D.W. v Secretary of State for Work and Pensions

The decision of the Upper Tribunal is to dismiss the appeal. The decision of the First-tier Tribunal on 16 August 2024 did not involve any error of law (section 11 of the Tribunals, Courts and Enforcement Act 2007). The decision of the First-tier Tribunal accordingly stands. REASONS FOR DECISION The Upper Tribunal’s decision in summary 1. I dismiss the Appellant’s appeal to the Upper Tribunal, even though it has the partial support of the Secretary of State’s representative. I am not persuaded that the decision of the First-tier Tribunal (FTT) under challenge involves any legal error. The request for an oral hearing of the Upper Tribunal appeal 2. Mrs Luddu, the Appellant’s representative, has made an application for an oral hearing of this Upper Tribunal appeal. She explains that the Appellant “wants the opportunity to present his case/facts in person before the Judge”. Mrs Hutchinson, the Secretary of State’s representative, does not request an oral hearing and so is content for the matter to be determined ‘on the papers’. 3. In deciding whether to direct an oral hearing of this Upper Tribunal appeal, I must consider the parties’ views (see rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)) but am not bound by them. The test I must apply is whether “fairness requires such a hearing in the light of the facts of the case and the importance of what is at stake”: R (Osborn) v Parole Board [2014] AC 1115 at paragraph 2(i). In this case I consider an oral hearing before the Upper Tribunal, which would take several months to arrange, would only serve to delay matters unnecessarily. 4. I am satisfied that the fair and just way of proceeding is by way of a decision on the papers. It is a proportionate approach given that the Upper Tribunal’s jurisdiction is limited to issues of law and the arguments on this appeal have been set out in the written submissions. I also bear in mind that it is not the role of the Upper Tribunal to determine either (i) whether the Appellant has PD A12 (carpal tunnel syndrome) and, if so, (ii) the proper percentage assessment of the resulting disablement. Those are matters of fact which are for the Secretary of State and on appeal the FTT to determine. It follows that setting out the “facts in person before the Judge” will not assist the resolution of this appeal. Accordingly, I dismiss the application for an Upper Tribunal oral hearing. The First-tier Tribunal’s decision 5. This case has a complex factual and legal background. The FTT appeal bundle ran to nearly 800 pages. In summary, the FTT on 16 August 2024 was concerned with the Appellant’s appeal against the Secretary of State’s decision of 14 July 2021 that he had a lack of faculty in respect of Prescribed Disease (PD) A12 (Carpal Tunnel) assessed at 6% from and including 19 April 1993. The FTT confirmed the Secretary of State’s decision of 14 July 2021. As specified by the FTT, that award was also aggregated with the Appellant’s other awards for an industrial accident and for PD D5 (dermatitis). 6. It is important to note that although the FTT concluded that in its view the Appellant did not have PD A12, it did not disturb the Secretary of State’s decision to the contrary, namely that he did have PD A12 which was assessed at 6%. 7. On its Decision Notice the FTT summarised its reasons for confirming the award as follows: i) The Medical Assessor found that [the Appellant] had an impaired upper limb function of 20% but that there should be an offset for dermatitis (PD D5) of 14%. ii) [The Appellant]'s appeal was on the basis that his claims in respect of dermatitis and carpal tunnel should be assessed separately. iii) The appeal was adjourned on 11/7/22 to allow [the Appellant’s] representative an opportunity to consider the application of Regulation 11 of the Social Security (General Benefit) Regulations 1982. iv) Having considered all the evidence however the Tribunal was not satisfied on balance (as set out below) that [the Appellant] had developed carpal tunnel syndrome as a result of his occupation or at all. v) s.12(8)(a) of the Social Security Act 1998 provides that the First-tier Tribunal need not consider any issue that is not raised by the appeal. It was not in issue between the parties that [the Appellant] was entitled to an award for PD A12. The Tribunal therefore decided not to remove the award for PD A12. The Secretary of State has powers to do so by supersession should they see fit. 8. The FTT then went on to set out on the Decision Notice its summary reasoning on the medical