IN THE
UPPER TRIBUNAL Appeal No. CI/2360/2013
ADMINISTRATIVE
APPEALS CHAMBER
Before:
Upper Tribunal Judge PA Gray
The decision
of the Upper Tribunal is to dismiss the appeal.
Under section
12(2)(a) of the Tribunals Courts and Enforcement Act 2007 if I find that the
making of a decision involved the making of an error on a point of law I
may, but need not, set aside the decision of the First-tier Tribunal.
The decision
of the Fox Court Tribunal made on 22 May 2012 under number SC 052/11/00975 involves
an error on a point of law, however I decline to interfere with the decision
and it stands.
REASONS FOR DECISION
The background and the original
decision
- This
appeal to the Upper Tribunal arose from a decision made by the First-Tier
Tribunal (FTT) which was considering a decision of the Secretary of State
made on 5 July 2010 that the appellant was not entitled to a declaration
that on or about 22/09/09 he sustained an industrial accident.
- The
appellant, who is an accountant, had been working for BT as a home
worker. He suffered a stress-related illness in or about 2008, during
which he took time off work. Whilst he considered that to be to a certain
extent work related, it is clear from his account that he also blamed the
breakdown of his marriage, his wife having left him, taking the children.
- In
the summer of 2009 he went to India on holiday. Leaving aside contested
matters as to the quality of that holiday, it was clearly stressful in
that his passport went missing, and he had to remain there whilst a
substitute was obtained. He worked out there in what he considers to be
less than satisfactory circumstances pending his delayed return, a local
BT office having provided him with a laptop.
- On
his return to the UK his case was that he suffered significant chest pain
whilst working at his computer on 22/09/09. His case has been that he
suffered chest pain, and considers that he had a heart attack, which he
relates to the stress of his work, and to incidents on 21 and 22 September
2009 which he says amount to bullying or harassment.
- The
respondent, having taken medical advice, came to the view that there was
evidence that the chest pains were more likely to have been
constitutionally caused or process driven, or a combination of the two,
than related to any specific incident or incidents that could be classed
as an accident. Accordingly they found that an industrial accident had not
occurred. An appeal to the FTT followed.
The appeal to the FTT
- The
matter was heard on 22 May 2012 by a tribunal comprising a judge and a
specialist medical member. The appellant attended and was represented. The
tribunal confirmed the decision that no industrial accident had been
established. Following the unsuccessful appeal the appellant through his
representative sought a statement of reasons. He subsequently asked for
permission to appeal.
- Permission
to appeal to the Upper Tribunal was granted by the District Tribunal
Judge. This was on the basis that it was appropriate for the Upper
Tribunal to consider the representations that the FTT had not provided a
sufficient statement of facts and reasons, and had raised arguments as to
the credibility findings and the procedure.
The appeal to the Upper Tribunal
- I
gave directions for the filing of submissions, and they are now to hand.
- The
Secretary of State does not support the appeal. No party has asked for an
oral hearing, and I am able to determine the matter fairly on the papers.
The appellant’s case
- The
initial grounds of appeal were that the FTT had misconstrued the law,
failed to make adequate findings of fact, and failed to give adequate
reasons. Specific criticism has been levelled at remarks made as to the
lack of medical qualifications by the person making the decision in
respect of the acceptance of an incident on 22/9/2009. The legal misconstruction
is said to be a misunderstanding or misstating of the law in relation to
what might constitute an industrial accident. Considerable weight is
placed upon the fact that the Secretary of State’s medical adviser had
accepted that an incident took place. The implication is that this
evidence amounts to an acceptance of the causal link of the injury. There
are also procedural issues raised in relation to the adequacy of the record
of proceedings, and the relevance of the appellant’s grievance process
against his employer having not been upheld. The manner of questioning of
the appellant was also criticised.
The position of the Secretary of State
- The
submission of the Secretary of State is not generally supportive of the
matters put forward as errors of law. The tenor of the argument is that
there is sufficient detail in the decision to support a finding that there
was not an industrial accident on the stated date, that is to say,
confirming that the appellant’s chest pains were not directly related to
an incident in the course of his work. The submission writer deals with a
specific point made by the appellant’s representative as to the
observation of the FTT that the decision maker who stated at page 83 of
the papers that the appellant had “suffered a pathological change” was not
medically qualified, and they therefore did not rely on it, accepting that
this was inaccurate in that the reconsideration decision (made by a
decision maker who would not have been medically qualified) had been
based upon comments made on page 83 by someone who was in fact a
qualified medical practitioner. I will deal with that matter below.
The procedural issues
- I
deal initially with the procedural defect alleged in respect of the record
of proceedings.
- The
proceedings were recorded, and the recording was later made available to
the appellant’s representative. It seems to me probable that what is put
forward as an error of process, namely the inadequacy of the record of
proceedings, was based upon the practice of making a written record of
proceedings when there is no recording equipment. Where a hearing is
recorded the recording becomes the record, and any paper notes will merely
be for the convenience of a later listener to the recording, for example
the time may be stated at which evidence upon a particular topic began,
but the evidence need not be written down. The note may be of assistance
to the judge in compiling a statement of reasons, particularly in relation
to navigating to specific parts of the recording. There can be no
criticism that a written document is inadequate where the recording is the
record of proceedings. In that event any written document is merely part
of the judge’s own note, and as such does not form part of the record of
proceedings and, like other personal notes made by a judge or tribunal
member is not disclosable in any circumstances. (see the recent decision
of the Administrative Court, comprising LJ Thomas (as he then was) and Mr
Justice Cranston in McIntyre -v- Parole Board, [2013] EWHC 1969 (Admin).
