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Here we will put details of tribunal case law that although not directly or specifically deal with HIV/AIDS may prove of interest given that they establish the understanding of the "rules" as part of the legal process. You may find decisions that, may broadly apply to your situation and if you are making an appeal you may find it useful to site them. We would always advise you get professional support when making an appeal. There are time limits for making an appeal. The Tribunal Service is http://www.tribunals.gov.uk/ & Decisions are found http://www.osscsc.gov.uk/Decisions/decisions.htm

2013 UKUT 518 AAC CE 811 2013 ESA Relevance of Equality Act 2010 in considering Regulation 29 "substantial risk"

2013 UKUT 518 AAC CE 811 2013 ESA Relevance of Equality Act 2010 in considering Regulation 29 

IN THE UPPER TRIBUNAL                                                                 Case No.CE/811/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision:  1. The appeal is dismissed.   

 

 

REASONS FOR DECISION

 

  1. This is an appeal with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 17 October 2012 upholding a decision of a decision maker that the claimant’s existing award did not qualify for conversion into an award of ESA.   

 

  1. The claimant suffers from epilepsy, asthma, generalised arthritis, vertigo and depression.  He also stated that he was recovering from a stroke.  However, he was found by the decision maker to score no points in relation to the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008 (the 2008 Regulations), and that finding was upheld by the tribunal on appeal.

 

  1. The tribunal then considered whether the claimant could be treated as having limited capability for work under regulation 29 of the 2008 Regulations because by reason of the problems from which he suffered there would be a substantial risk to his mental or physical health if he were found not to have limited capability for work.  It found that despite his disabilities he would be able to manage the demands of basic unskilled non-manual work, such as basic administration work in an office or shop.  This might be work involving the use of a till and could be for 16 hours a week or more, and he would be able to manage the journey to and from such work.  He was able to use public transport.

 

  1. There is no direct challenge to any of the above findings, but the tribunal then went on as follows:

 

“The tribunal noted that any employer would be bound by the terms of the Equality Act to make reasonable adjustments to accommodate the impact of [the claimant’s] difficulties.  This could be, for example, adapted seating or more frequent breaks.  The tribunal did not consider that in this context the risks to his physical or mental health would be substantial should he be found fit for work.”

 

  1. I note that although the claimant was represented at the hearing, there is nothing in the record of the proceedings or the previous documentation to indicate that any reliance was being placed on regulation 29 by the claimant.  Nevertheless, it seeking, and obtaining, permission to appeal the only errors of law alleged on behalf of the claimant are said to have arisen from those final sentences in the reasons for the decision.

 

  1. It is first said that it was factually incorrect to say that any employer would be so bound because the claimant’s level of disability as determined by the tribunal would not allow him to meet the criteria of the Equality Act 2010 (the 2010 Act), so as to place such an obligation on an employer.

 

  1. No explanation is offered as to why A’s disabilities, as found by the tribunal, are not such as to impose on an employer an obligation imposed by the 2010 Act in relation to disabled persons.  A person has a disability for the purposes of the 2010 Act if he has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on that person’s abilities to carry out normal day-to-day activities (see s.6(1) of the 2010 Act).  The effect of an impairment is long-term under paragraph 2(1) of the First Schedule to the 2010 Act if it has lasted for at least 12 months and is likely to last either for a further 12 months or for the remainder of a person’s life.  As far as I am able to judge, all the claimant’s problems, with the possible exception of his recovery from a stroke, fall into that category.

 

  1. Under paragraph 5(1) of Schedule 1, an impairment is to be treated as having a substantial adverse effect on the ability of a person to carry out normal day-to-day activities if measures were being taken to treat or correct it and but for that it would be likely to have that effect.  Under paragraph 5(2), “measures” includes medical treatment and the use of a prosthesis or other aid.

 

  1. The medication identified by the approved disability analyst included medication for epilepsy at high dosage, medication for dizziness, medication for asthma and  mild and moderate painkillers, which would seem to be for the arthritis. 

 

  1. The claimant had been in receipt of incapacity benefit since 1996 and there was evidence that his epilepsy and asthma were lifelong.  His depression was over 20 years old and he had in the past overdosed.  There was no evidence as to how long he had had the generalised arthritis or the vertigo.

 

  1. The tribunal accepted that the claimant had problems walking but could repeatedly and regularly mobilise for 200 metres, taking his time and stopping after about that distance.  An inability because of physical impairment to walk more than 200 metres at a time, whether because of arthritis or asthma or a combination of both, does appear to me to be a substantial and long-term adverse effect of those conditions or one of them, although it may not be one that required any special provision by an employer in connection with the sort of job which the tribunal found the claimant could do.

 

  1. The references by the tribunal to adaptive seating or more frequent breaks do appear to suggest that the tribunal had in mind problems sitting and standing at work despite its findings that the claimant could remain at a work station for over an hour without having to move away.  It is right that there is no clear finding that the claimant had any impairment which involved any substantial and long-term effect on his ability to sit and stand at a work station.  However, if there was no such problem, then he would be able to do the work identified by the tribunal without having to invoke the provisions of the 2010 Act.  It appears to me that the tribunal was saying no more than that any long-term problems the claimant might have had in doing the work because of his physical condition could be overcome by reasonable adjustments in this respect.

 

  1. I am unable to see any merit in this ground of appeal.  Even now, the claimant has failed to explain what it would be that might pose a serious risk to his health because of the supposed absence of any duty to make reasonable adjustments, and I am unable to see any evidence of any such possibility that the tribunal should have investigated.

 

  1. It is then said that if the tribunal had found that the claimant fell within section 6 and Schedule 1 of the 2010 Act, this was totally inconsistent with the award of no points under Schedule 2 to the 2008 Regulations.  I disagree.  In my judgment it is plain that a person can have physical and mental impairments which have a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities without any of them being so serious that he scored points under the Schedule 2 descriptors.  This is illustrated by the fact that the descriptors have now become so tight that many people with long term disabilities which easily qualified them for incapacity benefit do not qualify them for ESA.

 

  1. In relation to a further point made on behalf of the claimant in reply to the submissions of the Secretary of State, it appears to me that the tribunal is bound, if relevant to an issue before it, to make a determination as to whether a person would be owed a duty by a potential or actual employer under the 2010 Act.  In particular, if the existence of such a duty is a prerequisite for there being no substantial risk to a claimant’s mental or physical health for the purposes of regulation 29, then plainly a finding must be made as to that duty.

 

  1. In the present case, it appears to me that the tribunal may more accurately have found that there was no evidence of any such risk if the claimant was found not to have limited capability for work, but that if there was any long-term disability so serious as otherwise to pose such a risk, then the employer would be under a duty to make reasonable adjustments under section 20 of the 2010 Act.  However, it does not appear to me that, on the basis of the unchallenged findings of fact by the tribunal, it could have come to any decision other than to dismiss the appeal and it does not appear to me that there was any relevant error of law in its reasons.

 

 

(signed)                     Michael Mark

                                    Judge of the Upper Tribunal

 

                                    17 October 2013

 

 

2013 UKUT 359 AAC CE 261 2013 ESA WRAA Reg 35(2)(b) Where total disability may exceed the sum of individual activity limitations

2013 UKUT 359 AAC CE 261 2013 ESA WRAA Reg 35(2)(b) Where total disability may exceed the sum of individual activity limitations

IN THE UPPER TRIBUNAL                                                                 Case No.  CE/261/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before:           A Ramsay Judge of the Upper Tribunal

 

 

 

REASONS FOR DECISION

 

1.         The claimant’s appeal is allowed.  The decision of the Chesterfield tribunal given on 8 October 2012 (the tribunal) is erroneous in point of law.  I am not able to make sufficient findings of fact to be in the position to substitute my own decision for that of the tribunal, and accordingly the appeal is remitted to a differently constituted tribunal for rehearing.  The appeal should be referred to a salaried judge for relisting directions. The tribunal conducting the rehearing will need a further submission from the Secretary of State. This should address the points outlined at paragraph (17) below.

 

2.         The claimant is in his early forties and has for many years suffered with severe psoriatic arthropathy.  He has had both knees replaced, and was due to have a shoulder joint replaced.  In addition, he has undergone arthrodesis of at least one ankle and fusion of some bones in his feet.  His hands, in particular, are deformed by the arthropathy, as is illustrated in some of the photographs which were supplied in connection with his appeal.  There is no doubt that the claimant is at the more severe end of the range of disability associated with this condition. 

 

3.         For a number of years the claimant was in receipt of incapacity benefit.  The conditions for receipt of incapacity benefit are very different from those for employment and support allowance. He remained on this benefit because he satisfied the personal capability assessment. However, the new test which applied to him on conversion from incapacity benefit was one which considered whether he had limited capability for work or limited capability for work related activity. In the fullness of time, his case was considered for conversion to an award of employment and support allowance (ESA).  Though in the past there have been submissions made on the vires of this process, the Upper Tribunal has recently ruled that the process is lawful.  In any event, no point was raised on this in the present appeal.

 

4.         On 7 September 2011 a questionnaire in the form ESA50 was completed on the claimant’s behalf by a friend, the claimant’s limitation in the use of his hands being said to be such that completion of a form of this length would be difficult.  The Secretary of State sent the form ESA113 to the claimant’s GP, who confirmed that the claimant’s mobility was limited because of his psoriatic arthropathy, but expressed the view that the claimant would be able to travel to an examination centre by public transport or taxi.  Helpfully, the GP has supplied a summary of practice notes for the last two years or so in respect of the claimant.  As well as the arthropathy, it was evident that he was also suffering from stress related problems and besides being prescribed Diazepam for occasional use for the relief of anxiety, he was also prescribed Sertraline, an antidepressant, at a 50 mg strength.

 

5.         In addition to this summary, the GP attached some copy hospital letters, and an X‑ray report.  The X‑ray report dated 8 December 2010 was of particular interest.  The claimant’s   left forefoot had been X‑rayed, and the report notes no fracture was seen, but there was evidence of a severe erosive arthropathy.  I also note from another report supplied that the claimant would have been only 30 years old when he had bilateral knee replacements. This gives some indication of the extent to which his disease had progressed.

