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LH [2009] UKUT 140 (AAC) (16 July 2009)
DLA, AA, MA: general
other

IN THE UPPER TRIBUNAL Appeal No. CDLA/636/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Deputy Judge of the Upper Tribunal Miss E. Ovey

Decision: The decision of the First-tier Tribunal given on 4^th November 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 paragraphs 44 to 47 below.

REASONS FOR DECISION

1. This is an appeal by the claimant against the decision of the tribunal given on 4^th November 2008. By its decision the tribunal decided that the claimant was not entitled to the mobility component of disability living allowance at either rate but that she was entitled to the care component at the lowest rate on the ground that she reasonably required attention for a significant portion of the day.

The history of the claim

2. As set out in the tribunal's decision notice, the claimant was awarded the lower rate of the mobility component and the lowest rate of the care component from 14^th January 2001. The papers relating to that award are not before me, so it is not entirely clear on what basis it was made or for what period. It appears, however, that in January 2005 the claimant's current award was due to come to an end on 14^th June 2005 and the claimant made a renewal claim which is included in the papers (pp.3-44). The claimant was then diagnosed as suffering from myalgic encephalomyelitis. In making her claim she said that she had got worse over the past year, her mobility had decreased and she was in more pain. She asked if the benefit could be awarded at a higher rate.
3. The decision on the renewal claim is not included in the papers, but I assume that it simply renewed the existing award, because by a form dated 29^th June 2006 the claimant asked the Department for Work and Pensions to look again at the rate of award for both the mobility component and the care component (pp.45-92). The claimant subsequently supplied a copy of a notification she had received from the JobCentre confirming that she continued to be entitled to incapacity benefit and her case would come up for review on 26^th May 2010.
4. Again there is no copy of the decision on that application in the papers, but there is a record of a telephone explanation of a decision dated 25^th August 2005 given to the claimant on 1^st September 2005. The claimant was not satisfied with the explanation and requested a reconsideration. There is no record of a reconsideration, but the claimant subsequently appealed by an appeal form dated 30^th October 2005 referring to a decision letter dated 18^th October 2005. She included with her appeal a detailed statement of the points in the decision letter with which she disagreed.
5. The claimant's appeal was heard by a tribunal on 8^th February 2006 and was partly successful. She was awarded the higher rate of the mobility component from 14^th June 2005 to 13^th June 2008 on the ground that she was virtually unable to walk. She retained an award of the lowest rate of the care component and was found both to be unable to cook a main meal for herself and to require attention for a significant portion of the day.
6. In January 2008 the claimant completed a renewal claim form which was received on 23^rd January 2008 (pp.108-154). By that time she had been diagnosed as suffering from dystonia rather than myalgic encephalomyelitis and she had been prescribed Sinemet Plus. She said that her mobility had only got slightly worse but her care needs had increased dramatically. She sought the highest rate of the care component and asked the Department to consider making an indefinite award, taking into account the fact that her illness was incurable. In the event, however, the award remained the same but was extended to 13^th June 2010. The decision letter dated 4^th March 2008 refers to the award of the care component as being based on the claimant's inability to cook a main meal; it is not clear whether or not the decision maker accepted that she also required attention for a significant portion of the day.
7. The claimant promptly appealed against that decision on an appeal form dated 11^th March 2008, disagreeing with the assessment of her care needs and asserting that according to the Decision Makers Guide she satisfied the requirements for at least the middle rate of the care component. The Department then sought a report from the claimant's GP, which appears, with accompanying documents and dated 21^st April 2008, at pp.171-175.
