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CE/1992/2010 — Whether necessary to take into account claimant's ability to repeatedly carry out an activity / need for tribunal to obtain evidence of basis of DLA mobility component award

[2011] UKUT 61 (AAC)

Background

The claimant suffered from fibromyalgia, back pain and carpel tunnel syndrome and was in receipt of the higher rate of the mobility component of disability living allowance.

With her appeal against a decision that she was fit for work having been disallowed by a tribunal, the claimant then appealed to the Upper Tribunal.

Issues before the Upper Tribunal

• whether the tribunal should have obtained evidence of the basis of the claimant's award of the higher rate of the mobility component of disability living allowance; and
• whether the tribunal was correct to state that the absence of 'sometimes' descriptors meant that it did not need to take into account the claimant's ability to repeatedly undertake the actions set out in the descriptors.

Reasons for decision

Judge Turnbull notes that the award of the higher rate of the mobility component of disability living allowance would imply 15 points under the walking descriptor 1(b) and goes on to say -

'In my judgment the Tribunal should have had before it the evidence on the basis of which that award was made. Although the Claimant’s representative had not, it seems, made this point, the First-tier Tribunal should in my judgment have done so on its own initiative. The Secretary of State has had no opportunity to comment on this point, but I do not see what could have been said in answer to it.' (paragraph 8)

Judge Turnbull also says that, contrary to what was said by the tribunal in its statement of reasons) the absence of 'sometimes' descriptors in the employment and support allowance scheme (as opposed to the incapacity benefit scheme) did not mean that the inability to repeatedly carry out an activity had been deliberately excluded from consideration -

'... the need for the decision maker to take into account whether the claimant can perform the relevant activity with some degree of repetition (cf. in particular CIB/13161/96) in my judgment subsists in relation to the work capability assessment descriptors as in relation to the incapacity for work descriptors. In particular, if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account, both in relation to bending or kneeling and the other activities. The only 'sometimes descriptors in the personal capability assessment were in relation to the activities of rising from sitting and bending and kneeling, but it has never been doubted that the need to take into account whether the activity can be performed with a degree of repetition applies to all the activities.' (paragraph 11)

Decision

Judge Turnbull sets aside the decision of the tribunal and remits the appeal for rehearing by a new tribunal.