JP v Secretary of State for Work and Pensions (IB) [2011] UKUT 459 (AAC)

UKUT-AAC

JP v Secretary of State for Work and Pensions (IB)

[2011] UKUT 459 (AAC) · 2011-11-02

Decision

The appeal is allowed.

The decision of the First-tier Tribunal given at Darlington on 16 February 2001 under reference SC227/10/06528 involved the making of an error on a point of law.

That decision is set aside.

The Upper Tribunal remakes the First-tier Tribunal’s decision in the following terms:

The appeal is allowed.

The decision of the Secretary of State made on 18 November 2010 and notified on 22 November 2011 is set aside.

From and including 18 November 2010, the claimant continued to be incapable of work and to be entitled to incapacity benefit.

REASONS FOR DECISION

Introduction

1 This appeal is brought by the claimant with the permission of Judge Lloyd-Davies. It is ultimately against a decision, taken on behalf of the Secretary of State on 18 November 2010, that the claimant did not satisfy the personal capability assessment and was no longer entitled to incapacity benefit with effect from that date.

2 The claimant was 42 years old at the date of the Secretary of State’s decision. In April 2005, when she was 37, she became incapable of work. She claimed, and was awarded, incapacity benefit with effect from 14 November 2005

3 The claimant had previously worked for a major credit card company. She says, and I have no reason to doubt it, that she did so for 20 years. In the circumstances, that must have been the whole of her working life. The work involved the use of a computer and keyboard and she developed a “work related upper limb disorder” in her right arm. This is confirmed by a Med 4, provided by her GP for the purposes of the claimant’s first personal capability assessment in December 2005, which states the main diagnosis as “repetitive strain injury R[ight] arm” and a secondary diagnosis as “R[ight] upper arm syndrome”. He also confirmed that the condition was “work-related due to keyboard”.

4 At that time the claimant was still employed by the credit card company. As she had been off work for approximately 20 months by then, that can only have been because it was hoped that she would be able to return to work. However, that did not prove to be possible and, on a date that cannot be identified from the evidence available to me, her contract of employment was terminated.

5 Over the years since then, the claimant has, understandably, become depressed by her ill-health, the loss of her job and also because of the breakdown of her marriage. There is also evidence that at some point she fell off a stool and injured her neck and back.

The personal capability assessments

6 The claimant has been examined for the purposes of the personal capability assessment (“PCA”)on four occasions during her claim. It is only necessary for me to refer to two:

(a) On 1 September 2009, the claimant was examined by Dr B, who advised the Secretary of State that the claimant scored 6 points for

Descriptor 7(g)

Cannot pick up a coin which is 2.5 centimetres or less in diameter with one hand but can with the other

6 points

and 9 points on the mental heath assessment as follows:

Descriptor 15(e)

Mental condition prevents him from undertaking leisure activities previously enjoyed

1 point

Descriptor 16(c)

Is frequently distressed at some time of the day due to fluctuation of mood.

1 point

Descriptor 17(b)

Frequently feels scared or panicky for no obvious reason

2 points

Descriptor 17(c)

Avoids carrying out routine activities because he is convinced they will prove too tiring or stressful

1 point

Descriptor 17e

Frequently finds there are so many things to do that he gives up because of fatigue, apathy or disinterest

1 point

Descriptor 17(d)

Is unable to cope with changes in daily routine

1 point

Descriptor 17(f)

Scared or anxious that work would bring back or worsen his illness

1 point

Descriptor 18(d)

Gets irritated by things that would not have bothered him before he became ill

1 point

(b) On 11 November 2010, the claimant was examined by Nurse P who advised the Secretary of State that the claimant did not score any points for physical descriptors and only 1 point on the mental heath assessment for Descriptor 17(f) (see above).

7 On that advice, the Secretary of State made the decision set out at paragraph 1 above

8 The claimant appealed to the First-tier Tribunal on 14 December 2010.

The tribunal’s decision

9 The First-tier Tribunal refused the appeal. The relevant paragraphs from its statement of reasons are as follows:

“1. The case was listed as a hearing ‘on the papers’. The file was checked to confirm that the appellant had exercised the option not to attend to give oral evidence in support of the appeal, and that no party objected to such a hearing. The file of papers indicated that this was an experienced appellant who had been successful in at least two previous appeals.

