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 Wigan First-tier Tribunal dated 08 July 2011 under file reference 079/10/02852 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 01 July 2010 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)(a) and 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 should be at an oral hearing. 

(2)	The new tribunal should not involve the tribunal judge or members who sat on the tribunal that considered this appeal at the hearing on 08 July 2011.

(3)	If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of the HM Courts and Tribunals Service (HMCTS) in Liverpool within one month of the issue of this decision.  Any such evidence will need to relate to the position as it was in July 2010.

(4)	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 end up reaching the same or a different result to the outcome of the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.  

DECISION OF THE UPPER TRIBUNAL
REASONS FOR DECISION

Summary
1.		The decision of the First-tier Tribunal (FTT) involves an error of law, for the reasons that follow.  The FTT’s decision is set aside and there will need to be a fresh hearing before a new FTT.

2.	However, the fact that this appeal to the Upper Tribunal has succeeded on the law should not be taken as any indication of the likely outcome of the further FTT re-hearing on the facts.  It follows that the underlying merits of the claimant’s case remain to be determined.  

The background to this appeal to the Upper Tribunal
3.	The claimant, who suffers from degenerative disc disease and depression, appeals to the Upper Tribunal with my permission.  The Secretary of State had decided that there was no entitlement to either component of disability living allowance (DLA).  The appellant lodged an appeal.  She was not represented at the oral hearing, but her solicitor had made a detailed and helpful written submission, arguing that the appellant was entitled to the higher rate of the mobility component and the middle rate of the care component of DLA.

4.	The FTT decided that the appellant was entitled to the lowest rate of the care component from the date of claim (07 April 2010) for two years, i.e. until 06 April 2012.  Presumably there has been a renewal claim, but the outcome of that renewal claim is not known from the papers.  Any such decision will carry its own separate appeal rights.

The proceedings before the Upper Tribunal
5.	The appellant, who can no longer afford legal representation, has ably acted for herself in the appeal to the Upper Tribunal.  In short, her grounds of appeal against the FTT’s decision are essentially two-fold.  First, she argues that the tribunal failed to find sufficient facts for its decision.  Second, she contends that the tribunal failed to provide adequate reasons for its decision.  She also takes exception at being described as a “bare faced liar” (her words, not the tribunal’s).

6.	Mrs J. Camponi, who now acts for the Secretary of State in these proceedings, does not support the appeal.  She argues, in summary, that the FTT reached a decision it was entitled to do on the evidence before it and gave adequate reasons, although she wisely concedes that “perhaps the Tribunal could have given a little amplification when making their decision” as regards the care component.

The higher rate mobility component 
7.	In its statement of reasons the FTT concluded that the appellant was not “virtually unable to walk”.  It also explained that it could not actually assess how far the appellant could walk “because we found ourselves unable to rely upon the evidence of the Appellant as we formed the impression at the oral hearing that she was exaggerating her disabilities” (at [6]).

8.	The FTT then referred to three matters as “evidence that supports the above findings of fact”.  These were, first, that in her claim pack the appellant had stated that she could only walk 50 metres in two minutes, but at the hearing she “told us today that she had guessed the distance” (at [7a]). Second, the health care professional (HCP), as noted in an employment and support allowance (ESA) medical report, had selected descriptor 1d (“cannot walk more than 100 metres on level ground without stopping or severe discomfort”) and not descriptor 1b (“cannot walk more than 50 metres ...”).  Third, the GP factual report did not assist the appellant as this simply stated “pain walking and sitting”, without reference to any distance (likewise the consultants’ letters).

9.	Mrs Camponi submits that issues of credibility are for the FTT and the tribunal did not need to give any further explanation of their finding (referring to my decision as a Deputy Social Security Commissioner in CIS/4022/2007 at [52]).  It is, of course, entirely right that assessments of credibility are for the FTT.  However, the evidence must be considered in the round and adequate reasons given.  This was a case where the appellant had produced a number of consultants’ letters confirming that she had undoubted problems with her spine. The tribunal referred to no comments in those reports which suggested that the appellant was in any way exaggerating her problems.  It is also instructive to consider the three reasons the FTT gave for reaching its conclusion on this matter.