issues: vi) [The Appellant] gave detailed evidence to the Tribunal about the manual work he had been doing on the assembly line up until 2002, when his change of job no longer entailed frequent and repetitive use of his upper limbs. On his original claim form, 1995 was given as the date of onset of his carpal tunnel syndrome. However, he had also suffered injuries to his neck and upper limbs from repetitive use of a specific machine for which he had received a separate Industrial Injury award during that period. As a result of regular reviews by occupational health professionals, in December 2001 he had undergone EMG and nerve conduction studies that were normal [G145], thereby excluding carpal tunnel syndrome. vii) [The Appellant]'s employment ended in 2005, mainly because of a deterioration in his mental health, although his evidence was that he began retraining as an electrician several years later but did not pursue that as a career. Although he told us that he had continued to experience continual numbness and pins and needles in both his hands ever since, as well as impaired dexterity, temperature and colour changes in his hands, it was not until 2017 that he was referred by his GP for specialist assessment. He was first assessed by a physiotherapy specialist in April 2017 [E 58], who noted a 12-month history of symptoms consistent with carpal tunnel syndrome and referred him for nerve conduction studies, which were done in June 2017 and were again normal [E 42]. viii) Later in 2017, [the Appellant] was seen respectively by an orthopaedic hand and wrist surgeon and a rheumatologist, who highlighted possible problems with the ulnar nerves at the elbows and with his shoulders. In July 2021 his bilateral hand symptoms were thought more likely to be originating from nerve entrapment in his degenerative cervical spine, leading to consultations with a neurologist and pain medicine specialist. Meanwhile, the physiotherapу specialist reassessed him in November 2021 and again queried a possible diagnosis of carpal tunnel syndrome. This led to nerve conduction studies being repeated (which were not diagnostic for carpal tunnel). In March 2022 however the physiotherapist told [the Appellant] that he probably did have carpal tunnel syndrome based on his symptoms and borderline sensory changes in the right median nerve [D107]. ix) The Tribunal accepted that, on various occasions since 2017, different practitioners have reported positive eponymous provocative tests (Phalen's and Tinel's) for both carpal and cubital tunnel syndrome. It was also submitted on [the Appellant]'s behalf that normal nerve conduction studies did not exclude carpal tunnel syndrome. The Tribunal also noted that [the Appellant] has suffered from poorly controlled diabetes for many years requiring insulin that would increase his risk of either a peripheral sensory neuropathy or various nerve entrapment syndromes. x) [The Appellant] told the Tribunal that he has been complaining of numbness and pins and needles symmetrically in both his hands over the last 20 years or more for which no clear medical explanation has emerged despite repeated specialist assessments and investigations. In the expert opinion of the Tribunal (which included a neurologist), Phalen's and Tinel's tests are not determinative. The nerve conduction studies which were carried out were not diagnostic of carpal tunnel. Treating medical professionals have also suggested other possible causes for his symptoms. The Tribunal therefore found on the balance of probabilities that the evidence did not support the contention that [the Appellant] had developed carpal tunnel syndrome because of his occupation, or at all. 9. Subsequently the FTT elaborated further on its findings of fact and reasoning in a Statement of Reasons. There the FTT stated as follows: 10. [The Appellant]'s GP reported on 10 December 2001 (G145) that [the Appellant] had normal EMG studies (nerve conduction tests). 11. In 2017 [the Appellant] was referred to a specialist in relation to suspected carpal tunnel syndrome for the first time. In September 2017, [the Appellant] was seen by a hand and wrist surgeon (Addition E page 29) who reported a positive Phalen's test and a negative Tinal's test. He referred [the Appellant] to rheumatology with the caveat that "if the pins/needles do not settle, then he may be a candidate for carpal tunnel injection." 12. [The Appellant] was seen by a rheumatologist on 1 November 2017 who discounted inflammatory arthritis (E19). There was no medical evidence before the Tribunal that steroid injections were offered. 