2. All of the written evidence was considered carefully, and the tribunal considered that it was able to decide the matter without an oral hearing. We felt that we were able to deal with the appeal fairly and justly in accordance with the overriding objective.

…

7. We found that mental health problems were now well controlled and mild and did not lead to significant functional impairment for the purpose of the PCA descriptors. There was observed significant improvement in her condition in the most recent PCA, and the letter from her GP dated December 2010 was not particularly supportive of functional impairment.

8. The most recent PCA assessment lasted for 33 minutes, and we found it to be a reasonable assessment of the appellant’s functional capacity at the relevant time. We found it to be reliable and objective. In the absence of the appellant, we preferred this evidence. We found significant observed improvement in the appellant’s manual dexterity. She has seen a specialist and no surgery is proposed. The hand, neck and back problems are managed at GP level with appropriate standard medication. We found no recent persuasive evidence to interfere with the interpretation of the PCA descriptors as given by the HCP [ i.e., Health Care Professional] in the most recent PCA.

9. Where the evidence given by the appellant was in conflict with the evidence given in the examination for the purpose of the PCA the tribunal preferred the evidence of the most recent PCA as being more probable and reliable. This was because we found that the PCA was independent and objective.

10. We found the evidence of the appellant to be self-serving and unreliable.

11. We found that the significant impairment claimed by the appellant was not consistent with the most recent medical evidence.

12. The tribunal considered Regulation 27 and did not find that this should apply in this case.

13. We confirmed the decision.

Reasons for setting aside the First-tier Tribunal’s decision

10 Those paragraphs involve a number of legal errors.

The decision not to hold a hearing

11 As paragraphs 1 and 2 of the statement explain, the tribunal’s decision was made on consideration of the papers without a hearing. The claimant had requested that procedure, as had the Secretary of State.

12 The statement shows the tribunal knew that, even in the light of those requests, it had to hold a hearing unless it considered that it was able to decide the matter without one (see rule 27(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 ('the Rules') and the recent decision of Judge Mesher in MM v SSWP (ESA)

[2011] UKUT 334 (AAC)

). I am satisfied that the tribunal consciously exercised its discretion to proceed without a hearing.

13 However, whether the tribunal has given adequate reasons for the exercise of that discretion is a more difficult issue.

14 The effect of rules 2 and 27(1)(b) of the Rules is that the tribunal could not have proceeded on the papers unless it “felt that [it was] able to deal with the appeal fairly and justly in accordance with the overriding objective”. For the tribunal to say, without more, that that is the case is to re-state its decision to proceed in different words, rather than to explain it. It amounts to saying that the tribunal decided to proceed because it formed the view that the criteria which permit it to do so are satisfied. However, in my judgment, what is required by the decision in MM v SSWP (ESA) is an explanation, however brief, of why the tribunal concluded those criteria are satisfied.

15 Some explanation can be found in the observation (at paragraph 1 of the statement) that the claimant is an “experienced appellant who had been successful in at least two previous appeals”. I can understand why the claimant has objected to that passage, which she regards as derogatory and as implying that—as she had been successful in two previous appeals—she was overdue for a failure on this occasion. However, I am sure that is not what the tribunal meant. Rather, the tribunal was recording that it was dealing with someone who was not new to the appeals process and who could therefore be expected to make an informed choice about whether she wished to attend a hearing. That is not true of all appellants and, in my judgment, the tribunal was entitled to take it into account. If there were no other relevant factors, I would have held that the tribunal’s explanation of its decision to proceed was, just, adequate.

16 The real problem with the tribunal’s explanation in this case is that, having decided to proceed, it then preferred the evidence of Nurse P to that of the appellant because (among other things) the appellant was absent from the hearing.

17 I do not understand how the appellant’s absence from a hearing could be a legitimate reason for rejecting her written evidence and preferring the written evidence of another witness who was also absent. It seems to me that this is another manifestation of the flawed approach to the evidence that I discuss in the next section of this decision.

