonably in the circumstances, determined
the matter in his absence on the basis of the evidence available. A brief
decision notice was issued immediately following the hearing confirming
the decision under appeal.
- The
appellant subsequently requested a statement of the tribunal's reasons for
the decision, that is to say, an explanation of why the tribunal came to
the conclusions that it did.
- The
statement of reasons appears to adopt the report of the HCP, the tribunal
finding that it was thorough. It does not deal with the points made in
the submission of the appellant’s representative.
Proceedings
before the Upper Tribunal
- I granted
permission to appeal essentially on the basis of the arguable inadequacy
of the explanation provided by the FTT. I directed submissions which are
now to hand. Neither party has requested an oral hearing, and I am
content that in this case I am able to do justice upon the basis of the
written material.
The position
of the Secretary of State
- The
Secretary of State does not support the appeal. He takes the grounds of appeal
together with the observations that I made and deals with the matter on
the basis of four central points:
(i)
That the FTT may
have fallen into error in adopting the report of Nurse Snell as to the
appellant's ability to stand.
(ii)
That the FTT
erroneously said that it was for the appellant to provide medical evidence to
refute the respondents evidence, otherwise the appeal must fail
(iii)
that the FTT
placed significant weight on the report without dealing with the criticisms
made of it
(iv)
The effect of
the FTT’s failure to deal with the criticisms of the HP report set out in the
appellant’s submission at page 97.
The position
of the appellant
- This is
really set out in the response of the Secretary of State which deals in
turn with the arguments in relation to the points raised by the appellant,
and by me.
- Mr Brennan
makes one additional point at this stage, which reinforces a matter set
out in his grounds of appeal as to the view of the FTT in relation to there
being a lack of evidence corroborating that of the appellant, and the
effect of that.
- He takes
issue with the Secretary of State saying that it is less likely that lay
evidence will be preferred over other (medical) evidence. He points out
that this was not what the tribunal said; additionally that if adopted
that approach would always place an appellant at a disadvantage. He
suggests the correct approach should be for the FTT to consider all the
evidence and then decide what weight to give to the various parts. He
concedes that it may then be that the appellant's evidence is not
supported by the weight of the medical evidence, but describes that as a
different situation than that put forward in the Secretary of State’s
submission.
My analysis
- I deal with
the issues under the headings from the grounds of appeal and my comments
in granting permission as paraphrased in the submission of the Secretary
of State
(i)
That the FTT
may have fallen into error in adopting the report of Nurse Snell as to the
appellant's ability to stand.
- The meaning
of "stand" as the report appeared to interpret it was challenged
by Mr Brennan in his original submission to the FTT on behalf of the
appellant. His criticism of the use of the term "stand" by the
health professional assumes that the words in the activity have their
everyday meaning. This ignores the fact that in The Social Security
(Personal Independence Payment) Regulations 2013 (the PIP regulations), at
paragraph 1 of schedule 1 "stand" is defined to mean "stand
upright with at least one biological foot on the ground"
- Accordingly I
accept the view of the Secretary of State in relation to this issue, and
reject the argument of the appellant.
(ii)
That the FTT
erroneously said that it was for the appellant to provide medical evidence to
refute the respondents evidence, otherwise the appeal must fail
- I am not
persuaded that the statement of reasons did say this. It noted the fact
that there was no medical evidence filed on behalf of the appellant, the
comment being made "but the tribunal took into account that it was
for him to provide evidence of his condition and needs." I do not
read that as a requirement for medical evidence, nor even a requirement
for corroboration. It is long settled law that there is no requirement for
evidence to be corroborated (R (I) 2/51[ 7] and are (SB) 33/85 [14]). That
is not to say, however, that corroboration is irrelevant; it may substantially
increase the weight given to the original evidence.
- On the basis
that the appellant was represented the tribunal, not unreasonably,
concluded that had there been further existing medical evidence it would
have been put forward with the submission. That really or upon the
position as to whether there was any missing evidence, given that the
appellant had not attended the hearing and could not assist personally
with that question.
- The Secretary
of State's submission (page 116 at paragraph 3) suggests that the chief reason
for the FTT adopting the HP report was that it was the only medical
(emphasis in the original) evidence available, and that, all else being
equal, if one has to choose between expert evidence and lay evidence, it
is not unreasonable to favour the expert evidence.
