[2009] UKUT 65 (AAC) (27 March 2009)<BR>Tribunal procedure and practice<BR>statements of reasons

IN THE UPPER TRIBUNAL	Appeal No.  CIB/4281/2006
ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Attendances:

For the Appellant:	Mr Mike Robinson, senior welfare benefits caseworker at Stockton & District Advice & Information Service.

For the Respondent	Mr Huw James, solicitor, agent for the Solicitor to the Department of Health and the Department for Work and Pensions

Decision:  The claimant’s appeal against the decision of the Middlesbrough appeal tribunal dated 27 June 2006 is dismissed.

REASONS FOR DECISION

1.	The claimant was working as a school kitchen assistant when she suffered a back injury on 20 May 1993 while lifting a tray of Yorkshire puddings out of an oven.  The incident was accepted as an industrial accident.  The resulting disablement was subsequently assessed at 10 per cent for two years from 2 September 1993.  That was a final assessment.  Meanwhile, the claimant had claimed sickness benefit.  She did not satisfy the contribution conditions but was awarded sickness benefit under section 102 of the Social Security Contributions and Benefits Act 1992 on the ground that she was incapable of work due to the industrial accident.  After 168 days, she became entitled to invalidity benefit under section 33 instead.  When incapacity benefit replaced sickness and invalidity benefit in 1995, she became entitled to long-term incapacity benefit under the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 (S.I. 1995/310.).

2.	On 10 August 2005, the Secretary of State superseded the award of incapacity benefit and decided that the claimant was no longer entitled to incapacity benefit, both because she scored only 6 points on a personal capability assessment and so could no longer be regarded as incapable of work and because her disablement was no longer regarded as being attributable to the industrial accident.  The claimant appealed.  On 22 June 2006, the appeal tribunal accepted that she was incapable of work on the ground that she scored 18 points on a personal capability assessment but, applying regulation 21 of the 1995 Regulations, it upheld the supersession on the ground that her incapacity had ceased to be due to the industrial accident.  (The tribunal did not say that the supersession had to be under regulation 6(2)(a)(i) of the 1999 Regulations rather than regulation 6(2)(g) upon which the Secretary of State had relied, and must have been on the basis that the change of circumstances was presumed to have occurred on 10 August 2005, but nothing of any practical significance turns on turns on that.)

3.	The claimant now appeals with the leave of Mr Commissioner Levenson, given on 14 November 2008.  The case had been delayed because the first ground of appeal was that the claimant had been the victim of discrimination that was unlawful by virtue of Article 14 of, and Article 1 of Protocol 1 to, the European Convention on Human Rights taken with and it had been thought necessary to await the decision of the House of Lords in R(RJM) v Secretary of State for Work and Pensions [2008] UKUT 63, [2008] 3 W.L.R. 1023.

4.	There are two strands to this ground of appeal.  The first is based upon an assertion that fewer women than men satisfy the contribution conditions for incapacity benefit or, formerly, sickness benefit.  However, If that assertion is correct, the fact that fewer women than men will qualify for contributory benefits is simply the inevitable consequence of having a contributory system of benefits.  Unless a general attack is made on the contributory system on the grounds of discrimination, the difference in treatment so far as benefit entitlement is concerned is obviously justified.  (To the extent that any difference is due to the transitional protection of the former right of married women and widows to pay reduced contributions, there is no unfairness because the choice to pay the reduced contribution was a matter for each woman.)  Mr Robinson recognised these difficulties and in the end did not attempt a general challenge to the contribution conditions of incapacity benefit or attempt to explain on what basis I could consider such a challenge under the Human Rights Act 1998.  Instead, he relied wholly on the second strand of the argument and the decision of the European Court of Human Rights in Asmundsson v Iceland (Application no. 90669/00).  He submitted that, until regulation 21 of the 1995 Regulations came into force, the claimant had had a legitimate expectation that she would continue to be entitled to incapacity benefit whether or not the incapacity remained due to an industrial accident.  Applying regulation 21 was, he submitted, therefore impermissible.  However, this submission was based on Mr Robinson’s erroneous understanding that continued entitlement to invalidity benefit would not have been subject to a condition equivalent to that imposed by regulation 21.  Faced with regulation 32 of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983 (S.I. 1983/1598), Mr Robinson abandoned that submission.  I am satisfied that the claimant can derive no assistance in these proceedings from the European Convention on Human Rights.

5.	The second ground of appeal was that the tribunal had given inadequate reasons for preferring the opinion of two examining medical practitioners to the effect that the incapacity was no longer attributable to the industrial accident to the opinions of the claimant’s general practitioner and a physiotherapist.  The tribunal said –

“The appellant had a 2 year award of Industrial Injuries Disablement Benefit at 10% (ie the average) and the appellant did not appeal the expiration of the award to a Medical Appeal Tribunal or contest the level at 10%.  This is suggestive that the symptoms had stabilised in 1995.  There is no referral to a Rheumatologist or an Orthopaedic Surgeon, no X-rays nor MRI scan.  The appellant has been treated with low grade analgesics and physiotherapy only.  The medical findings on 27 September 1995 suggest back pain and spasm but no abnormality of reflexes or loss as would occur with a prolapsed disc impinging on a nerve root.