13. It was reported on 19 June 2017 that [the Appellant] had normal nerve conduction studies (E42) and it was suspected that the altered sensation in his hands was due to referral from the cervical spine. 14. The evidence of the practitioner who assessed [the Appellant] in the orthopaedic triage service on 22 March 2022 (D107) was that [the Appellant] has clinical features of carpal tunnel syndrome. At a previous assessment on 15 November 2021, the practitioner said that [the Appellant] has features consistent with carpal tunnel syndrome. 15. However, repeated nerve conduction studies have not been diagnostic of carpal tunnel, the latest in January 2022 (Addition I р6). 16. [The Appellant]'s evidence to the Tribunal of his current symptoms was that all the fingers of both hands can be affected by pins and needles or numbness. In the expert opinion of the Tribunal, [the Appellant]'s description of his symptoms was not consistent with PD A12. Carpal tunnel does not affect all fingers and never affects the little finger. Treating medical professionals suggested (E42) that the altered sensation in his hands was due to other causes and on balance the Tribunal found that to be the case. 17. It was submitted on behalf of [the Appellant] that nerve conduction studies are not necessarily accurate and there can be false negatives and false positives and Addition I p7 was referred to in evidence. In the expert opinion of the Tribunal, repeated nerve conduction studies over a significant time frame are unlikely all to give false negatives. The Tribunal noted that the same evidence (Addition I p7) stated that "the rate of diagnosing your symptoms as carpal tunnel (when it's something else) is over 83%". 18. [The Appellant] has had significant medical input, but there is no clear diagnosis of carpal tunnel syndrome. The Tribunal was not persuaded by the evidence of the orthopaedic triage service because, although they reported that [the Appellant] has clinical features of and features consistent with carpal tunnel syndrome, the repeated nerve conduction studies were negative. 19. The Tribunal did not accept the evidence of the medical advisor that [the Appellant] was suffering from PD A12 because, although the advisor did Tinel's and Phalen's tests, the advisor was not aware of the repeated negative nerve conduction studies. Tinel's and Phalen's tests are not determinative of Carpal tunnel syndrome. 20. Whilst there is room for inaccuracy in any tests, repeated tests gave the same result. The Tribunal is entitled to use its own expertise, which included that of an experienced neurologist. 21.The Tribunal found that the evidence did not support the contention that [the Appellant] had developed carpal tunnel syndrome (PD A12), either during his employment or since. Having made that finding, [the Appellant]'s appeal must fail. The Appellant’s grounds of appeal 10. I gave the Appellant limited permission to appeal, observing as follows: 1. The Appellant’s grounds of appeal are as set out in the submission by the Appellant’s CAB representative (dated 29 November 2024) and as supplemented by the two points made on Form UT1 at Box 6.1. Dealing with the latter two points first, I am not persuaded that there is any mileage in either. 2. First, the mere fact that a judicial office holder (here the medical member of the First-tier Tribunal [FTT] panel) has been involved in deciding an earlier tribunal appeal involving the same party does not, in and of itself, mean that there has been a breach of natural justice, nor is it evidence of bias, applying the test in Magill v Porter [2001] UKHL 67. “Previous judicial decisions” are thus one example of a situation which will not usually give rise to a real danger of bias (see Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at para 25). Indeed, the Court of Appeal held there that “The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.” This ground of appeal is not arguable. 3. Second, reliance is placed on an NHS letter reporting on the results of nerve conduction tests carried out on 4 October 2024. It is argued that this letter confirms a diagnosis of both carpal tunnel syndrome and cubital tunnel syndrome. This evidence post-dates the FTT hearing by at least 6 weeks and was obviously therefore not available to the FTT in this case at its hearing in August 2024. It is not possible to rely on new evidence as to the facts to show that the FTT erred in law. This ground of appeal is also unarguable. 