DG v Secretary of State for Work and Pensions (II) [2013] UKUT 474 (AAC)

UKUT-AAC
DG v Secretary of State for Work and Pensions (II)
[2013] UKUT 474 (AAC) · 2013-09-24
[1]This is an appeal by the claimant against the decision of the tribunal given on 31 st August 2012 dismissing her appeal against the decision of the decision maker made on 18 th July 2011. The decision of 18 th July 2011 was a decision that the claimant had no loss of faculty for the purposes of s.103 of the Social Security and Contributions Act 1992 from 15 th January 1995 as a result of the accident which occurred on 3 rd October 1994 while the claimant was working as a bank cashier. The consequence of the decision was that the claimant was not entitled to disablement benefit.[2]Under Part V of the 1992 Act, disablement benefit is payable, so far as relevant for present purposes, if:(1) the claimant suffers personal injury caused by accident arising out of and in the course of his employment;(2) the claimant suffers a loss of physical or mental faculty as a result of that accident; and(3) the assessed extent of the loss of faculty is not less than 14 per cent.[3]It is to be noted at the outset that the decision of 18 th July 2011 did not involve any issue as to whether or not the claimant had suffered personal injury caused by an accident of the relevant kind. The decision maker had already decided that, as notified to the claimant by letter dated 26 th May 2011:
“Following the installation of larger, deeper bank counters [the claimant] had to reach and twist to pick up and place heavy bags of coin, which caused injuries to her neck, back and shoulders.”
The letter went on to explain that the claimant’s case would be forwarded for medical consideration.[4]The claimant was medically examined for the purposes of her claim by Dr. Rhodes on 30 th June 2011. Dr. Rhodes described the claimant as presenting with “very substantial disability in both shoulders and upper limbs with reduced movement and power extending down to her hands”. His view, however, was that the loss of faculty which he had found was not the result of the accident. He said:
“The correspondence enclosed from a number of specialists has failed to fully elucidate the cause despite various tests…. She appears to have a complex regional pain syndrome but it is not due to the original injury which would be expected to have resolved prior to the 91 st day in the normal course of events. It appears current symptoms are due to other causes.”
Dr. Rhodes’ report was expressly referred to in the letter informing the claimant of the decision on 18 th July 2011 and clearly must have been highly material to that decision.[5]The claimant appealed against that decision. Her notice of appeal inter alia:(1) drew attention to medical evidence supportive of her contention that there was a single incident, on 3 rd October 1994, which caused injury and immediate pain, rather than there having been a process by which her injuries developed;(2) pointed out that no other cause for her condition had been suggested. The decision was reconsidered on 15 th September 2011 but not changed.[6]The claimant’s appeal was originally to be heard on 16 th February 2012. On 13 th February 2012 the Citizens Advice Bureau, as the claimant’s representative, sent to the tribunal substantial additional medical evidence which the tribunal found itself unable to read and consider properly in the time available. The hearing was therefore adjourned. The tribunal directed that the claimant’s medical records from 1 st January 2000 were to be obtained from her G.P. by the Tribunals Service and the claimant herself was to produce the full copy of discussions with her employer. This was done, and led to the production of a very considerable volume of additional material, to the material parts of which (for present purposes) I refer below.[7]The claimant was not represented at the hearing on 31 st August 2012, but produced a written submission prepared with assistance from a solicitor. In essence, her contentions were that:(1) Dr. Rhodes had unfairly relied on the somewhat general and vague statements of the cause of the injury suffered by the claimant in medical reports which were produced as part of a process not for determining the past cause of the injury but for deciding upon the future treatment of the claimant;(2) the medical evidence showed a consistent picture of pain and treatment, with no pain-free period after the original injury had resolved, and no alternative cause of the claimant’s symptoms had ever been suggested. The claimant also gave extensive oral evidence and was examined by the medical member of the tribunal.[8]The clinical findings sheet produced as a result of the examination records the following, among other findings:
“Bruising round right wrist (she says from a minor injury 5 days ago). Wrist movements grossly reduced but no boney tenderness. Clinically no sign of a fracture or reason for her not to move the right wrist.”
