Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/725/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Nicholas Paines QC

 

Decision:  I have to dismiss this appeal because the decision of the First-tier Tribunal did not involve any error of law.

 

 

 

REASONS FOR DECISION

 

 

1.               The claimant is a man born in 1963.  In February 2009 he was awarded income-related employment and support allowance (ESA), presumably on the basis of a GP’s medical certificate.  In June 2009 he was assessed by a registered medical practitioner under the limited capability for work assessment. The claimant told the doctor that he had mental health, musculoskeletal and respiratory problems, but the doctor assessed the claimant as scoring no points under the assessment.

2.               In July 2009 a DWP decision-maker agreed with the doctor’s assessment and decided that the claimant was not entitled to ESA from the date of her decision.  The award was superseded with effect from that date.  The claimant appealed on the grounds that the medical assessment had not covered any of his health conditions.  He produced letters of support for his appeal from his housing Support Officer and a drug and alcohol worker and a further sick note for three months from his GP.  In August 2009 the ESA decision was reconsidered but not changed.

3.               The appeal came before the First-tier Tribunal in May 2009.  The claimant had in the meantime consulted a welfare rights adviser who sent the tribunal a letter from the practice manager at the claimant’s GP practice saying that the claimant had attended the surgery on 30 April and his GP had ticked the descriptors that she considered applied to the claimant on an ESA scoresheet (in the version that applied at the time).  The GP had ticked descriptor 1(e) (‘cannot walk more than 200 metres on level ground without stopping or severe discomfort’), adding the words ‘due to fatigue’.  She also ticked descriptor 2(f) (’cannot sit … for more than 30 minutes’), adding ‘gets lower back pain’, and descriptor 19(c) (‘normal activities, for example, visiting new places or engaging in social contact, are frequently precluded due to overwhelming fear or anxiety’).

4.               The First-tier Tribunal dismissed the appeal.  The claimant requested a statement of reasons, which was produced on 9 June.  It set out the history of the claim and then dealt with the descriptors in the limited capability for work assessment in the following way.

5.               The tribunal itemised the problems that the claimant had described himself as having in the ESA50 questionnaire.  They then dealt with the physical descriptors in the capability for work assessment.  In a subparagraph headed ‘walking’ the tribunal found that at the time of the DWP decision the claimant walked each day a distance of over a quarter of a mile and back on an inclined route and did not make any complaint of having difficulty with that route; he also frequently caught a bus from a stop some 250 metres from his home.  Though the claimant cited breathlessness as one of his problems, tests had been negative and he was not breathless on entering the tribunal room or during the hearing (and did not suggest that his condition then was better than at the date of the decision).

6.               In a further paragraph headed ‘remaining activities’ the tribunal found that nothing in the conditions described to them or the assessing doctor would give rise to significant dizziness or pins and needles; the claimant had not mentioned vascular problems and his blood pressure was accordingly not tested.  They found that the claimant’s medication might cause some lightheadedness not amounting to persistent or continuing incapacity; his conditions, including any breathlessness ‘which could only be peripheral on our findings’, were not such as to give rise to sufficient pain to restrict the claimant’s normal day to day activities.  They continued by saying that there was ‘no reason why he would be restricted in going up steps, standing, sitting in a prescribed chair, bend/kneeling or using his hands or otherwise as he contended from that alleged condition of dizziness’.  In addition they recorded that at the examination the claimant had sat without difficulty on a ‘prescribed chair’, walked normally and got on to the examination couch normally.

7.               The tribunal then rejected the claimant’s evidence that he had pain from a previously broken collar bone, finding that broken collar bones do not give rise to significant disablement after the bone had healed.

8.               Under the heading ‘mental incapacities’ the tribunal gave an account of his evidence about his daily life (which was consistent with his not having mental disabilities); it included the claimant having moved into a shared house in a new part of the town and that he got on well with one resident and ‘rubbed along philosophically with the two he had nothing in common with’.  They noted that the examining doctor’s assessment (which found no mental disabilities) was not contested at the hearing, and concluded that no mental descriptors applied.  The tribunal said they could see no reason why the claimant should have any of the mental problems he had claimed in form ESA50.

