[2024] UKUT 311 (AAC)

Error in failing to seek a further report from Dr Holt on the issues on which the First-tier Tribunal found Dr Holt’s report lacking

The First-tier Tribunal erred in law in not seeking a further report from Dr Holt on the issues on which the First-tier Tribunal found Dr Holt’s report lacking. I say that for two broad reasons.

First, the First-tier Tribunal said at paragraph 57 of its written reasons—

“While Dr Holt provides a diagnosis of Complex-PTSD, which, we found, is reasonable to conclude, we must consider the Appellant’s day-to-day functioning in accordance with Note 2, which Dr Holt has not. We might add, it appears Dr Holt had not been specifically instructed with reference to Note 2”.

As to the part of that passage that I have underlined, the First-tier Tribunal had clearly thought (as Note 2 envisages) that a psychiatrist or clinical psychologist would in principle be well placed to opine on the effect on day-to-day functioning. I say that given that it was the First-tier Tribunal which directed CICA to commission the report (directions 28/6/23, page TD4) and that the tribunal directed CICA to ask the psychiatrist or clinical psychologist the following question, which derives from Note 2: “What effect have the symptoms of the mental illness/injury had on the Appellant's day to day activities? Please consider ability to work, manage social and domestic activities and sexual or other relevant function” (page TD6). Moreover, it is clear that CICA must have put that question to Dr Holt; she reproduced it verbatim at paragraph 7.5 of her report (page C357). That question reproduced in substance the part of Note 2 that deals with day-to-day functioning. If the First-tier Tribunal considered that a question formulated by that tribunal, and put to a specialist commissioned at the direction of that tribunal, had not been sufficiently answered, then the tribunal should have sought a fuller answer from the specialist. As Ms H pointed out to me, Dr Holt’s report was not commissioned by Ms H but by her opponent (and at the First-tier Tribunal’s direction). Any inadequacies in it should not, she submitted, have been held against her. I agree that any perceived inadequacies in Dr Holt’s report should not have been held against Ms H without further enquiry of the specialist by the First-tier Tribunal.

Second, the First-tier Tribunal said—

“We note that Dr Holt had not been specifically asked to comment with reference to the meaning of DMI per Note 2 to the Scheme 2012” (paragraph 35, written reasons)

“it appears Dr Holt had not been specifically instructed with reference to Note 2” (paragraph 57, written reasons).

A First-tier Tribunal legal officer had on 28 June 2023 directed CICA to “commission an assessment by a Psychiatrist or Clinical Psychologist” (page TD4). Those directions contained at page TD6 a list of questions to be put to the expert. The questions included “5. What effect have the symptoms of the mental illness/injury had on the Appellant's day to day activities? Please consider ability to work, manage social and domestic activities and sexual or other relevant function”. It appears that CICA did put that question to Dr Holt because Dr Holt reproduced it at paragraph 7.5 of her report as I have mentioned (page C357). If the First-tier Tribunal was not satisfied with the question posed to Dr Holt, that was a dissatisfaction with the First-tier Tribunal’s own direction to CICA on page TD6. Any lacuna in Dr Holt’s report as a result of Note 2 not being specifically put to her was therefore the responsibility of the First-tier Tribunal, and should in my judgment have been corrected by the tribunal going back and putting Note 2 to Dr Holt.