4. The CAB representative sets out three grounds of appeal in the application dated 29 November 2024. The first of these is a submission that the FTT misdirected itself in law on the PD presumptions. However, the presumption as to causation in regulation 4(5) only applies where there has been a finding that a person has developed PD A12. In the present case, the FTT concluded – rightly or wrongly – that the Appellant did not have PD A12, so application of the presumption did not arise. Furthermore, the argument that the FTT’s decision is inconsistent with that of the earlier FTT on 31 May 2023 is misconceived for two reasons. One is that one FTT decision is not binding as to the facts on another FTT. The other is that in any event the FTT decision of 31 May 2023 had been set aside by a later ruling (see FTT bundle p.767 Addition S). This ground of appeal is not arguable. 5. The representative’s second ground of appeal is that the FTT engaged in a flawed fact-finding process in relation to CTS not being present earlier. The third ground of appeal is that the FTT wrongly directed itself as to the application of SSA 1998 section 12(8)(a). These two grounds of appeal are arguable. I give limited permission to appeal on those two points. Summary of the parties’ submissions on the appeal to the Upper Tribunal 11. The Secretary of State’s representative in these proceedings supports the appeal, in part at least. In summary, she disagrees with the second ground of appeal but supports the third ground of appeal. 12. The Appellant’s further observations on the appeal are primarily focussed on the question of the diagnosis of carpal tunnel syndrome rather than on any error of law on the part of the FTT. Analysis Ground 2 13. The Appellant’s main submissions in support of Ground 2 ran as follows: 12. A core part of the FTT’s reasoning for concluding that the Appellant did not suffer from carpal tunnel syndrome whilst employed (or since) was that it found his symptoms as described in that earlier period close to when he was working, were not consistent with carpal tunnel syndrome. Central to that view, was that the Appellant had described symptoms affecting his little finger and thumb which are not indicative of carpal tunnel syndrome… 13. Unfortunately, that reasoning is irrational in the specific context of this case. The FTT had before it evidence that the Appellant suffered not just from carpal tunnel syndrome but also from other illnesses affecting the hands (in particular cubital tunnel syndrome which affects the little finger and ring finger as the ulnar nerve which serves that finger is trapped or irritated at the elbow)… 14. The flaw in the FTT’s reasoning is the following: whilst difficulties with the smallest finger cannot be caused by carpal tunnel syndrome, where a claimant has a possible disease that would affect that finger, then the fact that there are difficulties with the small finger as well as the rest of the hand is not enough to rule out carpal tunnel syndrome. It was just as possible that the symptoms the Appellant described in his hands were due to the presence of both carpal tunnel and cubital tunnel syndromes. The FTT reasoning assumes, against the evidence, that this is a single disease and therefore cannot be carpal tunnel. That is irrational in circumstances where the FTT had evidence before it of both diseases being present. Or, failing that, at minimum the FTT needed to do more to explain why that explanation was not fatal to its reasoning. 15. Indeed, that flaw in the reasoning becomes even more plain when one sees that this was the very basis on which the DWP had accepted PD A12: thus, in the schedule of evidence at [35] Dr Barlow observed "It is likely that there is considerable symptom overlap with client’s O(post) conditions, particularly his cervical disc disease, fibromyalgia, shoulder impingement, Dupuyten’s and bilateral elbow problems. This explains why the client may be experiencing symptoms which fall outside the distribution of the median nerve and will likely cause considerable functional impairment when considered together”: the DWP had understood that the presence of other hand problems meant that the fact the symptoms were wider than those caused by median nerve impingement did not mean there was no median nerve impingement. This FTT (and indeed the previous FTT) overlooked that. 14. Mrs Hutchinson, for the Secretary of State, does not support this ground of appeal, for the following reasons: 4. The Tribunal concluded at paragraph iv) of the decision notice (UT Bundle, pg. 29), that “the Tribunal was not satisfied on balance…that [the Appellant] had developed carpal tunnel syndrome as a result of his occupation or at all”. 