IN THE UPPER TRIBUNAL                                        Appeal No.  CIB/1743/2009   
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The appeal is allowed.  The decision of the tribunal dated 17/3/09 under reference 009/09/00058 is SET ASIDE because its making involved error(s) of law. 

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1	The appellant brings this appeal with the permission of Judge Lloyd-Davies.  I heard the appeal at Leeds Combined Court Centre on 24/8/10.  The appellant represented himself and Mr S Cooper represented the Secretary of State.  I have decided that the tribunal’s decision must be set aside but hasten to add that I do not find the appellant’s submission that the tribunal was biased or admitted evidence wrongly to be established.  

2	The tribunal decided that the appellant was no longer incapable of work, and therefore no longer entitled to Incapacity Benefit, because he did not score sufficient points from the descriptors on the Personal Capability Assessment.  He scored only 8 points in respect of a hearing impairment whereas 15 points from the physical descriptors are required to pass the assessment.  

3	In his self-assessment questionnaire (IB50), the appellant indicated a number of health problems, though his main problem was impaired function of his left arm.  The descriptors he ‘ticked’ as causing him problems were sitting (2 hours), lifting and carrying (cannot lift and carry a 2.5 bag of potatoes with one hand, but can with the other) and hearing (cannot hear well enough to understand someone talking in a normal voice on a busy street).  He ticked boxes to say he had no problems with any other descriptors but he wrote in the box on incontinence that he had to go to the toilet up to eight times a day.  The AHCP agreed with the appellant on hearing, where he awarded 8 points (11e), and lifting and carrying where the descriptor selected carried nil points (8f).  On appealing to the First-tier Tribunal, the appellant’s representative accepted the 8 points for hearing, but submitted that the appellant should have scored 6 points for manual dexterity (7f – cannot turn tap…with one hand but can with the other), 15 points bowel incontinence (13d) and that he should have had 8 points for being unable to pick up and carry an 0.5 litre carton of milk (8e).  

4	The appellant’s representative did not attend the hearing.  The tribunal sought the appellant’s confirmation of the descriptors still in issue whereupon the appellant agreed that the appeal was limited to sitting, lifting and carrying and incontinence.  The points awarded for hearing were not in dispute, though the manner of carrying out the test was criticised.  

5	Concessions for unrepresented appellants on descriptors:  Asking an unrepresented appellant to identify which descriptors are in issue can be fraught with difficulty.  While a claimant may have no difficulty in conceding that consciousness is not in issue where his problems concern his feet, he may have difficulty keeping in mind the scope of activities which appear to the untrained eye to be similar, but which are legally quite separate, such as manual dexterity and lifting and carrying.   As a consequence, the claimant may end up agreeing to a restricted range of activities which do not represent his problems correctly.  This is what appeared to have happened here.  The appellant did not have a chance to put his case fully.

6	The problem would have been avoided if the tribunal had at least covered the descriptors in the representative’s submission. It is nevertheless right to say that the tribunal were concerned about the concession because it went on to explore problems of manual dexterity.  Unfortunately, it omitted to deal with this activity in its decision.  It also omitted to deal with the submission on descriptor 8e.  It was argued that the oral evidence taken by the tribunal on 8e, when seen in conjunction with 8f, could lead to only one conclusion – that 8e was inapplicable.  But this is not so.  The tribunal came to inconsistent conclusions on 8f.  On the one hand, it agreed with the AHCP that the appellant satisfied this descriptor (although the descriptor carried no points) and on the other found that the evidence he gave had the effect that he did not fall within the descriptor at all.  This reasoning could not logically exclude the applicability of 8e.  It would have been otherwise if the tribunal had decided that the appellant had no trouble with lifting and carrying at all. 

