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 incapacity.”

11.		The letter does not specify which “of these disabilities or illnesses” applies, but presumably this letter was prompted by an official in the Department deciding that one of the conditions set out in regulation 10(2) of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311) was present.  That decision was presumably taken on the basis of some sort of medical evidence or at least medical advice.  It may have been based in part on a questionnaire completed by the appellant’s GP, apparently at the request of her solicitors, which described her conditions as “(1) polysymptomatic; (2) iron deficiency anaemia; (3) dyspepsia”, although it is not immediately obvious how that report alone could support a determination under regulation 10(2).

The disability living allowance claim

12.		The appellant asked for a disability living allowance (DLA) claim on 26 November 2008 but did not return it until 19 February 2009, just after she had received the Jobcentreplus letter (which she referred to in the DLA claim form).  The date of receipt, and date of claim, was 21 February 20009.

13.		A decision maker concluded on 26 March 2009 that the appellant was entitled to neither the care nor the mobility component of DLA.  The appellant lodged an appeal through her solicitors. The refusal to award DLA was maintained following a reconsideration in May 2009.  The solicitors forwarded a written submission arguing that the appellant was entitled to the middle rate of the care component (or, failing that, the lowest rate of care) and the lower rate of the mobility component of DLA.

The First-tier Tribunal’s decision

14.		The First-tier Tribunal heard the appellant’s appeal on 11 September 2009.  The appellant attended with her father.  There was also an interpreter, although he appears to have been present largely for the father’s benefit.  The tribunal dismissed the appeal.

15.		The First-tier Tribunal did not make detailed findings of fact about the appellant’s care and mobility needs.  I do not criticise them for that, for the simple reason that the tribunal made it very clear that they simply did not believe the appellant’s account of her symptoms.  In summary, the tribunal concluded that “the appellant has failed to convince us that probably she had any of the debilities described”.

16.		At paragraph 3 of its Statement of Reasons, the First-tier Tribunal gave the following detailed reasons for rejecting the appellant’s account (these factors were listed as bullet points, but are numbered here for ease of reference):

	“(i)	Her attribution of the symptoms and their incidence was that they occurred from her exposure to toxins work between January 2007 and March 2008 after which she was made redundant.  Despite extensive toxicology investigations, no connection has been made between any toxic substances and her symptoms.  We relied on the report of [the toxicologist] which we accept.
	(ii)	The symptoms did not subside after she stopped work;
	(iii)	No known other employee has so suffered;
	(iv)	There is no physical pathology identified in the medical evidence to account for her symptoms;
	(v)	The appellant has no diagnosed mental condition save for a level of anxiety.  [Her GP] accepts this by accepting an account of panic attacks at night but we do not find the appellant credible and therefore to formulate a conclusion based on the truth of an account from the appellant is not sound;
	(vi)	In particular, there is no diagnosis of a somatoform, Munchausen’s Syndrome hysteria or other similar syndrome that could explain otherwise bizarre symptoms that called for doubt.  Again, a diagnosis is not necessary but its absence in any cogent manner is powerful evidence that the symptoms have no medical or other basis;
	(vii)	The account of the appellant’s parents coming to the UK to ‘look after her’ one a time, 6 months at a time, was unimpressive.  The appellant had dismissed any practical arrangement of returning to her parents’ home [in Croatia].  We accept that she would need to clear Family Law considerations to move abroad with her son but not even to consider or discuss the matter with the child’s father speaks volumes as to the unreality of her approach and to cast doubt upon the truth of her symptoms;
	(viii)	The appellant was an unreliable historian.  Much of her alleged needs for care focussed on collapses.  However, when questioned as to whether a walking frame would assist her, the appellant denied collapses.  Furthermore, her account of being only able to collect her son from school with the regularity of once a week is an unlikely symptom of any of the problems asserted by the appellant.”

