Fryer-Kelsey v Secretary of State for Work & Pensions

J U D G M E N T

1. LORD JUSTICE JACOB: This is an appeal from a decision of Mr Social Security Commissioner Henty given on 16 March 2004. Initially he refused permission to appeal on 27 April 2004, but was persuaded to grant permission on 12 August 2004. Although at first we had concerns about the Commissioner's power to grant permission, he having first refused it, Mr Forsdick for the appellant has shown us the relevant rules which confer that power and little more need be said about the grant of that permission.

2. The only thing I would say is that the guidance of this court in Cooke v Secretary of State for Social Security[2002] 3 All ER 279 as to the grant of permission to repeal to this court is important, and it is desirable that the Commissioners in deciding whether or not to grant permission specifically bear that in mind -- in particular, the observation of Hale LJ that, agreeing with Mr Forsdick (on that occasion for the Secretary of State), a robust attitude to the prospect of success criterion ought to be adopted and should be adhered to. And the point of law sought to be raised should be identified. Here the letter by which the Commissioner was persuaded to change his mind does not expressly refer to Hale LJ's observation, and indeed appeared, on its face, not to reach the required standard, save perhaps in relation to a point not pursued on this appeal about the hearing having been advanced and the possibility of it not being entirely fair.

3. The Commissioner upheld the decision of the Colchester Unified Appeal Tribunal given on 13 May 2003. Following that decision, the Appeal Tribunal gave its written reasons pursuant to a request from the appellant. Before us, the argument has focused on the Appeal Tribunal's decision rather than the decision of the Commissioner. That is for the sensible reason that the issue really is whether the Appeal Tribunal erred in law, a question which was as much for the Commissioner as it is for us.

4. The appellant was a plumber by trade, but in 1996 he made a successful application for incapacity benefit. This he continued to receive, with four successive confirmations, until this case, the effect of which is that he will not get benefit from the date to which I will come to in a moment.

5. The statutory scheme is not in dispute. Accordingly, I can gratefully adopt the summary in Mr Forsdick's skeleton argument at paragraph 5 to 11:

"5. ICB is a non-means tested benefit payable to persons who are incapable of work: s30A Social Security Contributions and Benefits Act 1992 ("SSCBA 1992").

6. A claim for ICB is treated as made for an indefinite period: reg 17(1) of the Social Security (Claims and Payments) Regulations 1987 ("the 1987 Regs"). An indefinite award will be subject to a condition that on days subsequent to the date of claim the claimant satisfies the requirements for eligibility (reg 17(4)). It is clear law that this provision does not introduce an independent basis for supercession of awards and the only basis for such supercession is under the Social Security Act 1998.

7. S.10 of the Social Security Act 1998 ("the SSA 1998") provides that the SoS may supercede any decision made to award benefit in prescribed circumstances. Circumstances are prescribed in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ("the 1999 Regulations"). Reg 6(2)(g) was introduced to reverse the effect of cases such as R v Social Security Commissioner ex parte Chamberlain (unreported CO/1988/1999) and Cooke v Secretary of State[2001] EWCA Civ 734 to the effect that a new doctor's report reaching a different view as to the claimant's condition did not constitute a change in circumstances justifying a review of an indefinite award of benefit.

8. Reg 6(2)(g) provides that one basis for supercession will arise where there is an ICB decision but since the decision was made, the Secretary of State has received further medical evidence in accordance with regulations. Consequently, it is now possible to supercede an indefinite award of benefit on the basis of medical evidence received since the award was made.

9. The key test for ICB is 'incapacity for work' - S.30A Social Security Contributions and Benefits Act 1992 ("the SSCBA 1992"). A day of incapacity for work means a day on which a person is incapable of work (S.30C)(1)(a).

10. S.171C(2)(a) of the SSCBA and Part III of the Social Security (Incapacity for Work)(General) Regulations 1995 as amended provided for a personal capability assessment ("the PCA") to assess whether a person is capable of work. The PCA is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in the schedule or is incapable by reason of such disease or bodily or mental disablement of performing those functions - regulation 24.

11. If a person scores 15 points for physical descriptors or 15 points in respect of physical and mental descriptors combined they shall be deemed incapable of work."

6. On 12 September 2002 the relevant officer decided that the applicant did not satisfy the PCA and could not be considered incapable of all work from that date. The appellant appealed to the Appeal Tribunal. The Appeal Tribunal had before it detailed argument and submissions in writing on behalf of the Secretary of State. That was the case that they had to deal with. Annexed to the detailed argument were all the relevant papers, which included, particularly, a recent medical assessment by a Dr Hardman (who had examined the appellant for nearly an hour), previous GP reports on the appellant going back for a number of years, and a relevant application form. In addition, the Appeal Tribunal had the opportunity of seeing, talking to and observing the appellant himself.

