Decision Summary Information

Back to Results | Search Again | Most Recent Decisions

Neutral Citation Number:	2014 UKUT 547 AAC
Reported Number:
File Number:	CE 3202 2013
Appellant:	GF
Respondent:	Secretary of State for Work and Pensions (ESA)
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	05/12/2014
Date Added:	30/12/2014
Main Category:	Employment and support allowance
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 23. Employment and support allowance – work capability assessment – evidence – weight given to observations on mental health descriptors by physiotherapist In each case the Secretary of State decided that the appellant was not entitled to employment and support allowance (ESA) despite their mental health problems. Both appellants appealed and the respective First-tier Tribunal (F-tT) dismissed the appeals having considered the available evidence, including reports prepared by a physiotherapist health care professional (HCP) who had medically examined the appellants. The subsequent appeals were heard together by a three-judge panel of the Upper Tribunal (UT) and the issue before it was the weight to be given to the observations on mental health descriptors by a physiotherapist (or an appropriately qualified person) when carrying out a work capability assessment under regulation 19 of the Employment and Support Allowance Regulations 2008 (the ESA Regulations). It had been initially submitted on the claimant’s behalf that such a report was highly likely to be of little or no probative value and so should be accorded little weight: JH v Secretary of State for Work and Pensions (ESA) [2013] UKUT 269 (AAC) cited. The Secretary of State opposed the appeals arguing that all HCPs were selected and trained to carry out medical examinations which raised mental health issues. Held, allowing the appeals, that: 1. the assessment of an HCP physiotherapist’s report, like other reports and evidence, was a matter for the decision-maker or tribunal seised of an appeal. The obiter comments in JH v Secretary of State for Work and Pensions (ESA) were wrong if, and to the extent that, they purported to create a rule of law or starting point that observations on mental health descriptors by HCP physiotherapists were of no probative value or were highly likely to have little or no such value (paragraphs 32 to 36); 2. the correct starting point was that HCPs had been trained to the level thought appropriate by the Department for Work and Pensions for carrying out examinations involving mental health issues: JF v Secretary of State for Work and Pensions (IB) [2011] UKUT 385 (AAC). When assessing the weight to be given to medical reports F-tTs should consider (a) the level of the authors’ expertise and (b) their knowledge of the claimant. Other key matters included the date of the evidence, its comprehensiveness, and its relevance to the issues to be determined. A F-tT should explain its reasoning for attaching weight to one type or piece of evidence rather than to another (paragraphs 37 to 38). The panel set aside the decision of the F-tT in both cases and remitted the appeals to a differently constituted tribunal to be re-decided in accordance with its directions.
Decision(s) to Download:	[2015] AACR 23ws.doc