LC v Secretary of State for Work and Pensions (DLA) (DLA, AA, MA: general : other) [2015] UKUT 32 (AAC)

UKUT-AAC
LC v Secretary of State for Work and Pensions (DLA) (DLA, AA, MA: general : other)
[2015] UKUT 32 (AAC) · 2015-01-21
[1]The issue raised in this appeal is whether or not the appellant is entitled to disability living allowance from 1 March 2013 and, if so, at what rate and for what period. The background[2]The appellant was born on 27 May 1985 and was, as at the date of the original decision under appeal, aged 27 years. She suffers from health problems which include alcohol dependency, liver disease, anxiety, depression and back pain. She made made a new claim for disability living allowance. She did so by completing and submitting a claim pack. She signed the claim pack on 17 March 2013. The claim was treated as having been made on 1 March 2013.[3]In completing her claim pack the appellant said that she could walk a distance of 200 yards in 5 to 10 minutes with a poor gait. She also indicated that she suffered from panic attacks when out‑of‑doors. She indicated some care needs, albeit quite limited ones, but did not claim to require daytime supervision or any form of night time assistance. She said she was able to prepare and cook a main meal for one.[4]The respondent obtained a report from the appellant’s GP which is dated 6 April 2013. The GP stated the disabling conditions were alcohol dependency, liver disease, low mood, anxiety and chronic back pain. She also indicated that the appellant was taking Methadone, which would suggest a history of drug problems. It was also noted that she was taking Sertraline which is an antidepressant. As to her ability to self‑care this was said to be dependent upon her “degree of interaction”. As to mobility it was said that she experiences “pain when walking”.[5]The respondent also obtained a copy of a medical report which had been prepared by a health care professional (HCP), on this occasion a registered nurse, in relation to a claim made by the appellant for employment and support allowance. That report was based on an examination which was conducted on 16 April 2013. In that report it was said that the identified medical conditions were musculoskeletal problems, abdominal problems and mental health problems. It was said that the appellant was taking Tramadol and Nefopan for pain relief, Methadone as a heroin substitute and Amitriptyline as an antidepressant.[6]On 9 May 2013 the respondent decided that the appellant was not entitled to either component of disability living allowance from and including 1 March 2013.[7]The appellant appealed to the Upper Tribunal. In her grounds of appeal she said that she had nine prolapsed discs at the base of her spine, that she was being treated for depression, that she suffered panic attacks, that she had been diagnosed with “alcoholic liver disease” and that she used a walking stick most days. The proceedings before the First‑tier Tribunal[8]The appellant’s appeal was considered by the First‑tier Tribunal (F‑tT) by way of an oral hearing which took place on 13 December 2013. The F‑tT had before it the claim pack and reports referred to above. It also had some further documentation which included a letter of 18 June 2013 written by one Alison Hamilton a spinal nurse practitioner, a letter of 24 September 2013 written by one Sue Cowan a primary care mental health practitioner and a written submission prepared on behalf of the appellant by her representatives at the Stockton and District Advice and Information Service. On the date of the hearing the appellant supplied the F‑tT with a decision notice dated 12 December 2013 (the day before the hearing) which indicated she had successfully appealed an adverse decision with respect to entitlement to employment and support allowance and that the F‑tT dealing with that appeal had awarded her 9 points under descriptor 15(b) which relates to the activity of “getting about” and 9 points under descriptor 16(b) which relates to “coping with social engagement due to cognitive impairment or mental disorder”.[9]The appellant attended the oral hearing with her mother. Her representatives were not able to attend and a letter explained that they could not do so because they do not receive funding to undertake representation before tribunals. The respondent was not represented. The F‑tT has produced a lengthy record of proceedings which does suggest it asked a number of questions of the appellant and probed matters in some detail. It only had to investigate possible entitlement to the lower rate of the mobility component and the lowest rate of the care component because that was all that was being sought in a written submission prepared by the appellant’s competent representative.[10]The F‑tT dismissed the appellant’s appeal. It issued a decision notice to that effect and, thereafter, upon request, prepared its statement of reasons for decision (statement of reasons).