18 However, if one assumes for the purpose of argument that it was legitimate for the tribunal to adopt that approach to the evidence, it needed to explain in greater detail how it concluded that it could deal with the appeal fairly and justly without a hearing. It must have considered that Nurse P’s evidence raised issues that the appellant might have been able to explain had she been present. If not, why did it say that it was preferring Nurse P’s evidence “in the absence of the appellant”?

19 But if the tribunal did take that view, why did it not consider that fairness and justice required it to give the claimant an opportunity to attend a hearing and give that explanation? In Gillies v SSWP

[2006] UKHL 2

at [41] Baroness Hale of Richmond observed that “the system [ i.e., the system of social security adjudication] is there to ensure, so far as it can, that everyone receives what they are entitled to, neither more nor less”. Holding a hearing of an appeal is something the tribunal “can” do and if Nurse P’s evidence raised issues that required explanation, arranging for that explanation to be given was the best way of ensuring that the claimant received what she is entitled to, neither more nor less. The claimant had not said that she would not attend a hearing if the tribunal decided to hold one: she had only said that she did not herself wish to have a hearing. If she had been contacted to say that the tribunal felt it was necessary to hold a hearing and had replied that she would not attend in any event, the position would have been different. However, there is no evidence before me that any such contact was made.

20 In summary, the tribunal’s reasons for deciding not to hold a hearing were inadequate, given that it treated her absence as an adverse factor in the weighing of her evidence. That is an error of law.

“no persuasive evidence to interfere” with the HCP’s advice

21 At least in social security appeals, an appeal to the First-tier Tribunal requires the tribunal to conduct a complete reconsideration, starting from scratch, of all the issues raised by the appeal. There is no presumption in favour of the decision that is under appeal. Neither does evidence from any particular source have any special status purely by virtue of its provenance. As Mr Commissioner Rowland (as he then was) stated in CIB/4497/1998 at [9]:

“ all the evidence must be considered in each case and weight given to it as appropriate, bearing in mind the circumstances and the real points in dispute” (Original emphasis).

22 The tribunal’s statement shows that it did not adopt that approach, but rather approached the appeal on the basis that Nurse P’s view of the matter should prevail unless the claimant provided “recent persuasive evidence” that would justify it in “interfering” with her interpretation of the PCA descriptors.

23 That is a serious error of law because it amounts, in effect, to imposing a burden of proof on the claimant. In my judgment, this was a case in which there was sufficient evidence for the tribunal to reach a decision without having to rely upon the burden of proof. But if a burden fell to be imposed, the law required the tribunal to impose it on the Secretary of State, not the claimant. Until 18 November 2010, the claimant had the benefit of a final decision (see section 17 of the Social Security Act 1998), making an indefinite award of incapacity benefit. If the Secretary of State wishes to alter that final decision, then ultimately the burden is on him to establish the existence of grounds for supersession and the proper terms of the superseding decision on a balance of probabilities.

24 The further requirement that the claimant should discharge the burden that had been incorrectly imposed on her by producing “recent” evidence compounds the error. The claimant’s position was that her physical condition had not materially changed between the two personal capability assessments and that her mental health had deteriorated. If that was correct, then earlier medical evidence remained relevant to her current condition. In those circumstances, to require the claimant to produce “recent” evidence contradicting Nurse P was implicitly to reject her evidence about the course of her ill-health without giving reasons for doing so.

25 The point may be illustrated by considering the issue of manual dexterity in this appeal. As I demonstrate below, the claimant’s submission that her condition had not changed was supported by the fact that the relevant clinical findings of Dr B and Nurse P were exactly the same. That meant that there was a direct conflict of opinion evidence—which the tribunal failed either to identify or address—between Dr B and Nurse P over whether a person with those clinical signs was likely to score points for the activity of manual dexterity. That Nurse P’s opinion was formed more recently than Dr B’s is not a rational basis for preferring the former to the latter (or vice versa).

“Observed significant improvement”

26 The Tribunal stated (at paragraph 7) that “there was observed significant improvement in her condition in the most recent PCA” and (at paragraph 8) that it “found significant observed improvement in the appellant’s manual dexterity”.

