IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Poynter

DECISION

The claimant’s appeal succeeds. The decision of the First-tier Tribunal sitting at Sunderland on 11 May 2010 involved the making of an error on a point of law. I set it aside and remit the case to the First-tier Tribunal for reconsideration in accordance with the following directions.

DIRECTIONS

1                 The appeal is to be re-considered by the First-tier Tribunal at an oral hearing.

2                 The tribunal judge and members of the tribunal which sat on 11 May 2010, and the two District Tribunal Judges who dealt with the application for permission to appeal, are excluded from sitting.

3                 The tribunal must conduct a complete re-hearing of the case.

4                 If the tribunal considers the claimant’s holiday in Spain in April 2009 (or thereabouts) to be relevant to any issue it has to decide, it must deal with the evidence relating to that holiday in a manner that complies:

(a)            with section 12(8)(b) of the Social Security Act 1998 (which prevents the Tribunal from taking into account circumstances which arose after the date of the Secretary of State’s decision); and

(b)            with the law as set out in paragraphs 23-25 of KN v Secretary of State for Work and Pensions (ESA) [2011] UKUT 229 (AAC).

5                 The tribunal will need to decide whether the more recent medical evidence is consistent with the older medical evidence and, in particular, with the report of the visiting doctor who examined the claimant in 2004. If there is a conflict of evidence, then the tribunal must be able to explain how it has resolved it. It is suggested that it may assist the Tribunal to begin by considering whether the claimant suffers from asthma or from chronic obstructive pulmonary disease (see paragraph 21(b) below).

6                 The tribunal must take into account what I say at paragraphs 23 to 28 below when considering any evidence involving the Medical Research Council’s Dyspnoea (or Breathlessness) Scale.

7                 Finally, the tribunal will be considering an appeal against a decision not to renew an award of the higher rate of the mobility component. If (which is a matter for it) it upholds that decision, any statement of reasons must comply with R(M) 1/96.

REASONS FOR DECISION

Introduction

1                 The claimant is a woman who, at the date of the Secretary of State’s decision was 37 years old. Her GP’s evidence is that she suffers from either asthma or chronic obstructive pulmonary disease and has a long history of depression.

2                 On the evidence now available to me, the claimant appears to have been in receipt of disability living allowance since at least April 2004. Immediately before the decision that gave rise to this appeal, she had a two-year award of the higher rate of the mobility component and the lower rate of the care component. That award came to an end on 22 March 2009. On renewal, the claimant was awarded the lower rate of the mobility component and the lowest rate of the care component from 23 March 2009 to 22 March 2012. She appealed against that decision and, on 11 May 2010, the Tribunal dismissed her appeal.

The statement of reasons and the application for permission to appeal

3                 The Tribunal’s statement of reasons, consisting of ten numbered paragraphs, was signed on 21 June 2010.

4                 In the application for permission to appeal to the Upper Tribunal, the claimant’s representative asserted that that statement showed the tribunal had erred in law in that it concentrated on the distance that the Tribunal had found the claimant could walk to the exclusion of the other factors that are legally relevant and, in particular did not deal adequately with the claimant’s evidence of the pain which walking caused her.

5                 That application came before a District Tribunal Judge on 5 August 2010. The judge must have considered there was some force in the points made on behalf of the appellant because he issued the following instructions to the clerk:

“Please refer the statement of reasons and the file to [the tribunal judge who had presided over the Tribunal] to consider whether she in fact applied the correct test for [virtual inability to walk] for the purposes of HR Mob in para. 5, and if she did, whether she wishes to correct any of the wording in her statement under Rule 36 [i.e., of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 ('the Procedure Rules') ].”

6                 The tribunal judge’s response to that request was to produce a document headed:

“Amended Statement of Reasons for Decision
Under Rule 36”.

It consisted of nine additional paragraphs over more than a page of A4 followed by the ten (renumbered) paragraphs of the original statement. The first additional paragraph was in the following terms:

“1. This amended statement has been prepared under powers under Rule 36 by way of correction/amplification to clarify more fully those issues which have been raised by [the appellant’s representative] in [the application for permission to appeal”.

