Upper Tribunal (Administrative Appeals Chamber)

EB v Secretary of State (ESA) (Tribunal procedure and practice (including UT) : other) [2015] UKUT 358 (AAC) (24 June 2015)

IN THE UPPER TRIBUNAL Case No.CE/3630/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision: 

1. The application of the claimant for an oral hearing of this appeal is refused.

2. The appeal is allowed.  I set aside the decision of the tribunal and remit the matter to be reheard by a new tribunal in accordance with the directions below.  The claimant should appreciate that the tribunal will be concerned with her claim to entitlement to benefit at the date of the decision under appeal in August 2012.  Any deterioration in her condition after that date is irrelevant to this appeal but it is open to the claimant to make a fresh claim to benefit based on it if she has not yet done so.

 

 

REASONS FOR DECISION

 

1.    This is an appeal by the claimant with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 22 January 2014.  That decision dismissed the claimant’s appeal from a decision dated 13 August 2012 that the claimant’s existing award did not qualify for conversion into an award of employment and support allowance (ESA) and that the existing award and entitlement to be awarded credits would terminate from and including 5 September 2012.

 

2.     I am refusing the claimant’s application for an oral hearing of the appeal because I am satisfied that the appeal should be allowed and that there should be a new hearing before the First-tier Tribunal once proper disclosure has been given by both sides of documents that should have been before the previous tribunal.

 

3.    One of the principal issues before the tribunal under appeal was in relation to the moving around descriptor.  The tribunal awarded the claimant 9 points for this descriptor.  There were, however, two problems in this respect.  It did not address in the statement of reasons the evidence of the claimant’s GP in a letter at p.75 of the file that stated that she could not walk more than 59 metres without having to stop.  It also dismissed the claimant’s reliance on an award she had obtained of the higher rate of the mobility component of disability living allowance (DLA), stating simply that  “While this was evidence to be taken into account and weighed in determining this appeal, DLA is a different benefit with different statutory criteria.

 

4.    The evidence in the GP’s letter might have been thought to have been seriously weakened by the refusal of the claimant to give her consent to the disclosure of her medical records.  In their absence, it may have been thought by the tribunal to have been no more than the repetition by the GP of what she had been told by the claimant as to the extent to which the claimant could walk. If so, then the tribunal should have said so.  As it is, the tribunal was in error of law in failing to deal with this evidence at all.  I note in this context that in relation to the mobilising descriptor, the tribunal only dealt with the ability of the claimant to walk and did not consider mobilising with a wheelchair, so that the evidence of the GP as to her walking ability was plainly relevant.

 

5.    Secondly, it is clear that the claimant had been awarded the higher rate of the mobility component of DLA only a few months before the decision under appeal on the basis that the claimant was unable to walk or virtually unable to walk (file p.19).  While the statement of reasons is technically correct in stating that there are different statutory criteria for DLA, a person’s ability or inability to walk 50 metres without severe discomfort is a practical yardstick for DLA purposes, and the requirement of severe is a more demanding test than that of significant discomfort used in the mobilising descriptor for ESA.

 

6.    The written evidence used by the decision maker in relation to the DLA claim was plainly relevant to the ESA claim as well and ought to have been disclosed pursuant to rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 (the 2008 Rules) when the papers were first sent to the tribunal for the appeal.  For this purpose ~”decision maker” is defined in rule 1(3) as “the maker of a decision against which an appeal has been brought”, and the decisions to award or refuse benefit are made by the Secretary of State in relation to both benefits.  The Secretary of State is therefore the decision maker and relevant documents to the appeal obtained in relation to other benefits are therefore to be included in the documents sent to the tribunal.  Insofar as it may be necessary to refer to the overriding objective, this construction also enables the appeal to be dealt with fairly and justly, and the 2008 Rules must be construed so as to give effect to that overriding objective (see rule 2(3)(b)).

 

7.    Contrary to the submissions of the representative of the Secretary of State on this appeal, the consent of the claimant is not required for such disclosure even if the disclosure includes confidential medical records.

 

8.    The failure of the tribunal to require the Secretary of State to produce the documents which were potentially highly relevant and which should have been disclosed from the start, was a further error of law in all the circumstances and the reasons given for disregarding them were plainly inadequate.

 

9.    I would add that it is not only the duty of the Secretary of State to help the tribunal to further the overriding objective of dealing with cases fairly and justly and to co-operate with the tribunal generally, it is also the duty of the claimant (rule 2(4) of the 2008 Rules).  By refusing consent to the production of her medical records, the claimant was in breach of her obligations under regulation 2(4) and it would have been open to the tribunal either to make an order that unless she consented to their production a sanction would follow pursuant to rules 7 and 8 of the 2008 Rules, or to draw adverse inferences from the refusal to consent in assessing the weight of the claimant’s evidence or of any medical evidence she might produce.

 

10. The reasons given by the claimant for refusing to consent, basically that the records contained inaccuracies which were the subject of litigation elsewhere, did not justify the blanket refusal to consent.  It was open to the claimant to consent but to draw the attention of the tribunal to the alleged inaccuracies and, insofar as the alleged inaccuracies are relevant to the issues before the tribunal, to any evidence supporting the claim that they are inaccurate.  If the court proceedings are now resolved, the judgment of the court may be sufficient for this purpose.

 

11. For the reasons given, I set aside the decision of the tribunal.  I am not in a position to substitute my own decision, so I remit the matter to be reheard by a new tribunal.  A District Tribunal Judge will need to give directions for the production of both the documents held by the Secretary of State concerning the DLA claim and the claimant’s medical records, and in the event of any failure to comply by either party, will need to consider how any such failure should be dealt with.

 

 

 

 

(signed) Michael Mark

Judge of the Upper Tribunal

 

24 June 2015