[9]This finding in turn seems to have contributed to a finding by the tribunal that the claimant was not a credible witness. Paragraph 14 of the statement of reasons, which records that finding, also includes the following: “… the tribunal also took note of the fact … that in the examination she seemed to portray exaggerated symptoms in relation to bruising caused in an accident at home a few days previously. This is consistent with Mr Fagg’s comment to the effect that there was a deliberate attempt to exaggerate her symptoms relating to her shoulders.” (Mr. Fagg was a consultant orthopaedic surgeon who had examined the claimant in connection with her claim for a long term disability award from her employers.)[10]In support of her application for leave to appeal, the claimant adduced evidence that on 3 rd September 2013 (according to the letter of that date at p.327) she went to the Accident and Emergency department of the local hospital and was found to have fractured her right wrist in the accident at home referred to by the tribunal. She also raised a number of other points to which I refer later. On 12 th December 2012 the Tribunal

Judge granted permission to appeal to the Upper Tribunal on the ground that:

“It is appropriate that the Upper Tribunal considers whether the discovery that the findings at the examination may be inaccurate has any bearing on the validity of the tribunal’s decision to refuse the appeal.”
[11]The Secretary of State has produced a submission dated 11 th June 2013 which does not support the claimant’s appeal. The submission correctly points out that the conclusive evidence that the claimant’s wrist was fractured was the X-ray evidence, which was not available to the tribunal. It is submitted that the finding that there was clinically no sign of a fracture was a reasonable one to make, given that there are often no clinical signs of the fracture of a joint. It is further submitted that:
“In line with the tribunal’s other findings that the claimant was not a credible witness it was … a reasonable assumption that she was exaggerating her symptoms and there is no error in this respect.”
In summary, the Secretary of State says that the tribunal decided the case on the evidence before it.[12]This approach by the Secretary of State is entirely understandable as a theoretical argument but appears to fall far short of doing practical justice. It is clear that the tribunal regarded the claimant as exaggerating her inability to move her right wrist and that that contributed to its assessment of her as not a credible witness. It is also clear that, having heard from the claimant about Mr. Fagg’s report and having seen her written comments on that report, the tribunal preferred Mr. Fagg’s report to what she said about it because the claimant was found not to be a credible witness. This is explained in paragraph 13 of the statement of reasons as follows:
“The tribunal, in considering Mr Fagg’s report, also took into account the fact that the appellant did not accept the observations of Mr Fagg. For the reasons set out in paragraph 14 and 15 below, the appellant was not found to be a credible witness evidence ( sic ) and Mr Fagg’s evidence as to his observations was preferred to that of the appellant.”
There appears to me to be a risk of circularity of reasoning here. Moreover, the medical evidence includes a large quantity of material from other practitioners, including other consultants, none of whom has suggested at any point that the claimant was exaggerating her symptoms. The tribunal appears to have given particular weight to Mr. Fagg’s opinion on the ground that it “was based on an examination and actual observations”, but that might equally be said of many of the other practitioners. I find it impossible to avoid the conclusion that the tribunal’s reasons are based to a substantial extent on the medical member’s belief that the claimant’s wrist was not broken and that she was exaggerating her symptoms. It is now established beyond doubt that the claimant’s wrist was broken and therefore it is a reasonable inference that there was no exaggeration in relation to her wrist. Justice in a practical sense seems to require that there should be a reconsideration of the claimant’s case in circumstances free from the distorting effect of the mistake about her wrist.[13]It is nevertheless the case that an appeal to the Upper Tribunal may be made only on a point of law (s.11(1) of the Tribunals, Courts and Enforcement Act 2007) and that my powers under s.12(2) of the Act arise only if I find that the making of the decision involved the making of an error on a point of law (s.12(1)). The mistake about whether or not the claimant’s wrist was broken is in itself obviously a mistake of fact. I therefore have to consider whether the circumstances of the case as a whole disclose a mistake of law as that expression is interpreted in the present context.[14]In R. (Iran) v. Secretary of State for the Home Department [2005] EWCA Civ 982 , [2005] INLR 633 , at paragraph 9, the Court of Appeal gave “a brief summary of the points of law which will most commonly be encountered in practice”. This summary was couched in terms relevant to any appellate regime in which appeals are restricted to points of law and has been referred to in the social security context in R(I) 2/06 and R(DLA) 3/08 . The seventh point of law identified by the Court of Appeal was:
“Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.”