10.	The simple fact that the appellant had put “50 metres” on her claim form and had told the tribunal she had “guessed” that figure is hardly evidence that either she was not virtually unable to walk or that she had exaggerated her symptoms.  Not all claimants will go out with a surveyor’s tape measure or ask a family member or friend to pace the distance they can walk.  Moreover, many people, as a matter of ordinary speech, when they say they “guessed the distance” actually mean that they estimated the distance as best they could, not that they simply thought up some random figure, doubling the figure they first thought of.

11.	The second reason, referring to the ESA walking descriptor selected by the HCP, does not necessarily support the finding that the appellant was not virtually unable to walk or of exaggeration on her part.  Obviously considerable care must be taken when using a report prepared for one benefit (ESA) for the purposes of another benefit (DLA).  In particular, the FTT appears to have overlooked the fact that the difference between walking descriptors 1b and 1d is not simply one of distance.  Descriptor 1b refers to “cannot walk more than 50 metres on level ground without repeatedly stopping or severe discomfort”, whereas descriptor 1d simply states “cannot walk more than 100 metres on level ground without stopping or severe discomfort”.  One possibility is that the HCP thought that the appellant could manage to walk 50 metres with one stop – in which case she would qualify for descriptor 1d but not the more demanding 1b.  There is, moreover, no suggestion at all that the HCP thought that the appellant was exaggerating; she found muscle wasting and recorded that the appellant “walked 25 metres, slowly, to the examination room and I found this consistent”.  The HCP also recorded the appellant’s account that she could walk for 3 minutes at a slow pace – which, if the appellant’s estimate on the claim pack of her speed was accurate, might suggest a distance of around 75 metres, which might well make a claim for higher rate mobility borderline.

12.	The third reason, referring to the lack of any distance mentioned in the GP factual report and the consultant’s reports, only goes so far.  Those doctors were concerned with the appellant’s diagnosis and treatment; they were not making a specific assessment of functional ability and were not asked a direct question about the distance she could manage.  Whilst that medical evidence may not take the appellant’s case any further forward as regards the distance she could walk, it certainly does not provide evidence of exaggeration by her.

13.	For all those reasons I conclude that the FTT’s finding as regards the higher rate mobility component involves an error of law by way of inadequate reasoning.  There may well also have been a failure to find sufficient facts, e.g. as regards “severe discomfort”, given the FTT made no findings about the type and amount of medication taken by the appellant and the level of discomfort she experienced.

The care component
14.		The FTT made an award of the lowest rate but refused to make an award of the middle rate care component.  The tribunal set out at some length the statutory criteria for the award of the various rates of the care component.  This was an exposition of the law rather than a reasoned explanation for the FTT’s decision.  It was thus a conclusion, “a bare traverse” of the legislative criteria of entitlement (see R v Mental Health Review Tribunal, ex parte Clatworthy [1985] 3 All ER 699 at 703).

15.	The FTT gave three reasons for its conclusion that the appellant was entitled to the lowest rate care component (at [9]).  First, “we accept the Appellant’s evidence that she needs help to wash her hair, dressing and getting in and out of the bath, because the Appellant has difficulties with manual dexterity and reaching”; second, the appellant could not peel or chop vegetables; and, third, the GP had noted “pain when using arms and difficulty writing”.

16.	In my view there are at least two potential difficulties with this explanation, without looking more widely at the evidence.  First, the appellant might be forgiven for asking why the FTT felt that she was exaggerating her difficulties with walking when they apparently had no difficulty in accepting her evidence on the various self-care functions identified in this context.  This suggests that some sort of further explanation might have been desirable.  Second, it may be arguable that the FTT did not really find sufficient facts or give adequate reasons for explaining why their findings led to the conclusion that she was entitled to the lowest but not to the middle rate care component.