 

6.         The ESA50 questionnaire noted that the claimant needed to use a walking stick when his condition was particularly severe, and also had various aids to make things easier.  He expressed the view that he could walk more than 50 metres before he needed to stop, but said his ability to mobilise more than 200 metres varied.  He added, “can walk but with discomfort due to arthritis in feet, ankle and knees.  Don’t usually use a walking stick but need to at times”.

 

7.         I will not summarise the entire contents of the ESA50 questionnaire, but as the next tribunal no doubt will note, the claims made in it are comparatively modest and not indicative of any degree of exaggeration.  However, it is clear that several descriptors are potentially at issue.  On 26 October 2011 the claimant underwent an examination carried out by a registered physiotherapist, who was an approved health care professional for this purpose.  A detailed history was taken from the claimant, and he was said to manage a range of activities because he had adapted the way he undertakes tasks, and in this way was able to manage many of the tasks incumbent on a person who lives alone (as he does).  The health care professional did not find that the claimant met any of the descriptors in Schedule 2.  The Secretary of State accepted this report and on 12 January 2012 found that the claimant did not have limited capability for work from that date.

 

8.         The claimant appealed against this decision, accepting that he had no limitations regarding mental, cognitive or intellectual aspects of the work capability assessment, but he considered from a physical viewpoint he would be unable to work.  He made one point which should have alerted the tribunal to consider the exceptional circumstances criteria, namely that:

 

            “… I would not be able to hold down a regular job as some days I am unable to even leave my house due to the severity of my ailments …”

 

He included photos which demonstrated the distortion of each hand. A local authority welfare benefits team acted as his representative.  Their letter of appeal noted that the claimant was in receipt of higher rate mobility and middle rate care components of disability living allowance (DLA), and invited the decision maker to infer from this that he would not be able to mobilise even in a wheelchair because of the deformity of his hands.  The decision was not revised, and accordingly the matter proceeded to the tribunal.

 

9.         The claimant’s representative’s submission focused on limitations in mobilising.  As the claimant had said in the ESA50 questionnaire that he was able to mobilise for more than 50 metres, this did raise an evidential difficulty.  The tribunal tried to establish how far the claimant could walk, and then used Google maps to help it estimate the distance he described in oral evidence.  It considered the distance indicated by the claimant was in excess of 200 metres and so awarded no points on mobility.  The tribunal considered that the deformity in the claimant’s hands was such as to severely impair his manual dexterity, and awarded 15 points under activity 5(b) in Schedule 2.  This relates to his not being able to pick up a £1 coin with either hand.  Given the distortion in the claimant’s hands, this was an eminently reasonable finding.  However, the tribunal went on to consider whether any Schedule 3 descriptors were satisfied and found that they were not.  So far as mobility is concerned, that is no surprise as it had not accepted the extent of limitation argued in relation to mobility.  The schedule 3 test for manual dexterity, which again is activity 5, requires one or other of two conditions to be satisfied:  the first is that the claimant cannot press a button such as a telephone keypad, and the alternative is that the claimant cannot turn the pages of a book with either hand.  The claimant himself did not submit that he satisfied either of these conditions.  The tribunal considered there was no other Schedule 3 activity at issue. Accordingly, while the claimant’s appeal was allowed to the extent of finding he had limited capability for work, the representative’s submission that he had limited capability for work related activity was rejected.

 

10.       The claimant’s representative appealed against this decision, objecting to the use of Google maps in the circumstances, and arguing that the tribunal had applied the wrong test to the activity of mobilising, because it not taken into account the ability to repeatedly mobilise more than 50 metres within a reasonable time scale because of significant discomfort or exhaustion.

 

11.       A salaried judge granted permission to appeal on the question of whether it had been appropriate for the tribunal to use Google maps in the way that it did.  Though the Secretary of State supports the appeal, it is not on this basis.  The Secretary of State supports the appeal on the basis that the tribunal had failed to explain why it decided that most of the time the claimant could walk a distance of about 75 metres, given that the record of proceedings showed that the claimant said he could travel to the junction at the end of the road and then needed to stop, whereas the shop to which the tribunal took the measurements was further on.  The record of proceedings shows that the claimant said that he stopped when he needed to.  However, so far as using Google maps was concerned, the Secretary of State accepted that this was not completely accurate, but nonetheless suggested it did give a good indication of the distance between two points.

 

12.       The representative appears to have put some weight on the fact that the claimant had an award of DLA higher mobility component and seemed to believe that this supported making a finding in the claimant’s favour concerning mobilising more than 50 metres.  However, this is the wrong test.  The mobility component of DLA takes into account whether or not a person can mobilise on foot in such a way that he is either unable or virtually unable to walk.  Activity 1 in the Schedule 2 and Schedule 3 is in some ways more demanding, because it takes into account whether or not a claimant can mobilise a certain distance using a wheelchair if he is not able to walk that distance.  It is a completely different test and both for that reason, and because it can unnecessarily put a claimant’s DLA entitlement at risk, should not be used to support an argument that activity 1 is satisfied.

 

13.       I see no objection to a tribunal using Google maps, or any scaled map, to give it a general indication of the area within which a claimant regularly mobilises.  A claimant’s own assessment of the distances involved in traversing their own locality on foot is, in my experience, generally unreliable. While most people have an idea of how long it takes to walk to a certain place known to them, very few are able to give an accurate estimate of the distance involved. However, even having established the physical parameters within which a claimant mobilises does not answer the question posed by the legislation, which is whether mobilisation for more than 50 metres can be achieved without stopping to avoid significant discomfort or exhaustion. Even where a claimant is able to do this, the question is whether that activity can be repeated within a reasonable timescale. If a person is unable to do so because of significant discomfort or exhaustion, then he or she becomes entitled to the relevant points.  Accordingly, while having a general idea of the area over which mobilisation takes place is helpful, the duty of the tribunal to satisfy itself as to the question posed by the legislation remains, and is not answered by looking at a map to see the distances over which mobilisation is achieved.

 

14.       However, there is in my view a more important reason why the claimant’s appeal should be allowed, and that goes back to the words used by the claimant in his letter of appeal which I reproduced at paragraph (8) above, namely:

 

            “… I would not be able to hold down a regular job as some days I am unable to even leave my house due to the severity of my ailments …”

 

This put squarely at issue the exceptional circumstances provision.  As the tribunal found that the claimant did satisfy Schedule 2 and obtained sufficient points from descriptors, it did not then need to consider regulation 29(2)(b) ESA Regulations.  However, having found that the claimant did not satisfy any Schedule 3 activities, it was then, given the specific terms of the letter of appeal, incumbent on it to consider whether the claimant should be treated as having limited capability for work related activity.  Regulation 35(2)(b) provides that a claimant is to be treated as having limited capability for work related activity if by reason of his disease or disablement there would be a substantial risk to the mental or physical health of any person if the claimant was found not to have limited capability for work related activity.

 

15.       It seems to me that the significance of the exceptional circumstances provisions is that they enable a tribunal to look at the individual claimant as a whole person or system of interrelated functions and abilities. The sum of the disabilities may exceed their individual parts. In some circumstances it is not enough to measure the ability to engage in each activity in turn, and then exclude limitations insufficient to score points.  The activities in the schedule examine the ability to perform an isolated function.  For example, the person who, as the tribunal found the claimant could, can mobilise more than 50 metres, can use the keypad on a telephone, and turn the pages of a book, will not get the relevant points which enable that person to be found to have limited capability for work related activity.  While consideration of the individual activities does not permit a decision maker or tribunal to take account of limitations below the score threshold, this is what regulations 29(2)(b) and 35(2)(b) permit. They permit account to be taken not only of a claimant’s physical and mental attributes, but also the extent of what might be extreme variability. Regulation 34(2) ESA Regulations encapsulates the ‘reasonable regularity’ test established in previous case law, but it may not be sufficient to cope with what might be extreme variability, which may not occur regularly. An example might be where a claimant is subject to infrequent, but not rare, periods of severe exacerbation. 

 

16.       In the claimant’s case he clearly put in contention not only the severity and unpredictability of his conditions, but surely also the extent to which interrelated disablements would limit him.  In his appeal letter he related this to being capable of work.  But depending upon what those tasks are, the same is likely to apply to work related activity.

 

17.       I am not in a position to make my own findings of fact sufficient to enable me to substitute my own decision for that of the tribunal, and for that reason this matter must go back to a different tribunal for rehearing.  While all matters are at large before the new tribunal, it will need to consider not only the activities put in issue, but also regulation 35(2)(b) ESA Regulations. However, the Secretary of State will need to produce for the benefit of the next tribunal an account of the type of work‑related activity that the claimant would be required to engage in.  Without this the tribunal will not be answer the question whether not being found to have limited capability for work related activity would be a substantial risk to the claimant’s mental or physical health.

                                   

 

 

 

                                                                                  (Signed on the Original)

                                                                                    A Ramsay

                                                                                    Judge of the Upper Tribunal

                                                                                    25 July 2013 

2013 UKUT 446 AAC CE 4183 2012 WCA Post 28.3.11. WCA activity 16: coping with social engagement definition of "social"

 

IN THE UPPER TRIBUNAL                          Case No  CE/4183/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Manchester on 6 September 2012 under reference SC946/12/04006 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 29 of the Reasons.

 

REASONS FOR DECISION

 

1. Both the claimant’s representative and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I do however need to deal with the reason why I am setting aside the tribunal’s decision and also briefly to address a point concerning activity 16 (“coping with social engagement”) which may prove to be material when the case is reheard.