7	Dealing with the appellant’s medical evidence:  I have also come to the conclusion that the tribunal dealt inadequately with the further medical evidence comprising several reports giving considerable detail about the nature and treatment of the appellant’s main medical condition involving his left arm:  his elbow caused him continuing pain (2M), he had significant post operative sensory neuropathy which explained his lack of muscle wasting and significantly affected his left hand function (2O) and had diminished movement with an impact on some daily activities (2M).  The tribunal merely ‘noted’ the contents.  This was patently inadequate.  The tribunal, which sits with a medically qualified member in a PCA appeal, has specialist expertise which it is expected to apply in its decision making.  But there is nothing in the Statement of Reasons to show that this expertise was engaged.  This failure led to the further failure to give adequate reasons for its decision.  It may have been that the tribunal did not find the evidence helpful in deciding which descriptors applied (if any), but it is impossible to tell.  

8	The complaints about the AHCP and the hearing test:  The tribunal erred in its approach to these issues.  The appellant wrote to the DWP shortly after the examination by the AHCP (2A) because he felt that information he gave the AHCP had been ignored and because he felt humiliated by the way the AHCP tested his hearing.  Although neither the representative’s submission nor appellant himself repeated the complaint to the tribunal, they had clearly put these in issue earlier.  

9	In these circumstances, the tribunal should have dealt with whether the complaints had any effect on the evidential value of the report.  The tribunal’s failure to do so was another aspect of the inadequacy of the Statement of Reasons.  

10	I would not have considered the failure to be material had it been in relation to the hearing test alone, since the further evidence available to me shows that appellant’s complaint was misconceived.  The hearing test performed at a PCA is aimed at establishing a claimant’s gross hearing ability with both ears, and not deafness as the appellant thought.  In fact, the test confirmed precisely what the appellant said about his hearing problems.  Moreover, the explanation of the hearing test given by Medical Services strongly supports the view that it was correctly carried out.

11	The next tribunal will have to decide whether they accept that the AHCP did not accurately record the information the appellant gave.  In deciding this issue, the tribunal will need to bear in mind that the AHCP is a doctor or nurse, not a shorthand writer.  His task is to decide whether any of the descriptors of the PCA are applicable.  To do so, he must get an accurate record of relevant information, though it clearly cannot be a verbatim report.  Not everything said by a claimant is relevant.  There is, moreover, a strong statement from Medical Services that there were irreconcilable differences between the appellant’s account of the examination and that of the RMP (also known as an AHCP).  

12	I reject the appellant’s submission that the tribunal erred in law in relation to bowel incontinence and sitting.  It explained both of these more than adequately.  There is evidence in the existing papers upon which the next tribunal can make a decision (for example, a GP’s letter in 2006 where it is listed as a past medical problem (2Q) and the GP’s failure to give it as a current diagnosis on the MED4) but since the appellant hotly contests this issue, the tribunal may well wish to call for photocopies of his GP notes for 2008-2009.  

13	The errors I have identified are a sufficient basis for setting the decision aside.  The appellant might have scored enough points to pass the PCA if these descriptors had been properly considered.

14	It is not strictly necessary to deal with the appellant’s further grounds of appeal, but since we dealt with these extensively at the oral hearing, I shall do so briefly.  I do not propose to deal with them all, since I am remitting the appeal in any event.

15	Should the report have been excluded?  The appellant believes the PCA report should have been excluded (p72) because Medical Services apologised to the appellant for the distress caused to him and paid him compensation. This is in the correspondence starting at p53.  I do not accept this for a number of grounds, not the least of which is that Medical Services do not accept any wrongdoing by the AHCP and stress the irreconcilable differences between the AHCP’s and appellant’s account of the examination.  Their apology, seen in this light, is not an admission of any wrongdoing and the eventual payment of £100 compensation for the appellant’s distress cannot turn it into one.  

16	The tribunal does have wide powers under rule 15(2) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 (‘the Rules’) not only to admit evidence but to exclude it, in particular, if it would be unfair to admit it:  

15(2) - The Tribunal may—
(a)	admit evidence whether or not—
(i)	the evidence would be admissible in a civil trial in the United Kingdom; or
(ii ) … [not relevant]  or

(b)	exclude evidence that would otherwise be admissible where—

(i)   [not relevant];
(ii)  [not relevant], or
(iii) it would otherwise be unfair to admit the evidence.