9.               The tribunal then considered the claimant’s GP’s assessment on the score sheet.  They preferred the assessing doctor’s assessment because the GP would have had little first hand knowledge of the claimant’s detailed activities and had ticked the boxes that the claimant said applied to him.  They preferred the assessing doctor’s opinion “because we have been able to come to similar conclusions from sometimes a different perspective.  In particular, the appellant does have fatigue but proves that if he had to walk 200 metres for something he needed … he could do so without stopping or severe discomfort.  He was also seen to sit without discomfort for 30 [minutes] and has not only visited new places he has relocated … and established his, albeit limited, lifestyle contacts.  He had good rapport with the tribunal although we were strangers”.

10.           The claimant’s welfare rights adviser applied for permission to appeal to the Upper Tribunal in a letter of 24 June.  The letter submits that the tribunal gave inadequate reasons for preferring the examining doctor’s assessment to that of the GP as regards descriptors 1(e), 2(f) and 19(c).

11.           As regards descriptor 1(e), the submission notes the tribunal’s findings about the claimant walking distances of a quarter of a mile and 250 metres and not making any complaint of difficulty with the quarter mile route, and their finding that he did have fatigue but had proved that he could walk 200 metres without stopping or severe discomfort.  The point that the representative makes is that nothing in the claimant’s account indicated whether his walking 250 metres was without stopping or severe discomfort; the finding was therefore unsupported by they evidence and, indeed contradicted by that of the GP.

12.           As regards descriptor 2(f), the representative notes that the tribunal rejected the evidence of the GP because the claimant had sat without discomfort for 30 minutes at the hearing, but their reasons did not “show that they considered whether this test was properly applied at the tribunal hearing.  Without such consideration the finding is effectively meaningless.  For example, was the chair as set out in the descriptor?”

13.           As regards descriptor 19(c), the submission notes the findings I have referred to in paragraph 9 above and submits that the statutory test is whether visiting new places or engaging in social contact are ‘frequently precluded’, not that they could never be achieved.  The evidence was therefore insufficient to indicate that descriptor 19(c) did not apply.

14.           Finally, commenting on the tribunal’s reasons for preferring the opinion of the examining doctor to that of the GP, the submission notes the statement that the examining doctor’s assessment was closer to their own and that they had come to similar conclusions from sometimes a different perspective; as to that, the representative submits that that justification fails away if the tribunal’s conclusions were flawed for the reasons already submitted.  Secondly, as regards the tribunal’s preference for the examining doctor’s approach rather than the GP’s approach of giving the claimant the option of indicating the relevant descriptor, the representative submits that there is nothing in the GP’s approach to lead a reasonable tribunal to attach less weight to the GP’s report than that of the examining doctor.

15.           A First-tier Tribunal judge gave permission to appeal in February 2011, finding that the claimant’s submissions gave rise to an arguable point of law.  The judge stated the question to be answered on appeal as follows:

Is there a burden on a tribunal, when it has found that an appellant presents in a manner contradictory to what is alleged in an appeal submission, to deal with each descriptor or is it open to them to say, and give reasons, that the man does not match the picture painted in support of the appeal?

16.           As a matter of first principle, a tribunal deciding an appeal are legally required to apply all the relevant substantive law, interpreting it correctly.  They are also obliged to give an adequate statement of their reasons for their decision.  A statement of reasons is adequate if it tells the reader why the tribunal reached the conclusions they did, in sufficient detail to show whether they applied the law correctly or not.

17.           The duty to apply the relevant law carries with it a duty to make findings of fact sufficient to enable them to decide which descriptors are met and which are not.  If a tribunal were to overlook an activity in the work capability assessment, they would not have applied the law correctly.  But, provided the reader can understand (a) why the tribunal awarded no points, or why they awarded the points they did, for each of the activities and (b) whether they applied the law correctly in doing so, the requirement of an adequate statement of reasons is satisfied.

18.           Thus, for example, it may, according to the circumstances of the case, be an adequate statement of reasons for a tribunal to deal with all the mental functions in the assessment by saying that there was nothing to indicate a mental disability, or to explain why a claimant scored no points in respect of several of the physical activities by saying that his or her disablement only affected (say) manual dexterity.  If it is apparent from the statement of reasons that there has been nothing to suggest that a particular activity is affected by a claimant’s condition, the reader will understand why the tribunal did not consider it without their needing to refer to it.