[15]Errors of law of such a type were then considered further in paragraphs 28 to 33 of the judgment, in which reference was also made to the basis on which the appellate body could admit new evidence to show the mistake of fact relied upon. It was said that the usual principles in Ladd v. Marshall [1954] 1 WLR 1489 apply, but that those principles may be departed from in exceptional circumstances.[16]The usual Ladd v. Marshall principles require that:(1) the new evidence could not with reasonable diligence have been obtained for use at the trial (or hearing);(2) the new evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive);(3) the new evidence must be apparently credible although it need not be incontrovertible.[17]In the present case it may be said that the Tribunal Judge has already admitted the new evidence, since he clearly relied on the claimant’s evidence about her broken wrist in giving permission to appeal. For the avoidance of doubt, I make clear that in my view it is proper for me to have regard to that evidence. Taking the Ladd v. Marshall principles in reverse order, the evidence is clearly credible; it is highly material to the tribunal’s findings on the claimant’s own credibility and thus it may fairly be said that it would probably have had a important influence on the result of the case; and in my view the claimant is not reasonably to be criticised for not having obtained X-ray evidence to establish whether or not her wrist was broken before the appeal was heard, since she had no reason to suppose that her ability to move her wrist would be a relevant issue. In a context such as the present it seems to me that the first Ladd v. Marshall principle must extend to cases where the new evidence was not obtained because the person relying on it had no reason to suppose that the point to which it was directed would be relevant, so that there was no failure of reasonable diligence in the failure to obtain the evidence.[18]Once it is accepted that the evidence relating to the claimant’s wrist can be considered, the case can be seen to be one which falls within the class of points of law seventhly described in the Iran case. The tribunal was mistaken as to the physical condition of the claimant’s wrist, which was capable of being established by the objective and uncontentious evidence of the hospital X-ray and accompanying letter, the claimant was not responsible for the mistake, since it was based on the clinical examination conducted by the medical member, and unfairness resulted from the mistake for the reasons given in paragraph 12 above. My view to that effect is reinforced by observing that in the discussion in paragraphs 28 to 33 of the Iran case it appears to have been accepted that the fundamental question is whether the mistake of fact leads to unfairness in circumstances in which the claimant, the Secretary of State and the tribunal all have a common interest in ensuring that decisions are taken on the best information and a correct factual basis. The authorities do not lay down a precise code as to when such unfairness will be shown, although the requirements identified in paragraph 9 of Iran will ordinarily apply.[19]On that basis I conclude that there was an error on a point of law in this case and the only fair outcome is that I should set the decision aside.[20]In reaching that conclusion, I have not found it necessary to enter upon the criticisms made by the claimant of the conduct of the medical member at the hearing. Those criticisms were both general, to the effect that he behaved in a hostile manner and continually interrupted her and argued with her when she was trying to give evidence, and specific, to the effect that the clinical finding “no boney tenderness” implied that he had touched her wrist when he had not in fact done so. As a matter of fairness, I would not regard it as appropriate to proceed on the basis of those criticisms without some further inquiry as to what happened at the hearing.[21]There is, however, one point with which I should deal. The claimant contended in her grounds of appeal that the question for determination was only to identify the cause of her present disability, given that it had already been decided that she had suffered an industrial accident and Dr. Rhodes had already concluded that she presented with very substantial disability. The Secretary of State, in the submission made on the appeal, contended that the purpose of the tribunal hearing was to examine the evidence and assess the extent of any relevant loss of faculty which followed the accident on 3 rd October 1994. In her observations in reply, the claimant produced an exchange of correspondence with Atos Healthcare, the former employer for this purpose of Dr. Rhodes, in which it was confirmed that Dr. Rhodes had acknowledged a loss of faculty but had not agreed that the cause was the industrial accident.[22]I accept that Dr. Rhodes found that the claimant was suffering from substantial disability and I accept, as is implicit in what the claimant says, that that was relevant evidence, obtained as a result of “examination and actual observations” (to quote from the tribunal’s decision notice) and ought to have been taken into account by the tribunal. Unfortunately, there is no express reference to it at any point. That omission, in my view, means that the tribunal did not give adequate reasons for its assessment of the medical evidence, since it is wholly unclear what view was taken of the report of a medical practitioner employed to provide an expert report on the very issue before the tribunal. If it had been necessary, I should have set the decision aside on that ground also (a ground which gains added force from the point made in paragraph 24(3) below).