 

2. The claimant was born in 1959.  There had been a medical assessment for incapacity benefit purposes in January 2011, in respect of which it appears he did not reach the points threshold.  He had been on employment and support allowance since 15 October 2011.  In a sparsely completed form ESA 50 he had indicated difficulties with activity 2 (standing and sitting) and 17 (behaving appropriately with other people).  Questions in respect of descriptor 16 (coping with social situations) were left unanswered.  Although he does have some physical problems, they are not the focus of the present appeal.  When seen by the healthcare professional (“HCP”) he was noted (p43) to be drinking 6 litres of cider a day and to have been using amphetamines and cocaine since he was a teenager.   He was observed (p55) to be “very unkempt, wearing dirty clothes, increased sweating was apparent”.   He “gets annoyed if he can’t get his point across “and “prefers his own company” (p44).  He had had counselling in the past and had (it appears relatively recently) been prescribed sertraline for depression.  By a decision dated 22 February 2012 he was awarded 0 points.

 

3. The claimant attended the First-tier Tribunal on 6 September 2012 without representation.  He confirmed his consumption of 6 litres of cider daily, which he obtained himself.  His GP was aware of this but there had been no input from the Community Alcohol Team.  He did not always remember to take his anti-depressant medication. He went out once a fortnight (presumably apart from buying cider as it would be very difficult on foot to buy 6 litres of liquid otherwise than daily) to the post office and for shopping.  He had travelled to the tribunal by bus.  His partner had died two years previously.  His two nieces would come down at weekends and take him to the cemetery by car to visit the grave.  He saw the GP when he needed to.  He shopped round the corner.  Mention was also made of ASDA, although the meaning to be given to the record of proceedings in that regard is not entirely clear.  He was “always having trouble with people” and had been in trouble with the police a couple of years previously, but not in the last 6 months.  Whether the last 6 months had seen no trouble with the police, or with anyone is, once again, not entirely clear.  The tribunal dismissed the appeal.

 

4. So far as relevant, its reasons were:

 

            11. …[W]hilst the tribunal accepted that the appellant did have a     drinking problem it concluded that none of the descriptors /activities       applied in this case.

            …

            Activity 16- the tribunal again accepted the appellant’s evidence that he    is able to go to the shops alone where he can engage in social contact           with people who are unfamiliar.

           

            Activity 17 – the appellant did report to the tribunal that he was         “always” having trouble with people and that he had been in trouble           with the police a couple of years ago.  However, he had no incidents of     this nature in the last 6 months and so the tribunal concluded on the     balance of probabilities that this descriptor/activity did not apply.”

 

5. The claimant appealed to the Upper Tribunal, having by then secured the assistance of his local authority welfare rights department.

 

6. As regards activity 16, it was submitted that the tribunal erred in law in that:

 

            (a) it concluded that the contact in the shop was with people who   were unfamiliar to the claimant without any evidence; and

 

            (b) it misinterpreted the descriptor by equating the minimal contact            required to complete a transaction in a shop with social contact.

 

7. As regards descriptor 17, it was submitted that the tribunal made inadequate findings and gave inadequate reasons and erred by finding that the descriptors were not made out because of the lack of incidents in the six months leading  up to the tribunal (which post-dated the date of decision).

 

8. I gave permission to appeal on 14 January 2013.  On 12 March 2013 the Secretary of State’s representative filed a one page submission supporting the appeal and indicating that she agreed with the claimant’s representative’s grounds of appeal.  She added that in the light of the decision of the three judge panel in JG v Secretary of State for Work and Pensions (ESA) [2013] UKUT 37 (then known as CSE/496/2012) she “ha[d] concerns that the First-tier Tribunal did not sufficiently address the claimant’s evidence regarding his use of alcohol and amphetamines”, though without particularising the basis for those concerns. 

 

9. Shortly after the matter was referred back to me for decision, there was brought to my attention Judge Parker’s decision in KB v Secretary of State for Work and Pensions [2013] UKUT 0152 (AAC), which had only been given in February 2013 and which had not been referred to in the submissions I had received.  That decision concerned “coping with social engagement” in the context of schedule 3, where the relevant descriptor (13) mirrors the terms of the highest scoring descriptor in schedule 2.   It particularly addressed the interaction between regulation 34(2) of the Employment and Support Allowance Regulations 2008 (SI2008/794) (as amended) which provides that:

 

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.”

 

and the terms of the descriptor which refer (emphasis added) to when “engagement in social contact is always precluded.”

 

10. As regards what is meant by “social engagement”, Judge Parker held:

 

            “Social Engagement

 

            15.   The representative argues that this concept does not include             engaging with people in a formal, professional context, which has an            element of compulsion, such as, for example, attending a medical            examination, consulting a General Practitioner, attending a tribunal hearing. It is the representative’s submission that descriptor 13:

 

                        “relates to a person’s ability to engage ‘socially’ with people                                    voluntarily in a more informal context, among friends, relatives                  and strangers, in familiar or unfamiliar places”.

 

            16.  The submission on behalf of the Secretary of State disagrees:

 

                        “Whilst contact of the type suggested by the claimant’s                                  representative would fall within the scope of the descriptor it is                my submission that contact of the type referred to by the tribunal                 would not be excluded. The ability to undertake social contact                        with doctors and lawyers in situations which are acknowledged                 to have the potential to be stressful is, in my submission                           properly to be taken into account when judging descriptor 13”.

 

            17.  On balance, I prefer the argument made on behalf of the Secretary     of State. The representative’s suggested interpretation reads in words         which are not included expressly or impliedly in the statutory language.    “Social” qualifies “engagement” and “contact”; thus in its unadorned    use, “social” is a simple reference to relations with other human beings and does not carry any connotations of leisure, pleasure and mutuality.          Therefore, the tribunal did not err in relying, as constituting such “social             engagement”, on the kind of business visits to which it referred in its        statement. The representative’s objection that adopting the argument            on behalf of the Secretary of State means that, for example, “anyone          who claims the descriptor and attends the tribunal cannot succeed”, is          now undermined by my conclusion that “always” does not mean “on         every single occasion”; attending a tribunal hearing constitutes “social            contact”, but if a claimant is otherwise reclusive, he may yet show that      he is “always precluded” from “engagement in social contact”. This is    because “always” does not mean “every time” but only “repeatedly” or             “often”.

 

            18.  What conduct amounts to the necessary “contact” or      “engagement” is also a matter of fact and degree, likewise eminently             suitable for consideration by a tribunal as a matter of common sense       having regard to all the circumstances. At one end of the scale, if a       claimant sat silently throughout his tribunal hearing then, outwith   exceptional circumstances, a reasonable tribunal could hold that this             did not amount to the necessary “contact” or “engagement”; similarly,       monosyllabic responses in such a context is a borderline scenario.        However, where, as here, the claimant communicated with the tribunal    on an extensive basis, according to the record, then a conclusion that            such did not amount to any “social engagement” or “social contact”           would have been irrational. Thus the tribunal did not err in how it            understood either “social” or “contact” or “engagement”; where it erred     was in applying too strict a test in determining whether such was    “always precluded”. “

 

11. I gave the parties the opportunity to make representations on this new decision.

 

12 In reply the claimant’s representative:

 

            (a) contrary to his earlier submission, agreed with Judge Parker on the    meaning to be given to the word “social”;

 

            (b) submitted that Judge Parker erred in relation to the degree of    participation required to constitute “engagement”; and

 

            (c)  maintained the position that the tribunal’s findings and reasons on    the point were inadequate in that the tribunal should have considered   how often the claimant was able to visit shops and what interaction this   involved with other people.

 

13. The Secretary of State‘s reply was that:

 

            (a) notwithstanding the terms of the earlier submission, the appeal was only supported in relation to activity 17 (though confusing references,   both express and implied to activity 16 remain in paragraph 6 and 8 of      the reply);

 

            (b) as regards (at any rate) activity 17 there were insufficient findings of    fact, bearing in mind the long term nature of the alcohol and drug        abuse shown within the 2012 HCP report, for

 

“It is accepted that long term use of drugs and alcohol lead to other disabling conditions such as paranoias (sic), anxiety, depression , panic attacks.  I submit that these matters ought to be explored in relation to whether he satisfied     any of the criteria detailed in descriptor 17” and

 

            (c) the tribunal made insufficient findings about the earlier incidents and about the appropriateness or otherwise of the claimant’s behaviour in such occasions as he did have contact with others.

 

14. I accept the Secretary of State’s concession in relation to Activity 17 and the case will have to be remitted for rehearing.

 

15. As the rehearing will cover all material aspects, it may have to address activity 16 and thus I need to return to it here.  The first point to note is that the decision in KB has been appealed by the Secretary of State to the Court of Session on the regulation 34 issue.  It remains to be seen what, if any, position will be adopted by the claimant (respondent) in that case and whether there will be any cross-appeal in relation to “social” engagement.  In any event paragraph 17 of Judge Parker’s reasoning on ”social” engagement is influenced by the view she held of regulation 34 and, to the extent that the latter is called in question by the appeal, the former may require to be revisited also.

 

16. However, I in any event respectfully take a different view from the view of Judge Parker, taken “on balance”, as to what is meant by “social” engagement.  I do so with some hesitation, as, in view of the withdrawal by the claimant’s representative of his earlier argument, which I consider was fundamentally correct, I have not had the benefit of full argument.

 

17. I start from the premise that dealing with others socially (in the sense originally put forward by the claimant’s representative in this case) is something that some people with a disability may find very difficult.  Thus, as an illustration, the National Autism Society publishes at http://www.autism.org.uk/living-with-autism/communicating-and-interacting/social-skills/social-skills-for-adolescents-and-adults.aspx a guide entitled “Social skills for adolescents and adults” aimed at people with an autism spectrum disorder. It contains headings such as “How can I start a conversation?”, “What should I say during a conversation?” (containing examples of appropriate and inappropriate topics of conversation) “How can I end a conversation” and “Making friends” (with hints on distinguishing between “A true friend” and “Someone pretending to be a friend”).  As the introduction to the Guide notes:

 

“People with an ASD often find social situations very difficult.  There are so many social rules that people without an ASD learn instinctively.  People with an ASD often have to work at learning these rules. It can often be confusing and cause anxiety as many social rules are unwritten and not spoken about.”