7. The Appeal Tribunal upheld the decision to refuse incapacity benefit. The appellant took the matter to the Commissioner, who held the Appeal Tribunal had made no error of law, and accordingly dismissed the appeal. As I have said, the question before us is whether he was right in saying no error of law was made.

8. Mr Forsdick at the opening of his submissions gave us a helpful summary of what he said should be the correct approach of an Appeal Tribunal. In paragraph 3 he set out basic legal propositions which should be adopted by the Appeal Tribunal in the exercise of its inquisitorial jurisdiction. He said it has to:

"i. Properly understand the relevant evidence;

ii. put into the weighing exercise all the relevant evidence;

iii. direct itself to the objective test set by the PCA - what can this claimant do;

iv. ask itself the right questions under the test and demonstrate that it has done so;

v. put its mind to work on the principle controversial issues raised by the claimant whether orally or in writing;

vi. reach conclusions which were open to it on the evidence; and

vii. give sustainable reasons for its conclusions."

9. Mr Kolinsky, for the Secretary of State, indicated he did not dispute any of that. It boils down really to the function of any Tribunal having to decide a matter before it properly. At the heart of the appeal, therefore, is the question of whether or not any error of law was made.

10. The submissions did not concentrate on a single allegation of error. There were a number of detailed matters, to which I must come, relating to various questions which were considered by the Appeal Tribunal. But at the overall heart of his submission, Mr Forsdick suggested that the Appeal Tribunal had taken too cavalier an approach and that guidance was needed from this court to tell these Tribunals that they must work harder and do better, particularly in the circumstances where an applicant has in the past received disability benefit and as a result of the decision under appeal is now being refused it.

11. I agree that the Tribunal must consider the case before it in proper detail, but I am bound to say that, overall, I cannot see that this Tribunal in any way failed in its duty. Still less can I see that it made any error of law.

12. The errors of law that were suggested were that the Tribunal had firstly misconstrued a letter by the GP; secondly, that it had failed to concentrate on the important question of the pain that was said to be suffered by the appellant, which meant that although he had the physical ability to do something, it hurt in practice to do it; and thirdly, that the wrong question had been asked in relation to a hearing test.

13. I turn to the point about the doctor's letter. The Appeal Tribunal's decision says this at paragraph 6:

"Mr Fryer-Kelsey's doctor comments on page 75 that he could not return to work as a plumber but the assessment is not related to any particular occupation or former occupation but simply to functional ability in every day life. We infer that at page 85 Dr Gatland is also referring to the possibility of Mr Fryer-Kelsey returning to work as a plumber. We note the diagnosis in that letter but apart from stating that the right shoulder cannot be abducted beyond 90% there is no other indication of functional limitation."

14. Mr Forsdick says they had misconstrued the doctor's letter of 9 December 2002. The letter says:

"This gentleman, in my opinion, is not fit for work. He has suffered from chronic tension and anxiety symptoms, also associated with pain in the cervical spine. He also has an ongoing problem with his right shoulder and is unable to abduct the shoulder beyond 90 degrees."

This is a letter written "to whom it may concern" at the Department of Health and Social Security.

15. In connection with a claim of some sort as a result of personal injury suffered in an accident, the same doctor had written earlier in the year on 11 February:

"Mr Fryer-Kelsey feels that he would be able to return to work had it not been for his injury to his shoulder, but I do not believe he would be able to return to work as a plumber."

It is said that the Tribunal misconstrued the letter on page 85 as being a reference to work as a plumber. Well, I am far from satisfied that is so. The doctor knew he was a plumber. It was suggested the doctor would have had in mind all the regulations and rules about what you need to show to get disability benefit. I see no reason to suppose that the doctor was thinking about that sort of thing at all. Certainly, it is the sort of matter with which a Tribunal, such as the Appeal Tribunal, is much more familiar with than this court. It is the very sort of thing which seems to me to be precluded from consideration by the Commissioner and this court by the fact that appeals are appeals only on questions of law. Hale LJ's reasoning indicates precisely why this is not a matter suitable for this court.

16. The next point is the alleged failure to concentrate on pain and its effects on the ability to work. The Tribunal plainly thought that Mr Fryer-Kelsey was exaggerating his condition. I say that because in its decision it said this:

"We note that Mr Fryer Kelsey was unwilling to remove his jacket for the purpose of the examination, apparently because the doctor was a stranger. Mr Fryer-Kelsey was aware that he was attending a medical examination and we consider that he would have been aware of what was involved or could have taken steps to make enquiries to see if he could be accompanied if he felt it necessary. Where there is a conflict between Mr Fryer-Kelsey's evidence and that of the examining doctor we prefer that of the doctor as it is based upon the clinical findings of a doctor acting as an expert for the purpose of the Personal Capability Assessment who is disinterested in the outcome of the claim. For that and the following reasons we do not allow the appeal."

