Appeal No. UA-2023-001465-DLA
Between:
HD
Appellant
- v -
The Secretary of State for Work and Pensions
Respondent
Before: Deputy Upper Tribunal Judge Hocking
Decided on consideration of the papers
Representation:
Appellant: Kester Disability Rights
Respondent: Claire Keates, DWP
On appeal from
Tribunal: Social entitlement chamber
Tribunal Case No: SC247/14/01422
Tribunal Venue: Truro
Decision Date: 8/11/22
DECISION
The decision of the Upper Tribunal is to allow the appeal
DIRECTIONS
This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.
It must be heard by an entirely differently constituted panel.
The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.
The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.
These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT.
REASONS FOR DECISION
Factual background
This appear relates to a decision taken as long ago as 8 September 2017. It is unnecessary to set out the history at any length, but, very briefly, the appellant received the high-rate mobility component and the highest rate care component of DLA from 22 February 2013. As a result of covert surveillance, interviews the appellant gave to the Panorama programme, and an interview under caution, that award was superseded by the Secretary of State on 8 September 2017, with effect from 31 May 2015.
A further decision was taken on 15 September 2017 that there had been recoverable overpayment in the sum of £8944.
The Appellant appealed those decisions unsuccessfully to the FtT. That decision was itself successfully appealed to the Upper Tribunal on 7 September 2020. The matter was remitted to the FtT.
That remitted hearing was held on 8 November 2022. The appellant was again unsuccessful. That second FtT decision is the subject of the appeal before me.
As the respondent agrees that this second appeal should succeed, it is unnecessary and perhaps inappropriate for me to set out the factual issues in the case in any detail, as they will all have to be looked at again. In a nutshell, the appellant has a number of diagnosed conditions. During the period of interest, she underwent a “detox” treatment from opiate medication. Her medication changed thereafter. The evidential picture as to her abilities and functioning, and what she knew about her abilities and functioning, is not straightforward. The question is what does the evidence before the FtT show about her abilities and functioning during the period in question. Evidently that is not an easy question to answer robustly, as witness the fact that the case is now onto its second successful appeal.
The grounds of appeal
The grounds of appeal are:
“Ground 1: Insufficient findings of fact relating to (i) pain when (a) walking and (b) carrying out activities relevant to the care component, (ii) the outcome of her change in medication, and (iii) the frequency with which she could carry out the relevant activities.
Ground 2: Failure to give adequate reasons.
Ground 3: misinterpretation of the regulation 12 “severe discomfort” test
The respondent’s position.
The respondent says this, with which the appellant agrees:
It is my submission that the FtT has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning. It seems that what the FtT has provided at paragraphs 26, 27, 31 and 32 of the SOR (below), in relation to an award of the Care and Mobility components of DLA, appears to be no more than a rehearsal of evidence and a conclusion without an explanation.
“The Tribunal finds that her diagnosis were in keeping with her claimed disabilities at that time. In the medical evidence with the claim pack, she gave a history of significant discomfort, the initial award was supported by clinic letters from specialist. The award at this time, namely High Rate Mobility Component because she was virtually unable to walk, and the Highest Rate Care Component because she needed continual supervision throughout the day (due to the risk of falling), and attention frequently or for a prolonged period at night (91), was supported by the evidence available.
Was there a Change of Circumstances? (Social Security and Child Support (Decisions and Appeals) Regulations 1999 Reg 6(2)(a)).
It is quite clear following the inpatient detox from opiate medication there was a significant improvement in [claimant’s] conditions. From the first award in 2013 she was heavily medicated, and it appears that the medications affected her ability to function as much as the back pain. By her own account after the detox, she was brighter and more alert (688). She was able to go body boarding from the end of May 2015 she says every couple of weeks. The functionality required to do this, in terms of dressing and undressing. Whether in a swimsuit or wetsuit and walking across a beach to the water is far removed from the restrictions upon which the original award was based. It is impossible to imagine that she would have undertaken this level of activity every 1 – 2 weeks before the inpatient detox. The Facebook records indicate a level of activity which is not consistent with her statements in the original claim pack – e.g., that she was “in the water every day this week” (407). There is significant evidence of her spending considerable time away from home, for example staying overnight in Plymouth to attend a concert, and 2 trips to Scotland, 1 at Christmas and another for a weekend (a journey recorded as taking 11 hours up and 7 hours back in the van (446)). This is not consistent with a person who requires a special mattress to prevent pressure sores. The Tribunal considers that even if, as was claimed in her oral evidence, she was lying on a mattress in the back of the van during the journeys to Scotland, the exertion and discomfort it involved would have precluded her undertaking this activity prior to detox.
Do the changed circumstances attract any award of DLA from 31 May 2015?
It is right to consider what an Appellant’s abilities are most of the time, although all facts, including the frequency of bad days, the length of periods of bad days and of intervening periods, and the severity of the Claimant’s disability on both good and bad days and the unpredictability of bad days are all relevant. [Claimant] has said consistently in her oral evidence and her paperwork that there is no variability in her ability to function. The panel therefore concludes that the evidence of activities as set out in both videos and the Facebook and Twitter entries, is, on the balance of probabilities the level of activity which she could undertake for the majority of the time.