Every one of the following eight additional paragraphs addresses points raised by the application for permission to appeal and does so in, at times, surprisingly defensive terms. The final additional paragraph reads as follows:

“9. The Judge who took notes and prepared the Statement of Reasons for Decision has reflected upon all of the papers and confirms that above all, the decision to refuse DLA was based on an assessment of all evidence and on the balance of probabilities; the exercise of judgment and discretion which is a matter for the Tribunal and above all ensuring that the overriding principal [sic] was fairness. The Tribunal repeats and adopts all of the findings and would refute that there is any error of law contained therein.”

7                 The claimant’s representative then submitted additional grounds of appeal with reference to the amended statement of reasons, and on 7 December 2010, a different District Tribunal Judge refused permission to appeal. His reasons for doing so were premised on the view that “[t]he Statement of Reasons as amended must be read as a whole”.

8                 The claimant now appeals to the Upper Tribunal with the permission of Judge Lloyd-Davies.

9                 The Secretary of State’s representative does not support the appeal. However, her submissions to the Upper Tribunal proceed on the assumption that it was permissible for the tribunal to use its powers under regulation 36 to amend its original reasons in the way I have set out. In my judgment, this appeal must succeed because that assumption is not correct.

Rule 36

10             Rule 36 of the Procedure Rules is in the following terms.

 

“Clerical mistakes and accidental slips or omissions

36. The Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction or any document produced by it, by—

(a) sending notification of the amended decision or direction, or a copy of the amended document, to all parties; and

(b) making any necessary amendment to any information published in relation to the decision, direction or document.”

11             That rule is made under the power conferred on the Tribunal Procedure Committee (“the Committee”) by paragraph 15(1) of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 (“the Act”), which states:

“(1) Rules may make provision for the correction of accidental errors in a decision or record of a decision”.

To the extent that rule 36 allows the correction of a document that is not a “decision” or a “record of a decision”, it appears to exceed the rule making power in paragraph 15(1). If that is so, the consequence would be that the First-tier Tribunal has no power to correct a statement of reasons

12             However, I have approached this appeal on the assumption that such a power does exist. I have done so because:

(a)            The Committee also has power under paragraph 16 of Schedule 5 to “confer on the First-tier Tribunal … such ancillary powers as are necessary for the proper discharge of its functions”;

(b)            Moreover, by paragraph 15(3), the power in paragraph 15(1):

“shall not be taken to prejudice, or to be prejudiced by, any power to correct errors … that is exercisable apart from the rules made by virtue of [that] sub-[paragraph].”

I note that in Akewushola v Secretary of State for the Home Department, [1999] EWCA Civ 2099, [2000] 1 WLR 2295 at 2301 referred to in Jacobs: Tribunal Practice and Procedure (Second Edition, London, 2011) at paras. 15.21-15.23, it was accepted by the Court of Appeal that the correction of slips was the exception to the general rule that a statutory tribunal does not ordinarily possess any inherent power to rescind or review its own decisions.

13             But even on that assumption, the power conferred by rule 36 is in terms confined to the “correction” of a statement of reasons. It does not extend to allowing the First-tier Tribunal to amplify or clarify its reasons, which is how the judge has expressly purported to exercise the power in this case.

14             The leading authority on the scope of rule 36 is now the decision of Judge Jacobs in AS v Secretary of State for Work and Pensions (ESA) [2011] UKUT 159 (AAC) at [16]:

“16. Rule 36 is by its contents a species of slip rule and should be interpreted in accordance with the nature of that type of provision. As such, it deals with matters that were in the judge’s mind when writing but for some reason did not find their way onto the page. Typical examples are the typing error that produces the wrong date or a momentary lapse of concentration that results in the word ‘not’ being omitted. The rule does not cover matters that the judge had planned to mention but forgot to include. Obviously, it is difficult for the Upper Tribunal to know what was in the judge’s mind, but the extent of the changes are an indication. It is difficult to classify the omission of a total of nine lines of explanation as in the same category of mistake as a typing error or a momentary lapse of concentration. For that reason, I decide that the changes made by the presiding judge were not authorised by rule 36.”