5. The occupational criteria for satisfying PD A12 can be found in Part 1 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Disease) Regulations (SS (II) (PD) Regs). Whether or not the appellant worked in a relevant occupational is not in dispute. 6. At paragraph vi) of the decision notice (UT bundle, pg. 29), the Tribunal explain that the appellant gave detailed evidence about the manual work he had been doing on an assembly line until 2002. After this, he changed roles, and his job no longer entailed frequent and repetitive use of his upper limbs. 7. This is important to note as it means the appellant ceased employment in an occupation relevant to PD A12 in 2002, and so for the appellant to meet the criteria for PD A12 set out in Part 1 of Schedule 1 to the SS (II) (PD) Regs, he would have had to have been experiencing symptoms of carpal tunnel syndrome at that time or soon after. 8. The appellant submitted a vast amount of medical evidence, some of which dates back to around 1967. A great deal of this is not relevant, however does show that the appellant has been diagnosed with a range of conditions including type II diabetes, fibromyalgia, shoulder impingement and issues with the cervical spine. 9. The appellant’s GP made a note on 10.12.01 reporting that the appellant had undergone nerve conduction studies, and the results were normal (Tribunal bundle, Addition G, pg. 145). This would therefore indicate that the appellant did not have carpal tunnel syndrome at this time. He did however have other issues, mainly a right shoulder impingement which he first complained of in 1999 (Tribunal bundle, Addition G, pg. 154). 10. There is also a letter dated 7.10.02 which addresses the shoulder issues the appellant was experiencing and states “I note that the EMG studies were normal”. This again would indicate that the appellant did not have carpal tunnel syndrome in 2002, which is the year he ceased working in the relevant occupation (Tribunal bundle, Addition G, pg.36). 11. The first time carpal tunnel syndrome appears in the medical evidence is in April 2017. The appellant was seen in an orthopaedic triage clinic and the report stated that the appellant had “…a 12 month history of tightness and swelling in both hands…he is also complaining of pins and needles in both hands…” the report then goes on to say “Table top test is negative. Phalen’s and Tinel’s tests are positive”. The appellant was subsequently referred for nerve conduction studies (Tribunal bundle, Addition E, pg. 58-59). 12. The results of these nerve conduction studies were reported in June 2017 and were described as being “essentially normal”. The symptoms in his hands were attributed to the issues he has with his cervical spine (Tribunal bundle, Addition E, pg. 42). 13. The appellant was then seen by a hand and wrist surgeon in September 2017 who reported a positive Phalen’s test and negative Tinel’s test and stated, “if the pins/needles do not settle, then he may be a candidate for carpal tunnel injection” (Tribunal bundle, Addition E, pg. 29-30). No formal diagnosis of carpal tunnel syndrome was made at this stage, and the injections were never administered. 14. The appellant left the relevant occupation in 2002, and the first indication of any suspected carpal tunnel syndrome symptoms appeared 15 years later in 2017. It is reported that he had been experiencing symptoms for around 12 months, which would place symptom onset some time in 2016, 14 years after the appellant ceased working in a relevant occupation. However, even at this time, nerve conduction studies were normal, and no formal diagnosis of carpal tunnel syndrome was made. The symptoms in his hands were explained by other diagnosed conditions, such as issues with the cervical spine. 15. The Tribunal explained at paragraphs 10-15 in the SOR which pieces of medical evidence they used to arrive at their decision (UT bundle, pg. 26). This includes the evidence discussed at paragraphs 9-13 above. 16. I respectfully submit that the Tribunal did not engage in a flawed fact-finding process on carpal tunnel syndrome not being present earlier. Given the medical evidence available to the Tribunal (and summarised above), I submit that the conclusion that the appellant did not develop carpal tunnel syndrome as a result of his occupation was completely reasonable, given that there is no medical evidence to suggest he had any suspected carpal tunnel symptoms until 2016, 14 years after the appellant ceased working in a relevant occupation. 