19.           If a particular descriptor has been put in issue by or on behalf of a claimant, the statement of reasons must enable the reader to understand why the tribunal disagreed (if they did).  But the law does not either mandate or outlaw any particular forms of explanation, provided they do not betray a misunderstanding of the substantive law or a failure by the tribunal to apply their mind to the issue.  Tribunals must not, for example, proceed on the basis that examining doctors working on behalf of the DWP are always more reliable than a claimant’s GP, or vice versa.

20.           The answer to the question posed by the Judge who gave permission to appeal is, in my view, that it would be insufficient for a tribunal to say (even with reasons) that a claimant does not match the picture painted in support of the appeal; they must engage with the activities and descriptors in the way I have sought to outline.

21.           The tribunal’s statement of reasons here meets that standard.  Their treatment of walking (see paragraph 5 above) enables the reader to understand why they found him to score no points in respect of walking.  The reasoning that I have summarised in paragraph 8 above enables the reader to understand why they did not find any of the mental descriptors to be met. 

22.           The tribunal’s treatment of the ‘remaining activities’ (see paragraph 6 above) is somewhat compressed, but contains a statement that his conditions would not prevent him performing the activities that the tribunal then list.  Those activities correspond to those with which the claimant had claimed to have problems in the ESA50, which the tribunal had earlier listed.  They give a reason for those findings: the claimant’s condition would not in their view give rise to problems with the activities.  The reader is therefore able to understand why they reached the conclusion they did on the activities they mention.  The reader would also understand, since the tribunal had earlier listed the problems the claimant had described himself as having, that the reason why they found no problems with other activities is that the claimant had not suggested that he had any.

23.           The claimant’s representative has submitted that the tribunal reasoned inadequately in respect of the descriptors put forward by the claimant’s GP (see paragraphs 10 to 14 above).  As regards walking, the complaint is, in summary, that the tribunal did not ask themselves whether the claimant could walk the distances they mentioned without stopping or severe discomfort.  In my view the reader would understand, from the tribunal’s finding that at the relevant time the claimant walked a distance of a quarter of a mile and back and did not complain of problems (see paragraph 5 above), why they found that he could do the distance without stopping or severe discomfort.

24.           As regards sitting, the tribunal gave two reasons for finding that the claimant would not have a problem: (a) that he had no conditions that should give rise to such a problem and (b) that at the examination he had sat without difficulty in a prescribed chair (a chair with a high back and no arms).  The claimant’s representative suggests that the reasoning does not show whether the tribunal considered whether the chair at the examination had been as set out in the descriptor.  I do not agree.  The statement of reasons says that it was, showing that the tribunal had considered whether or not that was so.  There is no valid criticism to be made of the adequacy of the reasoning here.

25.           Thirdly, the representative submits that the tribunal gave inadequate reasons for rejecting descriptor 19(c) (the relevant words of which I have summarised in paragraph 3 above).  It was submitted that the tribunal’s finding that the claimant had moved house and established lifestyle contacts only showed that visiting new places and engaging in social contact were not always precluded to the claimant, not that they were not ‘frequently’ precluded, as the descriptor stipulates.  In my view the reader would understand perfectly well from the tribunal’s findings in respect of the claimant’s mental condition that they found that he did not have any mental conditions that would frequently prevent him engaging in normal activities (of which visiting new places and social contact are only mentioned in the descriptor as examples).

26.           As regards the representative’s criticisms of the tribunal’s rejection of the GP’s evidence (paragraph 14 above), the first adds nothing: had the tribunal’s conclusions been flawed in the say the representative argued, the decision would have been erroneous in law anyway.  Since in my judgment they are not, the first point falls away. 

27.           The second criticism is not in reality about adequacy of reasons; it is that the tribunal acted unreasonably in preferring the examining doctor’s evidence for the reason given.  It cannot remotely be said that no reasonable tribunal would reject the GP’s evidence for the reason the tribunal gave; they were perfectly entitled to conclude that one doctor’s independently reached view, based on interview and examination, carried more weight than another doctor’s view, based on acceptance of what the claimant had said about his problems.

 

 

Judge Nicholas Paines QC

20 January 2012