- Criticism
is made of the use by the tribunal of the evidence as to the appellant’s
grievance under his work procedures.
- There
is no suggestion that the tribunal felt itself to be bound by the
conclusions of the grievance investigation. Rather, the description there
of the contents of the e-mail that had been the subject of the appellant’s
complaint, which was a round robin rather than an e-mail directed to the
appellant, and the lack of evidence as to the telephone call that the
appellant said had affected him badly, which was a matter that he had been
inconsistent about whilst giving evidence, clearly had some evidential
value. Evaluation of evidence is, of course, a matter for the tribunal,
and a tribunal is permitted a wide range of discretion in relation to
that. Only if the use of the evidence or the weight apparently attached
to it can be said to be unreasonable should an appellate body interfere.
That is not the position here.
- There
is no other matter which could be described as a procedural error which I
can identify. Direct, even robust questioning is to be expected by an
inquisitorial tribunal, perhaps in particular one which must decide on
questions of attribution as in this case.
The adequacy of the facts found and
the explanation
- I
do not read the statement of reasons supplied by the judge as supporting
the various criticisms levelled at the legal basis for the decision.
- The
Secretary of State in the decision refusing to certify an industrial
accident had accepted that on 22 September 2009 the appellant suffered
chest pains whilst working at his computer whilst an employed earner. The
refusal was on the basis that there were various ongoing problems which
made it more likely that any chest pains were the result of process, and
not the result of an accident. That is set out clearly at paragraph 12 of
the initial response to the FTT.
- I
turn to the clear factual error made by the FTT in relation to the status
of the opinion upon which the original decision had been based. The note
in question at page 83 was written in response to the referral at page
77. The decision under appeal was being subjected to the usual process of
“reconsideration”. In this case the decision maker who was looking again
at the decision wanted the benefit of medical advice. That advice read “I
have reviewed the evidence on file. On balance of probability although
customers suffered pathological change on 22/9/09 following heavy work
schedule, that was not directly related to work. There was no direct
causal relation.”
- It
seems to me that the issue for the FTT was not merely whether pathological
change had occurred, but rather if it had, was it related to an accident,
as opposed to process. Due to that distinction the opinion of that
medical practitioner that there had been a pathological change although
pertinent, was not outcome determinative. Had the opinion been that there
was no pathological change, one could have adopted it as a determinative
finding; the opinion in fact given merely identified or accepted that
something had occurred, but it did not go to the central issue which then
arose in the light of that opinion which was whether what had caused that
change had been an accident.
- The
FTT stated that rather than rely on that opinion (which they had
erroneously ascribed to a non-medical person) they would rely on the views
of two cardiologists who had treated the appellant. This was clearly
opinion evidence of some calibre, and they were entitled to rely upon it
in preference to the advice given to the respondent even had they known
that it came from a medical source. The evidence of the cardiologists called
into question whether the appellant had suffered a heart attack as he
claimed. The clinical evidence was that heart damage, if any, was
extremely limited, could not be related to a coronary incident, and that
the appellant’s stated symptoms were out of step with what might be
expected from chest pain not caused by a coronary event. That evidence of
itself could be interpreted as militating against the finding of the
decision maker that the appellant did suffer significant chest pain on 22
September 2009 whilst in the course of his employment , and the tribunal
interpreting it in that way is not outside what is permissible; indeed it
is the finding of an expert tribunal on a medical matter with which I
would be reluctant to take issue . The tribunal was not bound to come to
the conclusion that the appellant had in fact suffered chest pain which
then continued despite being non-organic. That is perhaps better put as
saying that they did not need to accept the existence of a psychological
disorder which was being put forward by the representative. In support of
that finding they made the point that no mental health disorder had been
diagnosed.
- To
place what I said previously about the evidence as to the grievance in
context, the FTT was entitled to make use of the report as to the
grievance procedure to the extent that it felt it relevant. The report
was pertinent as to the assessment of the likelihood of the incidents
complaint about by the appellant having either occurred, or resulted in an
“accident”. These were the alleged telephone call from his immediate
superior and an e-mail requiring that certain matters be given urgent
attention to avoid escalation.
- As
the FTT did not accept the incident as related by the appellant, for the
reasons they gave, put shortly that he was a poor historian being
inconsistent as to important events, they did not specifically need to
deal with what the writer of the response felt was the central issue in
the case, which was whether the chest pains were caused by accident or
process. In those circumstances I do not need to set out or consider the
accident versus process argument and case law. The decision of the FTT
that there had not been an event is sustainable.
Why I am not setting aside the
decision of the FTT
- The
conclusions of the decision maker had the same outcome, but differed as to
the reasons, the view being that there had been chest pain but it was not
the result of an identifiable accident. The conclusions of the FTT were
therefore less personally favourable to the appellant than had been the
conclusions of the decision maker in that they brought his credibility
into account, but they were open to the FTT on the evidence in front of
them. They are not outside the range of facts and conclusions available on
the evidence.
- Even
if the more generous approach of the Secretary of State had been adopted,
there seems to me to be scant evidence to link the chest pain with either
one or a combination of both of the stated events given the substantial
evidence as to significant prior stress which had at its root cause
matters unrelated to the work environment, and the recent stressors on the
appellant for other reasons in respect of the holiday to India, not least
surrounding his delayed return due to the missing passport.
- I
agree with the Secretary of State that although there has been an error of
fact in relation to the treatment of the medical opinion which could
amount to an error of law, it is not in the event a material error that
has affected the outcome. Accordingly I confirm the decision under appeal.
Paula Gray
Judge of the Upper Tribunal
Signed on the original on 8
July 2014
