[2024] UKUT 86 (AAC)

I gave the Appellant limited permission to appeal, commenting as follows:

“Grounds of appeal

3.

The Appellant relies on the grounds in her request to the FTT for permission to appeal. The Appellant responds to the FTT findings by suggesting why she might have answered some questions in a way that contradicts other evidence. She also says the Tribunal did not ask the questions that would have enabled her to describe what was difficult, e.g. not asking her how she would feel after she had been on a journey. The Appellant also asserts that the Tribunal did not apply regulations 4 and 7 properly. She says they could not reach the conclusions that they did on the evidence that she provided. District Tribunal Judge Chrimes covers and deals with these various grounds in his refusal of permission to appeal on behalf of the FTT and I adopt and endorse his analysis. These grounds are an attempt to re-argue the merits of the appeal.

4.

However, this is an inquisitorial jurisdiction and I have considered whether the appeal may be arguable on any other basis.

Documents and the procedural history in the First-tier Tribunal

5.

The FTT bundle now contains 930 pages – the DWP submission, 119 numbered pages and Additions A-Z22. The statement of reasons (SOR) says the FTT considered 422 pages. If so, this would mean the FTT only had the papers up to and including Addition Z2. There were also two adjournments and one postponement. The SOR only refers to the first adjournment.

6.

The Appellant had asked for a decision on the papers (p.6 hard copy/28 electronic). On 13/05/22 the appeal was adjourned for an oral hearing as the FTT felt oral evidence was required and the directions included an invitation to provide medical records (Addition L). The hearing was adjourned again on 23/06/22 as the panel had not been made aware of the additional 446 pages uploaded to Judicial Case Manager system (JCM) but not added to the bundle. Those directions have been added as Addition Z16 (p.887). The extra material is Z3-Z14.

7.

A hearing listed for 21/07/22 was postponed as the panel included someone who was excluded. Addition Z17 is then the FTT decision of 08/08/22 now under challenge.

8.

If the FTT only considered the bundle to p.422, then it did necessarily did not consider the additional material after Z2 either. (Anecdotally the bundle does not get restitched after an adjournment, so the Tribunal would have to go to the documents tab in JCM and work from the individual documents). However, that said there is a lot of duplication in the extra 446 pages. The Appellant says at Z3 that she identifies the new material as her personal statement, heart rate data, symptom diaries and medical notes from 2020-2022. However, that mostly does not appear to be new; rather, the Appellant seems to have submitted everything again from Addition N onwards.

Discussion

9.

Does this matter? Arguably it might. It looks like the only document that had not already been added is the 263 pages of medical records (Additions Z8-Z11). In her application for permission to appeal the Appellant refers to Addition Z8 (pp.19-23 and 44) Z10 re driving (and Z9 (pp.39 and 55) re asthma), all being pages from her medical records. As to driving, the Appellant highlights these entries (her grounds at [5]):

Addition Z8|Page 20 GP notes entered on 16/04/2021 state that “Email from patient chasing an earlier request for a letter advised not to drive by Dr. [name redacted].

Addition Z8|Page 19 GP notes entered on 23/04/2021 state that “does not need letter re driving (advised not to drive by Neurologist) – chat re whether to inform insurance company”.

Addition Z8|Page 23 GP notes entered on 12/02/2021 state “and avoid driving/cycling”.

Addition Z10|Page 21 A letter from Dr. [name redacted] to Dr. [name redacted] dated 20/03/2021 states that “In the meantime, of course, I have advised that she should not drive”

Addition Z9|Page 44 A letter from Dr. [name redacted] dated 13/09/2021 states that “Given your EEG result is reassuring I am happy for you to resume driving”.

10.