[11]It is apparent from the statement of reasons that the F‑tT found the appellant to be a dishonest witness. It found her evidence, in effect, to be vague, inconsistent and evasive. That view is apparent from the passage of its statement of reasons which I now set out. It said this: “ 8. She lives in a single floor flat. Her mum or her sisters come to visit her on a regular basis. She indicated that she doesn’t go out on her own because she has panic attacks. It was pointed out to her during the course of the hearing that she was not able to describe her symptoms when she has what she calls a panic attack and even then she couldn’t answer us properly simply indicating that she wanted to curl up in a ball and die. 9. She indicates that she only drinks alcohol 3 days a week. The Medical Member pointed out that alcohol was a depressant and her response to that was she takes antidepressants. She then indicated that she takes 50mgs of Tramadol, to 25mgs of Amitriptyline and a 100mgs of Sertraline. She could not describe to us how her depression affected her on a daily basis despite specific questions for her to do so. 10. She indicated that she couldn’t cook because she couldn’t physically do it. She then indicated she can’t sit down and peel vegetables, she denied that she had any feeling in her fingertips. She denied that she was able to get into a bath. She then said she goes to the stairs and shouts for her mum to help her get out of bed. It was pointed out to her that she lives in a flat without stairs her response was yes. 11. She then confirmed that she plays board games with her children at the table. She then said that she had accidents because she couldn’t get to the toilet in time but then said that she doesn’t wet herself. She then indicated that she can’t dress herself. She then indicated she didn’t understand the questions she was being asked.[12]She then indicated because of pain in her back she doesn’t get dressed and just lies in bed. She indicated that her sister has to put her TV on for her.[13]She then indicated she had a panic button and said that the police come round, she then indicated that a mental health nurse had it installed, she then said she had never been in trouble with the police. She denied that she has a support worker from Crime Reduction Initiatives as referred to in the reports from the Health Care Professional. Her mother couldn’t indicate why they were involved. It was specifically pointed out to both the appellant and her mother that there must be a reason why this organisation is involved and neither of them were telling us why.[14]The appellant confirmed that sometimes she will go out if she absolutely needs to on her own.[15]She then indicated that she goes out everyday to Tesco’s with her mother and father and they link arms.[16]We found the appellant to be a very unconvincing witness. She seemed to be unable to answer a straightforward question. Her stock response was ‘its just because of what I am’. According to her she does absolutely nothing for herself even to the extent that she can’t make a slice of toast, she can’t dress herself, she can’t wash herself yet today she was smartly casually dressed with her hair styled. She denied being able to have a bath yet she reported to the Health Care Professional for the purposes of ESA that she does. The description of her typical day does not indicate to us that she has difficulties dressing herself, washing and cleaning herself despite what she tells us today.[17]She reported that she has panic attacks but she could not describe those attacks to us.[18]She has children aged 3, 4 and 8 and she is able to play board games with them which despite their relatively young age shows that she can clearly concentrate. There is no Social Services involvement with the children despite her being on a Methadone programme and apparently drinking alcohol to excess. If she is as bad as she claims to be we simply cannot understand how there would be no Social Services involvement because according to her because of her depression she can do absolutely nothing for herself. Quite frankly we do not believe her.[19]We have of course noted the contents of the letter from Sue Cowan dated 24 September 2013 in which she states that the appellant finds it difficult to cope with everyday living activities such as personal care, cooking, shopping and socialising but she does not indicate to the extent of those alleged difficulties.[20]The appellant herself indicates that she has no care needs during the day in her application for benefit and has no difficulties with washing and bathing, with her appearance, she doesn’t need help with dressing. She indicates that she has no difficulty eating and drinking. She also indicated she has no problems taking her own medication. She also confirmed that she doesn’t need somebody to keep an eye on her during the course of the day although she has any difficulties with preparing and cooking a main meal for herself. We note that the form was completed with the aid of her recovery worker.[21]We consider that the replies given in that form were accurate as at the date of the decision.” 12. There are one or two slight grammatical errors in that passage but the F‑tT’s meaning is clear. 