8. Following the GP's report, the Department sought a report from an examining medical practitioner. The report which was obtained, dated 29^th May 2008, is at pp.180-210. The EMP's assessment was that the claimant could attend without help to all her personal needs other than taking a bath or shower, and that she was likely to be able to walk 240 metres at a slow pace before the onset of severe discomfort. In the light of that report, on 16^th June 2008 the decision maker revised the decision of 4^th March 2008 and decided that the claimant was not entitled to either component of disability living allowance from the date of the decision (p.211-213).
9. That decision seems to have been the source of some confusion at the tribunal. The Department's submission to the tribunal says that the decision maker "lapsed the appeal unfavourably" but does not explain that statement in terms of the statutory system of revisions and supersessions set out in sections 8 to 11 of the Social Security Act 1998 and Chapters I and II of Part II of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, S.I. 1999 No. 991. Under reg. 3(4A) of those Regulations, the Secretary of State may revise any decision if an appeal is brought within time (as the claimant's appeal was) and the appeal has not been determined. Section 9(6) of the Act provides that except in prescribed circumstances, an appeal will lapse if the decision is revised before the appeal has been determined. Reg. 30, however, prescribes as a circumstance in which an appeal will not lapse the case where the revised decision is not more advantageous to the claimant than the original decision. That is clearly the case here, since the effect of the revision was to remove the claimant's entitlement altogether.
10. A further procedural complication is that under section 9(3) a decision revising an earlier decision will generally take effect from the date on which the original decision took, or was to take, effect. In the present case, the decision of 4^th March 2008 was to take effect on 14^th June 2008, so the revised decision should also have taken effect on that date and not on 16^th June 2008.
11. The tribunal, in dealing with this aspect, seems to have been under the impression that the decision of 16^th June was a supersession decision rather than a revision, no doubt because it was so described by the presenting officer. (If it had been such a decision, the effective date of 16^th June 2008 would have been correct under the provisions of section 10 of the Act and the relevant Regulations.) The presenting officer in fact then applied to treat the decision as a revision taking effect on 14^th June 2006, made on the ground of ignorance of or mistake as to a material fact, namely, the claimant's health and capabilities at 4^th March 2008. The tribunal noted that the potential effect was to deprive the claimant of two days' benefit, but the claimant (who was represented by the Citizens' Advice Bureau) agreed to the decision's being so treated. The tribunal's own decision thus took effect from 14^th rather than 16^th June 2008.
12. Returning to the history, the claimant was properly notified of the decision made on 16^th June 2008 by a letter of that date which informed her that her appeal was continuing. Understandably, however, she completed a further appeal form, dated 26^th June 2008, in which she sought to appeal against the revision decision. Strictly speaking, an appeal is required to be brought against the original decision in its revised form rather than against the revision decision. That technicality, however, is immaterial in the present context. The relevance of the appeal form lies rather in what the claimant said about her condition at that stage.
13. The claim was reconsidered by a decision maker on 27^th August 2008 but was not revised. The claimant then wrote to The Tribunals Service on 25^th September 2008 expressing her dissatisfaction with the way the EMP had conducted the examination and specifically asserting that he had interrupted her in answering his questions, had written down incomplete and inaccurate answers and had not asked some of the questions on the form for which answers were given.
14. The matter came before the tribunal in that state of the evidence and, as I said at the outset, the appeal was allowed to the limited extent of restoring the claimant's entitlement to the care component at the lowest rate. In response to a request from the claimant, the tribunal gave a careful and detailed statement of its reasons on 18^th November 2008.
15. On 7^th November 2008 the claimant also applied for a setting aside of the decision. Her grounds were set out in a letter of that date at pp. 255 and 256 and were:

