[2025] UKUT 322 (AAC)

The Tribunal accepted the claimant’s evidence that he experiences right-sided pain related to a fractured collar bone sustained following a fall on the stairs at home in 2022, and that he sustained a sternum fracture in 2023 following an attack at work.

It found that he was prescribed 30mg of Co-codamol and 250mg of Naproxen four times a day for his pain, as well as Omeprazole (a stomach protector) 20mg daily (see paragraphs [12]-[13] of the statement of reasons).

The Tribunal recited that the claimant had reported experiencing side effects from his pain medication, namely feeling “lightheaded and dizzy” (see paragraph [17] of the statement of reasons), but while the Tribunal appears to have accepted that the claimant experienced some dizziness, it made no clear finding as to its degree. The Tribunal has indicated scepticism as to the claims to significant functional limitation and to the claim that the claimant receives significant input from his wife to complete various daily living activities, but the Tribunal did not make clear findings of fact. The Tribunal’s assessment of the claimant’s evidence is expressed very tentatively. It seems to have been unpersuaded by the claimant’s evidence but reluctant to find his evidence to be false. Instead, it has shied away from rejecting his account of what the claimant does not do, and what the claimant’s wife does for him, but deciding that this a matter of “choice”.

The Tribunal explained its assessment of the evidence in this regard as follows:

“17.

As previously stated [the claimant] is in receipt of pain medication in respect of the right sided pain relating to the shoulder, collar bone and sternum fracture. The side effects of the medication he reports are that he feels lightheaded and dizzy. He further recorded as saying that the pain medication helps him manage the pain although it does not totally go away.

18.

[The claimant] reports that since the two incidents in January and August/September 2022 he has not been able to function well, he is not involved in family life and his wife is responsible for the childcare and managing the home, he does not get involved in the school run and he does not interact regularly with his children either inside or outside the home.

19.

We were surprised about this position and wondered if that was due to traditional roles as there would seem to be no reason why he could not undertake the school run independently of his wife and he could not assist with the in-home activities having taken his medication.

20.

He said in his evidence that he had to be accompanied by his wife when he leave [sic] the home because of the dizziness he experiences. We found it difficult to understand why he was experiencing dizziness to the degree that he would require this level of input from his wife. There is nothing in the GP records which would suggest that he had a condition that would need that degree of input. He mentioned using a crutch when out with his wife. We again saw no reason why he would need a crutch as the right sided weakness would have related to his upper body and although he had lower back pain this would be historical from 2018. We were of the view that if he was receiving this level of input this was because he chose this rather than needed it.

21.

We accepted that he would require some degree of assistance with bathing, cooking and also dressing and for which we have endorsed the points awarded by the Department. We also acknowledged that the lower back pain may restrict his walking but not to less than 50 metres.”

The Tribunal wasn’t obliged to accept what the claimant said about experiencing dizziness and light headedness, or indeed what he said about what he could do and what he couldn’t do as a result of any dizziness or light headedness he experienced. Rather, it had to consider all the relevant evidence and assess it critically, resolving material conflicts of evidence to decide what was more likely in the light of the evidence as a whole, and making such findings of fact as were necessary to determine the material matters in issue in the appeal. Having done so, it had to decide the appeal by applying the correct legal tests to the facts it had found, and it had to explain (to the required standard of “adequacy”) what it decided, as well as how and why it decided as it did.

The Tribunal should have stuck to hearing the evidence, assessing it critically, and making clear findings of fact based on the evidence before it. It fell into error when it strayed into speculating about whether the claimant’s family might adopt “traditional roles”, a matter on which it heard no evidence.

The Tribunal reasoned that there was nothing in the claimant’s GP records to suggest the claimant “had a condition that would need that degree of input”, but this was to misunderstand the claimant’s case. He had not claimed to experience dizziness or confusion as a symptom of any physical or mental health condition: he had claimed them to be side effects of the medication he was prescribed for the pain resulting from his accepted injuries.

I am persuaded that the Tribunal erred in law by taking into account an irrelevant consideration (namely a stereotypical assumption as to the roles adopted by the claimant and other members in his family that was not supported by evidence), by failing to make adequate findings of fact as to the matters in issue in the appeal (namely as to the degree of the dizziness and light headedness experienced by the claimant as a side effect of his prescribed medication), and by failing adequately to explain how and why it decided as it did. I am persuaded that these errors are material in the sense that had they not been made the outcome of the appeal could have been different.

Having found that the Tribunal erred in law in a way that was material, I consider that the interests of justice require me to exercise my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”) to set the FtT Decision aside.