Secretary of State for Work and Pensions (DLA) CDLA 2437 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge K Markus QC |
| Judgment Date | 19 June 2015 |
| Neutral Citation | 2015 UKUT 347 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | LR |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CDLA 2437 2014 |
| Appellant | Secretary of State for Work and Pensions (DLA) |
IN THE UPPER TRIBUNAL Appeal No. CDLA/2437/2014
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge K Markus QC
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 6 February 2014 under number SC227/13/06099 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.
Directions
- This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing
- The members of the First-tier Tribunal who reconsider the case should not be the same as those who made the decision which has been set aside
- The parties shall send to the relevant HMCTS office as soon as possible any further relevant evidence, if there is any. If they cannot send that evidence within one month of the issue of this decision the parties will need to contact that office to let them know that further evidence is expected.
- The new tribunal will be looking at the claimant’s circumstances at the time that the decision under appeal was made, that is 21 March 2013. Any further evidence, to be relevant, should shed light on the position at that time.
- The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on its findings of fact, the new tribunal may reach the same or a different conclusion to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Introduction
- The issue which arises in this appeal is whether it was lawful for the First-tier Tribunal to take into account its experience in other cases of the reports by the healthcare professional whose opinion in relation to the claimant was relied upon by the Secretary of State in this appeal, without giving the Secretary of State an opportunity to comment.
- I directed an oral hearing of the appeal because of the potential wider relevance of the issues. The hearing took place at Field House, London, on 21 May 2015. The Secretary of State, who is the appellant in this appeal, was represented by Mr Stephen Cooper, solicitor. The respondent (who is the claimant) was represented by Ms Hannah Wright of the Free Representation Unit.
Facts
- On 10 September 2006 the Secretary of State had made an indefinite award to the claimant of the lower rate of the mobility component of disability living allowance (DLA) and the middle rate of the care component. It is not clear what disabling conditions the Secretary of State relied upon at that time. It seems from a GP report prepared that the disabling conditions which generated the award were non-epileptic fits, depression and migraine. The claimant had also relied upon ankylosing spondylitis.
- The claimant was required to complete an enquiry form which was received by the Secretary of State on 31 January 2013. The conditions upon which she relied were ME from which she said she had suffered for 12 years, depression, migraine and ankylosing spondylitis. She attended a medical examination following which a report was completed by the healthcare professional (“Dr G”) on 5 March 2013. On 21 March 2013 the Secretary of State decided that the claimant’s condition had gradually improved and that she no longer satisfied the conditions of entitlement for either component of DLA. The award was superseded with effect from the date of the decision because the Secretary of State decided that the claimant could not reasonably have been expected to know that the change of circumstances should have been notified. The claimant appealed to the First-tier Tribunal.
- The evidence before the First-tier Tribunal included the enquiry form completed by the claimant in which she described significant problems with walking. The tribunal also had the report of Dr G, which was completed on the DWP pro forma. It covered a wide range of matters including the disabling conditions, a summary of the claimant’s medical history, medication, the claimant’s description of her impairments and functional restrictions, an account of the claimant’s typical day, clinical findings, and a summary of the doctor’s conclusion as to the claimant’s functional ability and its variability. He noted that there was no convincing evidence that the claimant had ankylosing spondylitis. He found that the claimant had full function in all lower limbs and slight impairment in spinal function and observed that she stood sat, stood and walked normally. In the summary of functional ability he noted that the claimant had a good range of movement in all limbs and a reasonable level of spinal movement. He noted that the claimant’s gait was normal, her balance good, that she did not use walking aids or prostheses, that she suffered pain in her legs and back when walking, and that her likely speed of walking was normal, and he concluded that she was likely to be able to walk 200 metres before the onset of severe discomfort. The evidence which he set out to support his opinion on her ability to walk is hard to read but it includes “Could walk 200 m. Symptoms may vary but function will not”.
- The claimant attended and gave evidence to the First-tier Tribunal. There is a dispute as to whether the Secretary of State was represented. I address this below.
- The First-tier Tribunal allowed the appeal. It set aside the decision of the Secretary of State and determined that the claimant was entitled to the mobility component at the higher rate for a limited period, on the ground that she was virtually unable to walk. The Statement of Reasons stated that the claimant “impressed the majority of the tribunal members as an honest witness”. It set out her evidence as to her ability to walk and then continued as follows:
“5. Two tribunal members accepted the appellant’s evidence about walking and, looking at matters as a whole, those members had no doubt that most of the time the appellant could not walk a distance in excess of 50 metres with reasonable regularity and was therefore virtually unable to walk. On her best days, as the appellant said, she was able to walk more than 50 metres but the majority accepted that these days were very much in the minority. One tribunal member did not accept the appellant’s evidence on walking and considered that on most days the appellant would be able to walk at least 50 metres and was not virtually unable to walk.
6. We noted the opinion of Dr [G], at page 115, that the appellant should be able to walk 200 metres before the onset of severe discomfort. The tribunal have seen numerous reports from Dr [G] over the years and in addition to being very difficult to read, all three members of the tribunal agreed that Dr [G] almost invariably overestimates the appellant’s normal walking ability. He also invariably includes the phrase “symptoms may vary but function will not” as appears on page 116. In the tribunal’s experience of chronic fatigue syndrome, both the severity of symptoms and also function, ie the ability to walk and self care, can and usually do vary from day to day. For these reasons, we do not accept Dr [G’s] opinion.”
- I gave permission to appeal to the Secretary of State on the ground that the tribunal’s dismissal of the opinion of Dr G based on the members’ previous experience of his reports arguably constituted a breach of natural justice and that the tribunal failed to take into account relevant evidence.
The submissions of the parties
- Mr Cooper, on behalf of the Secretary of State, submits that it was a breach of natural justice for the tribunal to reject the opinion of Dr G on the basis of the members’ criticisms of his reports in previous cases, without first giving the Secretary of State an opportunity to respond to those criticisms. Mr Cooper submits that a presenting officer attended the tribunal hearing and so she could have addressed the tribunal’s concerns had they been put to her. Even if no presenting officer had been present, the tribunal should have adjourned in order to give the Secretary of State an opportunity to address the tribunal’s concerns about Dr G’s reports. He also submits that the tribunal acted unreasonably in rejecting Dr G’s report and failed to give...
To continue reading
Request your trial