(1) the tribunal erred in taking account of rest stops in assessing the claimant's ability to walk;

(2) the medical member of the tribunal had assessed her as able to walk 40 yards in a slow and shuffled manner before severe discomfort began and then as being able to continue after a stop for up to five minutes once or twice more. That would mean that the claimant could walk 120 yards in approximately 20 minutes, which amounted to virtual inability to walk;

(3) the medical member had wrongly and unfairly asked a number of hypothetical questions;

(4) although the claimant had not appreciated the fact at the hearing, the medical member had also been the medical member at the previous tribunal hearing, when he had assessed her as virtually unable to walk. As she had deteriorated since then, she could not see how he had come to his new assessment;

(5) the tribunal should not have considered the report from the EMP, since it was the subject of a complaint which had been instigated by the Department and not by the claimant herself.

16. The statement of reasons included a dismissal by the chair of the tribunal of the claimant's application to set aside the decision. It seems that the application was subsequently dealt with as an application for permission to appeal (which it more closely resembled), but in that form also it was dismissed, on 28^th November 2008.
17. At this stage there appears to have been some further procedural confusion and on 19^th December 2008 the claimant sent to The Tribunals Service a further letter expanding on her application to set aside the decision. In addition to the points summarised above, the claimant said:

(1) the statement of reasons relied on the absence of a diagnosed physical cause for her difficulties, but it was not her fault that it took time to reduce the list of possible neurological illnesses from hundreds to a few and that the process was not complete;

(2) the DLA claim pack asked what help she needed, which was the question she answered, but the tribunal had assumed she did not need help because in practice she had been forced to manage on her own, albeit that the effect was that personal care took very much longer and she was left in too much pain and too tired afterwards to do anything for some time.

18. The claimant's formal application for permission to appeal to the Upper Tribunal was apparently not received until 12^th March 2009, although it was sent under cover of a letter dated 15^th February 2009. It is clear, however, that the delay resulted from procedural confusion and Judge Turnbull, in his determination of the application on 31^st March 2009, extended time and granted permission to appeal.

The arguments on the appeal

19. I have already summarised the arguments raised by the claimant on what she perceived to be her set aside application. In her application for permission to appeal, the claimant repeated the substance of those contentions. She then supplemented what she had said with a further letter dated 26^th March 2009 giving a little more detail about the EMP's report. The claimant says that she found the report almost illegible and it took some time to translate. She then corrected the report and sent it back to the Department, also raising objections to the procedure adopted by the EMP. She was informed later that the Department had sent it to the complaints department and later still learnt that Medical Services acknowledged that there had been mistakes in procedure.

19. Another point of difficulty for the claimant which emerges from the papers is that the documents which have been sent to her are not always clear about what is being found as a fact and what is recorded as a contention or as evidence. As she points out, Section 6H of the submission before the tribunal begins:

"Although [the claimant's] condition is getting worse & should now be entitled to the middle rate of the care component at least, it is submitted that the information within [the EMP's] report … shows that [the claimant] does not satisfy the conditions."

That is understandably confusing. In context, I take it that the intention was to record what the claimant said about her condition getting worse and not to imply that that was accepted, but the paragraph is unhappily expressed.

20. In granting permission to appeal, Judge Turnbull drew attention to two points:

(1) given the reliance placed by the tribunal in its reasons on the EMP's report, it might be arguable that the tribunal should have indicated whether it had taken into account the claimant's letter dated 25^th September 2008 and if so, broadly what it made of those criticisms;

(2) was there anything objectionable in the fact that the medical member had sat on the earlier tribunal?

He also directed, very helpfully, that a typed transcript of the record of proceedings should be produced.

21. The Secretary of State's submission on the appeal is dated 20^th May 2009. On the first point, it is said that it is evident from paragraphs 12-13 of the tribunal's statement of reasons that it had considered the letter dated 25^th September 2008. It is further said that the tribunal recognised the conflict between the evidence of the claimant in the claim pack and the evidence of the EMP and stated that it preferred the latter "because it was based on a thorough examination and observation of the appellant in her own home". In relation to care needs, the tribunal also said that it preferred the claimant's oral evidence to the EMP and the tribunal to the evidence in the claim pack. The Secretary of State draws attention to the fact that the letter does not say that the claimant had made a complaint about the EMP's report or his conduct to Atos Origins, who had arranged for the examination. In conclusion it is said that the tribunal was entitled to place great weight on a report based on clinical examination and observations and had given sufficient reasons for doing so. It is also pointed out that the tribunal additionally placed great emphasis on the claimant's oral evidence rather than the evidence in the claim pack.
22. On the second point, it is said that there was nothing objectionable in the medical member's having sat on the previous tribunal. It was not a case in which any member of the tribunal was considering a report by an EMP in circumstances in which it might be thought that that member would or might be biased in favour of the EMP. Nor was it a case in which the medical member's own judgment was under scrutiny, because what was at issue was whether there had been an increase in the claimant's care needs since the last tribunal hearing.
23. The claimant's response is contained in a letter dated 27^th June 2009. Essentially it is said that, given the clear conflict between the claimant's own evidence and that of the EMP's report, the tribunal should have exercised its power to obtain further medical evidence to resolve the inconsistencies. It is also said that the claimant's ability to walk only with severe discomfort was not ignored as it should have been.