For the reasons identified above, it may be questionable whether the Tribunal saw the documents at Z3 onwards. That being so, the Appellant’s best point is perhaps the question of how the Tribunal assessed her credibility. All the documents were on JCM, even if they had to be opened as individual documents. The only way the Tribunal would not have seen them would have been if they were sent paper files instead of working from digital files. They did not believe that she was not driving for as long as she says. The FTT rely on the 18/10/20 letter that clears the Appellant to drive again. They do not seem to refer to the Z8 references to a further period when she was told not to drive. Of course, it might have made no difference. Driving is not the only reason for not awarding planning and following points for mobility activity 1. The Tribunal was satisfied the Appellant did not experience overwhelming psychological distress and there was evidence of her ability to carry out journeys by public transport. The FTT are also entitled to place more weight on the claim form and what was said at the assessment. The FTT has explained why they did this. However, the general finding was that the Appellant had ‘overstated’ her claim. Is there a possibility that, had they seen the Z8 evidence that supported what the Appellant said about not driving in 2021, then they might have reached a different conclusion about her credibility?

Conclusion

Ms Emma Fernandes, the Secretary of State’s representative in these proceedings, supports the appeal and helpfully consents to the FTT’s decision being set aside. She accepts it is arguable that the FTT did not consider the additional evidence at Additions Z8-Z11. She continues:

“13.

To begin with, there isn’t an issue of the FTT not having all the evidence, the issue is that it was fragmented and was partly on the JCM system, so did the Tribunal FTT actually consider it all?I submit that it is not clear that the Tribunal did consider all of it. The Tribunal noted that the claimant claimed she had not driven for over year on the advice of her neurologist and that she was not driving at the date of decision (31/08/21), which they found to be inconsistent. However, as pointed out by the UT Judge, the medical evidence illustrated in several places that the claimant had been advised not to drive.

14.

Further to this, based on the UT Judge’s discussion in his permission to appeal grant, a key question is whether the FTT correctly assessed the claimant’s credibility as the general finding was that she had ‘overstated’ her claim, but is there a possibility that, had they seen the Z8 evidence that supported what she said about not driving in 2021, then they might have reached a different conclusion about her credibility?

15.

Firstly, Tribunals are entitled to make their own judgement on credibility and it is not for the UT to disturb such findings as per IP v Secretary of State for Work and Pensions (IB) [2010] UKUT 97 (AAC)

“12 - I also accept that the tribunal in this case made a very strong finding of credibility, or rather lack of credibility, on the part of the appellant. I acknowledge that findings of credibility are pre-eminently a matter for the First-tier Tribunal, which has the advantage of reviewing the evidence at first hand. The tribunal also, of course, includes a medical member.

13 - I bear in mind the warning of Leveson LJ in the Court of Appeal’s judgment in Secretary of State for Work and Pensions v Roach [2006] EWCA Civ 1746 (at paragraph 37) that a Social Security Commissioner (now an Upper Tribunal Judge) should not seek to disturb a tribunal’s findings of fact by way of “an attempt to reanalyse evidence (which he had not heard) from a perspective that he preferred.” It follows that the Upper Tribunal should tread very warily before disturbing a finding of credibility, whether that is in favour or contrary to the interests of a claimant, and can only do so if there is an error of law. However, the First-tier Tribunal is also under an obligation to give adequate reasons for its decision.” (my emphasis)

16.

That being said, I submit that the Tribunal have erred in law by failing to consider all the evidence available to them, particularly that from pages Z8 onwards. As such, as the above case points out, a finding of credibility can be disturbed only if there has been an error of law and I submit the Tribunal may have made a different conclusion on her credibility had they been aware of the evidence (at Additions Z8-Z11) as this would have cast doubt on her ‘overstating’ her claim.

17.

Also, had the Tribunal reached a more positive finding on her credibility, it’s possible this may have led to further points being awarded. Ultimately, the Tribunal ought to have adequately explained what evidence they considered and as the SOR stated they considered just 422 pages and they failed to award points in relation to driving, I submit that the Tribunal erred in law by failing to consider evidence before it, as they ought to do as per section 12(8)(b) of the Social Security Act 1998.”

I am satisfied that the First-tier Tribunal erred in law for the reasons set out above. I therefore allow the Appellant’s appeal to the Upper Tribunal, set aside (or cancel) the Tribunal’s decision and remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.