17	‘Unfair’ is not defined, though in considering whether an exclusion is appropriate, the tribunal needs to bear in mind both the well established principle in civil cases that relevant evidence is admissible and the overriding objective of the Rules set out in rule 2.  

2(1) - The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

  (2) Dealing with a case fairly and justly includes—

(a)	dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b)	avoiding unnecessary formality and seeking flexibility in the proceedings;
(c)	ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d)	using any special expertise of the Tribunal effectively; and
(e)	avoiding delay, so far as compatible with proper consideration of the issues.

(3)	The Tribunal must seek to give effect to the overriding objective when it—

(a)	exercises any power under these Rules; or
(b)	interprets any rule or practice direction.

(4) Parties must—

(a)	help the Tribunal to further the overriding objective; and
(b)	co-operate with the Tribunal generally.

18	Approached from both the general principle of civil evidence that relevant evidence is admissible (unless obtained in breach of legal privilege) and from the overriding objective, it is difficult to see how a PCA report could be excluded as unfair except in the most unusual of circumstances.  The report is patently relevant to the proceedings.  It goes to the central issue of the claimant continuing incapacity for work.  The evidence is obtained lawfully and a claimant must participate in the examination if he wishes payment of benefit to continue.  Re-examining a claimant at a later date will not necessarily give the tribunal an accurate view of the appellant’s condition at the relevant date (the date of the Secretary of State’s original decision).  The tribunal has the expertise to judge the value of the report.  In the instant appeal, the report also agreed in its main respects with the appellant’s own assessment.  

19	At the end of the day, the justification offered by the appellant amounts to little more than a sense of humiliation from a standard test that he did not understand.  This is plainly not enough to raise an issue of exclusion of the report as a whole, let alone of the hearing test, which accepted the appellant’s impairment. 

20	On the other hand, the tribunal will have to decide in the light of all of the evidence what weight the report should be given.  Even if the tribunal decides that the AHCP did not record relevant information given by the appellant, that would not necessarily affect the validity of the report either overall or in relation to a particular descriptor.  The tribunal might consider that that unrecorded evidence could not have stood up to scrutiny in the light of the clinical findings and observations made by the AHCP.  The tribunal might, of course, come to the conclusion that the AHCP’s failure to consider evidence given at the examination affected his selection of an appropriate descriptor.  However, there would be very little difference between that situation and the tribunal simply accepting the appellant’s evidence at the hearing.

21	The appellant’s initial letter of complaint to the DWP:  The appellant submitted at the oral hearing that this letter (2A) should not have been admitted because he did not ask it to be put in evidence and a solicitor told him it was inadmissible.  I do not accept either of these submissions.  There is nothing in writing from the solicitor explaining his views, which conflict with general principle and the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008.  Moreover, the appellant himself submitted a further copy of this letter for the purposes of the appeal (p60).  I can see no reason why the tribunal should have even considered exclusion of the letter.  

22	The Record of Proceedings does not contain everything the appellant said at the hearing:  In the absence of recording equipment, judges must take written notes of the proceedings.  Judges are not stenographers.  They cannot be expected to take a verbatim note of oral evidence.  Their obligation is to take down the gist of the relevant oral evidence and arguments made by the parties: R(SB)8/84 at [25] and R(DLA)3/08 at [10].  A judge’s legal training and experience should enable him to accomplish this task adequately.  The Record of Proceedings in this appeal reads as a straightforward narrative of what was said.  I am not satisfied that relevant evidence was omitted.  

23	Although the appellant does not succeed on the points in paragraphs 14 – 22, he does succeed overall.  I therefore set aside the decision.  Many factual issues are outstanding which I am unable to determine myself.  Accordingly, I remit the appeal to a freshly constituted First-tier Tribunal to rehear.  

24	The appellant should be aware that success before the Upper Tribunal is no indication of the outcome of the appeal before the First-tier Tribunal.  

[Signed on original]		S M Lane
		Judge of the Upper Tribunal 
[Date]								22 October 2010