Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 10 June
2010 at Durham under reference 225/09/01716) involved the making of an error in
point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the
Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the
tribunal for rehearing by a differently constituted panel.
DIRECTIONS:
A.
The tribunal must undertake a complete reconsideration of the issues
that are raised by the appeal and, subject to the tribunal’s discretion under
section 12(8)(a) of the Social Security Act 1998, any other issues that merit
consideration.
B.
In particular, the tribunal must investigate and decide the claimant’s
entitlement to disability living allowance on her claim that was made on 7 May
2009.
C.
In doing so, the tribunal must not take account of circumstances that
were not obtaining during the period from the date of claim to the date of the
decision under appeal (21 July 2009): see section 12(8)(b) of the Social
Security Act 1998. Later evidence is admissible, provided that it relates to
the time of the decision: R(DLA) 2 and 3/01.
Reasons
for Decision
A.
why this case is important
1.
This case is important because it raises the issue of inferences that
may be drawn from a GP’s evidence and the adequacy of the reasons required to
explain those inferences. The issue is important for at least two reasons: it
regularly arises and it involves fundamental issues about effective access to
the appeal process and equality between the parties.
B.
History
2.
The claimant applied for a disability living allowance by submitting a
claim pack, which was received on 7 May 2009. She set out her medical
conditions: arthritis of the hands, knees, hips, thumbs and neck; high blood
pressure; underactive thyroid; curvature of the spine; liver problems; asthma;
and excess acid. She identified problems with mobility, self-care by day, and
cooking.
3.
The decision-maker obtained a medical report from the claimant’s
practice, which I call the first report. It was written on 15 June 2009 and the
patient had last been seen on 12 June. The doctor listed the claimant’s
diagnoses: multiple joint pains; arthritis of the hip; hallux valgus of both
big toes; degenerative changes in neck. The joint pains were rated as moderate
to severe, but the doctor was unable to comment on any variation or self-care.
On mobility, the doctor wrote: ‘can attend appointments.’
4.
That report confirmed the existence of the claimant’s disabling medical
conditions and gave any indication of their severity, but it was not helpful on
the nature and extent of the claimant’s disabilities. That probably explains
why the decision-maker referred the claimant for interview and examination by
an examining medical practitioner. On examination, the doctor found at worst
only slight impairment of the claimant’s joints and spine. In the doctor’s
opinion, the claimant’s mobility was limited but not significantly in terms of
disability living allowance, and she had no problems with self-care or cooking.
5.
On 21 July 2009, the decision-maker refused the claim. The claimant
exercised her right of appeal on the ground that the ‘full extent of my
disabilities have not been appreciated.’ She was assisted on her appeal by a
Welfare Rights Officer, who wrote a detailed letter to the claimant’s practice
asking for information on specific disabilities relevant to her claim. The
reply came from a different doctor in the practice and was written in the form
of a letter. I call this the second report:
‘Over the last few years [the
claimant] has developed increasing problems with Osteoarthritis particularly
affecting her thumbs, hands and wrists, both feet with pronounced hallux valgus
and Osteoarthritis of her fore feet and also with degenerative changes in her
lumbar spine and neck. Her mobility has gradually become worse and she has
found it difficult to weight bear. This was the situation when I last saw her
on the 3rd September 2009 and I do not anticipate that things would
have changed much since then. At that time she was also finding it very
difficult to grip and to perform fine manipulative tasks. I would anticipate
that she would find it very difficult to cook a main meal and do all the tasks
which you describe in your letter concerning food preparation and cooking up
food. I did not talk to her about help needed in dressing, bathing and getting
in and out of bed but would anticipate that she would need help with these
activities. Her degenerative problems are not likely to substantially improve in
the future and could become worse. She also suffers from chronic asthma,
hypertension, type 2 diabetes mellitus, and a previous history of depression.’
6.
The claimant attended the hearing of her appeal, accompanied by her
representative, and gave detailed evidence. At the end of the hearing, the
tribunal dismissed her appeal. The presiding judge provided three closely typed
pages of reasons to explain the tribunal’s decision. The tribunal relied on the
report of the examining medical practitioner. What concerns me is the way the
tribunal dealt with the evidence from the claimant’s GPs. The judge gave a fair
summary of that evidence. She then said of the doctor who wrote the second
report:
‘7. … he had not carried out
a specific examination and it appeared that he had formed his view on the basis
of information provided by the appellant. The earlier GP report which was
unable to provide any specific information appears to suggest that the medical
records did not contain any historic information in relation to the appellant’s
physical limitation. Neither document gave any indications to the appellant’s
walking ability.’
Later the judge wrote:
‘14. The Tribunal did not find
the appellant’s General Practitioner’s evidence particularly helpful as it was
vague in the first instance and thereafter apparently based on information
provided by the appellant rather than on any detailed clinical examination.’
7.
The First-tier Tribunal refused permission to appeal to the Upper
Tribunal, but I gave permission saying that the following points arose from paragraph
7 of the tribunal’s reasons, which I have just quoted:
·
The GP’s letter specifically refers to a consultation on 3
September 2009, which was three months after the other GP’s report. The notes
may by then have contained historic information.
·
Even if they did not, a GP may have a personal recollection of a
patient that is not recorded. That is especially so if the claimant’s condition
is of longstanding, as were the problems with the claimant’s feet.