[23]I do not accept, however, in so far as the claimant alleges this, that the tribunal was effectively bound by Dr. Rhodes’ findings on examination. It is commonplace for such findings to be challenged in disablement benefit cases as part of a challenge to a decision on what loss of faculty resulted from an accident and how the loss is to be assessed. It was simply the question whether there had been an industrial accident causing injury to the claimant which had already been decided in her favour. As part of its own consideration of the loss of faculty resulting from the accident and how it should be assessed it was open to the tribunal to decide that the medical member should carry out a physical examination in accordance with Rule 25(2) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, S.I. 2008 No. 2685, as the Secretary of State has pointed out.[24]There are three matters to which I draw attention in connection with any such examination in the present case, as follows:(1) the medical evidence available to Dr. Rhodes was much more limited than the medical evidence now available. The earliest evidence Dr. Rhodes had was a letter dated 16 th February 2001 from Mr. Morris, also a consultant orthopaedic surgeon. There is now evidence, albeit limited evidence, going back to 1996, and a considerable volume of evidence from 1 st January 2000 onwards;(2) the tribunal’s clinical findings sheet refers to “full passive movement of both shoulder joints”. The claimant refers to the distinction between active and passive movements and the significance of her limitations as respects active movement. As explained in paragraph 20 above, I do not express any conclusions as to the manner in which the examination was conducted, but I draw attention to the potential materiality of the distinction;(3) it is clear from pp. 213 to 218 in the bundle that after seeing Dr. Rhodes on 30 th June 2011 but before the tribunal hearing on 31 st August 2012 the claimant underwent a right shoulder arthroscopic capsular shift, a procedure which had been considered with Mr. Morris in 2001 but which the claimant did not then undertake, apparently because she had a small child at that time. By 21 st February 2012 Mr. Pardiwala, a locum consultant orthopaedic surgeon, was writing that she was progressing well and had got forward elevation abduction to about 100 degrees, passive to 150 degrees. The tribunal made no reference to this surgery or to the possibility that it helped to relieve the condition noted by Dr. Rhodes and so may have contributed to the medical member’s making different clinical findings from those made by Dr. Rhodes.[25]In making the point in sub-paragraph (3) above, I have not lost sight of the fact that the tribunal is prohibited by s.12(8) of the Social Security Act 1998 from taking account of any circumstance not obtaining at the date of the decision appealed against. It seems to me, however, that the perceived need for such surgery and its consequences may shed some light on the nature and causes of the claimant’s condition prior to the surgery and indeed may tend to show that Mr. Morris’ 2001 view of the claimant is to be preferred to Mr. Fagg’s 2004 view. Those possibilities are in addition to the possibility that the operation may help explain the differences in clinical findings.[26]In the light of the various points I have mentioned, I have come to the clear conclusion that the appropriate course in this case is to set aside the tribunal’s decision and to remit the matter to be heard by a new tribunal constituted differently from the previous tribunal. The new tribunal will have the expertise, which I do not, to assess the considerable volume of medical material.[27]Given that clear conclusion, it is not necessary for me to deal with any further contentions of either party and in my view it would not be helpful for me to seek to do so. What is now required is a consideration of the issues identified in paragraph 2(2) and (3) above as to loss of faculty and, if appropriate, assessment of that loss, in the light of the totality of the available material.[28]I have referred in paragraph 24(1) to the limited medical evidence available from before 1 st January 2000. It is open to the claimant to supplement that evidence if she wishes to do so. A statement from a healthcare professional who has been treating her for an extended period might assist in shedding light on her condition and on the cause of any loss of faculty which is found. An alternative approach might be the production of employment records showing absences from work between 3 rd October 1994 and the claimant’s maternity leave. The claimant is not to be criticised for the delay in bringing the present claim, since she says she was unaware of the possibility of doing so, but the nature of the original accident and injury are such that evidence of the continuation of the injured state from 3 rd October 1994 to 18 th July 2011 is important to the extent that it can now be obtained. I recognise the force of the claimant’s argument that no alternative cause of her present condition has been suggested, but nevertheless the burden of proof remains on her.[29]Further, for the reasons explained in paragraphs 24(3) and 25 above, it seems to me that in any event additional medical evidence as to the nature and effect of the surgery the claimant underwent in October 2011 may assist in elucidating the issues facing the new tribunal. The claimant may wish to consider adducing such evidence. The Secretary of State in turn may wish to decide whether a further medical examination might provide useful material.[30]For the reasons I have given, I set aside the decision of the tribunal made on 31 st August 2012 and I remit the matter to be heard by a new tribunal constituted differently from the previous tribunal. I direct the new tribunal to have in mind the points made in this decision when considering the matter. (Signed) E. Ovey Judge of the Upper Tribunal (Dated) 24 th September 2013

Cited in 1 later judgment