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 Middlesbrough First-tier Tribunal dated 16 May 2013 under file reference SC227/13/00222 involves an error of law. The First-tier Tribunal’s decision 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 05 September 2012 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 (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the hearing:

(1)	The appeal should be considered at an oral hearing.  

(2)	The new First-tier Tribunal should not involve the tribunal judge or medical member who heard this appeal on 16 May 2013.

(3)	The Appellant is reminded that the new tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 05 September 2012). 

(4)	If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal office in Newcastle-upon-Tyne within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).  

(5)	The District Tribunal Judge responsible for re-listing may wish to consider making a request to the Appellant’s GP for copies of medical.

		  (6)	The Secretary of State’s representative should produce for the new tribunal a copy of the EMP report (and indeed the DLA renewal claim form and any other relevant evidence) which led to the renewal of the Appellant’s award of DLA in 2012 or 2013. 

	   (7)	The Secretary of State’s representative should also confirm for the benefit of the new tribunal the nature of any work-related activity which the Appellant might be expected to undertake.

(8)	The new First-tier Tribunal 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 reach the same or a different outcome to 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. 

REASONS FOR DECISION

The Upper Tribunal’s decision in summary and what happens next
1.	The Appellant’s appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal involves an error on a point of law. For that reason I set aside the tribunal’s decision; it now has no effect. 

2.	The case now needs to be reheard by a new First-tier Tribunal (FTT) at a convenient venue. I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts. 

3.	So the new tribunal may reach the same, or a different, decision to that of the previous tribunal. It all depends on the findings that the new tribunal makes. The previous tribunal may well have come to the right conclusion on the merits of the facts; I simply do not know. However, its decision cannot stand because of an unfortunate error of law.

The background to this appeal to the Upper Tribunal
4.	The Appellant had the misfortune to be attacked by a pit-bull type dog some years ago. As a result she suffered injuries to the left arm and leg.  She has also developed what appear, on her account, to be quite serious mental health problems. On 5 September 2012, following an ATOS medical on 25 July 2012, the Secretary of State decided that the Appellant scored zero points and so did not qualify for employment and support allowance (ESA), which requires 15 points. 

5.	The Appellant’s CAB representative, Mr Mike Robinson, was unable to accompany her to the FTT hearing. However, he submitted a detailed written submission on her behalf. On 16 May 2013 the Appellant attended the FTT hearing. The tribunal dismissed the Appellant’s appeal. The tribunal judge subsequently issued what on the face of it appeared to be a comprehensive statement of reasons.

The proceedings before the Upper Tribunal
6.	The Appellant’s grounds of appeal to the Upper Tribunal, as set out by Mr Robinson were threefold. The first was that the tribunal had failed to engage with all  the issues raised by the written submission. 

7.	The second and more specific ground of appeal was that the tribunal should have considered adjourning for sight of an examining medical practitioner (EMP)’s report which had been prepared for the purposes of the Appellant’s renewal claim to disability living allowance (DLA). The Appellant had been examined for this purpose in December 2012, three months after the ESA decision, and the report had led to the renewal of her award of the lower rate mobility component of DLA.

8.	The third ground of appeal related to the tribunal’s express finding that the Appellant “exhibited illness behaviour. We found the level of her claimed physical disabilities are not credible given the lack of specialist involvement. We found that the physical consequences of the 2001 event would be expected to improve with time and adaptation, rather than deteriorate as the appellant would have us believe” (paragraph 16). For example, apart from scarring and some stiffness the tribunal “found no medically identified condition that would limit the appellant’s reach to the extent that she asserted” (paragraph 17). Mr Robinson made two points in this regard – first, social services had installed a stair lift, which undermined the tribunal’s reasoning and conclusion and secondly, and in any event, even if the tribunal’s finding was justified, “illness behaviour” is a recognised psychological condition (WHO ICD10, F86.1). Moreover, under the law then in force this did not preclude physical descriptors applying (relying on JG v Secretary of State for Work and Pensions [2013] UKUT 037 (AAC); [2013] AACR 23).

9.	I then gave permission to appeal.

10.	Mr M Jagger, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports the appeal but has confined his response to the appeal to the second ground identified above (paragraph 7). He refers to CDLA/3093/2007, where Mr Commissioner (now Judge) Williams ruled as follows (at paragraph 8):

“The application to adjourn was clearly relevant to the proceedings. It was expressly in issue. The tribunal should have recorded that the application was made somewhere in the tribunal record. And it should at least have recorded briefly its decision on the application. The absence of any note of the application or note or explanation of the tribunal’s decision is itself an error of law.” 

11.	Mr Jagger also refers to MA v Secretary of State for Work and Pensions [2009] UKUT 211 (AAC) and rule 2 of the Tribunal Procedure (First-tier Tribunal) Social Entitlement Chamber) Rules 2008 (SI 2008/2685) in this context. He is content on that basis for the appeal to the Upper Tribunal to be allowed and the matter to be remitted (or sent back) for re-hearing to a new tribunal. 

12.	Mr Robinson for the Appellant understandably agrees to that approach and makes some helpful suggestions for directions for the new tribunal. 

The Upper Tribunal’s analysis
13.	I do not need to rule on the first ground of appeal. 

14.	I agree with both representatives that the second ground of appeal is made out. I therefore conclude that the FTT’s decision involves an error of law. So I set aside the FTT’s decision and direct a re-hearing before a new FTT.

15.	I accordingly do not need to rule on the third ground of appeal. However, given the unusual nature of the tribunal’s finding, it may be helpful for the next tribunal for me to make the following comments.

16.	First, the new tribunal will, of course, review all the evidence afresh. It will consider what weight to attach to the decision by social services to install a chair lift in the light of the quality of the evidence produced, including the OT assessment.