17. That was a reason that was given. But it is worth noting that the Tribunal also said this at paragraph 8:

"At the hearing Mr Fryer-Kelsey was wearing a surgical belt, outside his clothing, which in our experience is unusual. We find no evidence that this has been recommended by his doctors and we do not accept that it indicated that he has functional limitations which necessitates its use."

That was a matter which they were entitled to make a finding upon, and is in no way an error of law.

18. When they came to consider the question of pain, they also had before them the detailed submissions in writing which dealt with the question of pain. The submissions being put had been put in by the Secretary of State's representative. It is quite clear the question of pain was there. It seems to me quite clear that the Tribunal accepted the opinion of the doctor, who was the last doctor to have examined Mr Fryer-Kelsey. It was a matter for them whether or not to accept that evidence.

19. What is said against that is that particular attention should have been paid to the previous opinions of the GP over the years. Well, that was a matter they had to weigh too, but they had it in front of them and they indeed referred to it. This was a matter for the Tribunal. How they weighed it was a matter for them. It is not a question of law.

20. Then there was the hearing test. The facts in relation to the hearing are as follows. In 1991 a detailed examination by a specialist had indicated a slight loss of hearing but no more. In the various examinations which led to his being given disability benefit from 1996 onwards, he had scored points in relation to hearing. But Dr Hardman who examined him said this:

"Normal hearing today. He could answer all questions put to him."

The form had said "no problem with hearing" and was put in by the wife. What is said is that, in the circumstances, that was not good enough because the relevant test is whether he could hear persons speaking normally in conditions of busy traffic -- a test which I am bound to say sounds pretty woolly. Many of us cannot hear things in busy traffic; most people cannot if it is busy enough. But, given that it had been said on the form that he could hear, given that he could hear when the doctor assessed him, given that the Tribunal itself heard him and he heard them and engaged in discussion with them, it was perfectly open to the Tribunal to give no points on a suggested hearing deficiency.

21. In short, each and every one of the elaborate ways devised by Mr Forsdick to suggest a point of law lead to the inexorable conclusion that it was nothing more than a question of fact, a matter to be weighed by the Tribunal and not for this court or the Commissioner.

22. I have come to the clear conclusion that this appeal should be dismissed.

23. LORD JUSTICE RIX: Mr Forsdick in his submissions has clearly and eloquently set before us reasons why, on all the material before the Appeal Tribunal, that Tribunal ought to have found that Mr Fryer-Kelsey suffered from sufficient functional disabilities to score 15 or more points on the Personal Capacity Assessment so as to entitle him to disability benefit. However, the Appeal Tribunal took all those points into account -- points concerning chronic pain, hearing loss, fitness to work, the claimant's GP's own evidence, the status of the questionnaire filled in by the claimant's wife and so on. The Appeal Tribunal weighed this material, but concluded, consistently with the wife's own questionnaire answers and Dr Hardman's report, that the claimant was not entitled to benefit.

24. At the end of the day, Mr Forsdick's only question of law which, as it seems to me, did not collapse into a complaint about the Appeal Tribunal's weighing process, was a submission that the overall result was perverse. I do not think it was. It was supported by the questionnaire answers filled in on the claimant's behalf by his wife, and by Dr Hardman's medical report, both of them up-to-date material.

25. Mr Forsdick asks this court to set the Appeal Tribunal to rights by teaching them how to do their job of weighing the evidence. It seems to me that that is not this court's function. There is an appeal to this court under the statute only on questions of law. I cannot see a question of law in this case. I agree that this appeal should be dismissed.

26. LORD JUSTICE MAY: I also agree. The statutory process by which this appeal has come to this court is in outline as follows. Section 12 of the Social Security Act 1998 provides for an appeal to an Appeal Tribunal from the decision of the initial decision-maker. The appeal to the Appeal Tribunal is a re-hearing, with the possibility of the claimant giving additional evidence, as Mr Fryer-Kelsey did in the present case. By section 14 of the 1998 Act there is a right of appeal to a Commissioner on the ground that the decision of the Tribunal was erroneous on a point of law. There is no appeal to the Commissioner on a question of fact. By section 15 of the 1998 Act, there is, with leave, a further appeal to this court, again on a question of law.

27. As Jacob LJ has said, since the appeal has to identify an error of law, the enquiry in this court should concentrate, and has concentrated, on whether the Appeal Tribunal's decision was erroneous on a point of law. If it was and the Commissioner failed to identify it, that would itself be a point of law.