- To the extent
that this statement appears to suggest that there is a rule of thumb, even
if not a rule of law, that expert evidence should generally be preferred
to the evidence of an appellant I disagree. To prefer expert evidence is
not inherently unreasonable if that conclusion is formed following a
balancing exercise of all the evidence in that particular case. What is
impermissible is a blanket assumption that expert evidence will always, or
will generally, be of more value than the lay person’s account. The
decision of Upper Tribunal Judge Ovey, CW v Secretary of State for Work and Pensions [2011] UKUT 386 (AAC) contains
useful comments on the matter:
24.
In my judgment, the Secretary of State rightly regards CIB/16401/1996 as
containing useful guidance. That decision makes clear that there is no
general rule that where there is a difference between the evidence of a medical
professional producing reports for the use of the Department of Work and
Pensions in making decisions as to social security benefits and the evidence of
a claimant, the evidence of the medical professional should be preferred.
It may be a legitimate conclusion in a particular case that a medical
professional’s view is to be preferred because it is more objective and
independent, but that is a conclusion only to be reached after a consideration
of the particular evidence, and the claimant should not be left in the dark as
to what the tribunal made of his or her evidence: that is, whether it was
honest but inaccurate, was an unconscious exaggeration or was a deliberate
exaggeration.
- So often the
essence is not so much one of the value of expertise, but the credibility
of the appellant’s account. Whilst there is a need for a link between
functional disability and ill-health, the extent to which a particular
condition affects somebody is inevitably personal, dependent upon the
severity of the condition itself and the ability of the individual to deal
with pain or otherwise adapt to their limitations. Sometimes the
adaptation comes with time. Some people never adapt, and will always have
limitations. Some people may exaggerate those limitations, consciously or
unconsciously. Whilst evidence of expert opinion may be of value, a
tribunal is entitled accept the uncorroborated evidence of an appellant as
to their functional impairment and the extent of it rather than the
evidence of a healthcare professional which may come to a very different
view as to the probable extent of functional difficulty. Were that not to
be so, an appellant in a case such as this where the Secretary of State
routinely obtains evidence from a healthcare professional, could never
win. It is, however, open to the tribunal to prefer the healthcare professional’s
opinion because of its expertise; such a finding is in general tantamount
to saying that the appellant's account of the extent of their disability
is not wholly accepted, resulting in the more objective expert evidence
being preferred, but a formulaic acceptance of the report of an examining
medical practitioner, without consideration of the evidence as a whole,
will be an error of law (CIB/3074/2003).
- It is insufficient simply to say
that the Secretary of State's evidence was against the appellant. In a
contested appeal the Secretary of State's evidence will always be against
him. The appellant must understand why his contentions about the extent of
his functional disability were not accepted.
- The issue has
been described in the Secretary of State's submission as an application of
the burden of proof, but it is not really quite that. Although an applicant
bears the burden of showing entitlement in a new claim for benefit the
"Kerr principle" (Kerr v Department for Social Development [2004] UKHL 23) emphasises the co-operative nature
of cases concerning welfare benefit entitlement, in particular the placing of an
evidential burden on the party in possession of the information necessary
to inform an entitlement decision. In respect of his own medical condition
to an extent that is an appellant, but it is also for the Secretary of
State to ask the relevant questions about his condition, because it is the
Secretary of State who knows the conditions of entitlement, and therefore
what the claimant needs to show. It would be an unusual case in the field
of disability benefits where a tribunal could not come to a positive
conclusion on the basis of the evidence before it, and needed to revert to
the burden of proof.
- I broadly
accept the arguments of the appellant's representative as to the proper
approach on this issue. The FTT should weigh all of the evidence prior to
coming to its conclusion: (CIB/2308/2001[20] and my remarks in FR-v-SSWP
(ESA)[ 2015] UKUT 151 (AAC) at [9-12]).
(iii)
That the FTT placed significant weight on the report without dealing with the
criticisms made of it
- This is the
least in part an extension of the previous point.