15             What Judge Jacobs said in the AS case applies with even greater force to the present appeal. If one cannot classify the omission of nine lines of explanation as being in the same category of mistake as a typing error or a momentary lapse of concentration, one clearly cannot so classify the omission of nine paragraphs. Moreover, in this case, the nine additional paragraphs have been inserted for the sole reason of disputing or—to use the tribunal judge’s own word, “refuting”—the grounds of appeal. The fact that the original statement did not respond to submissions that had not been made at the time it was promulgated cannot possibly be regarded as a clerical mistake, an accidental slip or an accidental omission.

16             I acknowledge that, at the time of the events in this appeal, neither of the District Tribunal Judges, nor the tribunal judge, had the benefit of Judge Jacobs’ guidance in AS v Secretary of State for Work and Pensions (ESA). On the other hand, the limits on what a judge may do under a slip rule are well-known and are the subject of a considerable amount of authority relating to other areas of judicial work.

17             For the sake of completeness, I should mention that an express power to amend reasons is conferred on tribunals by section 9(4)(a) of the Act as part of the process of review established by that section. It is unnecessary for me to decide whether that power could have been used to make the amendments in this case because it is clear that the Tribunal actually relied on the rule 36 power. In any event, the review process is subject to the limitations imposed by rule 40 of the Procedure Rules, which are not satisfied in this case. In particular, one of those conditions is that the District Tribunal Judge conducting the review must be satisfied that the Tribunal’s decision contains a clear error of law (see rule 40(4) and the decision of the Three-Judge Panel of the Upper Tribunal in R(RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC)). The whole point of the procedure adopted in this appeal was to avoid such a finding.

The decision to set aside the Tribunal’s decision

18             For those reasons, I find that the tribunal’s decision involved the making of an error on a point of law.

19             The next question that arises is how I should exercise the discretion conferred by section 12(2)(a) of the Act. That provision states that, in the circumstances described in paragraph 18 above, the Upper Tribunal “may (but need not) set aside the decision of the First-tier Tribunal”.

20             In the AS case, Judge Jacobs held that the additional reasons that were given outside the authority of rule 36 were relevant to the exercise of that discretion. In the light of those reasons, he considered the Tribunal’s decision in that case to be “sound in fact and law” and therefore decided that it would not be appropriate to set it aside.

21             I am unable to say the same about the Tribunal’s decision in this appeal:

(a)            Although I need not go into details, the Tribunal has, even in the amended version of its statement, committed what may be termed “the usual airport error”: see the decision of Judge Wikeley in KN v Secretary of State for Work and Pensions (ESA) at [23] to [25], and the decisions referred to in those paragraphs.

(b)            In addition, the Tribunal’s handling of the historical medical evidence is unsatisfactory. In 2004, an examining medical practitioner had expressed the view that the claimant was unable to walk more than 30 metres before the onset of severe discomfort. The Tribunal effectively dismissed that evidence as out of date and relied upon more recent evidence. The problem with that approach is that if the claimant is suffering from COPD rather than asthma, which in my judgment is a point on which an express finding of fact was required, then that is an irreversible and (usually) a progressive condition. Overall (and ignoring acute exacerbations) one would not expect a person who had COPD to be better in 2009 than she was in 2004. On that basis there is a conflict between the earlier and later evidence. The Tribunal was required to resolve that conflict. It may well be that the correct resolution was to prefer the more recent evidence but, if so, that could only be on the basis that greater weight was to be attached to it because of its nature and/or content. The mere fact that it was more recent would not, on its own, be a sufficient basis.

(c)            It seems probable that the tribunal has relied inappropriately on the Medical Research Council’s Dyspnoea (or Breathlessness) Scale and has thereby taken into account irrelevant considerations.

The Medical Research Council Dyspnoea Scale

22             Both the original and amended versions of the statement of reasons include the following passage:

“There was an entry in the GP records … where the GP notes:

‘acute exacerbation of C[hronic] O[bstructive] A[irways] D[isease], still S[hort] O[f] B[reath] on walking to room and generally wheezy; M[edical] R[esearch] C[ouncil] breathlessness Scale: Grade 4’

The Tribunal noted that this was equivalent to breathlessness after walking about 100 metres.”