My decision

24. As I have said, the tribunal's statement of reasons was careful and detailed. Unfortunately, however, it does appear to me that the tribunal made errors on points of law, as I shall explain below, and that its decision must therefore be set aside.
25. First, while it is indeed the case that in paragraph 13 of the statement of reasons the tribunal asserts it has considered all the papers, whether specifically referred to or not, there is no further evidence that the tribunal has addressed its mind to the criticisms made in the claimant's letter dated 25^th September 2008. It is not one of the documents which are referred to specifically in paragraph 12 of the statement of reasons, although if its contents are accurate it casts substantial doubt on the reliability of the EMP's report. There is a cryptic note at the beginning of the record of proceedings which reads, "Representative – Complaint made". That is not explained anywhere, but is certainly consistent with the tribunal's having been aware that the EMP's report was the subject of a complaint.
26. I note that the Secretary of State draws attention to the EMP's reliance on examination and observations. Those observations included "moving slowly holding on to furniture. Drags feet sometimes when walking." (p.189), references to "reduced grip" or "voluntary power reduced" (p.191), "when standing rocks back on heels and staggers as loses partial balance" (p.192), references to hand tremors (p.192), "walked slowly upstairs dragging feet up each step and using banister" (p.193) and "unable to crouch as lacked confidence" (p.193). It is not entirely easy to reconcile these references to the assessment that the claimant has "normal balance" (p.195) and that she has full function of both hands and arms (p.191) and can cut up food and peel and chop vegetables (p.198). In similar vein, the EMP noted "used leg to control dog" (p.193), which he relied on as supporting his assessment of the claimant's balance (p.197). In her letter of 25^th September 2008 the claimant disputes that that was what occurred. She repeated that in her oral evidence, but it is not dealt with in the tribunal's statement of reasons.
27. In any event, it is clear that in forming his overall opinion the EMP had regard to what the claimant told him in addition to his observations and examination. It is here that the claimant challenges strongly the accuracy of his record, both on the basis of omissions and on the basis of incorrect recording. I note in particular that at paragraph 27 of its statement of reasons the tribunal seems to have accepted as a correct account of what the claimant told the EMP that she takes her dog for a walk for up to 20 minutes, stopping and starting, and that she sometimes visits Tesco's, walking and stopping for a few minutes, although that is a significant part of what the claimant disputes.
28. There is also some force in the claimant's contention that the EMP seems to have assumed she suffered from anxiety because of the tremors in her hands (p.189, p.192, p.194), instead of taking into account the evidence that the tremors were a symptom of her dystonia, which were alleviated to some extent by Sinemet Plus, as stated by the GP (p.172).
29. Finally, the claimant complains of p.204, which states:

"The functional effects may improve in the foreseeable future which is often the case in this type of illness. They also may improve with further treatment that may have been recommended by the consultant neurologist seen recently."

Given the length of the claimant's illness by the time of the report, her account of deterioration and the absence of any suggestion that the neurologist had in fact recommended treatment which was might improve the functional effects, it seems to me that the foundation for the prognosis was decidedly sketchy.