17. The appellant’s representative states in their application for permission to appeal that the Tribunal’s reasoning that the appellant does not have PD A12 is ‘flawed’ and ‘irrational’ (UT bundle, pg. 15-17). This specifically relates to paragraph 16 of the SOR (UT bundle, pg. 26) in which the Tribunal conclude that: “In the expert opinion of the Tribunal, [the Appellant]’s description of his symptoms was not consistent with PD A12. Carpal tunnel syndrome does not affect all fingers and never affects the little finger.” 18. The representative argues that the appellant’s significant symptoms affecting all of his hands, including his little finger, can be explained through a diagnosis of carpal tunnel and other diseases, specifically cubital tunnel syndrome. This was an explanation provided by the medical advisor in the report diagnosing the appellant with PD A12 (Tribunal bundle, pg. 23-35). The representative argues that the Tribunal needed to do more to explain why this explanation was not “fatal to their reasoning” (UT bundle, pg. 16). 19. However, it is my submission that the Tribunal did adequately explain their reasons for the conclusion that the appellant’s symptoms were not consistent with carpal tunnel syndrome. 20. The Tribunal explain at paragraph 16 in the SOR (UT bundle, pg. 26) that other medical professionals have suggested that the appellant’s symptoms in his hands were due to other causes, and on balance, the Tribunal also found this to be the case. 21. The appellant’s bilateral hand symptoms have indeed been attributed to other conditions in the medical evidence including in a letter from the Orthopaedic triage service in June 2017 which stated, “…I suspect the altered sensation in the hands is due to referral from the cervical spine” (Tribunal bundle, Addition E, pg. 42) and again in May 2021 which stated, “MRI cervical spine results: changes at C4 to C7 level may contribute to patient’s bilateral symptoms.” (Tribunal bundle, Addition D, pg. 158). 22. The Tribunal set out clearly at paragraph 19 of the SOR (UT bundle, pg. 27) why they gave less weight to the medical advisor report. The medical advisor who diagnosed PD A12 was not aware of the previous nerve conduction studies which have been mostly normal, and Phalen’s and Tinel’s test are not determinative of carpal tunnel syndrome. 23. The Tribunal also explain at paragraph 18 of the SOR (UT bundle, pg.27) why they were not persuaded by the evidence submitted from the orthopaedic triage service, as although this evidence reported that the appellant had “clinical features of carpal tunnel syndrome”, the repeated nerve conduction studies were negative and not diagnostic of carpal tunnel. It is also important to note that this evidence from the orthopaedic triage service is dated 2021 (Tribunal bundle, Addition D, pg. 68) and 2022 (Tribunal bundle, Addition D, pg. 107), which is many years after the appellant ceased working in the relevant occupation. 24. I therefore respectfully submit that the Tribunal did not err on this ground. The Tribunal properly considered all of the relevant facts and made it clear in their reasoning why they concluded that the appellant did not develop carpal tunnel syndrome as a result of his occupation. The medical evidence, especially medical evidence close to the time of the relevant employment, gives no indication that the appellant was suffering from carpal tunnel syndrome. The first indication of any carpal tunnel syndrome symptoms was in 2017, 15 years after the appellant ceased employment in a relevant occupation. Any symptoms the appellant had at that time could be explained by other diagnosed medical conditions. I respectfully invite the UT Judge to dismiss this ground of appeal. 15. So far as Ground 2 is concerned, I agree with the above analysis of the Secretary of State’s representative in her written submission and there is little that I can usefully add. This second ground of appeal is, on closer scrutiny, an attempt to re-argue the factual merits of the case dressed up as an error of law challenge. It is axiomatic that questions of fact are for determination by the FTT. This is especially so in a case such as this which involves medical expertise and had the benefit of a neurologist sitting on the FTT panel. It follows that Ground 2 is not made out. Ground 3 16. The Appellant’s representative submitted as follows as regards Ground 3, which argued that the FTT had misdirected itself with respect to section 12(8)(a) of the Social Security Act 1998: 16. This again (as with the previous hearing on 31/5/2023) is a case where the FTT went behind the issues which had been raised in the original appeal (percentage assessment of disablement for condition PD A12). Instead, this FTT took the same view as previous hearings, that the parties had not disputed (whether PD A12 conditions were made out at all). The Appellant appreciates the previous FTT did at least provide adjournments to ensure that action was not unfair to the Appellant. However, it is not clear whether the FTTs properly considered its discretion under s.12(8)(a) Social Security Act 1998. 