 

18. In my view, social contact in this sense is not the same as contact for business or professional purposes.  If one goes to a medical examination, or a tribunal hearing, the rules are firmly established by the process and/or the person conducting it, and are typically clearly defined, often in writing.  If the person being examined or whose case it is does not respond in a way that a person without disability might, the person conducting it may because of their professional responsibilities be expected within generous limits to accommodate the non-conforming response and certainly not, as it were, to take a poorer view of, or attempt to avoid further contact with, the person because of it.  That is precisely what is lacking in the social sphere, where people are free to interact on their own terms and to accept the behaviour of another or to reject it, and largely do so on the basis of the sort of unwritten rules to which the National Autism Society guidance makes reference, an inability to respect which could, in the words of the descriptor, be an indication of “difficulty relating to others”.

 

19. Schedule 2 to the Employment and Support Allowance Regulations 2008 was replaced with effect from 28 March 2011 pursuant to the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011/228.  As the Explanatory Memorandum to the 2011 Regulations explains (paras 4.2 and 4.3), there had been a review led by the DWP which had engaged with disability organisations and the regulations implemented the recommendations of that review. The report of the review, published on 29 March 2010, explained the changes to the previous activities and descriptors.  Thus, the predecessor to what is now activity 16 (then numbered 19) had dealt with “Normal activities, for example, visiting new places or engaging in social contact…”  The report noted that:

 

            “the [primary function of this activity is identifying functional capabilities     in terms of social contact, making inclusion of the ability to visit new        places inappropriate.

            …

            The individual’s ability to engage in social contact is the crucial ability.”

 

20. That that was the view of the legislator may in any event be inferred from comparison of the wording of the former activity 19 and the present activity 16, which it is not necessary to set out in full.

 

21. The review also discussed the proposal to abolish the former activity 21 (“dealing with other people”).  It noted that

 

            “This activity was developed in part to ensure that the assessment            identified individuals with Autistic Spectrum Disorder who would affect significant challenges working.  However, proposals for other activities    mean that these functional limitations are identified elsewhere in the      assessment and that the specific requirement no longer remains.

 

22. It is thus clear, both as one would infer from the participation of organisations concerned with disability in the process and from the passage quoted above, that the difficulties faced by people with autistic spectrum disorder were in mind.

 

23. I am not, of course, to be taken as suggesting that because people with ASD were in mind, every problem such a person might face must be taken to score points. Nor am I suggesting that activity 16 applies only to people with that condition, nor that the present claimant’s difficulties are attributable to that condition.   The key point is that the difficulties faced by people with ASD serve to illustrate that there is a context in which “social “ contact or engagement need not be taken with the broader meaning favoured by Judge Parker of referring to “relations with other human beings”.  The Work Capability Assessment is concerned with assessing whether a person’s physical or mental condition limits their capability for work, a process which involves grading the severity of the impact of the condition through the award of points.  It is entirely in accord with the purpose of the Work Capability Assessment that it should assess difficulties which a significant number of people do, in varying degrees, actually have.

 

24. It respectfully seems to me that the view in KB of what is “social contact” has the effect of rendering the words virtually otiose.  Descriptor 16(a) could simply have said “Engagement with others…” and 16(b) and (c) “Engagement with someone unfamiliar to the claimant”.

 

25. I respectfully disagree with Judge Parker’s view that:

 

            ““Social” qualifies “engagement” and “contact”; thus in its unadorned        use, “social “ is a simple reference to relations with other human beings         and does not carry any connotations of leisure, pleasure and mutuality.    Therefore, the tribunal did not err in relying, as constituting such “social          engagement”, on the kind of business visits to which it referred nits          statement.”

 

It does not in my view follow (“thus”) from the premise that “social” has the meaning described.  Nor, I consider, is it necessarily appropriate, without more, to look to the “unadorned” use of the word, when the word has a wide range of meanings and the question is what meaning the word has in the statutory context in which it is used.

 

26. The claimant’s representative’s original submission drew attention to the range of definitions in the Concise Oxford Dictionary, one of which, on which he sought to rely, was “relating to or designed for activities in which people meet each other for pleasure.”  Given the nature of human interaction in the social sphere (when a distinction is drawn between that and the professional or business transaction) and the legislative context of the amendment, that in my view was much nearer the legislator’s intention.  With the aid of the full Oxford English Dictionary (online version as at 6 September 2013) one can get even closer, with its definition of

 

“Marked or characterized by friendliness, geniality, or companionship with others; enjoyed, taken, carried out, etc., in the company of others.”

 

Tellingly for present purposes, where we are concerned with “contact” and “engagement” the list of illustrations of the usage then gives more than a dozen examples of it being used “Of communication, interaction, an activity, etc.”

 

27. I am conscious of the words of Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163, at 1171:

“It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament.”

 

28. I do not seek to define “social “in activity 16 by reference to the dictionary definition above.  But for the reasons in particular in [17] –[22] I consider that the mischief at which the statutory instrument was directed was such that unless there is an element of the social such as is referred to in the definition above or in some way which a tribunal may properly consider to be analogous, a tribunal will be liable to being overturned on further appeal on the basis either that it has not given any effect to the word “social” or that its conclusion cannot be supported.

 

29. The focus of the legislation is however on the nature of the contact, not the context in which it occurs, albeit it is far more likely that such contact will take place in some contexts than others.  The point is well put by the representative in his original submission. 

 

“That is not to say that [contact with others to conduct a commercial transaction such as buying groceries, buying a bus ticket or a medical consultation] could never involve social contact: a person may have a chat with a shopkeeper during the course of the transaction about the weather, the news or a recent sporting event. In these circumstances the contact would involve an element of social contact and therefore fall within the ambit of activity 16. However where a person simply places his shopping on the counter and hands over the money I submit the contact would not amount to social contact and would not therefore fall within the ambit of activity 16.”

 

Similarly, if one knows that ones GP has just got back from holiday one might ask about it and that might constitute social contact, although the time for doing so may prove to be slight compared to the time devoted to the medical reason for the visit.  It would follow that, if I had needed to decide the point, I would have concluded that the tribunal failed to find sufficient facts in relation to activity 16.

 

30. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that was made will be subsumed by the rehearing.

 

31. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (22 February 2012) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision.  To the extent that the tribunal has to consider activity 16, it must apply the present decision.

 

32. While I have not relied upon it in relation to setting aside the decision of the tribunal and do not need to make any direction by reference to it, the decision  in JG v SSWP cited by the Secretary of State does repay reading in relation to ESA cases involving those who are dependent on alcohol.

 

33. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

 

(signed)        

                                                           

C.G.Ward

Judge of the Upper Tribunal

9 September 2013

2013 UKUT 370 AAC CE 591 2013 ESA Occasional disinhibited behaviour can be verbal as well as physical

THE UPPER TRIBUNAL                                                                 Appeal No.  CE 591 2013

ADMINISTRATIVE APPEALS CHAMBER

 

KE v Secretary of State for Work and Pensions (ESA)

 

DECISION

 

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. With the consent of both parties, I replace the decision of the tribunal with the following decision:

 

         Appeal allowed. The appellant has limited capability for work as at 31 01           2012 and is therefore not disentitled to employment and support     allowance on that ground. But he does not have limited capability for            work-related activity and is to be awarded the allowance accordingly.

 

This decision is made under the authority of the Tribunals, Courts and Enforcement Act 2007 section 12(2)(b)(ii). 

 

REASONS FOR DECISION

 

1          The central question in this case is whether the appellant’s behaviour was such that he occasionally had uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace. My decision is that the First-tier Tribunal did not deal with that descriptor correctly and that on the facts his behaviour was such as to meet the descriptor.

 

2          The claimant and appellant is appealing against a decision of the First-tier Tribunal sitting at Blackburn on 9 10 2012 under reference SC 063 12 01464. I gave provisional reasons for allowing this appeal for the above reasons when granting permission to appeal. I also invited views of the parties on the decision set out above, which is in the appellant’s favour. The Secretary of State has agreed to that decision being made for the reasons set out below.

 

3          This is a conversion case. The appellant had previously been awarded incapacity benefit by a First-tier Tribunal in 2011. This was awarded for two of the descriptors then relevant: 19b (coping with social situations) and 20f (propriety of behaviour with other people). This followed an examination by a registered medical examiner.  All the relevant documents are in the papers for this appeal, including evidence from the general practitioner and the local welfare rights service, though this tribunal has not mentioned them other than short references to points in the general practitioner letter. I draw attention to that because those documents contain evidence plainly relevant to this appeal. As noted below, the two main limits for which the appellant contended are very similar to the two reasons why he was previously awarded benefit. 

 

4          The appellant’s replies on the standard ESA50 form identified some mobility issues caused by pain and shortness of breath. They also identified problems with coping with change, coping with social situations and behaving appropriately with other people. He attended a medical examination and was examined by a registered nurse. The nurse identified some problems with social contact but no other problems.

 

5          The appellant attended the hearing of the appeal with a representative. The representative had prepared what was in effect a witness statement in the form of a letter from the appellant and this had been submitted some days before the hearing. There is a full record of proceedings.

 

The tribunal decision

6          The tribunal found that the appellant was entitled to 6 points under the then current descriptors for being unable to engage in social contact with someone unfamiliar most of the time. It found no other factors relevant. It therefore dismissed the appeal.

 

7          The main grounds of appeal are that the tribunal, despite having said that it had considered all the evidence, did not do so and that it had dealt inadequately with the problem of anger. It had dealt inadequately also with the descriptors for coping with change and going out.

 

8          Those grounds are plainly arguable. The claim form and, in particular, the letter to the tribunal put specific descriptors in issue. So, according to the record of proceedings, did the representative at the hearing. But the tribunal decision dealt in a formulaic way with a whole series of descriptors including several for which there is no evidence of any relevance to this case but without any additional discussion of some of the descriptors specifically in issue.