The 2005 medical findings are fairly similar to those in 1995.  the appellant was later referred to a Physiotherapist who ‘examined’ her and gave the opinion that she was ‘likely to have sustained a prolapsed intervertebral disc’ (possibly at the time of the injury) and was now likely to present with disc disease.

The overall impression to the Tribunal is that the appellant suffers multi level degeneration, ie constitutional and age related back problems in accordance with the opinion of the two medical examiners.  The Tribunal prefers the evidence of the medical examiners on this point because of their skill and expertise in carrying out such examinations and in particular because they were considering the specific point raised in this appeal.”

6.	Mr Robinson focused his criticism on the last sentence of those reasons, arguing that a physiotherapist is skilled in assessing injuries.  Mr James conceded that that last sentence was somewhat formulaic but submitted that nonetheless it was a proper and adequate reason.

7.	The tribunal did not mention the general practitioner at all but, in relation to the letter dated 26 January 2006 upon which Mr Robinson relied, it seems to me that that is because the general practitioner did not express an opinion on this issue.  The general practitioner merely said –

“I can confirm that [the claimant] suffers from longstanding back pain which she dates to a back injury in May 1993”. 

At best that can be said to be an acceptance that the claimant’s view that her problems dated from her accident could, in the doctor’s view, have been correct.  It does not amount to an endorsement of the claimant’s view or an acceptance of any causative link between her current condition and the accident.

8.	The physiotherapist, on the other hand, did expressly agree with a suggestion that the industrial accident in 1993 contributed to the claimant’s back problems.  She gave the following reason –

“From history.  [The claimant] is likely to have sustained a prolapsed intervertebral disc (poss L5/S1) at the time of the injury.  Now, likely to present with degen, disc disease.”

9.	In my judgment, in relation to that evidence, there is some force in Mr Robinson’s criticism of the last sentence of the tribunal’s reasoning set out above.  The tribunal was simply wrong to imply that the physiotherapist had not been addressing the specific point raised on the appeal and, although the examining medical practitioners may have been better qualified than the physiotherapist, it would not be right to suggest that the physiotherapist had no relevant skill or expertise.  Moreover, it is also noteworthy that, in a Med 4 dated 26 April 2005, the claimant’s general practitioner had expressed the view that the claimant’s back pain and restricted function was “probably emanating from industrial accident 10 yrs ago”.  No mention was made of that by the tribunal.

10.	However, there were good reasons for adopting the views of the examining medical practitioners.  The physiotherapist did not explain why she considered the claimant to have suffered a prolapsed disc, other than to refer to the “history”.   The general practitioner also did not give a reason for the view expressed in the Med 4.  It may, perhaps, be presumed in both cases that the aspect of the history they considered significant was that the industrial accident marked the beginning of the claimant’s problems.  The examining medical practitioners also relied upon the history, but both made the point that the original accident had been of a very minor nature.  The first, writing on 21 March 2005, said –

“It is hard to imagine that the forces involved in the accident of 21 May 1993 could have been sufficient to cause the back problems as evidenced today.  It is therefore likely that there is [sic] underlying degenerative changes that now result in the back problems.  I would estimate that the effects of the index accident will have resolved completely within two years from the date of the accident.”

On form IB 62(B), he said –

“Index accident has been trigger of pre-existing degenerative changes.  Effects of index accident will have resolved within 2 years.  Present disability due wholly to degenerative changes.”

The second examining medical practitioner said –

“The accident was very minor.  She bent to use the oven and her back clicked. …  The clinical picture is one of mild mechanical back pain due to degenerative disease of the lumbar spine.”

It can be said that, on the tribunal’s findings, that doctor underestimated the extent of the claimant’s current disablement, but that does not seem to me to undermine the weight he placed on the original accident being minor.

11.	The tribunal plainly took a similar view as to the importance of the scale of the industrial accident, explaining in the first paragraph set out above why it did not consider the result of the industrial accident to have been as serious as a prolapsed disc impinging on a nerve root.  It found, in effect, that the accident prompted the first sign of the degenerative disc disease but that the claimant would have been as disabled as she was in 2005 as a result of that disease even if the accident had never occurred.  It was entitled to that view.  Moreover, if the sentence that Mr Robinson criticises were removed, the remaining reasons would amount to a perfectly adequate explanation for agreeing with the examining medical practitioners and, by implication, not agreeing with the general practitioner and the physiotherapist.  Where no reasons are given for an opinion, it is difficult to give reasons for not accepting it except in the form of an explanation for taking a different view.  That is what was done here.

12.	In my judgment, the criticism that may be made of the one sentence of the tribunal’s reasoning does not undermine the rest of the reasoning.  Taken as a whole, the statement of reasons was not inadequate.

13.	I am satisfied that the tribunal’s decision is not erroneous in point of law.  This decision may, nonetheless, stand as a warning to tribunals that the use of formulaic reasons may give rise to grounds of appeal rather than remove them.

MARK ROWLAND
27 March 2009