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APPEAL FROM DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW
Commissioner’s Case No: CIB/21/2002
1. This appeal, brought with my leave, fails. The decision of the Appeal Tribunal on 17 7 01 was not erroneous in point of law, as explained below.
2. The appellant, born on 17 8 43, went sick in 1997 with a diagnosis of osteoarthritis of the hips. As I now discover from the documents the Secretary of State’s officer has helpfully obtained for me, he completed an IB50 questionnaire claiming enough points to pass the All Work Test (AWT). I do not know whether he had an examination, but he was awarded benefit. In 1999 he completed another IB50 in which he made similar claims but added problems sometimes with rising and with bending/kneeling. The examining doctor awarded a total of 16 points, but disagreed with the appellant on all but the standing descriptor and observed that he tended to underestimate his own capabilities.
3. In the IB50 completed in 2000, which led to the decision under appeal, the appellant said his problem had now been diagnosed as blocked arteries in his left leg, and claimed even more extensive disabilities, but the same examining doctor as in 1999, while accepting the new diagnosis, this time scored only 10 points, 3 for standing (instead of the 15 claimed) and 7 for walking/stairs (instead of the 15/7 claimed). So the appellant failed the Personal Capability Assessment (PCA), as it had by then been renamed, and his benefit was terminated from and including 8 3 01. The tribunal submission recites that the decision maker considered evidence from the appellant’s own GP, but from the papers that can only have been the 1997 Med 4. It is clear from the 2000 IB50 that the appellant had not been asked to provide any more up-to-date evidence from his GP, so what the decision maker was looking at was not only three-and-a-half years out of date but also contained what appears to have been a wrong diagnosis, which may have supported earlier awards but must now cast doubt on their justification, only one leg appearing to be compromised
4. I deplore the cheeseparing habit (if it is thrift that dictates it) of not obtaining current GP medical evidence. Not only is it potentially unfair to claimants, it risks incurring further public expenditure on appeals and arguments about evidence. The exact diagnosis of a condition admittedly does not always matter, it being functional disability which is tested by the PCA But it can be difficult for adjudicating authorities to make sense of appeals without at least something current from a GP, particularly where, as here, there has been a change in diagnosis which might well support different findings by an examining doctor. While deploring the habit, however, I am not convinced that in the present case it caused any prejudice to the appellant, whose evidence of the new diagnosis was accepted by both the examining doctor and the tribunal.
5. The tribunal conducted what was clearly a careful hearing, with extensive notes of evidence and a detailed full statement which endorsed the examining doctor’s findings. It accepted that furred arteries in the left leg were the cause of the appellant’s problems. The tribunal, one of the members being a doctor, saw and heard the appellant, and was in by far a better position than I am to reach conclusions of fact. It did so by highlighting inconsistencies in the appellant’s evidence at the hearing about the distance he could walk before being forced to stop through severe discomfort.
6. The grounds of appeal, in all probability drafted by the representative, laboured the point that the examining doctor had not taken into account the pain the appellant says he constantly suffers. I reject this. Doctors are skilled in assessing the likely degree of pain a person is suffering: the present doctor noted the lack of fidgeting while sitting, as well as the ease with which the appellant bent his legs up to remove his shoes and socks. S/he also noted that the new diagnosis would affect the appellant most strongly when walking, and awarded points accordingly. Complaint was also made about the treatment by the tribunal of the appellant’s asthma, which he now says makes him out of breath on any exertion. I reject this also, as this has never been a point make by the appellant until now, and the examining doctor noted a reasonable peak flow, though noting, as s/he had done on the previous examination, that the appellant is a short man. A third point, which would have been better not made, is the tribunal’s misuse of the term “disability living allowance” rather than “incapacity benefit”. A tribunal is unlikely to overlook that it has only two, rather than three, members and that DLA is listed for different days from incapacity benefit.
7. The main ground of appeal complained that the tribunal had found the appellant inconsistent about how far he could walk, when he had consistently claimed he could walk only 50 yards (as indeed he has in his previous IB50s) and that he had given evidence on the day which confirmed this. I gave leave on this ground, and the Secretary of State’s officer has submitted that the decision was deficient in findings of fact as to walking distance. The representative, understandably, has not dissented.
8. But the tribunal in setting out the evidence in its full statement (which echoes that in the record of proceedings), drew attention to the differing distances the appellant said in his oral evidence that he could walk, by reference to the environment of the tribunal building, and concluded that in the light of this it saw no reason to depart from the examining doctor’s findings and conclusions. It seems to me the inconsistency was fairly to be relied on in reaching a conclusion on the appellant’s actual abilities. This was not a matter of vague estimates on a form, it was clear evidence by reference to ascertainable distances. I add that the previous IB50s and the immediately previous AWT report, which the tribunal did not have before it, do suggest that the appellant is liable to underestimate his capabilities, and that had these documents been before the tribunal it was unlikely to have been to the appellant’s advantage.
9. The appeal therefore fails.
(signed) Christine Fellner
29 April 2002