27 Turning first to the claimant’s physical problems with her right arm, a comparison between the relevant clinical findings made by Dr B in September 2009 and Nurse P in November 2010 gives the following:

Dr B

Nurse P

Right Upper Arm

Shoulder external rotation

Client Declined

70 ° (normal)

Hands behind neck

Fingers do not reach mid-line

Hands behind back

Finger below scapula

Scapular movement from

Client declined

No record

Shoulder abduction

Client declined

170 ° (normal)

Elbow flexion

130 ° (normal)

Upper limb power

Power and tone are normal

Significantly reduced

Right forearm

Wrist pronation

70 ° -80 ° (normal)

Wrist supination

70 ° -80 ° (normal)

Wrist dorsi-flexion

30 ° or more

Wrist palmar-flexion

30 ° or more

Pinch grip

Can touch but reduced power

Power grip

Reduced

28 When one considers that comparison, the “significant observed improvement” that the tribunal was able to find does not leap off the page. If one ignores those findings where direct comparison is not possible (either because the claimant declined to be tested by Dr B or, in one case, because Nurse P did not record a particular finding) then the two sets of findings are identical, except that Nurse P found upper limb power to be significantly reduced whereas Dr B found it to be normal. That is not an improvement: it is a deterioration.

29 It is possible that the Tribunal took the view that the improvement lay in the fact the claimant had previously declined to be tested for the external rotation and abduction of her right shoulder but was now not only prepared to be tested but had been found to have normal function. If so, then in my judgment the tribunal should have said so, not least because identifying that any improvement in the claimant’s right arm was limited to the movements of her shoulder would have raised the question whether such an improvement was likely to improve her ability to perform the tasks set out in the descriptors for manual dexterity. Those tasks are more closely associated with the movements of the hands and wrist. Apart from the pronation and supination of the wrist (which were normal) all the clinical findings relating to the hands and wrist—both those made by Dr B and those made by Nurse P—showed abnormalities. The normal range of wrist palmar flexion is from 0 ° to 90 ° ; the normal range of wrist dorsiflexion is from 0 ° to 70 ° and the claimant’s power and pinch grips were both found to be reduced.

30 As far as the claimant’s mental health is concerned, the picture is less clear cut. The mental health assessment is necessarily more subjective but, to achieve some measure of standardisation, claimants are assessed against 48 broadly objective criteria. I will not weary readers of this decision with an item by item comparison of Dr B’s and Nurse P’s findings for each of those criteria. Suffice it to say that:

(a) for 28 out of the 48, those findings are identical; and

(b) Nurse P did not assess 11 of the criteria which were concerned with addiction; and that therefore

Dr B

Nurse P

Appearance

Dress General

Neatly dressed

Casually dressed

Behaviour

Eye contact

Poor eye contact

Normal eye contact

Facial expression

Normal facial expression

Reduced

Activity Fiddling

Fiddling present

Absent

Mood

Assessment Depression

Moderate depression

Not depressed

Assessment Anxiety

Moderate anxiety

Not anxious

Ideas of Self Harm

No ideas of self-harm

Occasional thoughts of self-harm

Demeanour

Withdrawn

Normal demeanour

Thoughts

Ruminations

Client declined

Does not ruminate

31 I am not sure that any significance can be attached to the different assessments for “Dress General” and “Ruminations” (not least because “Client declined” does not seem to make sense and may be a typographical error for “Client denied” in which case there has been no change). However, I will assume that being casually rather than neatly dressed can be taken as indicative of a possible decline in mental health and that not ruminating in circumstances where one previously refused to discuss whether one ruminated or not represents an improvement.

32 On that basis, the claimant showed an improvement on six out of 48 criteria and a deterioration on three.

33 The figures are even closer when one considers that two of the six criteria on which she showed an improvement, “Assessment Depression” and “Assessment Anxiety” are the only two out of the 48 that involve an inference by the Health Care Professional rather than an observation of the claimant’s behaviour and appearance or a record of her answers about her mental state. In other words, they are matters of professional opinion rather than fact. What those differences come down to is that Dr B believed on the basis of his other findings that the claimant was depressed and anxious and Nurse P believed on the basis of her other findings that she was not.