- The author of
the submission made on behalf of the Secretary of State makes certain
observations at paragraph 4, which appear to be justifying the reliance of
the FTT upon the health professional’s report; for example it says in
relation to the nurse’s assessment of the level of the appellants
depression ‘I would also note that the other main point with regard to
the claim is depression with the type of medication he was receiving,
which was those at a "very low dose" and also "taken for
pain".’‘ The references incorporated in that observation are from
the report of Nurse Snell. A further argument is made as to what the
appellant's representative put forward as a limitation in the statement of
reasons that the FTT failed to consider the position “most of the time”
the health professionals report referring to matters "today";
the Secretary of State says that there is no indication in the report that
"today" was not a typical day or the type of day that would be
present for over 50%, as per regulation 7 of the PIP regulations.
- The comments
perhaps indicate a misunderstanding of the critical issue, although his
making them actually highlights it: the issue for me is not whether or not
there was sufficient material in the report to support the FTT relying
upon it, but whether or not the FTT has sufficiently explained that
reliance. The very points that the Secretary of State's representative
makes are the sort of explanation one might expect to see in a statement
of reasons had the FTT found them pertinent as to its assessment of the
extent of the appellants functional disability, or otherwise in support of
its view that the report was reliable. Had such references been there the
appellant would have had an understanding of why the tribunal came to the
view that it did; however they were absent, and the very general point
which was made as to the "thoroughness" of the report as the
reason for its acceptance (regarding matters of both fact and opinion)
does not inform the appellant's understanding as to why his contentions
were rejected. It is partly for this reason that is good practice for
the FTT not simply to record a general acceptance of the HP report, but
rather set out its own findings both generally and where necessary in the
context of the descriptors considered (CIB/4232/2007).
- It would not,
I think, be unfair to say that this statement of reasons could have been
written as a generic statement about any case in which the tribunal agreed
with the Secretary of State’s decision where that decision was based upon
a healthcare professional’s report. Having described the report as "thorough"
the reasoning needs to deal with what it was about the report that made
the tribunal form that view of it. It may be that the conclusions as to
the functional disability were both internally consistent with the
clinical findings recorded in the report, and externally consistent with
what the expert tribunal might have expected as a typical level of
disability given the diagnoses.
- I agree with
the appellant's representative that there were arguably elements of
inconsistency between the clinical findings, which may objectively have
indicated potential functional problems, and Nurse Snell's conclusions
which did not reflect them. That is neither to say that her conclusions
are wrong, nor that the potential for inconsistency renders the report
other than reliable; the assessment of the report will be entirely a
matter for the fresh tribunal, but, whether they accept or reject the
report in its entirety or in part they must when discussing the evidence between
themselves articulate and note the reasons for the collective view that
they take of it so that the judge can provide that explanation later if
called upon to do so, and if there is an argument that there are
inconsistencies in the report that argument will need to be addressed in
the reasons.
(iv)The
effect of the FTT’s failure to deal with the criticisms of the HP report set
out in the appellant’s submission at page 97.
- I have dealt
to a large extent with this already. In order for reasons to be adequate
they must deal with material issues. There is no need to deal with
criticisms that are merely captious, but where they have substance or make
a serious point it may be an error of law to fail, in a statement the
purpose of which is to explain to the parties why the tribunal came to the
conclusion is that it did, to deal with them, albeit shortly. In this
case the points made in the submission were thought through and required
the attention of the tribunal.
In
conclusion
- I set aside
the decision as I have indicated in my decision above, for lack of reasons
which are adequate to inform the appellant why he lost.
- I am told
that there has been no further claim; therefore the FTT is not considering
a closed period in relation to any award it may deem legally appropriate.
- As to the
mobility question, which is set out at page 117 paragraph 4 (e), it will
be for the FTT to evaluate the extent to which mental impairment affects
the appellant's mobility under the descriptors. They may be assisted by a
recent Upper Tribunal decision, HL-v- SSWP [2015] UKUT 694 (AAC)
(Upper Tribunal Judge Ward) which I reproduce with this decision. It
discusses two conflicting decisions of the Upper Tribunal on the point.
Where there are conflicting decisions the FTT is entitled to choose which
decision it follows, but it may find the discussion of the different
points of view and Judge Ward’s analysis helpful in that regard.
- Finally I must
caution the appellant that his success here is not a guarantee of success
at the re-hearing.
Upper
Tribunal Judge Gray
(Signed on
the original on 27 January 2016)