13. The F‑tT then went on to say, with respect to possible entitlement to the lower rate of the mobility component of disability living allowance: “ 22. It may well be that she normally goes out with either her sister or members of her family but we do not consider that she needs guidance or supervision when walking outside in unfamiliar places. She may need some form of reassurance but no more than that. We feel that there are other reasons why she doesn’t go out on her own which she and her mother were not, in effect, prepared to tell us today.”14. The F‑tT then went on to explain why it thought she would be able to prepare a cooked main meal for herself. I do not set out that part of the F-tT’s findings in full because its decision with respect to the lowest rate of the care component was not subsequently placed under challenge. The appeal to the Upper Tribunal15. The appellant, through her representatives, applied for permission to appeal to the Upper Tribunal. The grounds of application focused solely upon the way the F‑tT had approached the question of entitlement to the lower rate of the mobility component. It was contended that the F‑tT had not sufficiently investigated the possibility of entitlement. It was suggested that she might erroneously have been found to be an unconvincing witness because she was unable to discuss her problems. It was pointed out, in this context, that in the submission to the F‑tT it had been said that she had suffered previous traumatic experiences. It was also contended that the F‑tT had failed to address “the evidence from the Mental Health Nurse”, that being a reference to written information provided by Sue Cowan. It was also suggested that the F‑tT had erred in failing to appreciate that reassurance from another when out‑of‑doors can justify an award of the lower rate of the mobility component. Reference was made to decisions of Social Security Commissioners in CDLA/42/94 and R(DLA) 4/01.16. Permission was refused by a district tribunal judge of the First‑tier Tribunal. However, I granted permission because I thought it arguable that the F‑tT had erred in failing to have regard to the award, on appeal, of employment and support allowance and had failed to adequately address the appellant’s credibility in that it may have failed to consider that what it thought to be evasiveness was simply difficulty in articulating the effects of her symptoms and had failed to remind itself, notwithstanding what view it took about other aspects of her claimed difficulties, that she had been consistent with respect to the claimed panic attacks.17. Mr R Whitaker who now acts on behalf of the Secretary of State in this appeal to the Upper Tribunal has provided a written submission in which he indicates the appeal is not supported. He says, in effect, whilst “reassurance” can sometimes constitute supervision for the purposes of entitlement to the lower rate of the mobility component, the F‑tT, on its findings, had concluded that this was not such a case. The F‑tT had adequately explained its view that the appellant was not a credible witness and matters of assessment as to credibility should normally be allowed to remain undisturbed. The F‑tT had made sufficient findings of fact upon which to base and justify its decision with respect to the lower rate of the mobility component. As to the matter of the employment and support allowance appeal, whilst there may be some overlap with respect to the test for the lower rate of the mobility component and the test relating to the particular descriptors in respect of which points were scored, the relevant tests are not the same, different evidence would have been presented to the two different tribunals and, whilst it may have been prudent or good practice for the F‑tT in this case to have mentioned the decision relating to employment and support allowance, no error of law stems from it not having done so.18. The appellant’s representatives provided no further comments.19. Neither party requested an oral hearing and I did not identify a need for one.20. It is, then, against the above background that I must now decide this appeal. Discussion 21. One of the points made by the appellant’s representatives was that it thought the F‑tT had failed to address “the evidence from the mental health nurse” and it was even thought that evidence might not have been before the F‑tT at all.[22]The reference to that “evidence” is clearly a reference to the letter written by Sue Cowan and dated 24 September 2013 and which is mentioned above. The relevant part of that letter reads as follows:
“[The appellant] was referred to Primary Care Mental Health Service by her GP at Birchtree Medical Practice. She experiences long‑term issues with anxiety and depression and also has physical health problems and experiences reduced functioning. She finds it difficult to cope with everyday living activities such as personal care, cooking, socialising. She is currently engaging in therapeutic intervention with Mental Health Practitioner in order to help improve her coping skills and to monitor/support with depression, anxiety. She is engaging well currently but finds it difficult to address complex and ongoing issues. She is on antidepressant medication as confirmed by her GP.”