The challenge to the tribunal’s credibility finding

17.		Mr Martinez, the appellant’s representative, argues that the tribunal failed to explain its credibility finding adequately.  His submission is that this was not a case where the tribunal found that the claimant had been less than candid; rather, the tribunal had concluded that the entire account was fabricated (for example, the tribunal had found that the appellant’s father “was either taken in by the appellant’s presentment of symptoms or complicit in a deception”.  In those circumstances, he suggests, there is a higher burden on the tribunal to give adequate reasons as to why it was thought she was putting forward a false case.

18.		Mr Lawton, for the Secretary of State, resists this argument.  His submission is that issues of credibility are subject to one standard only, namely the balance of probabilities.  He argues that tribunals are not obliged to explain assessments of credibility in every case, and that this tribunal “has gone further than is required”.  He cites the reported decision of the Tribunal of Northern Ireland Commissioners in R3/01(IB)(T) and the decisions in CIS/4022/2007 (at paragraph 52) and Basildon District Council v AM [2009] UKUT 113 (AAC) in support of his contentions.

19.		I do not think that I can add usefully to what I said in CIS/4022/2007 at paragraph 52.  In particular, I summarised the position as best I could in these terms in part:

“… (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted.”

20.		In the context of this case, and given the medical evidence on file, the tribunal may well have been justified in approaching this appeal with a degree of scepticism.  In the particular circumstances of this case, however, some explanation as to why the appellant’s account was disbelieved was undoubtedly called for. The tribunal is therefore to be commended for spelling out in detail quite why it found the appellant’s account not to be credible.  In particular, it is difficult to see how points (i) to (iv) and (viii) can be successfully challenged on appeal to the Upper Tribunal on a point of law.  These are all quintessentially matters of fact for the First-tier Tribunal to determine.

21.		I have to admit to some doubts, however, as to the tribunal’s reliance on points (v) to (vii).  Points (v) and (vi) are both concerned with the possibility of an underlying mental health condition.  My misgivings on this issue are three-fold.

22.		First, there was evidence before the tribunal that the appellant had been seen by a psychologist in October 2008, in addition to the report that was before them from the consultant psychiatrist who had sat in on the toxicologist’s examination.  It may be that the outcome of these consultations should have been explored rather more fully.

23.	Second, there is no suggestion that the appellant had ever been referred to a specialist for consideration of the possibility that she may be experiencing some somatoform condition.  In those circumstances it is hardly surprising that no such diagnosis had been made, given the difficulties associated with making such an assessment. The appellant was, of course, adamant that she had contracted a physical condition as a result of toxic exposure at work and had denied that her underlying problems were psychological in nature. I merely observe that the World Health Organisation’s ICD-10 Classification of Mental and Behavioural Disorders describes the main feature of somatoform disorders (F.45) as the

“repeated presentation of physical symptoms, together with persistent requests for medical investigations, in spite of repeated negative findings and reassurances by doctors that the symptoms have no physical basis. If any physical disorders are present, they do not explain the nature and extent of the symptoms or the distress and preoccupation of the patient. Even when the onset and continuation of the symptoms bear a close relationship with unpleasant life events or with difficulties or conflicts, the patient usually resists attempts to discuss the possibility of psychological causation; this may even be the case in the presence of obvious depressive and anxiety symptoms. The degree of understanding, either physical or psychological, that can be achieved about the cause of the symptoms is often disappointing and frustrating for both patient and doctor.”

24.	Third, there is on the face of it at least a tension between the tribunal’s acceptance, as a matter of principle, that there is no need for a formal diagnosis to ground entitlement to DLA and its conclusion that the absence of any recognised diagnosis was a further reason why this appellant’s account was not credible.  Indeed, the medical member of the tribunal is quoted in the Record of Proceedings as having told the appellant “diagnosis is not important but how things affect you [is]”.