The surveillance video showed [claimant] walking down 2 flights of steps, holding onto the railings, 1 step at a time. Part way down the beach she stops to put flippers on and initially walks forward into the sea, subsequently turning round to move backwards towing her body board she serves on the body board, kicking her legs and stays for some time in the water between waist and chest deep. When she comes out, she stops to remove her flippers, and then after about 70 steps she stops and sits on the board to rest. After a while she gets up, and her partner carries the board for her, she stops and sits again, asked her partner for a hand up and they walk up the steps where she sits again before moving to the car. All this was undertaken without her crutch, which she said in oral evidence she normally used, but had “forgotten” on that occasion. The Tribunal bears in mind that this video was made more than 12 months after detox, and that immediately after the detox, Declan…, observing her on the beach, considered that she was “painfully slow”. Nevertheless, the Tribunal finds that as of 31 May 2015 [claimant] cannot be considered virtually unable to walk. Bearing in mind the level of activity disclosed in the Facebook and Twitter entries, on the balance of probabilities she could cover 50m reliably and repeatedly without severe discomfort, at a slow steady speed in a reasonable manner.”
Whilst the FtT accept at paragraph 26 of the SOR (repeated above) that; “The Tribunal finds that her diagnosis were in keeping with her claimed disabilities at that time…”. However, it appears that the FtT have underestimated the level of pain, specifically when stating: “…In the medical evidence with the claim pack, she gave a history of significant discomfort...”. I note at pages 58 to 59 of the FtT bundle that the claimant’s Consultant Neurosurgeon stated the following: “…any further surgery trying to decompress or consider a long decompression with stabilisation/fusion, would not be the best option considering the chronic nature of her pain and the pain perception change…” Additionally there is a letter at pages 60 to 61 from the Pain Consultant that notes the following: “…In summary I agree with the idea that this lady with failed back surgery syndrome would benefit from attending Pain Management Programme…She also asked about spinal cord stimulator treatment. I believe that her back pain is very much in the foreground of her symptoms and that her chances to have a meaningful relief from spinal cord stimulator treatment are low. I have explained this to her. I would not recommend this treatment for her.”.
There is further evidence from the claimant in her mandatory reconsideration letter (dated received 06/10/2017) at pages 222 to 234 where the claimant has provided information explaining her longstanding conditions and noting that: “I have had chronic pain since September 2008 when my lower spinal problems resurfaced. I am still in chronic pain today and I will be in chronic pain for the rest of my life…Many things fluctuate with my chronic illness and disabilities. One day may be slightly less painful than the next so on a slightly better day, I would ‘push through’ my pain…I want to emphasise that walking any distance causes me severe discomfort. The pain is unbearable, so bad I sometimes vomit because of this…”.
However, it is unclear if the FtT have considered this evidence and that of the claimant’s Consultants and the mandatory reconsideration letter, where it confirms the pain and lack of surgical intervention available. Therefore, was it not incumbent upon the FtT to consider if the co-morbidity of the claimant’s long standing health conditions, was in fact a contributing factor to the claimant’s pain and how she was dealing with the pain? As such, I submit that the information held in the letters provide further insight into the claimant’s conditions, pain and treatment she has undergone.
Furthermore, it is unclear what the FtT made of its own finding at paragraph 31 of the SOR (repeated above) where the FtT noted that the claimant’s pain varied. The FtT do not appear to adequately explain what this may mean for the claimant. Also, it appears upon ones reading that the FtT have placed, at times weight on the evidence collated during the investigation when stating at paragraph 32 of the SOR that: “…Bearing in mind the level of activity disclosed in the Facebook and Twitter entries…”. However, the FtT do not appear to explore further what is stated at paragraph 32 of the SOR that during the investigation: “…Declan… observing her on the beach, considered that she was “painfully slow”…”. Given their acceptance of the varied pain and the observations of being observed to be ‘painfully slow’, I submit that the reader is left in doubt as to what the FtT’s conclusions are.
When reading the SOR at paragraph 32, the FtT concluded that the claimant’s walking ability to be: “…on the balance of probabilities she could cover 50m reliably and repeatedly without severe discomfort, at a slow steady speed in a reasonable manner.” However, it is unclear how the FtT came to this conclusion. It is noted at paragraph 32 of the SOR that the claimant had been seen:
“…walking down 2 flights of steps, holding onto the railings, 1 step at a time. Part way down the beach she stops to put flippers on and initially walks forward into the sea, subsequently turning round to move backwards towing her body board she serves on the body board, kicking her legs and stays for some time in the water between waist and chest deep. When she comes out, she stops to remove her flippers, and then after about 70 steps she stops and sits on the board to rest. After a while she gets up, and her partner carries the board for her, she stops and sits again, asked her partner for a hand up and they walk up the steps where she sits again before moving to the car. All this was undertaken without her crutch, which she said in oral evidence she normally used, but had “forgotten” on that occasion…”
Nevertheless, the claimant’s Consultant in pain medicine had stated at page 69 that the claimant was trying to manage her pain with “…pacing her activities appropriately, but what became clear is trying to manage things very well but the cost of this is that she is barely able to function with a huge impact on her quality of life and I feel supporting her excellent management is exactly what is needed. [claimant] is very disabled by her symptoms…” . However, the FtT do not engage with this evidence.