34 For those reasons, I am unable to identify the observed significant improvement that the tribunal recorded. The clinical findings in relation to manual dexterity were the same at the examination by Nurse P as they had been at the examination by Dr B. The findings relating to her mental condition are not identical but the differences point in both directions and suggest little improvement overall. I am left with the impression that the “significant improvement” was not so much observed as inferred by the tribunal from the fact that Nurse P’s overall advice was that the claimant no longer satisfied the personal capability assessment.

35 In one sense, that is irrelevant. It was for the tribunal to weigh the evidence and it did not have to assess it as I do. The reason I have gone into the evidence at this level of detail is not—at least at this stage—to take issue with the tribunal about the facts but rather to demonstrate that this is not the open and shut case is suggested by the statement of reasons. Rather it is a case in which any sustainable outcome would have to be justified by a detailed evaluation of the competing evidence. The claimant’s written evidence to the tribunal did not—as is often the case—consist of an unparticularised assertion that she was unable to work. She made detailed criticisms of Nurse P’s evidence. The tribunal did not have to accept those criticisms but it did have to address them.

36 The tribunal’s reasons do not disclose that such the necessary evaluation was undertaken and that, too, is an error of law.

“Objective”, “Reliable”, “Independent”, “Self-serving” and “Unreliable”

37 What one does, however, find in the statement is epithets. The tribunal’s decision is said to have been made on the basis that Nurse P’s evidence is “independent”, “objective” and “reliable”. By contrast the claimant’s evidence is “self-serving” and “unreliable”.

38 Such an approach gives rise to a number of problems.

“Independent” and “Self-serving”

39 All HCPs are “independent” in the sense that they have no financial or other interest in whether their evidence leads to the continuation or termination of the claimant’s benefit. In the same way, all claimants necessarily have such an interest and, to that extent, their evidence is inevitably “self-serving” in the sense that the tribunal used that term. The problem is that if those characteristics, on their own, are to form the basis for preferring the evidence of a HCP over a claimant, the process of appeal is subverted because the claimant cannot win.

40 If one looks at the question on an abstract basis and asks whether, in general terms, the evidence of a disinterested person with relevant professional expertise should normally be preferred to the evidence of a person with a direct interest in her evidence being accepted, one might, perhaps agree that the former person’s evidence was more likely to be reliable. But the tribunal was not being asked to resolve a dispute between HCPs in general and claimants in general. Rather it had to weigh the evidence of the individual claimant against that of the individual HCP in this particular case.

41 In particular cases, even independent people with relevant professional expertise are not infallible. They sometimes overlook things, or make errors, or simply form judgments on which others (including, in particular, the tribunal) may legitimately differ. Similarly, the fact that evidence is technically self-serving does not necessarily mean that it is incorrect (and, far less that it is deliberately false) but only that it comes from a source with an interest in the outcome of the dispute and needs to be assessed with that fact in mind. In other words the independence and expertise of the HCP, and the fact that the claimant has an interest in her evidence’s being accepted, are the starting points for a tribunal’s assessment of their conflicting evidence. They are not characteristics that remove the need for undertaking such an assessment.

42 Moreover, reliance on the independence and professional expertise of the HCP, does not, even in general terms, assist in resolving conflicts between the evidence of the HCPs and other medical evidence.

43 In this case, a letter dated January 2011 from the claimant’s GP—who is also independent and professionally qualified—flatly contradicted Nurse P’s assessment that the claimant was not depressed or anxious.

44 The tribunal does not refer to that letter. It does refer to an earlier letter in December 2010 which it describes as “not particularly supportive of functional impairment”. That is true because, as is often the case with GP evidence (see, generally, HL v Secretary of State for Work and Pensions (DLA)

[2011] UKUT 183 (AAC)

) the letter did not address functional impairment one way or another. However, the conflict between Nurse P and the GP on the question of whether the claimant was suffering from anxiety and depression was one that the tribunal needed to address explicitly. If the GP was correct and Nurse P was wrong on that central point, all of Nurse P’s consequential conclusions about the functional impairment (or lack of it) suffered by the claimant as a result of mental ill-health were undermined.