·
The reference in the letter to difficulties in weight bearing is
surely an indication of the claimant’s walking ability, albeit not a specific
time or distance.
·
What sort of examination might the GP have undertaken to discover
her difficulties with mobility and weight bearing? Some matters can only come
from a patient. After all, is not a patient’s history a significant element in
diagnosis? Should any diagnosis that is substantially based on history be
discounted? Discounting evidence on the ground that it ultimately came from the
claimant seems to prove too much.
C.
analysis
8.
I begin by picking apart the tribunal’s approach to the two reports from
the claimant’s GPs. It is in one sense unfair to subject a tribunal’s reasons
to minute analysis; they are written, and must fairly be read as, a whole.
However, it is useful to look at the judge’s wording as the only indication of
the tribunal’s reasoning. She made four comments in paragraph 7.
First: the doctor who wrote the second report ‘had not carried
out a specific examination’.
9.
If this means an examination specifically directed to the requirements
for disability living allowance, this is correct. However, the doctor had
examined the patient and had available the claimant’s full records. They would
include all consultations, records of examinations, reports of x-rays and scan,
and reports by Consultants that would include their own clinical findings. That
is by far a greater body of evidence, accumulated over time, than is available
to an examining medical practitioner.
10.
If this means that the GP did not undertake an examination that was
specifically directed to the requirements of disability living allowance, this
is again correct. However, GPs are not trained to make the sort of assessments
contained in an examining medical practitioner’s report. Any attempt to do so
would be unlikely to command much respect from a tribunal.
Second: ‘it appeared that [the doctor who wrote the second
report] had formed his view on the basis of information provided by the
appellant.’
11.
If this means that the doctor merely acted as a cipher for what the
claimant said, it is wrong. The doctor expressly gives his own views on what he
would anticipate and does so on some matters that he had not discussed with the
claimant.
12.
If this means that the doctor’s evidence is in some way unreliable
because it has taken account of the claimant’s own account, it is also wrong. In
assessing disablement, all doctors should take account of information provided
by the claimant. There is no precise formula by which disability can be equated
to particular clinical findings or appearances on x-rays and scans. Examining
medical practitioners interview claimants and take what they say into account,
but their evidence is (rightly) not discounted for doing so.
Third: ‘The earlier GP report which was unable to provide
any specific information appears to suggest that the medical records did not
contain any historic information in relation to the appellant’s physical
limitation.’
13.
It is correct that the first report did not provide this information. The
tribunal inferred that the GP was unable to provide information because it was
not in the records. That is not a necessary inference. There may be many
reasons why a GP does not include information in a report. Some GPs resent being
required to provide these reports. Others give them little attention, perhaps
because of pressure of other duties. Yet others may simply not understand the
nature of what is required. The questions asked in the reports give little
guidance and GPs lack the training of examining medical practitioners. The
space provided for the disablement questions is smaller than that provided for
the medical questions (diagnosis, history, variation, clinical findings and
treatment). That sends a message about the focus of the information that the
doctor is expected to provide and limits what the doctor has space to say
anyway.
Fourth: ‘Neither document gave any indications to the
appellant’s walking ability.’
14.
This is correct of the first report. It is also correct for the second
report in that the doctor did not specify any particular distance, time, manner
or distance for the claimant’s walking. However, the doctor did refer to
difficulties in weight bearing, which is surely relevant to mobility. Moreover,
GPs are not generally experienced in estimating distances, so any precise
indication on that matter would not be of much value as evidence.
The reasons as a whole
15.
I said that it was unfair to take a tribunal’s reasons apart in this
way, so I must now take my own advice and consider the tribunal’s reasons as a
whole. Essentially, what the judge was doing in the sentences I have dissected
was to draw attention to the limitations of the GPs’ reports. This is often the
difficulty that tribunals face: the reports provided by GPs are limited in the
relevant information that they provide. That is not a criticism of GPs. It is
simply a fact of life, even for diligent GPs, that they either do not have the
information required or they have it but do not realise its relevance. Nevertheless,
reports such as the ones provided in this case are often the only sort of
evidence that is available or attainable from a claimant’s medical advisers. In
that respect, they do not compare favourably with the reports of examining
medical practitioners. That does not mean that they are valueless. Claimants
are at a disadvantage compared to the Secretary of State when it comes to
obtaining evidence in the form that will be of most value to the tribunal. nevertheless,
they have a statutory right of appeal and that right must be made effective.
All too often, judges present the tribunal’s reasons as if the tribunal had a
choice between accepting the evidence of the GP or of the examining medical
practitioner. There may be cases where that is so, but in many cases the
reports each have their strengths and each their limitations as an assessment
of the claimant’s disablement. In those cases, what a proper analysis usually
requires is for the tribunal to show a balance between the value that can be
distilled from each report and its limitations.
Conclusion
16.
For the above reason, the tribunal’s reasons were inadequate. They
treated the evidence from the GPs as in conflict with the examining medical
practitioner’s evidence, rather than analysing them as a whole.
D.
The effect of my decision
17.
As the tribunal’s reasons are inadequate, its decision was made in error
of law and I set it aside. There will be a rehearing before a different panel.
As my decision is concerned with the process of the tribunal’s reasoning, it
does not imply that the tribunal must have come to the wrong decision on the
claimant’s entitlement to disability living allowance.
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Signed on original
on 5 May 2011
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Edward Jacobs
Upper Tribunal Judge
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