28. It is, I think, enormously important for an understanding of this court's decision to be very clear that this court is only concerned with questions of law, and that an appeal here can only succeed if it is shown that the Appeal Tribunal was erroneous in point of law.

29. The essential shape of the case before the Appeal Tribunal was that the Tribunal had a large body of material. Importantly, it included the incapacity for work questionnaire. This had been completed by Mr Fryer-Kelsey's wife and, in most instances, the answers to the various questions did not indicate incapacity or at least incapacity sufficient to add up to an award. The answer about hearing was equivocal, saying that he did not normally wear a hearing aid, but it did not answer questions addressed to whether or the extent to which he actually had hearing difficulties.

30. In my judgment, the Appeal Tribunal was entitled to take the answers given in this questionnaire into account in reaching their decision. In saying that, I acknowledge so much force as Mr Forsdick's submission has that they might have been careful about this if they had concluded as they might that there was some difficulty in filling in this form questionnaire accurately.

31. The second material which the Appeal Tribunal had was the medical report form from Dr Hardman. This was a recent report based on an examination for the very purpose that the Appeal Tribunal was concerned with. The report recorded previous diagnoses of chronic depression and anxiety and chronic back pain. It seems to me that this alone shows that Mr Forsdick's submission that the Appeal Tribunal failed to take account of the question of pain cannot be entirely right.

32. Dr Hardman had noted the answers that had been given on behalf of Mr Kelsey in the questionnaire and gave his own ticked box answers to those questions. That recorded his opinion that Mr Fryer-Kelsey had no problem with hearing. As to his functional ability, the doctor's report said that his neck and back movements were full, but that he had some loss of full movement in the right arm, and that there was some problem also with the shoulder. He said that the lower limbs appeared normal and he had no wasting -- an observation to my mind of some significance.

33. The Appeal Tribunal then had the evidence of Mr Fryer-Kelsey himself, which it was for the Appeal Tribunal to evaluate as they did. They had letters and reports from the general practitioner, including those at pages 75 and 85, to which one main point in this appeal has been directed. They also had much other material from previous assessments.

34. Mr Forsdick has, I think, essentially four points. The question is whether any of them amounts to an error of law. The first point is a general one to the effect that the Appeal Tribunal's adverse decision should be seen as perverse or inadequately reasoned in the light of previous favourable assessments over seven years. I do not myself think that this assertion begins to make a case of perversity such as might conceivably be elevated into an error of law.

35. The second point which is suggested to be an error of law was in the Appeal Tribunal's reading of the GP's letter at page 85. The letter says in very short order that "this gentleman, in my opinion, is not fit for work". The complaint is that the Appeal Tribunal interpreted this as meaning not fit for work as a plumber. In this context it is pertinent to note that some months earlier, on 11 February 2002 (at page 75), the general practitioner had said in a similar context but in the context of personal injury litigation, that he did not believe that Mr Fryer-Kelsey would be able to return to work as a plumber. I do not think that, taken as a whole and in context, this textual criticism of the Appeal Tribunal's written decision can be elevated into a point of law.

36. The second of the particular points that is relied on is a submission that the Appeal Tribunal did not give any proper consideration to the fact of pain. Mr Forsdick has drawn our attention to a number of points in the documents where pain is dealt with, the general point being that although it may be that Mr Fryer-Kelsey is able to perform various functions such as standing and sitting, he is unable to do so without pain. In my judgment, taking the Appeal Tribunal's decision as a whole, this cannot conceivably be elevated into a point of law. They gave what I regard in the context as proper consideration to the points that had been raised before them, and I do not see how this can be said to be a point of law.

37. The third and final of these particular points concerns the question of hearing. It is said that the Appeal Tribunal did not ask the right question so far as Mr Fryer-Kelsey's hearing was concerned. It is said that the right question should have been to ask whether he could hear well enough to understand someone talking in a normal voice on a busy street. That is but one of the six possibilities which appear as ticked boxes under the heading "Hearing". In this instance the evidence from Dr Hardman simply was that he had no problem with hearing. In those circumstances to adopt that and reach that conclusion without noting that the same form did not indicate that he could not hear well enough to understand someone talking in a normal voice in a busy street is, I regret to say, misconceived. The Appeal Tribunal came to a decision as to Mr Fryer-Kelsey's hearing which was plainly open to them on the evidence, not least because the doctor had been able to deal with the point and because they themselves had had the benefit of hearing Mr Fryer-Kelsey when he was giving evidence.

38. Like my Lords, I entirely fail to see that there is any point made before this court which can be elevated into a point of law. In those circumstances the appeal, I agree, necessarily fails.

Order: appeal dismissed.