 

Appropriate behaviour

9          I consider in particular the issue of appropriate behaviour. I do so for two reasons. The first is that a tribunal held only a few months before the current decision was made found this descriptor (or its then equivalent) to be satisfied. That tribunal had awarded six points for that descriptor. The second is that this is the appellant’s “major problem” according to his letter to this tribunal.  In the ESA50 the appellant states that he often has problems by behaving in a way that upsets people. The previous tribunal had evidence about it both from the general practitioner and the welfare rights service official, and clearly accepted that evidence.  The nurse conducting the recent ESA85 examination makes no directly relevant clinical findings or observations on the point despite finding that the appellant could not cope with social situations with unfamiliar people most of the time without significant distress.

 

10        The record of proceedings records: “GP indicated improvement (36) – still depressed but not angry and frustrated any more”.  There are notes reflecting discussion about the anger. Later in the record it is noted “would use car as a weapon so do not drive … have been asked to leave Jobcentre … accused people of being scumbags.” There is then a note at the end stating “anger – found no evidence [?] be inappropriate in workplace.”  The tribunal commented on this issue specifically in the statement of reasons as follows:

 

            16        GP – depression suicidal and angry (36) depression has improved.

            21        Confirmed that there had been improvement as indicated by GP still                                     depressed but not angry or frustrated any more.

            23        Problem arose with neighbours, they were smack heads, police attendance                       made matters worse.

            30        Sometimes causes concern at Jobcentre, accusing service users of being                        scumbags.

            39        Having heard the evidence the Tribunal was unable to accept that the                                appellants abilities were so limited that … his behaviour was unacceptable                         when in social situations.

            40        The appellant’s anger is focussed on particular individuals and there is no              evidence that the appellant’s behaviour would be unacceptable in a                                workplace.

 

11        As the grounds of appeal rightly comment, there was express evidence recorded that the appellant’s behaviour was unacceptable at least on occasions. Why else was he asked to leave the Jobcentre? There are also a series of examples in the letter/statement of evidence submitted to the tribunal, also identified in the grounds of appeal. I can see no comment on any of the other points raised in that letter in the record of proceedings or the statement of reasons.            

 

12        Why did the tribunal reject that evidence? The tribunal make no express comment on this. At [35] the tribunal states that it was unable to rely on certain aspects of the appellant’s evidence, giving an example about shopping. But it plainly relied on other aspects of the appellant’s evidence, so that does not deal with matters not expressly mentioned.

 

13        More generally the tribunal at [36] states that it “preferred the evidence of the medical examiner where it conflicts with the information provided by the appellant.” I do not understand why the tribunal refers to the examiner’s information (or opinion) as evidence and the appellant’s evidence as information. Do those different terms mean something?  As noted above, there is no direct evidence from the medical examiner on the issue of anger and appropriate behaviour. There is an opinion from the examiner, but no specific evidence:  no specific clinical findings or observations or history recorded to support that opinion.

 

14        I conclude that the tribunal failed to deal with this descriptor adequately. As it was expressly in issue and it was the deciding factor before the previous tribunal, that error alone is material to the outcome of the appeal, and the tribunal decision must be set aside.

 

Other issues

15        I do not therefore need to consider the other mental health factors in the same detail, although they were also subjects of the grounds of appeal. However, I find no error of law in the tribunal’s treatment of the physical descriptors, and none were put in issue in the grounds of appeal. So the appeal is focussed entirely on the specific mental health issues.

 

My conclusions

16        I doubt any new evidence could be produced that would assist a new First-tier Tribunal determine the appeal. The original decision was made over a year ago, on 31 01 2012. The evidence before the previous tribunal is available, as is the evidence at this tribunal. The key question is whether the level of behavioural problems found by the previous tribunal had or had not continued.

 

17        The previous tribunal found that the appellant frequently demonstrated a moderately disproportionate reaction to minor events. That test no longer applies. The lowest level of test (17(c) or IB(c)) now is:

 

            “Occasionally has uncontrollable episodes of disinhibited behaviour that would be             unreasonable in any workplace.” 

 

The incidence is at a lower level of occurrence but at a higher level of intensity that the previous test, although the underlying issue manifested by these forms of conduct is the same. However, the new test “scores” 9 points, not 6.

 

18        The appellant is entitled to those 9 points on this evidence. What other explanation is there for him being required to leave a Jobcentre? That action occurred because of what the appellant said, rather than did. But that is a classic form of disinhibited behaviour. Does a Jobcentre apply a lower test than an employer would be expected to apply? Nor, on the available evidence, was that an isolated occurrence. And, as I have emphasised above, there is no evidence from the medical examiner to contradict this. 

 

19        Had I not reached that conclusion, I would also have had to look at the other descriptors expressly put in issue. However, as this “scores” 9 points and 6 points were awarded by the medical examiner and the tribunal on other grounds. I need take matters no further. In my view the decision of the tribunal should be replaced with a decision allowing the appeal on the above grounds. The Secretary of State accepts this, and I have decided accordingly.           

 

20        However, I must then also consider whether the appellant should be found to have limited capacity for work-related activity. This was, of course, not relevant to the First-tier Tribunal decision. That was decided under the Schedule 2 set of descriptors. The capacity for work-related activity is assessed under the Schedule 3 rules. In my view, none of the Schedule 3 descriptors are engaged by the evidence of this appeal sufficiently to warrant further detailed consideration. The appellant has not suggested that they are. The appellant should therefore be placed in that group.

 

 

David Williams

Upper Tribunal Judge

31 07 2013

 

[Signed on the original on the date stated] 

2013 UKUT 435 AAC CE 3916 2012 ESA Proper approach to regulation 35(2) (being treated as having LCWRA - "substantial risk"

2013 UKUT 435 AAC CE 3916 2012 ESA Proper approach to regulation 35(2) (being treated as having LCWRA)

IN THE UPPER TRIBUNAL                                                            Case No.  CE/3916/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Robin C A White

 

Decision: The decision of the tribunal of 3 August 2012 is not erroneous in law. I dismiss this appeal.

 

REASONS FOR DECISION

Background and context

1.      This is an appeal against a decision by a First-tier Tribunal dated 3 August 2012 which comes before me with the permission of a judge of the Upper Tribunal after an oral hearing of the application for permission to appeal. The appeal is not supported by the Secretary of State.

2.      The appellant was in receipt of an employment and support allowance but was required to undergo a limited capability for work assessment. She completed a limited capability for work questionnaire on 14 December 2011 which was received in the Department on 19 December 2011.

3.      The appellant was referred for a medical interview and examination with a healthcare professional, in this case, a registered medical practitioner. This took place on 1 February 2012.

4.      A decision maker then determined that the appellant did not have limited capability for work-related activity from 21 February 2012.

5.      The tribunal on 3 August 2012 decided that the appellant did have limited capability for work applying regulation 29(2) of the Employment and Support Allowance Regulations 2008, but did not have limited capability for work-related activity.

6.      It is against the tribunal’s conclusions on her capability for work-related activity that the appellant has appealed

7.      The judge of the Upper Tribunal in giving permission to appeal set out the following reasons:

1. [The appellant’s] complaint is that the tribunal erred in law in failing to place her in the “support group”, as having limited capability for work related activity. Her case is not that she falls within any of the descriptors in Schedule 3 (albeit one or two of them are  not all that easy for her), but that regulation 35 should be applied to her.

2. She makes the point that the tribunal had recommended that the DWP did not have to reassess her within 24 months. By the time that period expired she would have retired and thus there seemed litte point in requiring her to go through activities designed to help people who are ill or disabled to be reintegrated in the work force. I do not think that point helps her. The tribunal only made a recommendation (that is all it can make) and there is no guarantee that she will not be reassessed. Secondly, under employment and support allowance, whether a person falls within the support group is relevant not only to determining whether they have to participate in activities designed to promote their reintegration into the workforce, but also has substantive implications for the benefit they receive.

3. Where I consider [the appellant] may have a point (and this is the ground on which permission to appeal is given) is that there was, so far as I can see, no evidence at all before the tribunal of what work related activity [the appellant] might be required to undertake. In the absence of such evidence, the tribunal has made an assumption that it might involve “interviews, retraining or therapy”: … . Insofar as that is an implicit finding of fact about what work related activity will involve, is it not unsupported by evidence?

4. The need to determine accurately what might be involved in work related activity is not an academic question without practical importance. On the tribunal’s findings, [the appellant] is concerned that there might be types of “retraining” or “therapy” which may be beyond her physical limitations: it is simply impossible to tell. On the other hand, it may be that the work related activity which the DWP would actually require would fall short of this, in which case it is conceivable that [the appellant] might be able to manage it. The point is that it is necessary to determine the content of the work related activity, one way or the other, based on evidence. See in this regard also the decision of Judge Jacobs in CE/1750/2012.

8.      CE/1750/2012 is available on the website record of Upper Tribunal decisions as AH v SSWP (ESA) [2013] UKUT 118 (AAC).

Did the tribunal err in law?

9.      Regulation 35(2) provides:

A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

(a)   the claimant suffers from some specific disease or bodily or mental disablement; and

(b)   by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity. 

10.  I note that in AH v SSWP (ESA) [2013] UKUT 118 (AAC) the judge said that there must be some evidence relating to the two elements that are key to applying regulation 35(2). Those elements are (1) the range or type of work-related activity that might be required of a claimant, and (2) the risk to the health of a claimant which this might entail.

11.  A number of difficulties arise both for decision makers and tribunals in relation to setting out what work-related activity comprises. This is because there is an initial consultation with a personal adviser in the Department at which activities appropriate to all the claimant’s circumstances, including his or her state of health, will be assigned. At the point at which a determination is being made about whether a claimant has limited capability for work-related activity, no such initial consultation has taken place. There will inevitably be a degree of speculation about what those activities might be.

12.  At the very least, work-related activity will involve a consultation with a personal adviser, which I have been told in other cases may be by telephone. I have also been told that there is no problem about a person being accompanied to this consultation by a friend for moral support.

13.  Furthermore, in the case of First-tier Tribunals, there is generally no representative of the Secretary of State present, and so no one who can respond to questions about what might conceivably be appropriate for the appellant. It would further clog up the adjudication system if, every time a tribunal reached the point at which they were required to consider regulation 35(2), there had to be an adjournment with directions for a submission to be prepared on behalf of the Secretary of State.

