HL v Secretary of State for Work and Pensions (DLA) [2011] UKUT 183 (AAC)

UKUT-AAC
HL v Secretary of State for Work and Pensions (DLA)
[2011] UKUT 183 (AAC) · 2011-05-05
[1]This case is important because it raises the issue of inferences that may be drawn from a GP’s evidence and the adequacy of the reasons required to explain those inferences. The issue is important for at least two reasons: it regularly arises and it involves fundamental issues about effective access to the appeal process and equality between the parties. B. History[2]The claimant applied for a disability living allowance by submitting a claim pack, which was received on 7 May 2009. She set out her medical conditions: arthritis of the hands, knees, hips, thumbs and neck; high blood pressure; underactive thyroid; curvature of the spine; liver problems; asthma; and excess acid. She identified problems with mobility, self-care by day, and cooking.[3]The decision-maker obtained a medical report from the claimant’s practice, which I call the first report. It was written on 15 June 2009 and the patient had last been seen on 12 June. The doctor listed the claimant’s diagnoses: multiple joint pains; arthritis of the hip; hallux valgus of both big toes; degenerative changes in neck. The joint pains were rated as moderate to severe, but the doctor was unable to comment on any variation or self-care. On mobility, the doctor wrote:
‘can attend appointments.’
[4]That report confirmed the existence of the claimant’s disabling medical conditions and gave any indication of their severity, but it was not helpful on the nature and extent of the claimant’s disabilities. That probably explains why the decision-maker referred the claimant for interview and examination by an examining medical practitioner. On examination, the doctor found at worst only slight impairment of the claimant’s joints and spine. In the doctor’s opinion, the claimant’s mobility was limited but not significantly in terms of disability living allowance, and she had no problems with self-care or cooking.[5]On 21 July 2009, the decision-maker refused the claim. The claimant exercised her right of appeal on the ground that the ‘full extent of my disabilities have not been appreciated.’ She was assisted on her appeal by a Welfare Rights Officer, who wrote a detailed letter to the claimant’s practice asking for information on specific disabilities relevant to her claim. The reply came from a different doctor in the practice and was written in the form of a letter. I call this the second report:
‘Over the last few years [the claimant] has developed increasing problems with Osteoarthritis particularly affecting her thumbs, hands and wrists, both feet with pronounced hallux valgus and Osteoarthritis of her fore feet and also with degenerative changes in her lumbar spine and neck. Her mobility has gradually become worse and she has found it difficult to weight bear. This was the situation when I last saw her on the 3 rd September 2009 and I do not anticipate that things would have changed much since then. At that time she was also finding it very difficult to grip and to perform fine manipulative tasks. I would anticipate that she would find it very difficult to cook a main meal and do all the tasks which you describe in your letter concerning food preparation and cooking up food. I did not talk to her about help needed in dressing, bathing and getting in and out of bed but would anticipate that she would need help with these activities. Her degenerative problems are not likely to substantially improve in the future and could become worse. She also suffers from chronic asthma, hypertension, type 2 diabetes mellitus, and a previous history of depression.’
[6]The claimant attended the hearing of her appeal, accompanied by her representative, and gave detailed evidence. At the end of the hearing, the tribunal dismissed her appeal. The presiding judge provided three closely typed pages of reasons to explain the tribunal’s decision. The tribunal relied on the report of the examining medical practitioner. What concerns me is the way the tribunal dealt with the evidence from the claimant’s GPs. The judge gave a fair summary of that evidence. She then said of the doctor who wrote the second report:
‘7. … he had not carried out a specific examination and it appeared that he had formed his view on the basis of information provided by the appellant. The earlier GP report which was unable to provide any specific information appears to suggest that the medical records did not contain any historic information in relation to the appellant’s physical limitation. Neither document gave any indications to the appellant’s walking ability.’
Later

the judge wrote:

‘14. The Tribunal did not find the appellant’s General Practitioner’s evidence particularly helpful as it was vague in the first instance and thereafter apparently based on information provided by the appellant rather than on any detailed clinical examination.’
[7]The First-tier Tribunal refused permission to appeal to the Upper Tribunal, but I gave permission saying that the following points arose from paragraph 7 of the tribunal’s reasons, which I have just quoted: · The GP’s letter specifically refers to a consultation on 3 September 2009, which was three months after the other GP’s report. The notes may by then have contained historic information. · Even if they did not, a GP may have a personal recollection of a patient that is not recorded. That is especially so if the claimant’s condition is of longstanding, as were the problems with the claimant’s feet. · The reference in the letter to difficulties in weight bearing is surely an indication of the claimant’s walking ability, albeit not a specific time or distance. · What sort of examination might the GP have undertaken to discover her difficulties with mobility and weight bearing? Some matters can only come from a patient. After all, is not a patient’s history a significant element in diagnosis? Should any diagnosis that is substantially based on history be discounted? Discounting evidence on the ground that it ultimately came from the claimant seems to prove too much. C. analysis[8]I begin by picking apart the tribunal’s approach to the two reports from the claimant’s GPs. It is in one sense unfair to subject a tribunal’s reasons to minute analysis; they are written, and must fairly be read as, a whole. However, it is useful to look at the judge’s wording as the only indication of the tribunal’s reasoning. She made four comments in paragraph 7. First: the doctor who wrote the second report ‘had not carried out a specific examination’.[9]If this means an examination specifically directed to the requirements for disability living allowance, this is correct. However, the doctor had examined the patient and had available the claimant’s full records. They would include all consultations, records of examinations, reports of x-rays and scan, and reports by Consultants that would include their own clinical findings. That is by far a greater body of evidence, accumulated over time, than is available to an examining medical practitioner.[10]If this means that the GP did not undertake an examination that was specifically directed to the requirements of disability living allowance, this is again correct. However, GPs are not trained to make the sort of assessments contained in an examining medical practitioner’s report. Any attempt to do so would be unlikely to command much respect from a tribunal. Second:
‘it appeared that [the doctor who wrote the second report] had formed his view on the basis of information provided by the appellant.’
[11]If this means that the doctor merely acted as a cipher for what the claimant said, it is wrong. The doctor expressly gives his own views on what he would anticipate and does so on some matters that he had not discussed with the claimant.[12]If this means that the doctor’s evidence is in some way unreliable because it has taken account of the claimant’s own account, it is also wrong. In assessing disablement, all doctors should take account of information provided by the claimant. There is no precise formula by which disability can be equated to particular clinical findings or appearances on x-rays and scans. Examining medical practitioners interview claimants and take what they say into account, but their evidence is (rightly) not discounted for doing so. Third:
‘The earlier GP report which was unable to provide any specific information appears to suggest that the medical records did not contain any historic information in relation to the appellant’s physical limitation.’
[13]It is correct that the first report did not provide this information. The tribunal inferred that the GP was unable to provide information because it was not in the records. That is not a necessary inference. There may be many reasons why a GP does not include information in a report. Some GPs resent being required to provide these reports. Others give them little attention, perhaps because of pressure of other duties. Yet others may simply not understand the nature of what is required. The questions asked in the reports give little guidance and GPs lack the training of examining medical practitioners. The space provided for the disablement questions is smaller than that provided for the medical questions (diagnosis, history, variation, clinical findings and treatment). That sends a message about the focus of the information that the doctor is expected to provide and limits what the doctor has space to say anyway. Fourth:
‘Neither document gave any indications to the appellant’s walking ability.’
[14]This is correct of the first report. It is also correct for the second report in that the doctor did not specify any particular distance, time, manner or distance for the claimant’s walking. However, the doctor did refer to difficulties in weight bearing, which is surely relevant to mobility. Moreover, GPs are not generally experienced in estimating distances, so any precise indication on that matter would not be of much value as evidence. The reasons as a whole[15]I said that it was unfair to take a tribunal’s reasons apart in this way, so I must now take my own advice and consider the tribunal’s reasons as a whole. Essentially, what the judge was doing in the sentences I have dissected was to draw attention to the limitations of the GPs’ reports. This is often the difficulty that tribunals face: the reports provided by GPs are limited in the relevant information that they provide. That is not a criticism of GPs. It is simply a fact of life, even for diligent GPs, that they either do not have the information required or they have it but do not realise its relevance. Nevertheless, reports such as the ones provided in this case are often the only sort of evidence that is available or attainable from a claimant’s medical advisers. In that respect, they do not compare favourably with the reports of examining medical practitioners. That does not mean that they are valueless. Claimants are at a disadvantage compared to the Secretary of State when it comes to obtaining evidence in the form that will be of most value to the tribunal. nevertheless, they have a statutory right of appeal and that right must be made effective. All too often, judges present the tribunal’s reasons as if the tribunal had a choice between accepting the evidence of the GP or of the examining medical practitioner. There may be cases where that is so, but in many cases the reports each have their strengths and each their limitations as an assessment of the claimant’s disablement. In those cases, what a proper analysis usually requires is for the tribunal to show a balance between the value that can be distilled from each report and its limitations. Conclusion[16]For the above reason, the tribunal’s reasons were inadequate. They treated the evidence from the GPs as in conflict with the examining medical practitioner’s evidence, rather than analysing them as a whole. D. The effect of my decision[17]As the tribunal’s reasons are inadequate, its decision was made in error of law and I set it aside. There will be a rehearing before a different panel. As my decision is concerned with the process of the tribunal’s reasoning, it does not imply that the tribunal must have come to the wrong decision on the claimant’s entitlement to disability living allowance. Signed on original on 5 May 2011 Edward Jacobs Upper Tribunal Judge

Cited in 2 later judgments