“Thank you for your letter of10 March 2017 regarding this patient of mine. I have been [the claimant’s] GP for over 12 years, and have seen her quite frequently during that period for review of her health. Thank you for listing the symptoms which she finds troublesome in your letter of10 March 2017 . I confirm that I support the descriptors identified in this letter, and on the sheet which you kindly enclosed with the letter. I feel that [the claimant] continues to suffer from significant health anxiety and loss of confidence ever since her craniotomy for removal of meningioma back in June 1992. Her confidence was further shaken by subsequent temporal lobe epilepsy, and the finding of an arachnoid cyst which required aspiration in December 1994. I confirm that the significant past medical problems continue to have an enduring impact on a daily basis now, and that this is likely to be a long-term situation, making it very hard to visualise how she might be able to move towards any form of paid employment, having never been fit for paid work ever since her original surgery back in 1992” (my emphasis). 27 What the Judge said about that evidence (and an earlier factual report by the GP) in the Tribunal’s written statement of reasons was as follows: “22. The totality of the evidence before the Tribunal showed how the appellant had been diagnosed with various conditions and various symptoms were referred to but there was little or no treatment to correspond to the diagnosis of the appellant’s conditions and symptoms and the GP referred to historical matters. As a result the tribunal attached little weight to the GP’s report and preferred its own assessment.” 28 The claimant’s representative says that the first sentence of paragraph 22 is an example of the Judge’s standard wording. I find myself rather hoping that that is so. 29 It is certainly the case that the GP referred to historical matters. But the most natural reading of paragraph 22 is that the Tribunal is saying that the GP only referred to historical matters (otherwise, why not deal with the evidence that was not historical?). That, equally certainly, was not the case. The whole tenor of the GP’s MM v SSWP (ESA)[2018] UKUT 446 (AAC) CE/3496/2017 926 October 2018 letter, with its references to the descriptors that currently applied to the claimant, the statement that the claimant “continues to suffer from significant health anxiety and loss of confidence”, and with the words that I have emphasised in the final paragraph, is that the claimant has current health problems which stem from, and are explained by, her past health problems. 30 I regret the need to say that the Tribunal’s apparent conclusion that the letter was referring only to historical matters is irrational in the technical legal sense that no reasonable tribunal, properly instructing itself as to the law, could have interpreted the evidence in that way. 31 Although it would not be acceptable for the paragraph to have appeared in the statement as a result of a “cut-and-paste” error involving standard wording, I would much prefer to believe that that is the correct explanation and that the Tribunal did not actually decide to approach the GP’s evidence on such a wrong-headed, and obviously unsustainable, basis. Drawing conclusions about function from treatment 32 The claimant’s representative also criticises paragraph 22 of the statement for drawing impermissible conclusions about the claimant’s function from the treatment that she received, or didn’t receive. 33 As the claimant’s representative notes, the Tribunal’s concern about the perceived lack of treatment is also stated in paragraph 34 of the statement, which is in the following terms: “34. The appellant’s GP referred to the appellant suffering from a loss of confidence… but the Tribunal’s medical member advised that the way to deal with that presentation and symptoms was potentially to refer the appellant to a range of treatment such as Talking Therapy, counselling or cognitive behavioural therapy and to encourage her to engage in activities. The Tribunal was unclear why there was no corresponding treatment for the appellant if her difficulties were known to the GP and the Tribunal was entitled to conclude that the appellant’s symptoms were actually mild.” 34 The claimant’s representative comments: “A current lack of treatment is not by itself [a reason] including the appellant did not meet the qualifying criteria. … The appellant had had the conditions and symptoms for many years. It may be that management by the GP was currently considered the most appropriate by the appellant’s own health care professional, other treatments and interventions having taken place over [preceding] years. The tribunal made no findings about prior treatments and interventions the appellant had undergone. … The tribunal should have put those concerns to the appellant and MM v SSWP (ESA)[2018] UKUT 446 (AAC) CE/3496/2017 1026 October 2018 considered an adjournment to seek further evidence to address this issue. 35 I broadly agree with those observations. However, I do not agree that the tribunal should have put its concerns to the appellant. The claimant is not medically qualified and therefore lacked the knowledge to respond to any concerns the Tribunal may have had on this point. It is difficult to see how she could have commented other than to suggest that the treatment she received was a matter for her GP’s professional judgment which she was not in a position to second-guess. 36 But, as presently advised, I do agree that if the Tribunal perceived a conflict between the GP’s evidence and the treatment that the GP had offered the claimant, it should, in fairness, have put its concerns to the GP before resolving the issue against the claimant. 37 Some reading that last paragraph will regard it as hopelessly impractical. I agree. Further, there is no reason why the GP should have to waste time justifying his or her treatment decisions to a Tribunal that is likely, at most, only to have seen the claimant for about an hour or so, and may never have seen her at all. 38 However, the impracticality is an indication that tribunals should be very cautious about drawing inferences from the treatment received by claimants in the first place. It is not an indication that tribunals who do decide to go down that path should decline to adopt a procedure that is fair to the claimant. 39 When a Tribunal concludes that a claimant cannot be accurately describing the conditions from which she suffers because, if she were, she would be receiving different treatment, its reasoning is often reducible to this: that the Tribunal’s medical member would not him- or herself treat a person with those conditions in that way. In this appeal, paragraph 34 of the statement makes that process of reasoning express. 40 But medicine is a broad church. As is recognised in other areas of the law, there is a wide spectrum of reasonable medical opinion and practice. And anyone who has ever sat as a judge or disability-qualified member in the Social Entitlement Chamber will probably be able to provide examples of medical members who hold widely differing views about the issues that commonly arise in appeals. Moreover, it is not unknown for professional people to believe that their own views and practices are more universally held and followed than is in fact the case. 41 Furthermore, particularly in relation to prescribing, treatment is an art as well as a science. Or, at least, it is a matter of professional judgment that can be heavily influenced by the individual doctor’s own experience. 42 To take the current case as an example, the Tribunal’s medical member may well be correct to believe that, across the population as a whole, talking therapies are effective to improve the type of anxiety and loss of confidence that are described in paragraph 34 of the statement. But the professional experience of the claimant’s GP may be atypical. It may be that, for whatever reason, the results achieved by his patients from talking therapies in the past were disappointing and that he is therefore less inclined to refer his patients to such therapies than would otherwise be the case. MM v SSWP (ESA)[2018] UKUT 446 (AAC) CE/3496/2017 1126 October 2018 Alternatively, he may be aware of circumstances that are not known to the Tribunal, but which suggest to him that the claimant would not benefit from such therapies. 43 Finally, although I do not suggest that it is so in this case, some claimants will simply have a GP who is not very good at his or her job. 44 Assuming a normal distribution of medical excellence, a large proportion of the population will have a GP who is below average. That is not a reflection on the medical profession. It is also true by definition of most, if not all, fields of human activity. Not everyone can be above average. 45 There is therefore a real risk that drawing inferences about function from treatment will in some cases lead the Tribunal to conclude that claimants do not suffer from the loss of function they describe because they are not being correctly treated for it. 46 That is clearly not a permissible conclusion. But the Tribunal will often not be in a position to distinguish such cases from those (I suspect, few) cases in which the GP’s evidence to the Tribunal is deliberately exaggerated. 47 For those reasons, in addition to those given by the claimant’s representative, I do not agree that “the Tribunal was entitled to conclude that the appellant’s symptoms were actually mild” from the fact that it “was unclear why there was no corresponding treatment for the appellant if her difficulties were known to the GP”