Fryer-Kelsey v Secretary of State for Work & Pensions

An appeal from a social-security tribunal lies only on a question of law. The appellate court must not reweigh medical and other evidence or convert disagreement about factual evaluation into an error of law. A tribunal may assess the evidence as a whole, including questionnaires, current medical reports, oral evidence and earlier reports, and may prefer recent expert evidence where its conclusion is open on the material before it. Under the Personal Capability Assessment, the relevant inquiry is functional ability rather than fitness for a particular former occupation. A tribunal’s interpretation of a medical letter, assessment of pain, or decision on hearing evidence will not be disturbed merely because another view is possible. The appeal was dismissed because no perversity or other error of law was shown.

The appellant had received incapacity benefit since 1996. Following a decision dated 12 September 2002 that he no longer satisfied the Personal Capability Assessment, the Colchester Unified Appeal Tribunal refused benefit from that date. The Security Commissioner, Mr Henty, dismissed an appeal on the ground that the tribunal had made no error of law.

The appellant appealed to the Court of Appeal, alleging that the tribunal had misread a general practitioner’s letter, failed to address the effect of pain, applied the wrong hearing test, and reached a perverse conclusion despite earlier favourable assessments. The central issue was whether those complaints disclosed an error of law rather than disagreement with the tribunal’s factual assessment.

The Court of Appeal, in a unanimous judgment given by Jacob LJ with which Rix and May LJJ agreed, dismissed the appeal.

1. The statutory route under the Social Security Act 1998 provides for a rehearing before an Appeal Tribunal, an appeal to a Commissioner on a point of law, and a further appeal to the Court of Appeal on a question of law. The Court of Appeal therefore could not revisit factual findings or reweigh the evidence.
2. An Appeal Tribunal must consider the case in proper detail, address the material evidence and give sustainable reasons. Here it had considered the questionnaire, the recent medical report, the claimant’s oral evidence, GP reports and earlier assessments. The weight given to those materials was a matter for the tribunal.
3. The Personal Capability Assessment concerned functional ability in everyday life, not fitness for a particular former occupation. The tribunal was entitled to read the GP’s statement in context and its treatment of the letter disclosed no error of law.
4. The tribunal had considered the evidence concerning pain and was entitled to prefer the examining doctor’s evidence. Its findings about the claimant’s presentation and use of a surgical belt were factual findings open to it.
5. On hearing, the recent medical report stated that there was no problem, the claimant’s wife’s questionnaire did not establish incapacity, and the tribunal had itself heard him. It was therefore open to the tribunal to award no hearing points without adopting the particular formulation proposed by the appellant.
6. An adverse decision despite earlier favourable assessments was not perverse where it was supported by current evidence. The court also endorsed the permission guidance in Cooke v Secretary of State for Social Security, [2002] 3 All ER 279, that Commissioners should adopt a robust approach to the prospect-of-success criterion and identify the point of law.

Appeal dismissed.

1. Court of Appeal (Civil Division): On 21 April 2005, dismissed the appeal; [2005] EWCA Civ 511.
2. Security Commissioner: Mr Henty dismissed the appeal on 16 March 2004, holding that the Appeal Tribunal had made no error of law.
3. Colchester Unified Appeal Tribunal: On 13 May 2003, upheld the decision that the appellant no longer satisfied the Personal Capability Assessment.
4. Initial decision-maker: On 12 September 2002, decided that the appellant was not incapable of all work from that date.