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1. This appeal, brought with my leave, succeeds. The decision of the Appeal Tribunal on 19 3 02 was erroneous in point of law, as explained below. I set it aside and remit the appeal to a differently-constituted tribunal for rehearing..
2. The appellant, born on 12 11 37, suffers from arthritis in the base of his spine and his right arm and high blood pressure. He complained of symptoms in his right hand which he believed to be vibration white finger, but he has been told it is not.
3. In his IB50 (this seems to have been his first claim, but the tribunal will check) he said he had difficulties with sitting, rising, bending/kneeling, reaching, manual dexterity and lifting/carrying. His GP said he had backache in some illegible place and ?right tennis elbow. He could not use his right arm, complaining of pain in some other illegible place. No doubt the appellant will be able to help the tribunal with the illegible words. The examining doctor recorded arthritis at the base of the spine, high blood pressure and right frozen shoulder. He found no point-scoring problems, the only limitation he noted being an inability to raise the right arm above the head. The inevitable disallowance followed, with effect from 13 6 01.
4. In his appeal notice the appellant reasserted problems with sitting, rising, bending/kneeling and manual dexterity. He gave clear oral evidence to the tribunal about sitting, rising, bending/kneeling, manual dexterity and lifting/carrying. He said his back had got worse, he got up by putting his hands on the seat of a chair, he had been unable to pick up a 2p coin with his right hand when he filled in the IB50, but his frozen shoulder had got better and he could now do this. He had no problems with lifting/carrying the prescribed weight of potatoes, nor with reaching, and he could not remember why he had said he could not reach up to put a hat on with one arm. He denied any problems with walking, stairs or standing.
5. The tribunal decided he could not sit for more than 30 minutes, rather than the 10 minutes he claimed in oral evidence, without moving from the chair, and awarded 7 points. However it said the evidence showed no other problems.
6. It turned out that there was a GP letter of 12 9 01 which had not been forwarded by the social services department. This in some respects rather dramatically contradicted the evidence the appellant had given the tribunal, eg it said he could not walk more than 50 metres, struggled on stairs and needed helping up out of a chair. Setting aside was refused on the ground that it was the representatives’ fault that the letter had not been provided to the tribunal.
7. The grounds of appeal were that the tribunal had given inadequate reasons, and had not explained the criteria for scoring the “Cannot sit comfortably” descriptor, which had been claimed in the IB50 but was not maintained in oral evidence. The tribunal dealt expressly with the claim that the appellant could not sit comfortably at all, and explained why it rejected it. Nor, if the tribunal had applied the law correctly, would I agree with the inadequate reasons ground.. The appellant’s evidence was clearly set out in the record of proceedings, and it is perfectly acceptable merely to say, if such had been the case, that it did not disclose evidence of any relevant limitations.
8. The Secretary of State’s officer supported the appeal, raising a number of criticisms about the tribunal having judged the case on the hearing date rather than at the date of the decision, having failed to put its observation of his sitting ability to the appellant, and having failed to establish why he pushed himself up from the seat of the chair. Embarrassingly, she relied on one of my own very early decisions where I said that such a manner of getting out of a chair might, as a matter of fact and degree, fulfil the descriptor, provided the tribunal was satisfied that such means were necessary. I place on record that I no longer agree with that decision, and have since held that pushing oneself up from the seat of the chair does not constitute “holding on” to something. However, other commissioners disagree with me. The representative had no further comments.
9. On rising from sitting, I must refer the rehearing tribunal to a recent decision of Mr Commissioner Jacobs, CIB/1664/02, where he purports to reconcile the authorities in a way which would be favourable to the appellant, at least provided he “could not” get up other than by pushing up.
10. I am also not of the tendency which insists on any ocular observation by the tribunal being “put to” a claimant before it can be relied on. In the present case, the appellant’s evidence (as the tribunal recorded) was that his back had got worse since the decision date, so it seems to me it was perfectly proper for the tribunal to observe that he had sat without apparent discomfort for more than 10 minutes (and even after that time, he said he had only to relieve the pain by stretching his back while remaining seated).
11. Where I am satisfied the tribunal did go wrong is in relation to manual dexterity. The appellant said he had had problems with this at the date of the decision. By the same token as tribunals are prevented by s12(8)(b) of the Social Security Act 1998 from taking into account deterioration since the decision date, they are also prevented from taking improvement into account. It is a circumstance not obtaining at the decision date. If the tribunal was satisfied that the appellant did have this difficulty (and indeed, doubtless because of his frozen shoulder, perhaps also had problems reaching) at the decision date, it should have awarded him the points, and left any question of supersession to a later decision maker. The subsection in most cases operates against a claimant; there is no reason why in appropriate circumstances it should not operate against the Benefits Agency.
12. The rehearing tribunal will investigate the case afresh. It will have the dubious benefit of the GP’s letter, and will consider all the descriptors that have been claimed, at one time or another, as they existed at the date of the decision appealed against. The appellant must not, however, suppose that because he has succeeded before me on a point of law he must automatically succeed before the rehearing tribunal.
(signed on original) Christine Fellner
29 November 2002