IP v Secretary of State for Work and Pensions [2010] UKUT 97 (AAC)

UKUT-AAC
IP v Secretary of State for Work and Pensions
[2010] UKUT 97 (AAC) · 2010-04-01
[13]I bear in mind the warning of Leveson LJ in the Court of Appeal’s judgment in Secretary of State for Work and Pensions v Roach [2006] EWCA Civ 1746 (at paragraph 37) that a Social Security Commissioner (now an Upper Tribunal Judge) should not seek to disturb a tribunal’s findings of fact by way of “an attempt to reanalyse evidence (which he had not heard) from a perspective that he preferred. ” It follows that the Upper Tribunal should tread very warily before disturbing a finding of credibility, whether that is in favour or contrary to the interests of a claimant, and can only do so if there is an error of law. However, the First-tier Tribunal is also under an obligation to give adequate reasons for its decision.14. Ms Worrall’s argument, of course, is that the tribunal in this case has done just that – it simply did not believe the appellant’s account and said so, giving brief reasons, and that was sufficient in all the circumstances of the case. She therefore submits that the tribunal met the minimum standard or threshold for adequacy of reasons.15. In support of her submission Ms Worrall cites the decision of Mr Commissioner Goodman in unreported decision CIS/12032/96. This was an appeal against a tribunal decision to the effect that the claimant was liable to repay more than £12,000 in overpaid income support. The Social Security Commissioner allowed the appeal on the agreed basis that the tribunal had failed to record the (extensive) evidence it had received and had also failed to make a finding of fact on a crucial issue. However, Mr Commissioner Goodman rejected a further ground of appeal, relating to the tribunal’s statement that it did not find the claimant to be a credible witness. Counsel for the claimant had argued that the tribunal should have given some indication of why they had come to that view. Rejecting that argument, the Commissioner stated (at paragraph 14): “A tribunal in particular in a case of this kind must assess the credibility or otherwise of any witness including the claimant. If it does not find the evidence given by the claimant credible, it is entitled to say so without more. It is difficult to understand what reasons it is supposed to give other than simply that it does not believe the claimant. I do not see how that belief can be corroborated.”16. However, those comments need to be seen in the context in which they were made. As I sought to explain in unreported decision CIS/4022/2007:[43]“43. In my view it would be unsafe to regard this comment as suggesting that it is sufficient in any and every case for a tribunal simply to rule that it finds a particular witness not to be credible, with no further explanation. I note that the reported decisions in R(I) 2/51 and R(SB) 33/85 appear not to have been cited to Mr Commissioner Goodman, and that his observations on the credibility point were strictly obiter in any event, in the sense that they were not necessary to decide the case before him.[44]In this context it is also important to bear in mind the wider point made by a Tribunal of Commissioners in Northern Ireland in decision R 2/01(IB)(T): ‘What constitutes adequate reasoning may vary from case to case and there is a danger in attempting to elevate a particular decision into an authority that a certain format or content either always will or always will not constitute adequate reasoning. It will all depend on the circumstances of the case, the evidential background and the issues’ (paragraph 31). ”[17]Further, at paragraph 52 of CIS/4022/2007, I sought to summarise the relevant authorities on giving reasons for credibility findings in the following terms:
“52. In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately ‘the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it’.” 18. In the present case it is important to note that the First-tier Tribunal did not simply make a bald finding that the appellant was not a credible witness. In addition it gave some brief reasons for reaching that conclusion (see paragraph 8 above). In many cases, especially on a new claim, that may well be sufficient to dispose of the matter. 19. However, context is everything when assessing the adequacy of reasons, as noted by the Tribunal of Social Security Commissioners in Northern Ireland in decision R 2/01(IB)(T) . The present case was one in which the appellant’s account had plainly been accepted by Dr Ao in July 2007 but equally had been disbelieved by Dr Kithan in November 2008 and by the tribunal in July 2009. In those circumstances I take the view that a rather fuller explanation was warranted than that provided by this tribunal. 20. Furthermore, the tribunal’s conclusion was that “there was no objective evidence to support the Appellant’s story which was not believed by the Tribunal and consequently the appeal failed”
. It was certainly the case that the short report from the GP’s surgery did nothing to support the appellant’s account (although his explanation, of course, was that he had found that medication made him drowsy and so had stopped taking any). However, there was support for the appellant’s account in the report by Dr Ao (and the appellant had insisted he had given both examining doctors the same account). In particular, Dr Ao had noted that the appellant had lost teeth as a result of a fit and had expressly observed that only one upper front tooth was remaining. 21. Clearly the findings and opinions of Dr Ao were in no way binding on either Dr Kithan or the tribunal in the present case. However, in the circumstances of this case I have reached the conclusion that the tribunal’s decision was flawed in terms of its failure to provide adequate reasons. In particular, how did it account for Dr Ao’s earlier findings and opinion? The appellant’s epilepsy and entitlement to incapacity benefit 22. Although I am setting aside the decision of the First-tier Tribunal, I must make it clear that I am making no finding or indeed expressing any view on whether or not the appellant (1) has a form of epilepsy; and (2) is entitled to incapacity benefit. Even if the new tribunal finds that the appellant does indeed suffer from epilepsy, it does not necessarily follow that he is entitled to incapacity benefit. That depends, in particular, on the nature and frequency of any seizures he may experience. 23. These are all matters for the good judgment of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact. In doing so, the tribunal will have regard 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” (emphasis added). This means that the new tribunal will have to focus on the appellant’s circumstances as at 9 December 2008, the date of the Secretary of State’s decision, and not the position as at the date of the new hearing. It may be difficult to think back to the position nearly 18 months ago, but that is the requirement laid down by statute. 25. The tribunal will also doubtless wish to explore the treatment, if any, that the appellant has received over the years and his experiences with medication. Above all, the tribunal will need to make findings as to both the nature and the frequency of the claimed fits. The tribunal will then be in a position to determine how many points, if any, the appellant scores in relation to the “remaining conscious” descriptor at paragraph 14 of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311). 26. I therefore 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 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 1 April 2010 Judge of the Upper Tribunal

Cited in 1 later judgment