14.  Where appeals are made to tribunals and regulation 35 might well be in issue, these difficulties would be obviated if the submission to the tribunal provided some examples of typical types of work-related activity. That would give tribunals something beyond speculation to work with. If it was plainly the case that the appellant could undertake some of those activities safely, then the conditions in regulation 35(2) would not be met. If the examples were carefully considered, I suspect the circumstances presented by most claimants could be judged without the need for either speculation or an adjournment.

15.  This is what the Secretary of State has said to me on this issue:

4.3 … . I would highlight the point that there are no specific descriptors in regulations that describe what WRA a claimant may be required to undertake. This allows a flexible approach to be taken when considering what WRA a claimant might be capable of undertaking.

4.4 When drawing up the action plan with the claimant, the adviser takes into account the claimant’s circumstances including physical or mental health and any learning or cognitive issues, to ensure requirements are reasonable and appropriate for that individual and help overcome a specific barrier to moving closer to employment—work related activities could include:

·         CV writing

·         confidence building course

·         basic skills

·         participate in basic literacy or numeracy courses

·         participating in English language training

·         work experience

·         mandatory work placements for community benefit.

4.5 This list is not exhaustive; there are other activities claimants may be required to undertake which would be discussed with the advisor to ensure it is flexible and tailored to an individual’s circumstances. Flexibility is essential in tailoring the right support for each claimant and this would need to be maintained as what works for one claimant may not be suitable for another. Judge Jacobs in CE/3261/2012 paragraph 15 acknowledged that it was not possible to say in advance what precisely would be expected of any particular claimant in relation to what WRA they might be able to undertake. The Judge also accepted in his decision CE/1750/2012 at paragraph 31 that the nature of the claimant’s disabilities would determine evidence needed for a Tribunal to decide whether or not they satisfied the criteria in regulation 35(2).

16.  Plainly at the very least a claimant required to undertake work-related activity must have a consultation with a personal adviser in the Department. But the test cannot be that regulation 35(2) will only be satisfied where a person lacks the capability to have such a consultation. There must be very few people (such as those with very significant mental health problems) for whom this minimal requirement would present a substantial risk to their health or that of others.

17.  I have seen some submissions which get close to adopting the position set out in the previous paragraph. Nor can it be right simply to assert that a personal adviser would never require activity beyond the capability of the claimant, and that in some cases very little activity would be required. It does seem to me that there must be some illustrative examples of what work-related activity involves. If a claimant can show that they could not safely undertake any of those activities which might well be appropriate to them, then it seems to me that they will have satisfied regulation 35.

18.  Where no evidence is available, then I see nothing inappropriate in a tribunal indicating some typical examples of work-related activity that are within their knowledge and showing that a claimant can safely undertake those activities.

19.  Indeed this appears to be the position adopted by the Secretary of State in this appeal:

4.5 … . It is my contention that in this particular case the evidence within the appeal bundle and the claimant’s verbal evidence were sufficient and specific enough for the Tribunal to make the decision that the claimant did not satisfy the criteria for regulation 35(2).

20.  In her final observations to me, the appellant takes issue with much of what the Secretary of State says. In particular, she argues that a decision under regulation 35(2) should not be based on assumptions but on particular activities which might be regarded as appropriate to her.

21.  I have not found this an easy decision to make. Even taking the examples which are now put before me by the Secretary of State of typical work-related activity, it is plain that most of them would be unlikely to be appropriate for this appellant. Some are patently inappropriate, such as basic skills courses, literacy and numeracy courses and English language training.

22.  However, I do not consider that the illustrative examples used by the tribunal are inappropriate or far-fetched. The tribunal’s findings of fact indicate that the appellant can attend and participate in a tribunal hearing, can sit for limited periods, and can write. Typical work-related activity such as interviews or retraining (perhaps with a view to some sort of part-time work from home) might well involve these things and could be accomplished without substantial risk to the appellant’s health. No issue arises relating to risks to the health of anyone else.

23.  In all the circumstances of this case, I have concluded that the tribunal was left with no realistic option but to speculate on the sort of work-related activities that might be required. Their speculation has generated sensible examples and they have concluded that these can safely be undertaken by the appellant.

24.  There is therefore no error of law in the tribunal’s decision, and I dismiss this appeal.

 

 

 

 

Signed on the original                                                                                 Robin C A White

on 9 August 2013                                                                   Judge of the Upper Tribunal

2013 UKUT 408 AAC CE 3315 2012 Reasonableness of wheelchair use Guidance as to ESA statement of reasons

IN THE UPPER TRIBUNAL                                                           Appeal No: CE/3315/2012 

ADMINISTRATIVE APPEALS CHAMBER

 

 

 

Before: Upper Tribunal Judge PA Gray

 

Decision: This appeal by the claimant succeeds. Permission to appeal having been given by District Judge Atkinson on 16 August 2012 in accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting at  Wakefield and made on 9 July 2012 under reference SC 008/11/05688. I refer the matter to a completely differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below.

 

 

REASONS FOR DECISION

 

Background and procedural history

 

1.    The appellant, who was aged 55 at the date of the Secretary of State’s decision, had been in receipt of Incapacity Benefit since 1994. She became subject to the ESA conversion process in 2011.  She was seen by a Health Care Professional (HCP), in this case a registered nurse, on 22 August 2011 as part of the Limited Capability for Work Assessment.  The decision maker on 22 September 2011 agreed with the nurse’s opinion that no points were merited under Schedule 2.  The appellant appealed to the First-Tier Tribunal (FTT), and her appeal was heard on 9 July 2012. The FTT did not change the decision, but awarded her six points in relation to descriptor 2 (ii) to reflect problems that she had under the activity of standing and sitting. 

 

2.    Her grounds of appeal prepared by a local benefits advice service representative related to the application of the legal test regarding Activity 1 which covers mobilising. The District Tribunal Judge granted permission to appeal on that issue, expressing the view that it was one in relation to which some guidance from the Upper Tribunal may be of benefit.

 

3.    The grounds of appeal additionally questioned the legality of the ESA conversion process. The reason why this case has been delayed is that there were a number of cases before the Upper Tribunal which raised technical issues on the conversion from Incapacity Benefit (IB) to ESA.  They were kept in abeyance awaiting a decision of a three-judge panel of the Upper Tribunal.  They are now able to be decided following that panel’s decision in JM v SSWP (ESA) [2013] UKUT 236 (AAC). I do not need to say more about this aspect of the appeal than that the various arguments as to the ineffectiveness of the conversion process failed in front of that three-judge panel.  I follow that decision and I do not remit on that basis. 

 

4.    The appeal succeeds, however, on the mobilising issue. 

 

5.    There seems to have been no dispute that the appellant did not use a wheelchair or crutches.  The record of proceedings shows her as saying that she had never tried sticks or a crutch, and that no one had ever suggested a wheelchair. The FTT found that

 

"Although the appellant has some restriction of her lower limbs and in particular her right hip, she acknowledges that she has no problem with the upper limbs or indeed her left leg and hip. Accordingly the tribunal considers that the appellant could mobilise with the aid of either crutches or a manual wheelchair for a distance of more than 200 meters on a flat

and even surface."

 

The error of law

 

6.    The statement of reasons fails to deal with the critical issue of whether either a wheelchair or crutches can reasonably be used.    There is also an insufficiency as to both fact finding and reasons and a conflation of those concepts which has muddied the waters so that the statement does not explain to the appellant why she lost.  

 

7.    I will deal initially with the mobilising activity and then give some guidance to the FTT as to the construction of a full statement that deals adequately with the issues and explains the conclusions of the tribunal.

 

The relevant law and the background

 

  1. Whilst the Welfare Reform Act 2007 brought the Employment and Support Allowance into being, its application is governed by the Employment and Support Allowance Regulations 2008, and in particular the descriptors set out at Schedules 2 and 3.

 

  1. It is helpful to set out Section 1 of the Welfare Reform Act initially.

 

‘ 1—(1) An allowance, to be known as an employment and support allowance, shall be payable in accordance with the provisions of this Part.

(2) …

(3) The basic conditions are that the claimant—

(a) has limited capability for work,

(4) For the purposes of this Part, a person has limited capability for work if—

(a) his capability for work is limited by his physical or mental condition, and

(b) the limitation is such that it is not reasonable to require him to work.’

 

  1. Under regulation 19 of the Employment and Support Allowance Regulations 2008 that is explained further, and the concept of the descriptors in the two schedules is introduced. 

 

  1. Regulation 19(4) imports a requirement that when assessing functional capability aids or appliances are to be taken into account.  The wording is

 

(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.…’

 

  1. The descriptors in Schedule 2 have been subject to a series of amendments, and I am concerned with the version which came into force on 28 March 2011. (That has since been overtaken by a yet further amended schedule and regulation 19(4) has also changed from 13 January 2013).  I need only deal with the first set of descriptors, which must be read together with their integral activity heading.

 

 

‘SCHEDULE 2 Regulation 19(2) and (3)

Assessment of whether a claimant has limited capability for work

PART 1

PHYSICAL DISABILITIES

 

(1)                                                      (2)                                                       (3)

Activity                                                Descriptors                                         Points

 

1. Mobilising unaided by another         (a) Cannot either—                                       15

person with or without a walking         (i) mobilise more than 50 metres on

stick, manual wheelchair or other aid    level ground without stopping in

if such aid can reasonably be used.       order to avoid significant

   discomfort or exhaustion, or

(ii) repeatedly mobilise 50 metres

within a reasonable timescale

because of significant discomfort

or exhaustion.

 

(b) Cannot mount or descend two steps          9

unaided by another person even with

the support of a handrail.                  

 

(c) Cannot either—                                         9

(i) mobilise more than 100 metres

on level ground without stopping

in order to avoid significant

discomfort or exhaustion, or

(ii) repeatedly mobilise 100 metres

within a reasonable timescale

because of significant discomfort

or exhaustion.

