DR CDLA 22 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 22 June 2010 |
| Neutral Citation | 2010 UKUT 210 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | Secretary of State for Work and Pensions |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CDLA 22 2010 |
| Appellant | DR |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the appellant.
The decision of the Basildon First-tier Tribunal dated 11 September 2009 under file reference 919/09/01812 involves an error on a point of law and is set aside.
The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 26 March 2009 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.
This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
The following directions apply to the re-hearing:
(1) The re-hearing will be at an oral hearing.
(2) The new tribunal should not involve any tribunal judge or medical member who was a member of either the tribunal considering this appeal at the hearing on 11 September 2009.
(3) The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal (namely 26 March 2009).
(4) If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the Regional Tribunals Service office within one month of the issue of this decision.
(5) The Secretary of State should provide a supplementary submission explaining the basis of the decision taken on or around 17 February 2009 to exempt the appellant from the personal capability assessment in connection with her claim for incapacity benefit, which should also include copies of the relevant medical or other evidence relied upon. This should be sent to the Regional Tribunals Service office within one month of the issue of this decision.
(6) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Introduction
1. This is a rather unusual case. The appellant is convinced that she has been poisoned as a result of exposure to chemicals at work. She has been examined by a clinical toxicologist who has been unable to pin down any particular condition to explain the many symptoms she describes. She has, however, been found to qualify for incapacity benefit without having to undergo the personal capability assessment. Her claim for disability living allowance was refused by the Secretary of State at around the same time. Her appeal against that decision was dismissed by the First-tier Tribunal, which did not accept her account of her symptoms as credible.
2. For the reason explained below, the decision of the First-tier Tribunal involves an error on a point of law and is set aside. The case has to go back for a rehearing. As I indicated when granting permission to appeal, credibility issues are pre-eminently questions of fact for the First-tier Tribunal, with which the Upper Tribunal should be loath to interfere. The First-tier Tribunal, of course, has the advantage of seeing and hearing the witnesses at first hand and weighing their evidence in the context of all the evidence in the case.
3. It is therefore important to make it clear at the outset that the decision of the First-tier Tribunal is not being set aside because of any suggestion that it made a material error of law in its approach to the evaluation of the appellant’s credibility. The tribunal may or may not have been right to find that the appellant was not a credible and reliable witness. Rather, the tribunal’s decision is being set aside because it failed to explain its decision adequately, and in particular to consider and explain the discrepancy between the respective outcomes of the incapacity benefit and the disability living allowance claims in the particular and indeed peculiar circumstances of this case.
The background to the disability living allowance appeal
4. The appellant, a woman now aged 40, is Croatian by birth. She came to the United Kingdom in 1996, met her husband in 1997 and married in 1999. They separated amicably in 2004. They have one child, a boy of school age, who lives with the appellant. He is now aged about 10. Her ex-husband maintains contact with and provides some financial support for their son.
5. The appellant worked for a pharmaceutical company, apparently in a laboratory working with various chemical compounds and developing new drugs for clinical trials. Starting in early 2007, she reported symptoms of fatigue and tiredness, along with occasional nausea and vomiting. She underwent extensive investigations at an NHS hospital, but in January 2008 her consultant physician (adult and elderly medicine) stated that they had been unable to identify any particular cause. He referred her to a consultant clinical toxicologist. In May 2008 her consultant physician advised the appellant’s GP that “I think she is suffering from a lot of stress and would benefit seeing a psychiatrist”.
6. In August 2008 the consultant clinical toxicologist reported to the GP that the appellant did not show “any obvious symptoms or signs suggestive of toxicological exposure”. He also advised the GP that his impression was that the appellant “feels that we are withholding a treatment and/or investigation from her for some reason”. In November 2008 the consultant clinical toxicologist saw the appellant again, on this occasion accompanied by a consultant psychiatrist. Both doctors sent the GP full reports.
7. The consultant clinical toxicologist reported to the GP that the appellant was very keen for him to make a diagnosis of “syndrome psycho-organicum post intoxicum suspectum”. The toxicologist confirmed that although he did not think her symptoms had an underlying toxicological cause, he could not rule this possibility out. He added that he would have expected the symptoms to have improved following cessation of exposure, yet they were reported to be ongoing despite her having been off work sick for several months (she appears to have last worked in clinical trials in March 2008).
8. The consultant psychiatrist noted that the appellant had attended a community mental health clinic in July 2008 and had since had a couple of sessions with a psychologist in October 2008. He also confirmed that the appellant “holds a firm belief that her health problems have arisen following the inhalation of a toxic substance prior to the onset of her problems”. Both doctors noted that during one A&E visit a junior doctor had told the appellant that toxins may have contributed to her problems. He advised the GP that the appellant’s problems “are likely to remain intractable in the immediate future”. He had also advised her “to be mindful of how her response to her health problem at times may be disproportionate thereby adding to her distress and disability”, although he noted she was not “particularly psychologically minded or receptive to the above”.
The incapacity benefit claim
9. There is relatively little information about the appellant’s parallel incapacity benefit claim on file. The toxicologist noted in August 2008 that she “is currently not working and on incapacity benefit”. It appears that some sort of dispute arose in this context, as there is letter on file from the appellant’s father, dated 29 October 2008, but presumably drafted by the appellant as her father does not speak English. That letter was addressed to the appellant’s welfare rights adviser at a firm of solicitors, and is headed “Re letter from my father regarding incapacity benefit”. The father explained how he and his wife took turns to come to London for 6 months at a time to look after their daughter.
10. What does appear to be clear is that the appellant was subsequently found to be exempt from the personal capacity assessment for the purposes of incapacity benefit. On 17 February 2009 the local Jobcentreplus office sent her a standard form IB70 letter stating that for the time being she no longer needed to send in any more medical certificates from her GP. The letter explained:
“People with certain disabilities or severe illnesses are treated as meeting the threshold of incapacity and do not have to undergo the assessment.
Because you have one of these disabilities or illnesses, you can be treated as meeting the threshold of...
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