[23]The F‑tT clearly did have that letter before it. It specifically referred to it at page 19 of its statement of reasons and that paragraph is set out above. Given that reference to it, it cannot be said that it overlooked it. It is true that paragraph 19 does not constitute a thorough analysis of the letter but the F‑tT must have read and considered it in order to reach the conclusion it expresses to the effect that the letter does not indicate the extent of the difficulties claimed by the appellant. The letter is clearly intended to be helpful and does confirm Sue Cowan’s view that she has long‑term problems with anxiety and depression and finds it difficult to cope with certain tasks. Nevertheless, it is right to say that it does not go into any detail about the extent of the difficulties identified. Accordingly, I conclude that the view the F‑tT took of this evidence, which was to the effect that it was not particularly helpful, was one which was open to it. Accordingly, that particular item of evidence was properly and appropriately considered by the F‑tT and it did not err in law in the way it dealt with it.[24]Another point made in the grounds constitutes a contention that the F‑tT failed to appreciate that reassurance can constitute guidance or supervision for the purposes of eligibility to the lower rate of the mobility component. In this context, section 73(1)(d) of the Social Security Contributions and Benefits Act 1992 says that a claimant is entitled to the lower rate of the mobility component if:
“He is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out‑of‑doors without guidance or supervision from another person most of the time.”
[25]The appellant’s representatives, as indicated, seek to rely upon CDLA/42/94 and R(DLA) 4/01. They draw attention to the following passage from CDLA/42/94:
“If a person is providing guidance or supervision, within the ordinary meaning of those words, it does not take the situation outside section 73(1)(d) if the claimant gains reassurance from the presence of the person. Nor, in my view, does it matter that the mechanism by which the supervision allows the claimant to take advantage of the faculty of walking might be described in a general sense as reassurance.”
[26]In CDLA/42/94 it was said that guidance means the action of directing or leading and that supervision means accompanying and at the least monitoring the claimant or the circumstances for signs of a need to intervene so as to prevent the claimant’s ability to take advantage of the faculty of walking being compromised. Whilst it was then said that if a claimant derives reassurance from the presence of the other person performing these sorts of activities specified above that would not prevent that action constituting guidance or supervision it was not said that what might be characterised as “mere reassurance” absent the other factors referred to above would satisfy the statutory test. I agree with the analysis contained in the written submission of Mr Whitaker in that regard.[27]In the appeal before me the F‑tT had found the appellant not to be a credible witness. Leaving aside, for the moment, the question of whether it was entitled to reach that view, it had noted, for example, that she had been unable to describe her symptoms “when she has what she calls a panic attack” and that “she could not describe those attacks to us”. It seems clear to me that when the F‑tT said “Quite frankly we do not believe her” included in that disbelief was her contention to suffer from panic attacks. Accordingly, the main plank of her argument as to why she needed guidance or supervision when out‑of‑doors was removed by the F‑tT’s findings. It clearly, therefore, did not consider her to require directing or leading or monitoring as discussed in CDLA/42/94 and R(DLA) 4/01. When it said, therefore, “She may need some form of reassurance but no more than that” it was referring to something less than that would meet the statutory requirements. Put in context, therefore, what it said did not indicate a lack of appreciation of the point that reassurance may sometimes amount to supervision and, accordingly, the F‑tT did not err in law in the manner suggested.[28]I now turn to what I consider to be the most important point concerning this appeal to the Upper Tribunal. That is the matter of the successful employment and support allowance appeal. I have set out, above, what had been decided by what I shall refer to as “the ESA tribunal”. It is noteworthy that the decision with respect to employment and support allowance had been made on 9 May 2013 (see the decision notice which appears at page 103 of the current appeal bundle) which was, of course, the very same date that the decision with respect to disability living allowance had been made. That is something of a coincidence but it does mean that this F‑tT and the ESA tribunal were looking at circumstances as they were on the same date.

(b) which is satisfied where a claimant:

“Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person.”
[29]It had awarded 9 points under descriptor 16(b). Such points are to be awarded where:
“Engagement in social contact with someone unfamiliar to the claimant is always precluded due to difficulty relating to others or significant distress experienced by the individual.”
