CE/1217/2011 — Whether tribunal right to assess claimant as though he normally used a crutch

[2011] UKUT 449 (AAC)

The claimant, who had knee problems, was awarded ESA from May 2010. That decision was superseded in September 2010 and the claimant then appealed against that decision.

With a tribunal having disallowed his appeal, the claimant then appealed against to the Upper Tribunal.

Issue before the Upper Tribunal

Whether the tribunal was correct to find that the claimant did not satisfy activity 3(f) because, although he did not use a stick and it had never been suggested to him that he should, it felt that 'a stick or crutch would have been of assistance to him' in allowing him to stand for longer than 30 minutes.

Reasons for decision

Judge Levenson highlights that regulation 19(4) of the Employment and Support Allowance Regulations 2008 provides -

'19(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.'

Judge Levenson goes on to say that the correct approach to regulation 19(4) is as follows -

'If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it. If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it. If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same.' (paragraph 16)

However, Judge Levenson cautions that, in the absence of actual use or prescription, a tribunal needs to provide some explanation of how the aid or appliance could help the particular claimant.

Decision

Judge Levenson allows the claimant's appeal and remits the appeal to be heard by a different tribunal.