2010 UKUT 352 AAC CE 406 2010 21st September 2010.
This case related to Employment & Support Allowance, forms ESA50 & ESA 80. It covers WCA activity 16 initiating and sustaining personal action. Lack of motivation to begin a task immaterial. Importance of questioning unrepresented appellants on matters not obvious from questions on descriptors as set out in ESA 50.
Extract
Activity 20 (Propriety of behaviour with other people)
23. The tribunal accepted that the appellant became irritable from time to time with her children and reacted disproportionately. However, in her self-assessment questionnaire, she wrote that she was always getting cross with her children for no reasons [sic] or for little things. She said the same in oral evidence. She also claimed to become violent sometimes and to cause others to become upset with her because of her behaviour. This does not appear to have been explored by the approved healthcare professional and was not explored adequately during the hearing or in the Statement of Reasons. The tribunal failed in its inquisitorial duty in this respect. It is possible that she may have been entitled to 6 points for 20(f).
Activity 21 (Dealing with other people)
24. The tribunal did no more than state their conclusion without examining relevant evidence given by the appellant in her ESA50. It is possible that evidence in relation to one mental health descriptor, such as activity 20, may be relevant to another, such as activity 21. The appellant’s evidence of occasional violent reactions and becoming angry with her children may have been relevant, for example, to 21(f), which attracts 6 points.
25. I have come to the conclusion that the tribunal materially erred in law in its approach to the evidence in relation to Activities 19, 20 and 21. I cannot substitute my own decision because (i) there is insufficient evidence before me, (ii) credibility issues are involved and (iii) the proper disposal of the appeal requires a tribunal comprising a lawyer and medical member. I accordingly remit the appeal to a freshly constituted First-tier Tribunal to rehear. The tribunal must not take account of changes of circumstance after the date of the Secretary of State’s decision. The appellant should be aware that success before theUpper Tribunal is no indication of the outcome of the appeal when it is reheard by the First-tier Tribunal.
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