Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CDLA/3121/2009

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge S M Lane

 

 

The appeal is dismissed. The decision of the First-tier Judge did not involve the making of an error of law.

 

 

REASONS FOR DECISION

 

1       I decline to hold an oral hearing of the appeal. An oral hearing is appropriate if the parties can further assist the Upper Tribunal with its decision by legal argument. The appellant made her points at length in the UT1. They mainly involve questions of fact, which are not appealable to the Upper Tribunal. The further points she makes in her reply to the Secretary of State’s submission also dwell on factual matters though they do include some further, specific comments which can be addressed without the presence of either party. I have come to the conclusion that an oral hearing of the appeal would, in the circumstances, be unlikely to advance the legal issues and would accordingly be inappropriate.

 

2       The appellant brought this appeal against the decision of the First-tier tribunal heard on 25/08/09 under reference 209/09/00630 which confirmed the Secretary of State’s decision that she was not entitled to either component of DLA from and including 12/12/08. The appellant’s views are that the tribunal’s decision is perverse, is not supported by the evidence, and that the reasons are inadequate. In particular, the appellant submitted that the tribunal had not given sufficient reason for rejecting the considerable body of medical evidence she had provided, which she believed to support her appeal. The Secretary of State does not support the appeal.

 

3       I have come to the conclusion that none of these errors is made out.

 

Was the decision perverse?

 

4       The principles by which perversity in law is to be judged are set out in Yeboah v Crofton [2002] EWCA Civ 794 [92 – 95] per Mummery LJ. In summary, a submission that a decision is perverse ought only to succeed where an overwhelming case is made out that the tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. If a tribunal has misunderstood the evidence, leading it to make a crucial finding of fact unsupported by evidence, or the finding is contrary to uncontradicted evidence, an appeal on this ground may succeed. But an appeal on a question of law should not be allowed to turn into a rehearing of the evidence by a tribunal which can only rule on points of law.

 

5       The question, then, is whether this tribunal has so erred. The tribunal accepted the clinical findings and opinion of Mr Braithwaite, the appellant’s orthopaedic surgeon. He made an extensive review of the appellant’s GP notes and the reports of the numerous other specialists who dealt with the appellant. In his examination of the appellant, Mr Braithwaite did not find objective evidence of a significant back problem and considered the appellant’s psychological response to her pain to be abnormal and out of proportion to the underlying medical condition [p25]. The tribunal also accepted the report of Dr Wiles, a pain management consultant who noted that, on informal observation of the appellant at the Walton Centre, the appellant’s illness behaviour was much less severe than on formal testing [p89]. On careful reading, I have come to the conclusion that this observation was not based on the disputed ‘walking test’ incident, as claimed by the appellant. Dr Wiles also indicated that the initial assessment was of mild to moderate physical disability and moderate psychological disability, a position that from which he did not resile despite the appellant’s failure to make progress during the rehabilitation course. The tribunal found that these reports were consistent with each other and with that of the EMP. The EMP and Mr Braithwaite found no upper limb impairment. The tribunal accepted this, and supported its conclusions on the appellant’s needs by further reference to her day to day activities. There was no medical evidence sufficient to support the appellant’s claimed dizziness and falls. The EMP’s comment was that if she fell, she would need help getting up. But neither he nor the other medical professionals found that the appellant suffered from medical conditions making it likely she would fall. The tribunal plainly did not find the appellant’s evidence on falls credible, and did not accept that she did so. The tribunal is a specialist body with legal, medical, and disability expertise. The Statement of Reasons shows that they weighed this medical evidence critically. That the appellant does not agree with their conclusion does not make their analysis wrong. I cannot see any failure on their part which could justify interference with their assessment. Nor do I accept the appellant’s view that the medical evidence supports her perceptions of her own disability.

 

6       The tribunal’s treatment of Dr Main’s report needs some examination. The tribunal accepts Dr Main’s report as consistent with Dr Braithwaite’s and the EMP’s reports, but the appellant submits that Dr Main’s conclusions are not consistent with them. Dr Main finds that ‘she remains significantly disabled and still presents with a severe psychologically mediated chronic pain syndrome’ and that she should receive ‘appropriate care assistance by the appropriate agencies in her locality’ (p187-88). In fact, Dr Braithwaite agrees that there is a psychological element in her condition. To this extent, the reports are consistent. However, he concludes that the appellant’s response to pain is out of proportion to the underlying condition and disability claimed (p25). Dr Main’s report, which identifies a significant psychological component, is not necessarily out of line with this, but he concludes that there is significant disablement. To this extent, the reports do appear to be at odds with each other. However, when judged by the principle in Yeboah, the tribunal’s misunderstanding was not such as to make the way it dealt with the report perverse. The tribunal did not make any crucial finding of fact on the basis of the evidence. Indeed, Dr Main’s report is of no assistance to the tribunal in assessing what needs arise from her disability. Moreover, Dr Main’s report was not uncontradicted. The EMP did not find evidence of significant disability; Dr Main’s report contains evidence from the appellant herself that she can cope with her usual levels of pain (p184) and Dr Braithwaite was plainly not convinced by the appellant’s presentation to him. The appellant’s evidence was considered inconsistent and unreliable.

 

7       I conclude that the tribunal’s decision was not perverse.

 

Is the tribunal’s decision supported by the evidence?

 

8       Yes. The appellant has directed my attention to particular aspects of the medical evidence which she believes supports her perceptions of own disability while the tribunal has looked at the reports as a whole and from a wider medico-legal and disability perspective. But the reports contain a wealth of evidence and opinion based on that evidence which do not support the levels of disability claimed. The tribunal cited some of this medical evidence (for example in paragraph 7 – 10 of the Statement of Reasons). They did not need to rehearse every item. The medical evidence was not, of course, the only evidence considered. The tribunal’s findings that the appellant’s condition was variable and their conclusion that most of the time she did not meet the conditions of entitlement were supported by her statements to Dr Main that she was able to cope with her usual daily pain and on the frequency and extent of the appellant’s flare ups (p184) They also considered, rightly, the equipment the appellant had available to her which enabled her to self-care, and finally considered the inconsistencies in the appellant’s evidence which led them to disbelieve the extent of the disabilities claimed.

 

Were the tribunal’s reasons adequate?

 

9       Yes. The Statement of Reasons makes sufficient findings of fact on the matters relevant to the claim. The tribunal has explained which evidence it accepts and rejects, and why. The tribunal was entitled to come to the conclusions it came to on the evidence before it. The appellant has submitted further evidence which was not before the tribunal. The tribunal cannot have erred in law by failing to consider it.

 

 

 

 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 7 July 2010