ESA/UC: appeals and previous medical reports
Simon Osborne reviews recent caselaw and guidance concerning when a tribunal considering an appeal about the work capability assessment should call for the previous medical report.
In an appeal regarding the work capability assessment (WCA), the official medical report underpinning the decision under appeal bulks large in the evidence. In some cases, however, the claimant will have passed the WCA on the previous assessment.
Therefore there will have been a previous medical report indicating that at that time the claimant should be entitled to benefit on that basis. For common sense reasons that may, depending on the facts, assist in deciding the weight that should be attached to the recent medical report. The previous medical report may, for example, be considered more accurate. But the previous medical report is not always included in the appeal papers. When, therefore, will it be appropriate for the appeal tribunal to direct the DWP to produce that report?
This issue has long been current in employment and support allowance (ESA). But since universal credit (UC) uses an identical WCA, and the roll-out of the UC full service means many more claimants with ill health are needing to claim UC, the issue is becoming increasingly relevant to UC as well. As the recent DWP guidance indicates, the principles from the caselaw will apply to UC as well as ESA.
The lead decision is that of the three-judge panel in FN v SSWP  UKUT 670 (AAC) (Bulletin 250, p10), now reported as  AACR 24. There it was held that a tribunal that proceeds without the previous medical report will not automatically have erred in law, even where the Secretary of State has failed in his obligations to include all relevant evidence. To the extent that the earlier decision of Judge Wright in ST v SSWP (ESA)  UKUT 469 (AAC) (Bulletin 232, p14) suggested that they will automatically err, that decision was wrong. Rather, all depended on the relevance of the previous medical report. The judges said (at paragraph 79):
‘We emphasise that a First-tier Tribunal is entitled to call on whatever evidence it considers relevant…we can envisage a situation where a First-tier Tribunal considers that it has sufficient relevant evidence before it to determine the issues arising in the appeal without the requirement to call for evidence which is missing because the Secretary of State has failed in his duty to provide it’.
That approach is not necessarily detrimental to the claimant: the judges included that the tribunal could proceed without the previous medical report, adopt the claimant’s oral evidence and allow the appeal (paragraph 80). But of course there will be situations in which the previous medical report is relevant for the tribunal. The judges endorsed the approach taken by the Northern Ireland Commissioner in JC v Department for Social Development (IB) NICom 177;  AACR 30 that the tribunal is obliged to consider such evidence where an appellant asserts that there has been no change in her/his medical condition and that the previous medical report is relevant.
There is no finding in FN that it is entirely up to the appellant or her/his representative to ask for the previous medical report to be included. Ultimately, that is something for the tribunal to consider when exercising its discretion. However it should be remembered that generally speaking a tribunal is entitled to rely on the submissions of an experienced representative (for a recent reminder of this, in the context of failure to request an adjournment, see AG v SSWP (ESA)  UKUT 413 (AAC) (p10 of this Bulletin). FN would seem to hold that where a claimant reasonably asserts the evidence is relevant, the tribunal should seek it.
In the light of FN, the DWP has issued guidance to decision makers in DMG 19/17 and Memo ADM 22/17 (October 2017). This guidance includes: ‘If the claimant asserts that their medical condition has not changed…and where there has been no relevant supervening even such as a change in the law or successful medical operation, the Secretary of State must provide the First-tier Tribunal with previous medical reports concerning the claimant. The Secretary of State should say why the contents of the new ESA 85 or UC 85 as appropriate…establish that the claimant does not have limited capability for work’ (paragraph 8). (The guidance does not envisage that the new medical report might in fact not establish that, because, for example, it is inaccurate or the previous medical report was otherwise better. But appellants and representatives are free to make that argument.)
If the previous medical reports are not available, the guidance says that the tribunal should be told (paragraph 9).
The guidance also says that appellants and their representatives also have duties here. Representatives ‘have to be proactive in alerting First-tier Tribunals to evidence which it is submitted is relevant to the issues arising in the appeal and where it is possible to do so seek that evidence on behalf of appellants’ (paragraph 11).
PIP/DLA – a wider context
Although not specifically concerned with this issue, some decisions of the Upper Tribunal regarding personal independence payment (PIP) and disability living allowance (DLA) are arguably of some relevance here. The decisions concern the situation where a claimant previously entitled to an award has had that award reduced, and the responsibilities of tribunals to consider the medical reports on which those previous awards were made.
In particular, Judge Wikeley in TH v SSWP (PIP)  UKUT 231 (AAC) (Bulletin 259, p11) held that in such circumstances the tribunal should give reasons why the previous award had been changed, with regard to all the evidence. The new medical report could not simply be assumed to ‘trump’ the previous one, merely on the basis of being more recent. Those findings have been cited more recently by Judge Markus QC in GA v SSWP  UKUT 416 (AAC). In AH v SSWP (DLA)  UKUT 558 (AAC) (Bulletin 257, p12), Judge Hemingway took an FN style approach to missing evidence in a DLA case, but held that the tribunal had erred in failing, as a minimum, at least whether to consider calling for the previous medical report.
None of these decisions are concerned with ESA or UC, and none contradict the principle that a tribunal can decide to proceed without a missing previous medical report. However, arguably, it is not a great leap to say that the principles in these decisions of claimants being able to understand why an existing entitlement had been changed, and that a new medical report is not necessarily better evidence than the previous one, should also apply in the ESA/UC context. That may very well involve considering the previous report, or at least considering whether to call for it if missing.
Appellants and representatives cannot rely on the First-tier Tribunal calling for missing previous medical reports in each and every case. The decision in FN allows the tribunal to form its own view about the relevance of such evidence and hence can, depending on the facts, proceed without its without falling into error. That should not mean that the appeal cannot succeed. It may be worth bearing in mind the recent reminder in MM v SSWP  UKUT 76 (AAC) (Bulletin 251, p13) that DWP medical evidence is not automatically preferable to the claimant’s own evidence.
Where a previous medical report is missing and may assist the appellant, a representative should ask the tribunal to direct that the DWP produce it. Reasons as to why it is relevant should be given – for example, where the claimant says that her/his condition has not changed, or that it has but in fact has worsened. In such circumstances, it would seem, only if there is strong contrary evidence that the missing report is in fact no longer relevant, that the tribunal should decline to seek it.
Tribunals, however, should exercise their own discretion and judgement about calling for missing evidence. That a previous medical report may be of relevance should not always require to be pointed out, at least where the claimant is unrepresented. Decisions concerning PIP/DLA have pointed out that where a tribunal makes or upholds a reduction in a current award, claimants should be able to understand why that has happened, and that will involve considering all the evidence – and that means at least considering whether to call for a missing previous medical report.
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