25.	I am also unhappy with point (vii), and in particular the tribunal’s reliance on the appellant’s unwillingness to explore a possible return to Croatia with her son.  The basis for the tribunal’s statement in this respect is unclear.  I could find no mention of this issue in the documentary evidence before the tribunal.  The only discussion at the hearing appears to have been the appellant’s comment, noted in the Record of Proceedings as follows: “My son goes to school – son is English.  He needs to learn English. For his sake I will sacrifice”.

26.	The tribunal was told that the appellant’s son was 9 at the date of the hearing. Given that the boy was a British national, and had apparently spent his whole life in England, and still had both contact with and financial support from his father, also a British national, the appellant’s refusal to contemplate or discuss returning to Croatia with him can hardly be automatically unreasonable.  In those circumstances I do not think it is enough for the tribunal simply to acknowledge the likely difficulties with the throw-away line that “she would need to clear Family Law considerations to move abroad with her son”.

27.	Ultimately, however, the evaluation and weighing of evidence is a matter for the members of the First-tier Tribunal to decide, as they are the judges of fact.  If the tribunal has taken into account irrelevant considerations, or made findings of fact in the absence of evidence, which materially affected the outcome, then that of course would give rise to an error of law.  However, in the circumstances of the present case, my misgivings about the tribunal’s reliance on points (v) to (vii) to support its adverse finding on the credibility issue need not be explored further.  The simple fact is that the tribunal gave five other reasons for disbelieving the appellant’s account which cannot be challenged in law.  Even if the tribunal did err in law in relation to any or all of points (v) to (vii), any such error was not a material error of law.  The tribunal had in any event given ample reasons to support its conclusion that it did not believe her account, and any error in relation to these other matters did not materially undermine those reasons.

The incapacity benefit issue

28.	The circumstances surrounding the appellant’s incapacity benefit claim have already been described (see paragraphs 9-11 above).  The First-tier Tribunal made no mention of this issue at all.

29.	Mr Martinez, for the appellant, argues that the decision to exempt the appellant from the personal capability assessment should have been taken into account by the tribunal as it is in complete conflict with the tribunal’s decision that the appellant has no genuine health problems.

30.	Mr Lawton, for the Secretary of State, does not directly address this issue, but argues that the tribunal was entitled to proceed as it did and in particular did not need to adjourn for the purpose of obtaining further evidence as to the appellant’s mental health.

31.	In normal circumstances, of course, the outcome of an incapacity benefit claim will have no bearing on a disability living allowance claim and vice versa.  The benefits are designed for different purposes and are subject to different eligibility conditions.  Indeed, even where the statutory language may appear at first sight to be very similar, caution is required (see for example the decision of Mr Commissioner May QC (as he then was) in CSIB/60/1996).

32.	However, that is not to say that evidence relied on in one context is necessarily irrelevant in another context.  Judge Pacey made the following helpful observations in LD v Secretary of State for Work and Pensions [2009] UKUT 208 (AAC):
“11.	I note that both the district tribunal judge, in granting permission to appeal, and the claimant’s representative have commented upon medical reports obtained in connection with one benefit (for example incapacity benefit) being used as evidence in another (for example disability living allowance).  That may happen although the fact that the relevant legislative provisions are materially different does not prevent either party to an appeal from relying upon evidence produced in connection with another benefit.  The essential questions are whether that evidence is relevant and material.  A successful claim or otherwise to one benefit is not determinative in relation to another but, depending upon the quality of that evidence and the weight to be attached to it, it may be persuasive for or against a claimant.  For example a claimant may wish to cite, as evidence in his or her favour, an incapacity benefit medical report in which the medical adviser indicated relevant functional restrictions or walking difficulties.  In such a case the medical report would be evidence before the tribunal, to be evaluated in the context of the totality of the evidence.  What the tribunal, to my mind, would be interested in in such a case would be the views of the medical adviser and the evidence (for example clinical findings and/or the claimant’s account of his or her routine daily activities) which led to the formation of those views.  The same might hold equally good for a decision maker in deciding a claim to disability living allowance by having regard to an incapacity benefit medical report.  In short there is no prohibition on the statutory adjudicating authorities having regard to evidence obtained in connection with one benefit when considering a claim to or an appeal in respect of another benefit.  Such evidence must, however, always be viewed in the context of the evidence as a whole and must be used with particular caution, bearing in mind that the legislative framework will inevitably be different.”  