17. The FTT state that “it follows that the tribunal had no option but to fail the appeal [§21]. 18. However, the FTT was exercising a discretion to consider this issue which had not been raised by the Appeal. 19. Both the appellant and representative reminded the FTT at the start and during the hearing, the reasons for the appeal at the outset was not to dispute whether [the Appellant] had Carpal Tunnel (PD A12), but actually the aggregation of PD A12 with PD D5 (dermatitis) as we believe they should have been assessed separately. This fact, although mentioned by this FTT inparagraphs [§5- 6] was not actually addressed or determined at all during the hearing or within the decision. 17. The Secretary of State’s representative supports this ground of appeal in the following terms: 25. The third ground of appeal argues that the Tribunal erred in law by misdirecting themselves as to section 12(8)(a) of the Social Security Act 1998 (s.12(8)(a)), which states that when deciding an appeal, the Tribunal need not consider any issue that is not raised by the appeal. I do support this ground of appeal. 26. The issue brought before the Tribunal in this hearing was the assessment of disablement for PD A12. In assessing this during the hearing, the Tribunal first looked at the appellant’s diagnosis and decided that the evidence did not support that the appellant had developed PD A12, either during his employment or since. Therefore, no decision needed to be made in relation to the percentage assessment. 27. It was held in CDLA/2295/07 that: "6. As far as the exercise of the discretion under section 12(8)(a) is concerned, this appeal raises issues that are similar to those that arose in my recent decision in CDLA/1846/2007. That appeal had been considered by two tribunals. The first had adjourned, warning the appellant that the existing award might be reduced and the second had actually reduced it. In setting aside the decision of the second tribunal, I said: "7. The circumstances in which a tribunal is entitled to make a decision that is less favourable to the claimant than the decision under appeal were considered by a tribunal of Commissioners in R(IB) 2/04. That is a long and complex decision, but I only need to quote one paragraph from the summary: "194. An appeal tribunal is entitled to make a decision less favourable to the claimant than the decision under appeal. In particular, on an appeal against a refusal of a claimant's application for supersession of an award of disability living allowance (or against a supersession which was not as favourable as the claimant wished), an appeal tribunal is entitled to supersede (or revise) the original decision on a ground which leads to a decision less favourable to the claimant than the decision under appeal. However, unless the Secretary of State has in his submissions to the appeal tribunal raised the issue as to whether a less favourable decision should be made, the tribunal must consciously consider whether to exercise its discretion under section 12(8)(a) of the 1998 Act to take into account issues not raised by the appeal. This is a discretion to be exercised judicially, taking into account all relevant circumstances. If a statement of reasons is given, then reasons for the exercise of the discretion should be set out. In addition, the appeal tribunal must be satisfied that there has been compliance with the requirements of Article 6 of the European Convention on Human Rights and of natural justice …" 8. That paragraph addresses two separate issues. The first goes to the tribunal's jurisdiction: before the tribunal has power to remove an existing award it must make a conscious exercise of its discretion under section 12(8)(a). The second goes to fairness: the claimant must know that the tribunal is considering whether to make a less favourable decision so as to have the opportunity to argue that it should not do so. Before a tribunal can make a less favourable award, the requirements of jurisdiction and fairness must both be satisfied." 