IN THE UPPER TRIBUNAL	Case No.  CE/1073/2011
ADMINISTRATIVE APPEALS CHAMBER

Before		S M Lane	

Attendances:	

For the Appellant:	The appellant did not attend

For the Respondent	Mr Stephen Cooper

Before Judge S M Lane

This decision of the First-tier Judge involved the making of errors of law.  The decision is SET ASIDE and REMITTED to a freshly constituted First-tier Tribunal (SEC) for re-determination under section 12(2)(a) and (b)(i) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

REASONS FOR DECISION

1	The appellant requested an oral hearing of this straightforward appeal against the decision of the First-tier Tribunal on 4 November 2011 that she was not incapable of work, having failed the Work Capability Assessment.  She did not attend the hearing.  There is nothing recorded on our database to show that the appellant made contact with the Upper Tribunal to explain why she could not attend, or that she requested that the hearing be postponed.  The Secretary of State sent a representative, Mr Cooper, to the hearing.  I considered that it was appropriate to hear the appeal in the appellant’s absence:  the appellant was given sufficient notice of the hearing, which was served by post at the last address we have for her; she had not made any application for a postponement; the Secretary of State had sent a representative, who is required to act as a friend of the court – in other words, to see that the right answer is reached, rather than simply to argue the Secretary of State’s case; and the appellant had written at length about the errors she perceived in the First-tier Tribunal’s (‘the tribunal’s) decision.  Having regard to the overriding objective in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I decided that it was in the interests of justice to proceed with the hearing. 

2	A person who is subject to the Work Capability Assessment is only judged to be incapable of work if she scores enough points from the various activities set out in the Assessment to pass the test.  The activities are broken down into carefully defined descriptors.  Everyone who is involved in carrying out the Assessment is bound to apply the descriptors:  they cannot add to them or not take them into account.  Points are only awarded if a person cannot perform a descriptor.  Points are not awarded on the basis of having a particular ailment or diagnosis.  

3	The appellant’s grounds of appeal were, in essence, that (i) the approved health care professional (the AHCP) had falsified the time the examination took; (ii) she disputed what the AHCP had written in her report as inaccurate, and the tribunal had not dealt with her objections; and (iii) the tribunal had not dealt with the medical evidence she sent in.

4	Mr Cooper’s submission was that the tribunal had not made any material errors of law.  It had explained itself sufficiently.  He was more concerned about the way the First-tier Tribunal dealt with the appellant’s medical evidence but considered that it had done enough to show why it had found against her.

5	The more I look at this appeal, the more I consider that the First-tier Tribunal’s decision cannot stand.  It is riddled with errors.  While some of these may not be material, taken together the impression is that this First-tier Tribunal failed to do its job procedurally, evidentially or in respect of applying the law.  I do not see why the Upper Tribunal should, in effect, re-write a substandard decision.  

6	At the oral hearing, we noted that this was a determination of an appeal on the papers.  This is not mentioned in the Statement of Reasons, it misled the Secretary of State’s representative and reveals a further error of law:  the tribunal failed to exercise its discretion as to whether to proceed with a paper determination.  

7	By now, tribunals should be more than aware of Rule 27(1) of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008, which makes it clear that there must be an oral hearing unless ….(b) the Tribunal considers that it is able to decide the matter without a hearing.  

8	If the rule alone was not enough to convince the tribunal, the Upper Tribunal decisions in MM v SSWP [2011] UKUT 334 (AAC), AT v SSWP (ESA) [2010] UKUT 430 (AAC) and MH v Pembrokeshire County Council [2010] 28 (AAC) should.  These cases indicate that, even though an appellant has opted for a paper hearing, it is necessary for the tribunal to consider actively whether the appeal can be determined without a hearing.  

9	This is hardly onerous.  The fact that an appellant has requested a paper determination, in the light of the information in the guidance notes accompanying the Enquiry Form, is a good indicator that the appellant stands by the case as already presented.  The tribunal is entitled to proceed on that basis and to resolve any evidential difficulties on ordinary principles.  But it must turn its mind to whether this is the right course of action to take in an individual case and give a brief explanation of why it so decided. 