33.		So the fact that the appellant was found to be exempt from the personal capability assessment for the purposes of incapacity benefit in February 2009 could certainly not determine the outcome of a claim for disability living allowance made a few days later and decided the following month.  It was, however, a potentially material consideration, and certainly the evidential basis for the application of the exemption needed to be explored. After all, the Department had written to the appellant stating that “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 incapacity.”

34.	I need not decide whether or not the tribunal should have adjourned for copies of the evidence used to make the decision exempting the appellant from the personal capability assessment.  At the very least, the tribunal should have explained why there was such a stark difference in outcomes.  On the one hand, the incapacity benefit decision maker had accepted that the claimant had a disability or severe illness that met the threshold of incapacity, without the need for a medical examination.  On the other hand, the tribunal was effectively saying that the appellant’s entire account had been fabricated.  In terms of adequacy of reasons, the tribunal’s decision therefore involves an error of law.  On that basis, and on that basis alone, I have no option but to set aside the tribunal’s decision (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).  

Other grounds of appeal

35.		The original application for permission to appeal raised a number of other issues relating to the conduct of the appeal and the quality of the interpretation provided at the hearing.  Mr Martinez does not press those points to any great extent now and in the circumstances I do not need to consider them further.

The new First-tier Tribunal

36.	Although I am setting aside the decision of the First-tier Tribunal, I must also make it clear that I am making no finding, nor indeed expressing any view, on whether or not the appellant is entitled to disability living allowance for the relevant period.  That is a matter for the good judgment of the new tribunal.  That tribunal must review all the relevant evidence and make its own findings of fact.  The previous tribunal may, or may not, have arrived at the right outcome on the facts and on the merits of the case.  The new tribunal will have to consider the matter entirely afresh.    

37.	In making its decision, the new tribunal will of course have regard to section 12(8)(b) of the Social Security Act 1998.  This states that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added).  This means that the new tribunal will have to focus on the appellant’s circumstances as at 26 March 2009, the date of the Secretary of State’s original decision, and not the position as at the date of the new hearing.

38.	I accept that it may not be easy to think back to the position over a year ago.  However, that is the requirement as laid down by statute.  If it is the appellant’s case that there has been no real change in her condition over the intervening period, then of course this may pose less of a difficulty, both for the appellant in giving evidence and for the new tribunal in assessing all the evidence.  But if there has been a change, then the tribunal will need to be very careful in considering the position as at 26 March 2009.

39.		The appellant may well have further medical evidence relating to her condition by now.  In the light of the point made above, it is important for her to understand that such evidence will only be taken into account if it sheds light on her condition as at 26 March 2009.  As Mr Commissioner Jacobs (as he then was) explained in R(DLA) 2/01 (at paragraph 9), the effect of what is now section 12(8)(b) is: 

“… to limit the evidence that is relevant to the appeal. The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction. However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given. It does not limit the tribunal to the evidence that was before the officer who made the decision. It does not limit the tribunal to evidence that was in existence at that date. If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates. If it relates to the relevant period, it is admissible. If it relates to a later time, it is not admissible.”

40.		I also specifically direct that 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 with respect to her incapacity benefit claim.  That supplementary submission should also include copies of the relevant medical or other evidence relied upon in making that decision.  This further submission should be sent to the Regional Tribunals Service office within one month of the issue of this decision.  

Conclusion

41.		I conclude therefore that the decision of the First-tier Tribunal involves an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, 

Courts and Enforcement Act 2007, section 12(2)(a)).  The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)).  My decision is also as set out above.

Signed on the original			Nicholas Wikeley
on 22 June 2010				Judge of the Upper Tribunal