28. Although the Tribunal does have the discretion to consider issues not raised at the appeal, it is clear from the case law above that in these cases it should be put before the SoS to supersede or revise adversely. The Tribunal did do this, however the Tribunal does not appear to have considered adjourning, when deciding that the appellant’s carpal tunnel syndrome was not a result of the appellant’s occupation, to allow the SoS to consider this and to allow the appellant the opportunity to provide an argument. If the Tribunal did consider this, it has not been detailed in the SOR. 29. As it is not clear from the decision notice and SOR whether the Tribunal have taken the factors above into consideration, I respectfully submit that the Tribunal have erred in law by failing to provide adequate reasons for its decision. 18. Notwithstanding the Secretary of State’s support for this ground of appeal, I am not persuaded that it is made out. It is perfectly true that there is no mention of section 12(8)(a) of the Social Security Act 1998 in the FTT’s Statement of Reasons. However, the FTT was plainly well aware of the requirements of section 12(8)(a). It is part and parcel of the daily currency of the FTT’s judicial business. Further, and in any event, the FTT’s Statement of Reasons must be read together with its Decision Notice. The latter expressly recorded that “s.12(8)(a) of the Social Security Act 1998 provides that the First-tier Tribunal need not consider any issue that is not raised by the appeal. It was not in issue between the parties that [the Appellant] was entitled to an award for PD A12. The Tribunal therefore decided not to remove the award for PD A12. The Secretary of State has powers to do so by supersession should they see fit.” Likewise, as the FTT noted when refusing permission to appeal, “The Tribunal did find that [the Appellant] had not developed PD A12 carpal tunnel syndrome as a result of his occupation or at all. Having made that finding, the Tribunal chose not to exercise its discretion to remove the award, leaving it to the Respondent to revise or supersede the award if they saw fit to do so.” 19. The FTT was therefore explaining that it had appropriately considered the exercise of its discretion and had decided not to disturb the decision under appeal. That was also undeniably the fairest way of proceeding in all the circumstances of the case. It was not realistic to adjourn the case yet again, not least for two reasons. First, the FTT’s conclusion that the Appellant did not have PD A12 was something that would only have become apparent after the hearing had closed and after the panel had retired for deliberations to consider its decision. Secondly, the appeal related to a Secretary of State decision taken more than three years previously, which had already been the subject of earlier abortive tribunal proceedings. 20. Finally, I note that the FTT’s approach was consistent with that envisaged by the Tribunal of Social Security Commissioners in R(IB) 2/04, where it was held (at paragraph 94) that: … the appeal tribunal may consider it more appropriate to leave the question whether the original decision should be superseded adversely to the claimant to be decided subsequently by the Secretary of State. This might be so if, for example, deciding that question would involve factual issues which do not overlap those raised by the appeal, or if it would necessitate an adjournment of the hearing. 21. The question is ultimately whether the FTT proceeded in a fair fashion. I am satisfied that it did. It explained with some care why and how it had come to the conclusion that the Appellant did not have PD A12. However, it recognised that the finding otherwise was not in issue between the parties. It therefore decided not to disturb the finding to the contrary which was central to the Secretary of State’s decision. It is then for the Secretary of State to consider whether or not to revise or supersede the decision that the Appellant has PD A12. If the Secretary of State decides to reconsider the matter, they will doubtless take into account the findings and reasoning of the FTT together with any further evidence that the Appellant may bring forward. Any subsequent revision or supersession decision will then carry its own right of appeal. 22. I therefore conclude that the decision of the First-tier Tribunal does not involve any error of law. I dismiss the appeal (section 11 of the Tribunals, Courts and Enforcement Act 2007). My decision is also as set out above. Nicholas Wikeley Judge of the Upper Tribunal Authorised by the Judge for issue on 8 October 2025