IN THE UPPER TRIBUNAL	Appeal No.  CDLA/2228/2009
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1), (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the First-tier tribunal heard on 09/06/09 under reference 206/09/00297 is SET ASIDE because its making involved an error on a point of law.  As I am unable to substitute my own decision, the appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1	The appellant, who is the Secretary of State for Work and Pensions, appeals against the decision of the First-tier tribunal with my permission.  While the Secretary of State had refused to make an award on 04/02/09, the tribunal decided that the claimant was entitled to the higher rate of the mobility component of DLA from the date of claim, 10/12/08, to 9/12/12.  The care component was not in issue.  The Secretary of State submits that the tribunal erred in law in the way it dealt with the evidence.  

2	In giving permission to appeal, I summarised the position the grounds as follows:  

‘…The tribunal’s reasons for preferring the cardiac nurse’s (‘the nurse[‘s]’) report to the GP’s views appears [sic] to rely upon an illogicality, and may in that sense be irrational and an error of law. The tribunal’s reasons may also have given weight to an irrelevant matter in assessing the cardiac nurse’s report in that it places great weight on the nurse’s statement that the report covered the claimant’s cardiac condition down to 4/2/09 (the date of decision).  The nurse had not, however, actually seen the appellant since May 2008 and there is no indication that she had any medical/clinical knowledge of the claimant’s condition during the period from May 2008 – February 2009.  The tribunal went on to accept the claimant’s evidence of a deterioration in his health and considered that the nurse’s report cast light on his condition during that time, even though she did not appear to have any knowledge of his condition at that time.  In addition, the tribunal failed to make any findings of fact on the effect of medication on the claimant’s angina, which is a highly relevant matter and arguably constitutes an error of law.’  

3	The Secretary of State made a number of other points about the inadequacy of the tribunal’s factual findings which do not add significantly to the above grounds, which if correct, would require me to set the decision aside in any event.  The claimant’s representative submitted a lengthy response seeking to support the tribunal’s assessment of the evidence.  

4	As a matter of general principle, the assessment of evidence and the weight it is given is solely a matter for the tribunal.  This tribunal made a clear finding that the appellant was a credible witness, but in doing so relied heavily upon the nurse’s report as providing support for his evidence (paragraphs 14, 16).  The reasons for accepting her report must accordingly be scrutinised.  If the tribunal’s interpretation of her evidence was based on a false premise, its credibility finding would be undermined.  

5	Before looking at the content of the nurse’s report, it would be of some assistance to clear up her status.  The representative suggests that she is a nurse practitioner.  This is not indicated by the title she gives herself, which is practice nurse manager.  This is not to say that her evidence cannot be preferred to the doctor’s, but only that she does not necessarily have the status put forward by the representative.  

6	The nurse’s report dated 18/04/09 (p. 56) states that it covers the period on and before 04/02/09.  The tribunal was correct to say that, insofar as the report reflected back on the period in question, it could be relied upon.  But the question is whether it did reflect that period, and what weight could properly be given to the evidence.  The nurse states clearly that she had not seen the claimant since May 2008, some 7 months before the date of claim, some 9 months down to the date of decision and some 11 months down to the date she signed the report.  That is a matter of great significance not mentioned in the Statement of Reasons.  

7	While the nurse had clearly consulted the claimant’s records, her assessment was that the chest pain he complained of at that time was not obviously cardiac related.  She does not record anything from the notes indicating that he had been seen by a GP (or anyone else, for that matter) for heart related problems down to the date of decision.  We do know, on the other hand, that his GP actually saw the claimant on 1/12/08 (the date of the General Practitioner's Factual Report) at which time he made clinical findings that there was no shortness of breath.  It is possible, though perhaps unlikely, that the GP would not have recorded these in the notes.  The failure to mention any visits pertaining to the claimant’s heart is in contrast to referring specifically to his visits to the diabetes practice nurse and to a physiotherapist for his knee.  She then opines that the claimant suffers from angina and chest pain on a frequent basis – not always cardiac related, but that this does impede what he does and that he gets breathless on exertion and is finding the problem getting worse.  It is entirely unclear how she could offer this opinion covering the period in question when she had not seen him.  It is possible that she saw the claimant in and around the time she wrote the report, given that she writes that he is ‘finding the problem is getting worse’.  If this is so, the clinical basis upon which she avers that her report refers to the period down to the date of decision is, at best, doubtful.  Indeed, it conflicts with the GP’s findings in December and the apparent lack of any documentation of a worsening problem by the Practice.  I am unable to see, in the circumstances, how the tribunal could have used this report to support for the claimant’s credibility.    

8	I would mention a number of other matters.  The representative submits that the GP who wrote the GPFR only saw the claimant four times in eight years.  Whether or not this is the case, other GP’s in the practice would have recorded notes of his visits, which one would have thought to frequent, given that he had a bypass operation in 2002 (or 2005, according to the GPFR), an angioplasty in 2004, a referral to physiotherapy for his knee, and a visit to discuss the GPFR.  

9	I have therefore decided to set the decision aside, as the evidential basis upon which the tribunal made its decision does not support it.

10	The tribunal which rehears the appeal will no doubt wish to explore carefully with the claimant the nature of his chest pain and the effectiveness of his medication.  The GP has supplied a report based on clinical findings just 2 months before the date of decision.  There is currently no evidence of deterioration (apart, it seems, from the claimant’s say-so) in the nurses report.  The claimant may wish to obtain a copy of his medical notes from approximately August 2008 through February 2009 to supplement his appeal.  The tribunal will also need to look carefully at the claimant’s evidence of constant chest pain, day and night, even at rest.  Is this, in the tribunal’s experience, consistent with the condition of angina, and if so, would it normally be expected to respond to GTN spray?  The claimant told the tribunal that it was helpful (p. 62).  It will also need to explore the claimant’s walking activities thoroughly.  He told the tribunal that he drives to two different schools to collect his grandchildren, one of whom is at nursery.  Normally, adults must collect such small children from the classroom itself.  He also appears to do a reasonable amount of walking at the shopping centre.  How is this accomplished?  There is, in addition, evidence that some of the claimant’s chest pain is not related to his heart condition, which may affect the tribunal’s views on the applicability of the higher rate of the mobility component

11	The appeal is accordingly remitted to a fresh tribunal for a full rehearing.  

[Signed on original]		S M Lane
		Judge of the Upper Tribunal 
[Date]		18 February 2010