10	The next issue raised by the appellant is the tribunal’s failure to engage with her criticisms of the medical examination she attended.  Mr Cooper submitted that the tribunal need not concern itself with these criticisms, but this is not entirely right.  The appellant’s criticisms included allegations that the AHCP had falsified the time the examination took (which the tribunal did deal with and reject) and had failed to write down what she really said in response to the questions she was asked.  The latter goes to the reliability of the report.  

11	It is a fundamental duty of the tribunal to deal with the evidence and submissions.  The appellant’s criticisms of the report were, in effect, a submission that the report was flawed.  But the tribunal did not deal with these criticisms at all.  

12	Most of the appellant’s complaints about the examination were, in fact, immaterial, such as her complaint that the examination seemed impersonal because the AHCP was recording her answers on her laptop throughout the interview, and that the appellant’s husband was not invited into to examination room.  Her complaint that she was not asked to remove clothing is equally unimportant, since the examination is not diagnostic, but intended to assess function [with such aids and appliances as are normally used (regulation 19(4), Employment and Support Allowance Regulations 2008)].  Some of the questions she complains of were designed to give a picture of the appellant’s typical day, and involved activities that were not directly assessed under the Work Capability Assessment.  That is legitimate.  The AHCP was, of course, interested in the appellant’s mental health, since the appellant had put it in issue. 

13	The remainder of the points the appellant made, however, involved issues of whether she actually did, for example, bend down at the examination, or walk with her husband as recorded by the AHCP.  The tribunal was obliged to decide whether it preferred to accept what the AHCP recorded or what the appellant said in her appeal papers.  It could not simply ignore the issues.

14	Next is the question of the appellant’s medical evidence.  Before the hearing, she supplied a consultant’s report dated 26 August 2010 which followed up on her first visit to a Pain Clinic on 9 August 2010. This report post-dated the Secretary of State’s decision, made on 1 March 2010, by 5 months.  

15	The tribunal did not mention this evidence at all.  It did say, in respect of nothing in particular, that it could not take into account any changes of circumstance after the date of the Secretary of State’s decision.  That is, of course, correct: Social Security Act 1998, section 12(8).  However, it can and must take into account evidence which, although of a later date than the decision, casts light on the circumstances as they stood at that time.  It is impossible to tell whether the tribunal thought that the consultant’s report did not tell it anything about the circumstances as they stood at the relevant time, or whether it simply overlooked its existence.

16	Having regard to the contents of that report, it might have been open to the tribunal to decide that it did not assist it in deciding whether the appellant’s functional limitations fell within the descriptors, whether or not her condition had changed,.  But it did not take this course.  

17	I turn to the way the tribunal dealt with the appellant’s manual dexterity.  The tribunal evidence that the appellant could wash, dress, cook meals, deal with correspondence, wash dishes and do the laundry and light housework.  It concludes ‘She did not therefore meet any of the descriptors in relation to manual dexterity’.  

18	It is the ‘therefore’ that is problematic.  The listed items do not equate directly to the descriptors laid down by law, and the tribunal did not make findings on whether, as one example only, the appellant did her correspondence with pen and paper or on a personal computer, thereby showing that one or two descriptors were potentially eliminated.  What the tribunal may have meant is that, given that the appellant could do all of the things it listed, it found that she must also be able to accomplish the specific tasks set out in the descriptors which involve similar capabilities.  But I see no reason why I should make this assumption, having regard to the numerous inadequacies I have already identified. 

19	The appellant has sent the Upper Tribunal further medical evidence, largely comprising appointment letters.  These were not before the tribunal.  The tribunal did not err in law by not considering evidence that was not placed before it.

20	The errors are such that the decision is set aside.  I do not consider it appropriate for me to substitute my own decision.  The appeal is accordingly remitted to a fresh First-tier Tribunal for a complete rehearing.  The appellant should seriously consider attending on the next occasion.  

[Signed on original]		S M Lane
		Judge of the Upper Tribunal 
[Date]		14 February 2012