[30]The award of points with respect to engagement in social contact is not so obviously related to the types of difficulty which might lead to entitlement to the lower rate of the mobility component but the award does, at least, suggest that the ESA tribunal had concluded that the appellant had mental health difficulties of real substance. The award relating to the activity of “getting about” is, whilst a different test, more closely linked to the sorts of difficulties which might lead to the establishment of entitlement to the lower rate of the mobility component.[31]The F‑tT received a copy of the decision notice issue by the ESA tribunal only on the day of the hearing. It is unfortunate that F‑tT’s frequently receive sometimes voluminous documentary evidence at a very late stage. However, here, all that was received at a late stage was a single document which, of course, had only been issued one day earlier. It is a little surprising that the document was not noted as having been received in the record of proceedings despite there being an appropriate place in the standard form for additional documents, including those handed in immediately before or at the hearing, to be referred to. However, that does not cause me to conclude that the document did not, for some reason, reach the F‑tT. I think it much more likely that the F‑tT, given the pressures upon tribunals to consider and determine a considerable number of appeals in a single day, simply omitted to note it down. What is more significant, though, is that the F‑tT did not make any reference to the decision of the ESA tribunal in its statement of reasons. There is, therefore, no indication that it received any meaningful consideration at all. Given the award of the 9 points in relation to descriptor 15(b) that might be thought to be troubling.[32]Mr Whitaker, in his submission to the Upper Tribunal, acknowledges that “The ESA decision certainly points towards conditions which could give rise to an award of the lower rate mobility component, and would also indicate that perhaps the ESA report was to be treated with some caution”. However, he goes on to argue that the F‑tT did not err in law because this was a situation of two separate tribunals conducting two separate hearings with different evidence presented to them. He says the fact that two tribunals came to very different conclusions does not mean that either has erred in any way.[33]I have given careful consideration to Mr Whitaker’s careful submission. Certainly I would accept that the F‑tT hearing the disability living allowance appeal was not bound in any way by the decision of the ESA tribunal. I accept that entitlement to different benefits based on different statutory tests was in issue. I accept that there was no obligation upon the F‑tT to follow any of the ESA tribunal’s reasoning and, indeed, there was very little evidence contained within the decision notice about what the ESA tribunal’s reasoning was. In this context it is perhaps unlikely that the ESA tribunal produced a statement of reasons for decision unless that was requested by the respondent and there is no indication that it was. Even if it had been then, of course, it would not have been produced within sufficient time for it to have been available to this F‑tT.[34]Having said all of the above, the decision notice issued by the ESA tribunal was, at the least, an indication that that tribunal had found, after consideration of the appeal and whatever evidence was before it, that the appellant was, as at the same date this F‑tT was concerned with, unable to get to a specified place with which she is familiar without being accompanied. Whilst it does not necessarily follow that such a conclusion would lead to satisfaction of the statutory test for lower rate mobility I would take the view that it certainly suggests it might be. There is, it seems to me, a considerable interrelationship between the two statutory tests. So, potentially, the award made by the ESA tribunal was a matter of some significance. It merited the paying of some attention to it by the F‑tT. Had the F‑tT not effectively overlooked the award, which is what it appears to have done given the absence of any mention of it at all, it might have (I do not say it would have) taken a different view regarding her credibility. It might have asked her some questions about the ESA tribunal’s decision and, in particular, whether she had attended an oral hearing and had given oral evidence to that tribunal. It might have enquired as to whether there was some documentary evidence before the ESA tribunal which was not before it. It might have considered adjourning in order to ascertain what documentary evidence had been before the ESA tribunal in case it impacted upon the issues it had to decide with respect to lower rate mobility. It might have been more cautious about rejecting the entirety of the claims made by the appellant given the knowledge that the ESA tribunal had resolved at least some matters of significance, in the context of that particular benefit, in her favour.