 

(d) Cannot either—                                         6

(i) mobilise more than 200 metres

on level ground without stopping

in order to avoid significant

discomfort or exhaustion, or

(ii) repeatedly mobilise 200 metres

within a reasonable timescale

because of significant discomfort

or exhaustion.

 

(e) None of the above apply.                           0’

 

13. I do not need to make direct comparison with the descriptors previously in force.  It is sufficient to say that they were designed to calibrate walking problems and ignored any ability to use a wheelchair to get around.  The legal test for capacity to work under the previous iteration was therefore one which made the assumption that somebody who was a wheelchair user had, in the terms of section 1(4)(b) of the Welfare Reform Act, a limitation such that it was not reasonable to require them to work.  Of course very many wheelchair users do work but that was not the expectation in law prior to 28/3/11.  One need only reflect upon the London Games of 2012 and the athleticism shown by David Weir and his fellow Paralympians for evidence that wheelchair use, at least for some, is very far from being a limitation. Nonetheless the amended activity with its reference in the heading to the use of a manual wheelchair is not without its difficulties in construction and it has already produced conflicting case law from this Chamber.

 

The position of the parties. 

 

14. In relation to the mobilising issue the appellant’s representative cites a general lack of fact finding and the absence of an explanation as to how the accepted problems with standing and sitting might impact upon the use of a wheelchair or crutches. 

 

15. The Secretary of State’s submission is predicated upon the premise that in the absence of upper limb or cardio-respiratory problems wheelchair use is de facto reasonable. It argues that despite the somewhat minimalist approach to fact-finding (my paraphrase) the decision of the FTT is correct and sustainable. So far as the mobilising descriptor is concerned the submission explains the principles used in shaping the Decision Makers Guidelines, which were made upon the basis of the decision of Upper Tribunal Judge Levenson in RP-v-SSWP(ESA) [2011] UKUT (AAC) (CE 1217 2011) which set out an approach to the application of regulation 19 (4).  The submission does not mention other decisions, that of Upper Tribunal Judge Gamble (Scotland) DM-v-SSWP [2012] UKUT 376 (AAC) and that of Commissioner Stockman (Northern Ireland) in MG-v-Department of Social Development [2013]NI Com 349, of persuasive authority before the FTT in England, although I should say that whilst Commissioner Stockman’s decision predates the submission it may have not have been issued until after the submission was filed.

 

16. Neither party has asked for an oral hearing of the appeal and I consider that I am able to deal fairly with the matter on the basis of the papers before me.

 

Interpreting the law

 

17. The starting point is RP-v- SSWP. It concerned the use, not of a wheelchair but of a walking stick, and it analysed and explained regulation 19(4) in practical terms.

 

18. The activity under scrutiny in RP-v-SSWP was standing and sitting (standing being the problem described) under the form of the activity and related descriptors in use prior to March 2011. That has no reference to the use of aids or appliances in the heading, thus regulation 19(4) (set out above) applies to import the ‘normally worn or used’ test into any assessment of capability.  Regulation 19 (4), however, adds nothing to the consideration of wheelchair use under Activity 1 since under the activity heading a finding is required as to whether a manual wheelchair or other such aid “can reasonably be used”  thus the “normally worn or used” test as explained by Judge Levenson is otiose. In that conclusion I differ from the approach taken by Commissioner Stockman in MG-v-Department for Social Development as to the applicability of regulation 19(4), which he summarises at paragraph 28 and explains further at paragraph 43.

 

19. Nonetheless the dicta of Judge Levenson is of some assistance  in applying the reasonableness test under activity 1 since the question of whether a manual wheelchair or other aid can reasonably be used may turn upon the issues he identified at paragraph 16 where he says

 

"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."  

 

20. Although referring to the differently worded obligation in regulation 19(4) the principle would apply to the issue of reasonableness in activity 1 where an aid or appliance has been medically advised. 

 

21. However Judge Levenson goes on to say in that paragraph "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."  (my emphasis)

 

22. I see the reference to such aid or appliance being considered only if one is normally used by people in that situation as limiting the scope of the activity heading which must be included in any assessment under the mobilising descriptors. I would restate Judge Levenson’s approach to omit the “normally used’ reference. 

 

23.  My amended approach to Activity 1 (and also to Activity 7 (Communication) which  refers to "using any aid it is reasonable to expect them to use") becomes

 

"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 only if such an aid can reasonably be used by the claimant…”  

 

24. I pause before completing that sentence to comment that that in practice there may be very little between the two approaches.  Where such an aid is normally used by people in the position of the claimant is likely to be a good guide as to whether such use is reasonable, but ‘normally used’ cannot be part of the criteria where ‘can reasonably be used’ is prescribed in the activity heading.  To that extent I qualify the applicability of RP-v- SSWP to activities 1 and 7 of Schedule 2. 

 

25.  I now complete the sentence “...reasonableness of use being considered in terms of the effect such use would have upon their medical condition."    I will contextualise that qualification. 

 

26. Initially it must be understood that it is for the Secretary of State to establish that the manual wheelchair or other aid can reasonably be used, and to do so it is insufficient simply to rely on the fact that the person has no, or minimal, upper limb or cardio-respiratory problems; that may mean that they can propel a wheelchair, but it does not establish that one can reasonably be used.  Common sense dictates that if a person cannot physically propel themselves in a manual wheelchair then the reasonableness issue is irrelevant.   

 

27. Although each case must be looked upon individually, it will be easier for the Secretary of State to show that it is reasonable to use an aid such as a walking stick than a wheelchair.  In my judgement there is a qualitative difference in expecting someone to use spectacles to aid seeing or a walking stick to aid walking, and the use of a wheelchair to mobilise.  A wheelchair replaces walking; there are attendant consequences, for example muscle wasting, and the threshold for whether its use is reasonable must be higher than that of a simple manually used aid which could be discarded without residual physical consequence. I endorse the general view of Commissioner Stockman as to it being difficult to conclude that a wheelchair can reasonably be used without the person having been referred by their clinicians for a wheelchair assessment. (MG-v-Department of Social Development paragraph 45.) The converse will not always apply.  Where an appellant has been positively assessed for a wheelchair but is unwilling to adopt its use the question arises as to how the issue of reasonableness may be considered.  In my judgement the FTT, using the expertise on the panel, is best placed to determine in the light of the medical issues whether there may be personal adverse effects upon their ongoing health conditions or recovery which make wheelchair (or indeed other prescribed aid) use unreasonable.  The Secretary of State, when considering the issue at an earlier stage may call upon the medical advisors it has available to offer an opinion on the facts of the case, and any case specific advice should form part of the evidence before the FTT.

 

28. To individualise the reasonableness of use question in terms of personal medical conditions is not to advocate consideration as to the practicalities of manual wheelchair use in each individual case.  There is a body of authority in relation to the functional descriptors under IB, followed in ESA, to the effect at they are designed to test particular aspects of function, and are therefore, if not hypothetical at least constrained in their application. As an example the case of GS-v-SSWP (ESA) [2010]UKUT (AAC) in which Upper Tribunal Judge Jacobs, building on his decision in R(IB)2/03, said about the descriptors under the activity manual dexterity  

 

The descriptor tests the claimant’s anatomical functions that would be involved in fastening or unfastening buttons. They include pinch grip, co-ordination of finger movements, and flexibility of the finger joints. The reference to small buttons identifies the size and shape of the object to which those functions are applied. The First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor. By doing that, it will avoid the myriad questions that otherwise appear to arise on descriptors. Is the ability to use a tap tested with wet or dry hands? What sort of surface is the £1 coin resting on? How smooth or thick are the pages of the book? And so on and so on..”

 

29. That decision has been generally followed and specifically imported to the ESA context.  The case law is set out by Commissioner Stockman in paragraph 36 of MG-v-Department for Social Development. I follow that line of authority; accordingly I respectfully disagree with the decision of Upper Tribunal Judge Gamble in DM-v-SSWP that personal circumstances such as living in an unsuitable building should be considered in the test of whether a manual wheelchair can reasonably be used.    For these reasons I limit specific consideration of the test that I promulgate as to whether a wheelchair or other aid can reasonably be used to the medical impact, which will involve consideration of the potential physical and mental consequences for a claimant or appellant.

 

The full statement of the FTT judge

 

30. I comment upon the statement of reasons in an attempt to assist FTT judges in what I know to be a difficult task, and the essentials are sometimes misunderstood which leads to decisions being set aside.  In this spirit and not with any intention of demoralising the judge I will explain the problems with the statement that was issued in this case.

 

31. The statement says “on its own evaluation of all that evidence the Tribunal finds no reason to change the Decision of 22 September 2011 which is confirmed."    That is later described as a finding for which reasons are stated as having been given at paragraph 5.1, but what is written there is not a finding of fact it is simply the decision of the tribunal, and paragraph 5.1 (previously set out, but repeated for ease of reference below) contains not reasons but facts and a conclusion of fact. 

 

32. That paragraph states “Although the appellant has some restriction of her lower limbs and in particular her right hip, she acknowledges that she has no problem with the upper limbs or indeed her left leg and hip. Accordingly the tribunal considers that the appellant could mobilise with the aid of either crutches or a manual wheelchair for a distance of more than 200 meters on a flat and even surface."

 

33. I leave aside for these purposes the issue of reasonableness dealt with above. The facts found are that the appellant has some restriction of her lower limbs and in particular her right hip, but has neither upper limb problems nor problems with her left leg and hip. The tribunal comes to a conclusion from those facts that she would be able to mobilise with the aid of either crutches or a manual wheelchair a distance of more than 200 metres on a flat surface.  That leap needs a short explanation in any case, but here there is an inherent tension with the six points awarded by the FTT for problems in sitting and standing against the view of the HCP and the decision maker that no points were justified.   That renders necessary an explanation of why the FTT accepted the appellant’s evidence as to functional problems that would cause those restrictions but did not accept her evidence as to the discomfort she experienced in walking, and also why it accepted the HCP opinion on the walking issue but not on sitting and standing.  As in life, where there is conflict it requires resolution. 