23             The Medical Research Council’s dyspnoea (or breathlessness) scale exists in a number of different versions, reflecting its development over the years. The version reproduced in the Guideline, Management of chronic obstructive pulmonary disease in adults in primary and secondary care (partial update) issued by the National Institute for Health and Clinical Excellence in June 2010 is as follows:

 

Grade	Degree of breathlessness related to activities
1	Not troubled by breathlessness except on strenuous exercise
2	Short of breath when hurrying or walking up a slight hill
3	Walks slower than contemporaries on level ground because of breathlessness, or has to stop for breath when walking at own pace
4	Stops for breath after walking about 100m or after a few minutes on level ground
5	Too breathless to leave the house, or breathless when dressing or undressing

24             I understand that the MRC Scale is of considerable utility in the management of COPD and, in particular, in keeping track of any deterioration in the condition. However, at least on its own, it is less well suited for determining whether a person suffering from breathlessness is virtually unable to walk for the purposes of entitlement to the higher rate of the mobility component of disability living allowance.

25             To begin with, the scale is self-administered. Patients are invited to tell their doctors which of the Grades they consider applies to them. The grading therefore does not represent a medical opinion and, as the NICE Guideline makes clear, is only one of a large number of factors relied upon by doctors to assess the severity of COPD.

26             A potential attraction of the MRC Scale for decision makers and tribunals is that it appears to be objective, a medical judgment that is capable of being expressed quantitatively and in black and white terms as a number on a scale. That is not so: a score on the MRC Scale is evidence from the claimant, not evidence from a doctor.

27             Once that is recognised, three further issues arise:

(a)            First, the evidence is likely to be affected by the well-known difficulties experienced by many people when estimating distance.

(b)            Second, the MRC Scale is seeks to assess the restrictions on a patient’s mobility caused by breathlessness. There will be cases in which breathlessness will not be the only factor limiting mobility. In such cases, if the test is properly administered, the grading will not necessarily represent the claimant’s overall walking ability but rather an estimate of that walking ability if breathlessness were the only limiting factor. The claimant may place themselves on, say, Grade 3, but nevertheless be virtually unable to walk because of musculo-skeletal problems

(c)            Third, each of Grades 1-4 represents quite a wide degree of disability. How, in particular, is a person who is able to leave the house and does not get breathless when dressing or undressing but who stops for breath before 100 metres, or after walking slowly for a minute, to categorise herself? (It may perhaps be argued that in practice there are few such people but the point remains valid if there are any). Such a person will probably appreciate the considerable degree of approximation indicated by the words “about” and “few” and place herself in Grade 4. That is likely to be so whether she walks for 40 metres before stopping, or 50, or 75, or 95. For the purposes of the MRC Scale all those distances amount to “about” 100 metres as indeed would 150—and perhaps 200—metres or even more. By comparison, until relatively recently, Grade 3 used to refer to the patient walking a mile before stopping.

Whether someone is virtually unable to walk depends on the circumstances of each individual case. However, by way of example only, many tribunals would not consider that a person whose mobility is only restricted by breathlessness and who could walk 100 metres before stopping to catch breath to be virtually unable to walk. By contrast many tribunals would reach the opposite conclusion if the same person had to stop after 40 metres. In both cases, the claimant would probably assess him or herself as Grade 4.

28             For those reasons, the MRC Scale, whilst perhaps useful as background evidence, is insufficiently precise on its own to form the basis of a decision that a claimant is, or is not, virtually unable to walk.

29             In this case, the second of the issues discussed above does not appear to arise (although that will ultimately be a matter for the new tribunal) and MRC Scale was not the only factor taken into account by the tribunal. However, in the context quoted above, its statement that Grade 4 is “was equivalent to breathlessness after walking about 100 metres” suggests the tribunal believed that the evidence was coming from the GP rather than the claimant and does not acknowledge that—because of the significant variability that is inherent in the word “about”—Grade 4 is also equivalent to breathlessness after walking rather less than 100 metres.

Conclusion

30             For all those reasons, I exercise the discretion conferred by section 12(2)(a) of the Act to set aside the tribunal’s decision and to remit the case to the First-tier Tribunal for reconsideration.

(Signed on the original)

Richard Poynter Judge of the Upper Tribunal 24 October 2011