17.	Second, and as Mr Robinson rightly points out, the decision under appeal in this case (taken on 5 September 2012) pre-dated the change in the legislation effected by regulation 3(2) of the Employment and Support Allowance (Amendment) Regulations 2012 (SI 2012/3096). These Regulations amended regulation 19 of the main Employment and Support Allowance Regulations 2008 (SI 2008/794) as from 28 January 2013 so as to confine physical descriptors in Schedule 2 to “a specific bodily disease or disablement” and mental health descriptors to “a specific mental illness or disablement”. So, under the rules then in force, the Appellant may score physical descriptor points for problems which have an underlying psychological cause.

18.	Third, the decision of the three-judge panel in JG v Secretary of State for Work and Pensions makes it plain “that care must still be taken in identifying the cause of the person’s incapability to perform certain of the activities in Schedule 2” (at paragraph 35). In the present case the health care professional (HCP) had recorded the Appellant’s medical conditions as leg and arm problems, anxiety and skin problem. True, the HCP had identified various inconsistencies between the Appellant’s account and the clinical findings and medical history. However, there was no suggestion in his report of an independent diagnosis of illness behaviour. Furthermore, it is not wholly clear whether the tribunal’s finding that the Appellant “exhibited illness behaviour” was indeed a recognition that she was displaying genuine but abnormal responses or whether it was a polite way of suggesting that she was malingering. There is certainly at least an argument that the tribunal should have considered adjourning in order to enable the Appellant to address what was effectively a new point.  The point was put in this way by the three-judge panel in JG v Secretary of State for Work and Pensions(at paragraph 43(ii)):

“if, in the rare cases, the First-tier Tribunal was to raise this as an issue – that is, does the appellant have a disease, illness or disablement that is recognised in medicine – where the Secretary of State even after the ESA85 assessment has not taken it as an issue, then it would need to explain why it was taking this as an issue, why it considered it was or may be an issue, and give the appellant adequate opportunity to address the point. In almost all cases where this step was taken by the First-tier Tribunal we consider an adjournment would be needed to enable the appellant properly to address the issue (most likely by the provision of further medical evidence).”

19.	Fourth, in terms of the nature of illness behaviour itself, the tribunal should take into account the unreported case of CSI/1180/2001, an industrial injuries appeal, where Mrs Commissioner (now Judge) Parker observed as follows (at paragraph 8):

“The new tribunal, if it considers that there is an insufficient organic basis for all of the claimant’s problems, must decide if he is consciously exaggerating or if he is genuine and his complaints form part of an abnormal illness behaviour linked to his accident. In the latter situation, it can form part of the relevant loss of faculty. The courts have long recognised there can be compensation for an unconscious reaction to physical injury sustained, provided the latter remains a material cause of the former.”

20.	There is further helpful guidance in another unreported decision, namely CIB/4841/2002. In that case the claimant’s account of his symptoms had been supported by his surgeon, who had also reported that the claimant had “developed chronic illness behaviour” and that his symptoms were “those of a chronic pain syndrome” (at paragraph 6). At paragraphs 10 and 11, Mr Commissioner (now Judge) Jacobs gave the following guidance:

“10. The Secretary of State’s medical advice, which I accept, is in summary this. Abnormal illness behaviour is one of a number of terms used to describe symptoms which are caused by the influence of psychological makeup and social environment on the perception of the disabling effects of a medical condition. This phenomenon is reflected by more modern approaches to treatment, which address the psychosocial as well as the medical factors. The symptoms are subjective in the sense that they depend on an experience of pain or fatigue. In order to distinguish between claimants who genuinely experience a particular disability from those who merely claim to do so, it is helpful to consider the history of their daily activity and unobtrusive observations. This can identify consistency or inconsistency. 
11. In this case, the examining doctor detected resistance on examination and exaggeration of response to the testing of the reflexes. The claimant was also observed to walk normally and to be able to stand erect, albeit briefly. The claimant’s performance on examination and the observations recorded by the doctor are not consistent with a genuine experience of illness behaviour. This was confirmed by the tribunal, who observed the claimant to walk differently at the beginning and end of the hearing. All of this was in conflict with the Surgeon’s evidence, which accepted that the claimant was genuinely experiencing the symptoms he exhibited. In view of the actual observations of the examining doctor and the tribunal, the Surgeon’s opinion could obviously not be accepted.”
What happens next: the new First-tier Tribunal
21.	There will, therefore, need to be a fresh hearing before a new FTT. Although I am setting aside the FTT’s decision, I stress again that I am making no finding, nor indeed expressing any view, on whether or not the Appellant is entitled to ESA and, if so, at what rate and on what basis. That is a matter for the good judgement of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact.  

22.	Unfortunately the new FTT will have to focus on the Appellant’s circumstances as they were in September 2012, when the original decision was taken, and not the position as at the date of the new FTT hearing, 18 months or so later. This is because of the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). 

23.		I accept, of course, that it is difficult to think that far back. This may be a reason for the District Tribunal Judge to consider making a request to the Appellant’s GP for copies of medical notes. This may provide further relevant information to supplement the rather limited evidence already available on file. However, the decision on whether such further evidence is required is best left to the good judgment of the District Tribunal Judge concerned.

24.	I do, however, make the following two further directions at Mr Robinson’s request. First, the Secretary of State’s representative should produce for the new tribunal a copy of the EMP report (and indeed the DLA renewal claim form and any other relevant evidence) which led to the renewal of the Appellant’s award of DLA in 2012 or 2013. Second, the Secretary of State’s representative should confirm the nature of any work-related activity which the Appellant might be expected to undertake.

Conclusion
25.	I conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted (sent back) for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above.  

Signed on the original				Nicholas Wikeley
on 29 January 2014					Judge of the Upper Tribunal