[2025] UKUT 326 (AAC)

At the permission stage I was required to decide whether the claimant’s grounds of appeal were “arguable” with a realistic prospect of success. At the substantive stage I must be satisfied (on the balance of probabilities) that the Tribunal did indeed err in law in a way that was material.

The Tribunal heard evidence about the treatment that the claimant received for her various health conditions, and as to whether she had been provided with any aids or appliances to help her. That was relevant evidence which the Tribunal was entitled to take into account in its decision making.

However, there are several passages in the Tribunal’s statement of reasons that indicate that it drew inferences from the care she received from the medical professionals treating her (as well as the treatment that could have been offered her but was not), that her difficulties were not likely to be as great as she claimed:

“10.

The tribunal considered whether or not [claimant] would need an aid or assistance to cook. The tribunal notes that she has not acquired any aids to assist with the chopping despite having had carpal tunnel syndrome for a number of years. She has had operations on her hands and has not been re-referred for treatment following this. While prior to her operations for carpal tunnel syndrome [the claimant] may have required some aids, the tribunal does not accept she would require an aid to ensure she could use her hands effectively after these operations…”

“13.

…She indicated that she had difficulty getting the lids off child-proof bottles. While accepting this may be more difficult for her than for some because of the historic [sic] difficulties with her hands, the tribunal considers that to a large extent this would have been addressed by the two operations on her hands…”

“15.

She is reported, which the tribunal accepts at the time was accurate to sit on the edge of the bath and to swing her legs into the bath while holding on to integral handles. However, she had not acquired any handles or grab rails to assist her in and out of the bath…”

“16.

…It noted that she had not acquired a raised seat or frame nor had her doctor, or other person suggested an occupational therapy referral…However, given the level of treatment she was receiving and the fact that no attempt had been made to provide aids or assistance with toilet needs…the tribunal is not persuaded…”

“18.

…Her movement is somewhat restricted by arthritis in her back but, as indicated above, the tribunal does not consider, given the level of treatment and intervention for musculoskeletal problems…”

“22.

…Some of that walking may have been with significant pain and discomfort but when considering the level of treatment, she was receiving…”

As Judge Poynter recognised in MM v SSWP, the drawing of inferences about the degree of a claimant’s symptoms from the level of treatment they have received, is fraught with danger. The treatment a claimant receives is not necessarily a reliable proxy for the degree of that claimant’s symptoms because there are several factors that could feed into a medical professional’s treatment decision. For example, a GP’s decision not to prescribe a treatment that might be expected to be appropriate for a severe case of the condition the claimant complains of might be based on the patient having a history of unwanted side effects with that medication, rather than the GP having assessed the severity of the patient’s symptoms as less severe. There could be other reasons for a claimant not having received a high level of medical input: their GP may be exceptionally busy, or not particularly sympathetic, or even incompetent. The claimant may be exceptionally stoic in their description of their difficulties to their GP, or they may lack assertiveness.

Care also needs to be taken if drawing inferences about the existence or otherwise of a claimant’s claimed symptoms, or the likely degree of any such symptoms, from the fact the claimant has received a particular treatment. It may well be that a particular procedure, such as a hip replacement or (as in this appeal) surgery for carpal tunnel, generally has a high success rate, but the tribunal should seek to equip itself with evidence of how successful this particular claimant’s procedure was, any complications experienced, what tasks they have attempted since the procedure and any difficulties experienced, allowing the tribunal to make clear findings of primary fact (exercising its inquisitorial jurisdiction where appropriate).

None of these potential difficulties mean that a tribunal cannot draw inferences from evidence as to treatment a patient has received (or as to a lack of treatment) at all, but they mean that considerable care needs to be taken. However, if a tribunal is to draw such inferences, it would be wise to direct itself as to the risks associated with drawing such inferences, and to give a careful explanation of how it went about its decision making in this regard.

Very similar considerations apply where inferences are drawn from the fact that a claimant has not been seen by an occupational therapist to assess whether they need aids, appliances or adaptations to their home: the fact that such an assessment has not taken place does not necessarily mean that such an assessment is not indicated.

The decision notice and statement of reasons in this case do not suggest that the Tribunal was alive to the potential difficulties of using the claimant’s treatment and her not having been provided with aids or appliances as proxies for the severity of her symptoms. I am satisfied that it erred in law in this regard, and that the error was material.

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.