In view of the above, I submit that it was incumbent upon the FtT to investigate and make findings of fact to determine whether the claimant’s stated difficulty was supported by the evidence, other than the occasions cited in the investigation and surveillance evidence. Given the medical evidence, and the claimant’s oral evidence, that at the date of decision and up to and including the date of surveillance, that the claimant; “…has said consistently in her oral evidence and her paperwork that there is no variability in her ability to function. In addition, as noted above 4.3 to 4.6, that the pain and claimed difficulties were present all the time and observed during surveillance, specifically given she was observed to be painfully slow and was resting and sitting.
Moving onto the claimant’s pain medication, whilst it is correct that the claimant had since undergone a detox, the FtT appear to have taken a narrow and contradictory view of this. The claimant had stated at page 228 that:
“All drugs listed were prescribed to me by my GP’s and specialist Pain Management consultants…I would like to stress that I never took more pain medication than I was directed to take and that I always used my opiate pain drugs safely and sensibly, as recorded in my consultant’s letters. And also, to make sure that it is understood that I am prescribe methadone as an analgesic and as one of my pain medications. I want to make sure that there is no misunderstanding about why I am prescribed methadone. I am NOT prescribed methadone because I was ‘addicted’ to my previous opiate pain drugs by taking more of them than I should. In my case I take methadone to help manage my chronic pain. Being prescribed methadone for pain relief is unusual but Cathy Stannard at Southmead Hospital was very alarmed that I was taking, just in my morning meds, enough opiates to constitute a fatal dose…This is why Dr Stannard wanted to ‘streamline’ my drugs and reduce my 4 opiates down to one opiate that being methadone…Taking 4/5 different opiates made me extremely sedated and confused…methadone is better for me…”
Conversely, the FtT when stating at paragraph 27 of the SOR that: “It is quite clear following the inpatient detox from opiate medication there was a significant improvement in [claimant’s] conditions...”, appearto assume that the claimant’s conditions have improved. This I submit is unfounded, given the reason for the detox as noted above were under clinical guidance to reduce the ’alarming dose’. In taking such a restricted view, I submit that the FtT have erred in law.
In light of the above, I submit that there is a distinct lack of reference by the FtT to the available medical evidence with the FtT preferring to use the arguably limited evidence from the surveillance and associated observations. The result of this is that the FtT have failed to make sufficient findings of fact to determine the claimant’s functional abilities. Although the FtT are entitled to reach their own conclusions regarding the available evidence, it also has an obligation to provide adequate reasons to explain how it reached its view concerning the evidence and why it has been disregarded in parts. In failing to do so I submit that the Tribunal has erred in law, as it has made inadequate findings of facts and reasons in the SOR to support and explain its decision.
I agree with the respondent’s observations above, in so far as they relate to a failure adequately to consider the evidence, evaluate it holistically, and give sufficient reasons for the conclusions on each relevant issue. Where the respondent might seem to go further and to express a view on what the evidence may show I do not take a view, that not being necessary for this appeal. Findings on the evidence are and will be a matter for the FtT and nothing in my having allowed this appeal should be thought to prejudge or direct what those findings may be.
There is a further issue which needs to be considered. The Secretary of State has backdated the effect of the supersession decision, with the effect of creating the overpayment. That is permitted only if the exception set out in regulation 7(1)(b) and 7(2)(c)(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 applies. As UTJ Poynter explained in SM v SSWP [2021 UKUT 119 (AAC) in a case such as this the requirements of these regulations must be addressed specifically and in detail. This does not appear to have been done and would have been another reason to allow the appeal.
As the case will be reheard it is unnecessary to deal with any other error of law there may have been as they will be subsumed by the new decision.
The appellant suggests that this case should be retained in the Upper Tribunal, which should hold a fact-finding hearing and then retake the decision. The reason for this is that it is said the case is complex and the FtT has so far failed to reach a legally defensible decision on two occasions. I agree with the premise but not the conclusion. The case is factually rather than legally complex. I see no reason why an FTT panel selected with knowledge that the case is more than usually demanding, and knowing in advance that any statement of reasons that might be needed will need to be prepared with particular care should not be able to deal with it at least as well and very probably better than the Upper Tribunal. In particular it seems to me that an experienced medical member will be essential to robust decision making.
Conclusion
Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set decision aside and remit the case to be reconsidered by a fresh tribunal.
Stephen Hocking
Deputy Judge of the Upper Tribunal
Authorised by the Judge for issue on 15 July 2025