30. Having regard to the extent of those criticisms, to the part which some of the challenged material expressly played in the tribunal's statement of reasons and to the considerable weight placed on the report overall, I take the view that the tribunal's reasons were not adequate to explain its preference for the EMP's report over the claimant's own evidence. It will be appreciated that I am not saying that the tribunal could not reasonably have concluded that the EMP's report was to be preferred, but that since the report itself was so heavily contested on grounds which went some way to putting in issue the basis of the conclusions reached, those criticisms required to be addressed to some degree. In failing to do so, the tribunal made an error on a point of law.
31. Having come to that conclusion, I have power, under section 12(2) of the Tribunals, Courts and Enquiries Act 2007, to set aside the tribunal's decision, although I am not required to do so. I further take the view that the appropriate course in the present case is to set the decision aside, both because the weight to be given to the EMP's report is a fundamental matter in this case and because, as explained below, there were other errors in the tribunal's approach. I remit the matter to be determined by a new tribunal because the outcome depends very much on a careful assessment of the evidence and because it seems to me likely, in the light of what I say below, that one of or both the parties will wish to adduce further medical evidence, or, if neither party does, that the tribunal judge will wish to make a direction for further medical evidence.
32. I turn now to the other points which arise. First, the effect of paragraphs 17 to 24 of the tribunal's statement of reasons, as I understand those paragraphs, is that in the light of the authorities referred to, the claimant was not entitled to the higher rate of the mobility component because it was not shown that she was suffering from a "physical disablement", as required by section 73(1)(a) of the Social Security (Contributions and Benefits) Act 1992. The authorities in question are the decision of the Court of Appeal in Harrison v. Secretary of State for Social Services, reported as the Appendix to R(M) 1/88, and R(DLA) 4/2006.
33. It is undoubtedly correct that the authorities distinguish between physical symptoms amounting to an inability or virtual inability to walk, which may be attributed to mental or physical causes, and physical disablement, which may be taken as a physical cause for the physical symptoms. In Harrison the claimant was in a wheelchair but was found not to be suffering from a physical disablement such as to make him virtually unable to walk because his inability (following a crane accident) was found as a fact to be the result of hysteria. It was accepted, however, that if the hysteria itself was caused by, for example, pain resulting from a physical cause, the statutory conditions could be satisfied, and the claimant was apparently later awarded mobility allowance on that basis.
34. The decision was loyally although unenthusiastically followed by a Tribunal of Commissioners in R(DLA) 4/2006. The Tribunal had, however, received expert medical evidence from Dr. Ford of the Department for Work and Pensions' Corporate Medical Group which dealt in particular with the question whether there might be a physical cause for physical symptoms such as lower back pain, generalised muscle weakness and fatigue and dizziness even where investigations had taken place and no physical cause had been identified. That possibility was recognised in the expert evidence and was clearly accepted by the Tribunal: see paragraphs 146, 166 and 171. The tribunal here asked itself the question whether there was "compelling evidence of an identifiable physical cause" (paragraph 22) or "compelling evidence that the appellant suffered from a physical disorder which was current at the date of the decision". Having clearly found that some physical symptoms existed, the tribunal did not address the question whether the symptoms had a physical or mental cause, although there was no suggestion of mental disorder of any kind apart from the EMP's suggestion that the claimant suffered from anxiety. On the other hand, the claimant's GP had said she was suffering from dopa responsive dystonia (p.171) and the claimant's own evidence, which does not appear to have been challenged and was supported by her GP, was that her symptoms were improved by Sinemet Plus, a dopamine drug. There is also some evidence to support the view that there was medical agreement that the claimant suffers from a neurological condition, the question being rather which condition. In those circumstances, I have formed the view that the tribunal did not adopt the approach required in R(DLA) 4/2006 in considering whether the claimant's difficulties with walking resulted from physical disablement, and this is a further error on a point of law.
35. In dealing with the claimant's claim to higher rate mobility allowance, assuming that she could overcome the physical disablement obstacle, the tribunal proceeded on the basis that the claimant's oral evidence was more consistent with the EMP's report than her claim pack. That is, in my view, mistaken. Read as a whole, the account given by the claimant in her claim pack (pp.119-120) was that she was not sure how to answer the questions, because she could not judge times and distances since she was in pain all the time, but the answers were that she could walk 50 metres in five minutes, including short stops, before feeling severe discomfort, that she would put her walking speed at about 40 to 50 metres a minute because of having to take regular rest breaks due to pain, nausea, lightheadedness and exhaustion and that her walking was extremely poor. That is not necessarily dissimilar to her oral account of walking 40 metres and then having to stop for about five minutes. It does not appear that the question of inconsistency was put to the claimant. The authorities cited in Social Security Legislation 2008/09, paragraph 4.62, show that if that evidence were accepted a tribunal could properly find the claimant unable to walk.
36. The tribunal's view of the evidence was, of course, affected by its acceptance of the EMP's report. I have already given my reasons for concluding that the uncritical acceptance of the report involves an error of law. The new tribunal will need to consider the evidence on this aspect in the light of whatever conclusion it reaches about the EMP report and in the light of any further medical evidence there may be.
37. Having decided that the claimant was not unable or virtually unable to walk, the tribunal considered whether she satisfied the conditions for the lower rate of the mobility component. Under section 73(1)(d) of the 1992 Act, the test is whether a claimant:

"is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time."

It will be recalled that between 2001 and 2005, until her award was increased to the higher rate of the mobility component, the claimant had an award on this basis.

38. The tribunal appears to have concentrated primarily on the question whether the claimant suffers from any mental disability, although it noted that the claim pack raises issues which mainly concern the claimant's physical condition. The tribunal's reasoning is thus apparently affected by its overall acceptance of the EMP report, which seems to me likely to explain the tribunal's concentration on mental issues. It is also to be noted that in the letter dated 25^th September 2008 the claimant stated that the EMP had failed to record what she said about problems with concentration, which would be relevant to this aspect of the case. There was no consideration of the basis on which the claimant had been entitled between 2001 and 2005. Further, it is clear that a claimant can satisfy the conditions if he or she requires guidance or supervision on familiar routes as well as unfamiliar ones and that if he or she does not, the reasons why that is the case may be relevant: see CSDA/627/2007. The tribunal's reasons tend to imply that it did not consider whether the claimant would need guidance or supervision on familiar routes and if not, why not. These are matters to be taken into account by the new tribunal.
39. In dealing with the care component, the tribunal again relied very heavily on the EMP report and its reasons were naturally affected by that. It also relied, however, on the claimant's oral evidence, which implied a significantly lower level of need at night than the claim pack suggested, and noted the absence of any reference to night-time needs in the GP's report. The new tribunal will no doubt be alert to this.
40. The claimant's account of her day needs was much more consistent with the claim pack and it is in relation to those needs that the point she makes about the distinction between what she needs and what she actually has is most forceful. The conditions for entitlement to the care component are set out in section 72 of the 1992 Act, which uses the word "requires". It is well established that that means "reasonably requires", not "medically requires": Mallinson v. Secretary of State for Social Security [1994] 1 W.L.R. 630 (Appendix to R(A) 3/1994). The fact that in practice a claimant manages without help therefore does not determine the issue whether help is reasonably required. It is not clear from the tribunal's reasons that it approached the matter on that basis.
41. What is clear is that the tribunal accepted that the claimant's condition is variable, with a mixture of good or average days and bad days, but that it also accepted the EMP's rather than the claimant's assessment of the proportion of days which were bad. It did so without reference to the GP's report, which says "Symptoms go from moderate to severe – "non functioning" ... 50% of each month". In my view, the reasons given for the tribunal's conclusion on variability were inadequate in failing to address that piece of evidence from the GP.
42. There remains the point that the medical member of the tribunal had been on the previous tribunal, which had taken a different view of the claimant's ability to walk. I accept that if the claimant had recognised him and, fearing bias, had sought to challenge him, she might have done so successfully. She would, however, have had to show what an independent and fair-minded observer would conclude was a real possibility of bias: Locabail (UK) Limited v. Bayfield Properties Limited [1999] EWCA Civ 3004; [2000] QB 451. It seems to me that she is unlikely to have been able to do so, since there is no reason to suppose that the medical member would have done other than consider whether the previous decision should be followed in the light of the further medical evidence. As there is in fact no evidence that the medical member even recalled that he had been involved in the previous decision, this point does not itself afford any ground for setting aside the decision.
43. To summarise in relation to the points made by the claimant, as set out in paragraphs 15 and 17 above:

(1) as the claim pack indicates, it is permissible in assessing a claimant's ability to walk to take account of short stops, but the stops are to be included in the time taken to cover a particular distance and so will affect the speed of walking. The tribunal did not err in having regard to stops, but there is force in what the claimant says about her speed of walking;

(2) the hypothetical questions asked by the medical member appear to have related to the claimant's ability to use unfamiliar routes. When a claimant does not in fact use unfamiliar routes, the statutory test is inevitably based on hypothetical rather than actual conduct. It does not appear to me that the questions were themselves unfair, but the answers need to be considered in the light of the claimant's ability to use familiar routes and why it is she does not use unfamiliar ones;

(3) I have dealt above with the medical member's position s a member of the previous tribunal;

(4) I do not accept that the tribunal should not have considered the report from the EMP at all, but it should have done so in the light of an awareness of the fact that a complaint had been made and should have considered carefully how the subject matter of the complaint might affect the weight to be placed on the report;

(5) I have dealt above with the question of a physical cause for the claimant's physical symptoms and of the difference between the help needed and the help provided.

Final points

44. The new tribunal and the parties will need to bear in mind, as the original tribunal pointed out, that the effect of section 12(8)(b) is that the new tribunal must not take into account any circumstances not obtaining when the decision appealed against was made. As that decision is the decision of 4^th March 2008 in its revised form, the new tribunal cannot take into account circumstances arising after that date.
45. That does not mean, however, that the tribunal will not be able to take account of medical evidence obtained after that date which sheds light on the claimant's physical and mental condition at 4^th March 2008. If, for example, the claimant now has a clear diagnosis of what her illness has been all along, and if that diagnosis helps to shed light on the nature and severity of the symptoms she was suffering from up to and including 4^th March 2008, such further medical evidence could be very helpful. It does appear from the EMP's report that there was further medical evidence in existence even at that date which might be of assistance. The claimant will no doubt wish to consider whether she has further such evidence which she wishes to put before the tribunal. She may also wish to put before the tribunal any correspondence she has received about her complaint in respect of the EMP's report.
46. The Department will no doubt also wish to consider whether to seek further medical evidence, possibly from an EMP but possibly also of an expert kind, bearing in mind the evidence from Dr. Ford in R(DLA) 4/2006. In addition, I direct that the Department should add to the bundle copies of the previous decisions on the claimant's claim, if they can be located, so that the new tribunal is clear about the basis on which previous awards were made. I also direct that the Department should add to the bundle any correspondence it has relating to the claimant's complaint about the EMP's report. In my view, the new tribunal would be assisted by knowing in what respects the complaint was, as the claimant says, upheld.
47. The new tribunal will need to consider the matter in the light of what is said above. I express the hope that the tribunal judge will consider whether the medical evidence is sufficient or whether it would assist the tribunal to direct the obtaining of further evidence.
48. Finally, the claimant has expressed concerns that the tribunal's decision will prevent her from obtaining an increased award of disability living allowance in the future. Her concerns are based on her experience of having made a new claim in January 2009, which was apparently speedily refused on the ground that nothing had changed since 4^th November 2008. She also appears to have been told that she cannot appeal against the refusal of the claim. I do not understand on what basis she has been given that advice.
49. In any event, whatever the outcome of the present case, it will be important on any future claim for the decision maker to note that this case concerns the claimant's condition up to 4^th March 2008 but no later. By January 2009 the factual background which was considered in this case was already ten months old. Further, the developments in the understanding of the claimant's medical condition which have apparently taken place may mean that the previous decision, even if right on the information then available, can be seen to have been wrong. It may also be that there has been a genuine change in the claimant's circumstances. Any such contentions will require full and careful consideration by the decision maker.

(Signed on the original) E. Ovey

Deputy Judge of the Upper Tribunal

16^th July 2009