[2008] UKSSCSC CIB_1006_2008 (12 June 2008)
CIB 1006 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision.  

2	The claimant and appellant (“S”) is appealing with my permission against the decision of the Enfield tribunal on 11 07 2007 under reference 249 07 00969.  
  
3	DIRECTIONS FOR REHEARING

A	The rehearing will be at an oral hearing. 
B	The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.
C	The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal. 
D	The claimant does not have a representative, and is advised to seek the help of a Citizens Advice Bureau, welfare rights office, solicitor or other expert adviser with the rehearing of this appeal.
E	If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision. If the claimant wishes to put in further evidence from his general practitioner, then either he should ask for help from an adviser in obtaining it, or he should show a copy of this decision and the mental health descriptors in issue to the general practitioner and ask for that evidence to be sent to the tribunal within a month of the issue of this decision.  

These directions are subject to any later direction by a district chairman. 

REASONS FOR THE DECISION 

The decision under appeal
4	S appealed against a decision superseding his “incapacity credits”. I assume that means in practice a decision ending entitlement to income support. It involved a personal capability assessment that, it is common ground, involves only mental health descriptors.

5	The tribunal held a paper hearing, so had only documentary evidence before it. Evidence included S’s replies to the standard questions on form IB50 and a general practitioner’s report. It also included medical reports in the standard electronic IB85 form completed on 25 01 2007 and on 18 04 2005. The evidence also included, unusually, S’s own assessment of the mental health descriptors that applied to him, with comments about the approved doctor’s views on those descriptors. S also included part of a phone bill, as noted below. 

Approved doctors and medical advisers
6	The tribunal’s statement of reasons repeatedly uses the wrong terms when describing those who gave the medical reports.  The doctors who complete IB85 forms are approved doctors (and, now, approved disability analysts). I assume that the tribunal is referring to them when referring to “medical advisers”. There are no reports of medical advisers (those who give advice to decision makers on the papers) in the papers. The tribunal also refers to EMP reports, but there are none in the papers. (Examining Medical Practitioners prepare reports for disability living allowance decisions). I assume its reference in its reasons to “two reports by medical advisers” and “two reports by EMPs” are duplicative references to the two IB85 reports. That leaves the tribunal’s generalised comments about “medical advisers” being trained in assessing incapacity “based on information … on observation and on a clinical examination” looking out of place. 

Weighing the evidence
7	The tribunal took a generalised approach to the evidence before it. It first indicated that it preferred the evidence of the doctor preparing the 2007 IB85 to that of S. In taking this view, the tribunal ignored the specific complaints made by S about the conduct of the 2007 IB85 examination. It preferred the doctor’s evidence by reference to its inappropriate standard wording about medical advisers. It then stated that it preferred the 2007 IB85 report to the 2005 IB85 report. This was because “the first medical adviser had predicted an improvement, and this appears to have taken place”.  It made no specific findings of fact about the individual mental health descriptors put specifically in issue by S. Had it done so, it would have noted both that S did not contend that he satisfied all the descriptors, and the 2007 IB85 report accepted that some were satisfied.  

8	Even leaving aside S’s specific points, this approach is not an adequate explanation of the tribunal’s decision. The tribunal had four strands of evidence: that from S, the two IB85 reports, and the general practitioner report. It took the approach of evaluating the status of the evidence givers, rather than weighing the evidence itself.  

9	This is of particular relevance to two descriptors. Was mental stress a factor in the claimant giving up work? Did the claimant’s mental conditions prevent him undertaking leisure activities previously enjoyed? Both were found to be relevant factors in 2005, with relevant evidence to support the findings. The 2007 report finds them not present. 

10	With regard to mental stress being a factor (emboldening mine) in making the appellant stop work, the fact that “the main reason for leaving work was being sacked” (the reason given in 2007) is not an answer to the question. Why, to use the inappropriate term used, was the appellant sacked? In 2005 the report states that depression was a factor. That remains relevant evidence in 2007. The tribunal’s reasons for preferring the 2007 report to the 2005 report are irrelevant to this point, and its approach is therefore wrong in law. A similar analysis can be applied to the comments in 2005 and 2007 about leisure activities previously enjoyed (emboldening mine). On normal principles of evidence, the 2005 report should be preferred to the 2007 report on both these issues unless there is other relevant evidence also to be considered. Further, the claimant stated in evidence that he was not asked in 2007 about either of these points. 

11	On the evidence before the tribunal, as against assertion, the tribunal had evidence to award points for these activities. That is important because the 2007 Report found four other mental health descriptors to be satisfied, although again the tribunal did not comment specifically on any of them. More generally, this undermines the general reasoning of the tribunal and exposes its failure to make specific findings.

12	Commissioners have repeatedly told tribunals that they must look at specific mental health descriptors when they are put in issue, and that they must weigh all the evidence about those descriptors in coming to their conclusions. This tribunal failed to do either.
 
How long did the 2007 examination take?
13	I also draw attention to another aspect of the 2007 IB85 report directly put in issue by S in the grounds of appeal to the tribunal but ignored by the tribunal. The electronic IB 85 completed on 25 01 2007 by the approved doctor gives the following timings:

		Time examination and interview started:		13:20
		Time examination and interview ended: 		13:38
		Time report completed:				13:45

14	S gave evidence that the 2007 examination lasted less than 15 minutes. And he gave evidence that the doctor did not ask him most of the questions on which the doctor gave an opinion. He also produced independent evidence that the examination ended not later than 13:35, and not at 13.38 as stated on the form. His evidence is a mobile phone bill from the service provider showing a telephone call at 13:35 on that day. S’s evidence is that he used that telephone (which belongs to his mother) to phone his mother after leaving the examination room. S commented expressly that this called into question the timings on the IB85 and the length of time spent by the doctor in examining him and therefore the value of the doctor’s evidence. 

15	I must record concern both about this evidence and that the tribunal ignored it. I assume, in making these comments, that the time shown on a mobile phone bill is probably an accurate statement of the time that a telephone call was started. If that is so, then one of the times stated on the front of this IB 85 is wrong, and so is the implied length of examination. This is because, if the phone bill is correct, the examination must have ended at least 3 minutes before the time stated on the IB85. Even on that evidence, and leaving aside the evidence of S himself, the IB85 does not record the actual time of the examination. 

16	I had understood that approved doctors cannot themselves alter the times set by the computers used to generate IB85 reports. If that is so, then the error must have been generated either by the software driving production of the IB85 report or by the operation of that computer itself. On either ground, this error in the way the IB85 report was generated raises the question whether there are other errors in the report. And it is directly relevant to the weight to be put on the report as evidence. Both form grounds of appeal. The report timings were specifically put in issue. They cannot be dismissed for any of the reasons stated by the tribunal. The tribunal should have made findings about them or adjourned for an oral hearing or further evidence (perhaps taking up S’s offer of evidence from his general practitioner). 

17	For all these reasons, the tribunal decision must be set aside and the appeal reheard. 

									David Williams
									Commissioner 
									 12 06 2008

[signed on the original on the date shown]