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[2009] UKUT 6 (AAC) (12 January 2009)

 


IN THE UPPER TRIBUNAL Appeal No. CDLA/2997/2008

ADMINISTRATIVE APPEALS CHAMBER

Before: Judge S M Lane

Decision: My decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007:

I SET ASIDE the decision of the tribunal on 23/11/07 under reference 919/07/02560, because it involved the making of an error on a point of law.

I REMIT the case for rehearing before a differently constituted First Tier Tribunal (Social Entitlement Chamber) and DIRECT that the tribunal conduct a complete rehearing.

REASONS FOR DECISION

1. This appeal has been transferred to the Upper Tribunal (Administrative Appeals Chamber) pursuant to the Transfer of Tribunal Functions Order 2008 (SI 2008/2833).
2. A district chairman gave leave to appeal against the tribunal's decision disallowing the claimant's appeal against a decision of the Secretary of State for Work and Pensions that she was entitled to the lowest rate of the care component of DLA from and 19/06/07 to 18/12/08, but not entitled to either rate of the mobility component from and including the same date.
3. In granting leave, the district chairman posed the question 'Does a tribunal have to identify and deal with every claimed physical limitation or is it entitled to say it does not accept [that] the physical limitations produce the difficulties claimed provided it explains the basis for that general conclusion.' I assume that, by this question, the district chairman intended to identify an arguable error of law based on the tribunal's failure to find sufficient facts or give sufficient reasons for its decision. My decision is that the tribunal erred in law in the respects set out in paragraph 7.
4. The background facts: I set these out at some length, along with the medical evidence, to illustrate how the tribunal went wrong in its Statement of Reasons. It appears from the Submission, but not necessarily from the tribunal's Statement of Reasons, that the appellant suffers from diabetes, osteoarthritis of the knees and lumbar spine, cerebral ischaemia, a frozen left shoulder, left reflex sympathetic dystrophy of a previously fractured left wrist, and foot drop.
5. The appellant spelled out the less obvious consequences of her various conditions in the claim form. These included impaired left hand grip, cramps in her foot while walking, and falls. She claimed that as a result, her walking was severely limited and that she needed regular attention from another person with a range of bodily functions, on the basis of which her representative submitted that the appellant was entitled to the higher rate of the mobility component and the middle rate of the care component.
6. There was a significant body of medical evidence to support all of the conditions, including (i) a referral to physiotherapy for left hand and wrist reflex sympathetic dystrophy and frozen shoulder; (ii) a physiotherapist's report confirming considerable, and apparently permanent, restriction of the left wrist movement and a continuing need for treatment for her restricted, painful shoulder; (iii) three reports from the same consultant neurologist which included MRI results. Two of the reports appear contradictory in that one confirms significant L5/S1 nerve compression while the third and final report states that the appellant 'did not have any significant pain at present, but that her main problem is numbness and motor weakness in the L5 distribution'. It also confirms that the appellant had a greater propensity to fall because of her condition and 'needed to take care'; (iv) Two reports from the GP including a pro-forma factual report confirming several problems relevant to mobility and falls, that she was 'under orthotics' for her left foot, and giving his opinion that the appellant's walking was poor; and (iv) a medical adviser's opinion that with a suitable walking aid and orthotic footwear, the appellant should be able to mobilise, but that her wrist would cause difficulties in completing tasks.
7. The tribunal's errors: The tribunal made material factual errors in dealing with the medical evidence which may have prejudiced the appellant's case significantly and which, in the circumstances, amount to an error of law. The main errors were as follows: the tribunal dismissed the medically documented condition of foot drop, regarding it as inherently improbable that, if the condition was as severe as it is claimed, then aids or a calliper would have been recommended. This was despite two reports to show that that this avenue was being pursued. The contradiction in the consultant's reports relating to pain from nerve compression was not addressed. The tribunal did not deal with the medical evidence on cerebral ischaemia, which may have accounted for the appellant's falls in addition to, or in combination with, the balance problem arising from her foot drop, numbness of the leg and cramping toes. It did not seem to appreciate the evidence that the appellant's wrist was permanently restricted, thus making suspect the tribunal's inference that the appellant would be able, after a time, to use a walking frame instead of a stick. It did not consider the evidence relating to the appellant's frozen shoulder, confining itself to the appellant's grip problem alone. It simply dismissed most of the medical evidence with the phrase 'there was little evidence that…'
8. This is not to say that the appellant would necessarily have succeeded had the tribunal properly analysed the evidence, but that the failure was such that the decision could not stand. It should be added that the tribunal also failed to deal adequately with the higher rate of mobility by not dealing with the issue of severe discomfort.
9. Giving adequate reasons: Existing case law gives guidance on a tribunal's duties in providing reasons for their decision. In South Bucks D.C. v Porter (No. 2) 2004 UKHL 33, [2004] 1WLR 1953, Lord Brown of Eaton-under-Heywood said the reasons must be

'intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved...The reasons need refer only to the main issues in the dispute, not to every material consideration. Decision letters must be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.'

This statement was adopted as applicable to Social Security tribunals by a Tribunal of Commissioners in R(DLA)3/08.

10. Finding facts and analysing evidence: It follows from the quotation from Lord Brown's speech set out above that the tribunal must find sufficient facts to support its decision and in doing so, show how it resolved factual disputes. This requires an explanation of the merits of the evidence so that the parties can understand why the evidence was accepted or rejected.
11. Establishing the facts is not the same the same as reciting the evidence. What is necessary is an indication, express or by necessary implication, of what the tribunal accepted as fact. The Upper Tribunal may not be astute to find implicit that which has been left unstated.
12. The tribunal must decide whether the appellant meets the relevant level of disability required for entitlement. For all rates of the care component and for the lower rate of the mobility component, the test is that the claimant 'is so severely disabled physically or mentally' that he meets the further conditions in section 72(1)(a) – (c) and 73(1)(d) respectively of the Social Security Contributions and Benefits Act 1992; and for the highest rate of the care component, he must be 'suffering from physical disablement such that he is either unable to walk or virtually unable to walk [section 73(1)(a)]'.
13. The Tribunal of Commissioners decided in R(DLA)3/06 that severity is to be gauged by the extent of the needs arising from the disability. In other words, if the effects of the disability are such that the claimant meets the conditions for any particular rate of Disability Living Allowance, he is severely disabled.
14. Individual responses to disability vary greatly, but where the claimant's disabilities exceed those which the tribunal would normally expect, the evidence supporting the claimed disabilities requires close examination. If the tribunal's medical, disability and legal judgment is that the evidence lacks cogency, that is a matter for them. They must, however, explain why this was the case.
15. In Fryer-Kelsey v Secretary of State for Work and Pensions [2005] EWCA Civ 511 the Court of Appeal emphasises that how the tribunal weighs the evidence is a matter for them. But this must be subject to the duty to analyse the evidence judicially. I have already given reason why the tribunal did not fulfil its duty in this case. As I am unable to make the findings of fact necessary in order to give a decision myself, I must remit the appeal to a fresh tribunal.
16. Before making re-listing directions, it should be noted that the appellant made a renewal claim on 14/11/08 which resulted in the re-award of the lowest rate of care (main meal test) from and including 19/12/08, but no award of the mobility component. If the appellant has appealed against this decision, it would be convenient for the two cases to be heard together.

[Signed]

S M Lane

Judge of the Upper Tribunal

22/01/2009