“Objective”

45 In this case is not clear whether the tribunal’s use of the word “objective” adds anything to its use of the word “independent”.

46 However, it is possible that the tribunal meant that Nurse P’s opinion was based on “objective” clinical criteria such as findings on examination or the results of medical tests. If so, that is certainly true. It is also a relevant point of distinction between Nurse P’s evidence and the claimant’s (of which it is, of course, not true).

47 Once again, however, that is not the end of the matter. The conflict between Dr B and Nurse P over whether, on the same clinical findings, the claimant satisfies Descriptor 7(g) demonstrates in stark terms that different conclusions can be drawn from the same “objective” clinical findings.

48 Dr B is also a HCP and may therefore be presumed to be as independent and objective as Nurse P, and possibly better qualified professionally. Nurse P’s opinion that the claimant does not satisfy the descriptor is only more “objective” than Dr B’s opinion to the contrary if one approaches the conflict of evidence on the basis that it is inherently more “objective” to reach a conclusion that denies benefit to a claimant than one which awards it. Which is absurd.

49 For those reasons, it is not sufficient for a tribunal simply to label the evidence of a HCP (or any other professional) as “objective” and then prefer it on that basis. At the minimum it is necessary for the tribunal to satisfy itself that the HCP’s conclusions are consistent with his or her objective findings. Even if they are, the Tribunal should then consider in the light of all the evidence, and drawing as necessary on the expertise of its medical member, whether it agrees with those conclusions. It is perfectly possible for a tribunal to accept the clinical findings of a HCP (or other professional) but reject his or her conclusions simply because it takes a different view of the matter.

50 For example, in this case, it would have been possible for the tribunal to accept the identical clinical findings of Dr B and Nurse P about the claimant’s manual dexterity but to disagree with the conclusions drawn by both of them and conclude that, on the evidence as a whole, those clinical findings justified an award of (say) 10 points for Descriptor 7(e). Interestingly, that was the view taken by Dr B himself on (again) identical clinical findings, at an earlier personal capability assessment in 2008.

“Unreliable” and “reliable”

51 Although I cannot say it was an error of law to do so, I do not think it was helpful for the statement of reasons to include these words. They express conclusions not reasons. It is inherent in the tribunal’s decision to prefer Nurse P’s evidence that it considered it more reliable than that of the claimant. The purpose of the statement was to explain why it had formed that view and to announce that it was so added nothing to the explanation.

52 It did, however, cause unnecessary offence to the claimant, particularly when taken with the tribunal’s use of “self-serving” which, while technically correct, was capable of being misunderstood unless appropriately qualified. The claimant believes that the tribunal has rejected her evidence as being intentionally false. I, too, although I accept that it is not what the statement actually says, am left with the lingering impression that that is what it intended to convey.

53 The tribunal would have been fully entitled to reach such a conclusion but, if it was going to do so, it should have grasped the nettle and said so in as many words rather than hinting. In those circumstances, it would, in the circumstances of this case, have had to give reasons for taking that view (see CIS/4022/2007 and DR v Secretary of State for Work and Pensions (DLA)

[2010] UKUT 210 (AAC)

)

Overall

54 For all those reasons, I am unable to accept the submissions of the Secretary of State’s representative (who does not support the appeal) that the tribunal has made adequate findings of fact and given sufficient reasons. Her submission does, however, remind me that the tribunal is entitled to have me read its statement of reasons as a whole and that the criticisms I have made of it have involved a detailed analysis.