[35]In light of all the above and, in particular, in light of the relationship between the sorts of factors that might give entitlement to lower rate mobility and the sorts of factors that might give entitlement to 9 points under descriptor 15(b) I conclude that the F‑tT was obliged to consider the decision of the ESA tribunal as recorded in the decision notice and address it in some way. It would have been open to it to have gone on to make the decision it did make so long as it properly took that decision into account. However, it did not appear to take it into account at all. That does, to my mind, constitute an error of law. This is because the F‑tT has failed to consider a relevant matter. I cannot say that the error is immaterial in the sense that the F‑tT would inevitably have reached the same conclusion had it taken account of the ESA tribunal’s decision. It might have adjusted its approach in the various ways I have suggested above and that might, though I do not by any means say it would, have led to a different outcome. In light of the above, therefore, I conclude that the F‑tT’s decision although in many respects an admirably straightforward one, must be set aside.[36]Before I go on to consider how the decision will now be remade I would like to say something about credibility.[37]I have concluded that the F‑tT did err in failing to take into account and in failing to address the decision of the ESA tribunal. That failure is relevant to the credibility assessment as much as it is to any other aspects of the F‑tT’s decision. Thus, on that basis, I would consider the F‑tT’s blanket adverse credibility finding (which is what it was) to be unsafe and to contain an error of law. However, had it been the case that there was no decision by the ESA tribunal I would have been persuaded that the credibility assessment should remain undisturbed. As noted above, I had wondered, when I granted permission, whether the F‑tT might have been mistaken in regarding the appellant as being evasive in circumstances where she might have simply been inarticulate. I had also wondered whether it had paid sufficient attention to the fact that, notwithstanding whatever inconsistencies it found about other matters, she had been consistent with respect to the prevalence of and the difficulties caused by panic attacks when out‑of‑doors. I do think that the credibility assessment would have been fuller and more rounded had it taken these considerations on board. I am also not entirely sure as to what the F‑tT was getting at with respect to certain of its observations relevant to credibility and, in particular, the one to the effect that there were other reasons she did not venture out‑of‑doors on her own which she was not prepared to tell it about. Nevertheless, the extensive passage which I have quoted from the statement of reasons does show that the F‑tT not only found the appellant to be evasive but also found significant inconsistency, in particular with respect to the claimed physical difficulties and capabilities, in what she indicated in her claim pack and what she indicated in oral evidence. I appreciate that the F‑tT did not address the point made in the appellant’s representative’s written submission to it that she had experienced difficulty in completing the form because of poor memory, concentration and confusion. It would have been better had it mentioned that point. Nevertheless, the F‑tT’s credibility assessment, whilst it may be that a differently constituted F‑tT would have reached a different view, was sufficient to explain and to justify its view other than, of course, the significant point of the failure to take account of the ESA tribunal’s decision. Thus, had there been no such decision, I would not have concluded that the F‑tT had erred in law in this regard.[38]The upshot of all of this, though, is, as I say, that the F‑tT’s decision must be set aside. Neither party has expressed any view as to whether, in the event of my setting the decision aside, I should seek to remake the decision myself or remit to a differently constituted tribunal. I have, however, reached a clear decision that it is the latter course which is appropriate. This is because the F‑tT is an expert fact‑finding body and because there are further facts to be found. What happens next?[39]There will, therefore, have to be a fresh hearing before an entirely differently constituted F‑tT. The new F‑tT will not be bound by the findings of the first F‑tT and will reach its own findings and conclusions on the evidence before it. Although I am setting aside the F‑tT’s decision, I stress, I am making no finding nor indeed expressing any view as to whether the appellant was entitled to disability living allowance as at the relevant time and, if so, at what rate and for what period. All of that will be a matter for the good judgment of the new F‑tT.[40]I note that, in the written submission sent to the first F‑tT, the appellant’s representatives contended entitlement to the lower rate of the mobility component and the lowest rate of the care component only. I consider that, if they are to continue to represent the appellant, it will be of assistance to the new F‑tT if they can confirm to it, prior to the hearing, whether that remains the position or whether entitlement to any other rate is asserted. The appellant will note I have directed an oral hearing. It will assist the new F‑tT if she attends that hearing and gives oral evidence as she did on the previous occasion. Conclusion[41]I conclude that the decision of the First‑tier Tribunal involved 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 a rehearing by a new tribunal subject to the directions above. ( Signed on the original) M R Hemingway Judge of the Upper Tribunal Dated: 21 January 2015

Cited in 1 later judgment