17.	There is, however, a more fundamental difficulty with the FTT’s approach. The FTT listed (at [4]) the various pieces of evidence considered. This list did not include the ESA report.  I make no criticism of that; what matters is what they made of any potentially relevant evidence, not whether or not they referred to it formulaically in a list of evidence considered. In fact the only reference to the ESA report was, as already noted, in the context of the question of higher rate mobility, when it was used to support the finding that the appellant was not virtually unable to walk and had exaggerated her walking problems. There was no other direct reference in the FTT’s reasons to the HCP’s report.  This poses two difficulties.

18.	First, the ESA report – whilst accepting it was prepared for a different purpose – was the closest the FTT had to comprehensive and contemporaneous medical evidence.  The date of decision was 1 July 2010 and the date of the HCP’s report was 19 August 2010. Although prepared some six weeks after the date of the decision, there was no serious suggestion in the papers that there was any significant difference in the appellant’s condition as at those two dates.  As the appellant’s solicitor observed in the written submission to the FTT, such reports are “routinely proffered as evidence by the DWP and used to argue against entitlement [in DLA appeals]”.

19.	Second, the ESA report found the following descriptors to apply, in addition to the walking descriptor previously mentioned: standing and sitting descriptor 2e (“cannot stand for more than 30 minutes...”); bending or kneeling descriptor 3c (“cannot bend, kneel or squat... without the help of another person”); reaching descriptor 4d (“cannot raise either arm above head height...”).  The total ESA score was thus 24 points.  All this at least suggested that the appellant’s care needs might exceed those identified by the FTT, as summarised at paragraph 15 above.  In addition, the HCP recorded her overall summary of the appellant’s functional ability as follows:

“The condition, history, typical day history, physical examination findings, observed behaviour and medical knowledge of the condition indicates that the client cannot reliably and repeatedly walk, use steps, sit, rise, transfer, stand and bend, kneel or squat for the majority of the time”.

20.	The FTT’s decision on the care component was thus in error of law by reason of inadequate reasoning, in that it failed to address the supportive (not necessarily conclusive, but certainly supportive) evidence in the contemporaneous HCP report prepared for the Department.

The Upper Tribunal’s decision
21.	For the reasons explained above, the decision of the FTT involves an error of law.  I therefore set aside the tribunal’s decision and direct a re-hearing.

What happens next?
22.	I must stress that I am making no decision on the issue of whether the appellant is entitled to an award of DLA and, if so, which component(s) and at what rate.  That is a matter for the fact-finding and judgment of the new tribunal.

23.	I must draw attention 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” (my emphasis).  The relevant decision in this case was (unfortunately) made as long ago as on 01 July 2010.  Because of section 12(8)(b), the issues for the new tribunal are not the appellant’s care and/or mobility needs as at the date of the re-hearing later in 2012.  This is a re-hearing of the original appeal.  The tribunal will therefore have to focus on the appellant’s care and/or mobility needs as they were on 01 July 2010.  

24.	It may well be difficult to think back to the position more than two years ago, but that is the statutory requirement.  Of course, if, unfortunately, there has been no real change in the appellant’s condition since then, that may make it easier both for the appellant in giving her evidence and the tribunal in assessing that evidence.

25.	I also reiterate the point made at paragraph 4 above – if there has been a decision on a renewal claim which the appellant is dissatisfied with, she will have to appeal that decision in its own right.  Of course, it may well be sensible for any appeal that ensues to be heard at the same time as this re-heard appeal, but that is a matter for the appellant to express a view on and for a District Tribunal Judge in Liverpool to rule on as necessary.

Conclusion
26.		I therefore allow the appeal for the reason set out above.  I also set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for rehearing by a new tribunal subject to the directions listed above (section 12(2)(b)(i)).   

Signed on the original				Nicholas Wikeley
on 05 July 2012					Judge of the Upper Tribunal