55 However, looking at the statement overall, the view I have formed does not change. Taking everything into account, including:

(a) the tribunal’s approach that the Nurse P’s evidence should prevail unless contradicted by recent persuasive evidence;

(b) its decision not to hold a hearing and then to use the claimant’s absence against her;

(c) the formulation of its reasons by reference to characteristics that are inherently true of all HCPs and all claimants;

(d) its failure to deal with the content of the medical evidence;

(e) its reliance upon a supposed “significant objective improvement” which is not further explained and which, in my judgment, is not observed in relation to the claimant’s physical health and not significant in relation to her mental health; and

(f) its unnecessary characterisation of the claimant’s evidence as unreliable;

I regret I have reluctantly formed the overall impression that the tribunal really preferred Nurse P’s evidence for no better reason than that she is a HCP and rejected the claimant’s evidence for no better reason that that she is a claimant. I have no hesitation in exercising my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 to set its decision aside.

Reasons for the re-made decision

56 Having set the tribunal’s decision aside, I must either remit the case to the First-tier Tribunal for re-consideration or re-make the decision myself.

57 I have decided on the latter course of action. Remitting the case would lead to delay and any further hearing before the First-tier Tribunal would be likely to take place at least 15 months after the latest date that the tribunal would be entitled to consider. It is not probable that further relevant evidence will become available. The claimant’s memory will have inevitably have faded and any further tribunal would be likely to conclude that the most reliable statement of her case can be found in her existing written evidence, all of which is available to me. In those circumstances, I consider that the best course is for me to substitute my own decision on the merits of the appeal.

58 I begin with the physical descriptors. As I have already explained at length the clinical findings that are relevant to the activity of manual dexterity have not changed since the previous personal capability assessment. I therefore have to choose between the professional opinion of Dr B that a person with a reduced range of dorsiflexion and palmar flexion of the wrist and reduced power and pinch grip would probably have problems with manual dexterity that are sufficient to merit an award of points, and the view of Nurse P that that person would have no such problems.

59 Taking into account all the available evidence I prefer the former view. I think it is necessary in the circumstances of this appeal to say expressly that I do not share the First-tier Tribunal’s assessment of the claimant’s evidence. Although I must bear in mind that she, like any claimant, has a financial interest in the outcome of this appeal, I do not consider her evidence to be false, exaggerated or otherwise unreliable. In forming that view, I have been impressed by the facts that the claimant has been consistently prepared to acknowledge activities with which she does not have problems; that those difficulties she claims are entirely consistent with the majority of the historical medical evidence, and with what one would expect given the condition from which she suffers, and with the course which that condition has taken since it first made itself apparent when she was in work. As I accept her evidence that her physical condition is not improving—evidence which is abundantly corroborated by successive clinical findings—that historical medical evidence remains relevant to any current assessment of her condition.

60 The claimant did not select specific descriptors for manual dexterity in her replies to the Incapacity for Work Questionnaire (Form IB50) , preferring to rely upon a general description of the problems she experiences. However, her written evidence to the First-tier Tribunal was that she “struggles with writing as [her] grip is reduced and [her] hand stiffens and causes cramp when [she holds] a pen or pencil”. I accept that evidence which I consider to be consistent with the clinical findings. The claimant is clearly not totally unable to write because she has managed to complete the Questionnaire (although I am not told how long it took her to do so). However, the personal capability assessment is conducted on the basis of a person’s ability to carry out the activities in the descriptors repeatedly, with reasonable regularity, and without an unacceptable level of pain or discomfort. On that basis, I hold that the claimant is entitled to 15 points for Descriptor 7(d), “Cannot use a pen or pencil”. She therefore satisfies the personal capability assessment and continues to be incapable of work and entitled to incapacity benefit from and including 18 November 2010.

61 In those circumstances, it is unnecessary for me to award points under the mental heath assessment. However, it may help prevent future misunderstandings if I record that, had it been necessary to do so, I would have preferred the evidence of the claimant’s GP (which I consider to be supported by the evidence of Dr B) that the claimant was anxious and depressed at the relevant time over the conflicting evidence of Nurse P. I would also have accepted the claimant’s evidence that, unfortunately, her mental health was deteriorating, not improving.

62 For all those reasons, this appeal is allowed. I would conclude by suggesting to the claimant that she ever finds herself in the position of appealing to the First-tier Tribunal in the future, it would be in her interests to ask for a hearing of that appeal and to make every effort to attend it.

(Signed on the original)

Richard Poynter Judge of the Upper Tribunal

2 November 2011