 

34. The nature of the difficulties that the FTT recognised under the sitting and standing activity also remain unclear, because this aspect is expressed purely by reference to the terms of the descriptor chosen.  As they comprise capability in respect of a combination of the two actions over defined periods the terms of the descriptor do not indicate what, in relation to specific difficulties claimed, the tribunal has accepted or rejected.   This aspect acquires particular significance in view of the matter above.

 

35. The appellant's evidence as to her routine activities is quoted. This, according to the statement “suggests to the tribunal that their findings and the reasons for those findings… are appropriate”. Evidence as to daily activities may lead to fact-finding on the basis of what those activities reveal about practical capability, and the tribunal was entitled to come to the view that the regular accomplishment of these activities made it unlikely that her restrictions were to the extent described, but merely to set out the activities and the conclusion, omitting that link or other explanation, is insufficient.

 

36. There is one other discrete point, although it may be of more general application. There were a number of letters spanning the date of the decision under appeal from the Consultant in Pain Management and Anaesthesia by whom the appellant was being actively treated. This evidence deserved specific mention from a tribunal which includes a doctor who understands the treatment outlined in those letters in terms of the probable level of difficulty that would have led to the referral and the likely effect of the treatment on function. It could not be ignored.  There was a need to explain how the FTT assessed the probative worth of this evidence in relation to the issues it had to decide.  

 

A preferred approach

 

37. In making these observations I am acutely conscious of the practicalities.  I do not advocate an attempt at some ‘perfect’ approach; it is not necessary.  There is, however, middle ground between perfect and perfunctory, and when it is found the statement of reasons will withstand scrutiny.  

 

38. The construction can take a variety of acceptable forms and there is no silver bullet approach to it, but in a straightforward case which is highly fact dependent (and most ESA cases are both) a paragraph reciting short findings of fact, that is to say the tribunal's assessment of what the appellant can do, with or without levels of difficulty, will avoid leaving the facts to be inferred from other parts of the statement. Rather than frame these facts as restatements of the descriptors they should speak as to the extent to which a person is able to, or cannot, carry out or engage in normal daily activities.  The further secondary facts (or conclusions of fact) in terms of the applicability or otherwise of the WCA descriptors in issue should then follow on naturally.   

 

39. Briefly, it should then be stated what evidence was accepted or rejected, how it was evaluated, and how conflicting evidence, in particular medical evidence was treated. There is no need to rehearse the evidence itself; it is the approach to the evidence that is important. The explanation does not need to be exhaustive; it should be sufficient to tell the parties why the tribunal came to the conclusions that it did as to points scored or points contended for which were not awarded. The reasons may, in an appropriate case, be that the tribunal accepted the oral evidence of the appellant as to their functional problems in preference to the report of the Health Care Professional, or where the appellant’s account is not wholly accepted that the tribunal felt that the level of difficulty described was unlikely in view of the diagnoses and medication, and they relied upon the opinion in the HCP report. These are examples to illustrate the approach and extent; they are not intended to be a template.  

 

40. In the above approach the facts have led on to the conclusions as to the applicability of the descriptors, the reasons justify the facts found, thus the decision of the tribunal that an appellant does, or does not satisfy the WCA is adequately explained.  Leaving to one side any issues pertaining to regulation 29, if this simple format is borne in mind the main reason for the overturning of FTT decisions by the Upper Tribunal, which is for inadequate fact-finding, can be if not eliminated certainly minimised.

 

The disposal of this case.

 

41. I am remitting this case for the FTT to find the facts as to all matters in dispute, but in particular in relation to the appellant’s general walking abilities with and without aids or appliances.  As to their use a judgement needs to be made as to whether an item which she could physically use and which would benefit her in mobilising can reasonably be used, as set out at paragraphs 18-25 above.  The tribunal should note also the necessity of dealing with the consultant’s letters.

 

42. The appellant should understand that success at this point is no indicator of the eventual outcome of the case. 

 

43. I give the following directions.  The District Tribunal Judge reviewing the case prior to listing may wish to add to or alter them.

 

Case management directions

 

44. The appeal will be listed as an oral hearing.

 

45. The parties should send to HMCTS at the Leeds office any further evidence, if there is any.  If they cannot send it promptly the parties will need to contact that office to let them know that further evidence is expected.  The appellant should be aware that the tribunal will be considering her medical condition and the functional effects that it had upon her until the date of the decision, 22 September 2011. Evidence concerning matters later than that date will only be relevant insofar as it sheds light on what the position was at that time.

.  

 

                Signed on the original                   PA Gray

                                                                        Judge of the Upper Tribunal

 

                Dated                                              22 August 2013

 

 

 

2013 UKUT 295 AAC CJSA 3900 2012 - Sanction of JSA before time allowed for claimant to provide information elapsed.

2013 UKUT 295 AAC CJSA 3900 2012

DL v Secretary of State for Work and Pensions (JSA)

[2013] UKUT 0295 (AAC)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the Appellant’s appeal.

 

The decision of the Enfield First-tier Tribunal dated 8 August 2012 under file references SC921/12/00595 involves an error on a point of law and is set aside. 

 

The Upper Tribunal re-makes the tribunal’s decision in the following terms:

 

“The Appellant’s appeal is allowed.

 

The Secretary of State’s decision of 20 October 2011, superseding the decision of 23 June 2005 awarding jobseeker’s allowance (JSA) and imposing a sanction so that JSA was not payable from 27 October 2011 to 9 November 2011 (both dates included), is revised. The purported sanction is of no effect. This is because the sanction in question was imposed before the expiry of the 5-day period in which the Appellant was entitled to make representations. The decision to impose a sanction was thus not in accordance with regulation 7(1) of the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (SI 2011/917). JSA should not have been stopped for that two-week period.”

 

This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

Introduction

1.    This appeal concerns a sanction involving the loss of jobseeker’s allowance (JSA) for two weeks. The Department for Work and Pensions (DWP) and the First-tier Tribunal (FTT) had both found that the Appellant had failed without good cause to participate in the “Work Programme” under the Employment, Skills and Enterprise Scheme. My conclusion is that, in this instance, the sanctions regime was not properly applied. It follows that JSA should not have been stopped for the fortnight in question.

 

A summary of the facts

2.    A DWP employment officer referred the Appellant to Ingeus, “a partner organisation of Jobcentre Plus”, involved in the delivery of certain contracted-out functions under the Work Programme. Ingeus invited the Appellant to an appointment at one of their offices. The Appellant did not attend. When he was asked why, he described Ingeus as a “suspect Racist organisation” and asked for evidence that it had a “well managed, effective and transparent Race Equality Strategy”. He was sent a copy of Ingeus’s equal opportunity policy. A DWP decision maker was not satisfied with the Appellant’s explanation for his non-attendance and imposed a two-week sanction, withdrawing JSA.

 

The hearing before the First-tier Tribunal

3.    The Appellant lodged an appeal to the FTT. He asked for an oral hearing but failed to attend. The tribunal clerk telephoned him on the day of the hearing but the Appellant said that he would not be attending as he had not received a reply from the FTT office about its own race relations policy. The FTT decided to proceed in his absence and then dismissed the Appellant’s appeal.

 

4.    After the hearing, the Appellant wrote to the FTT requesting a statement of reasons. He expressed his suspicion that the Tribunals Service is “impacted by Institutional Racism” and does not have a “well managed, effective and transparent Racial Equality Strategy”.

 

5.    The FTT’s statement of reasons explained that the Appellant had not shown good cause for his failure to attend the relevant appointment. In particular, he had “not provided any evidence to support his contentions about Ingeus or to demonstrate that he would be discriminated against by that organisation”. The FTT found that “a reasonable person of his age and experience would not respond to an invitation to attend an appointment to assist in obtaining employment in the manner demonstrated by [the Appellant]”. 

 

6.    The Appellant then applied for permission to appeal to the Upper Tribunal. This was initially refused by a FTT District Tribunal Judge, who noted that the Appellant had “placed insurmountable objections to the process of the tribunal and was not prepared to come to the tribunal to give evidence”. Moreover, the matters the Appellant had raised were “incapable of resolution in this tribunal”.

 

The proceedings before the Upper Tribunal

7.    The Appellant’s appeal in this matter is supported by the Secretary of State for Work and Pensions. The Appellant has not consented to a decision without reasons: “because I suspect that the Upper Tribunal Judge might be a white supremacist racist, I need to know the reasons for all decisions”.

 

8.    At this point I should explain that the Appellant had six separate appeals before the FTT, relating to six separate JSA sanctions relating to six different failures to attend appointments at Ingeus. The explanation given by the Appellant for his non-participation was the same in each instance.

 

9.    The Secretary of State’s representative, Ms Helena Thackray, only supports the appeal against the sanction imposed by the decision made on 20 October 2011.  This stance has presumably been taken because of comments I made when giving permission to appeal in all six appeals. I had indicated then that I did not find the Appellant’s own grounds of appeal persuasive.

 

10.  However, I identified a particular problem with the decision-making process in one of the six appeals, with the Upper Tribunal reference CJSA/3900/2012. The Appellant had failed to attend an appointment at Ingeus on 7 October 2011. Jobcentre Plus sent him a letter on 17 October 2011, asking for his explanation and requesting a response by 25 October 2011. The Appellant did not reply till 9 November 2011 (the reason he gave for the delay was “the impact of suspect White Supremacist Racist activity in the Civil Service”).

 

11.  Yet on 20 October 2011, just three days after the letter had been sent, a DWP decision maker imposed a sanction on the Appellant, stopping his JSA for the period from 27 October 2011 to 9 November 2011 because of his failure to attend on 7 October 2011.

 

So why did the First-tier Tribunal err in law in this one appeal?

12.  The JSA sanction was imposed under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (SI 2011/917). Regulation 7(1) provides as follows:

 

Good cause

7.—(1) A claimant (“C”) who fails to participate in the Scheme must show good cause for that failure within 5 working days of the date on which the Secretary of State notifies C of the failure.”        

 

13.  Ms Thackray, for the Secretary of State, concedes that in this particular appeal the Appellant was not given the full five days in which to respond. She therefore accepts that the sanction was invalid and that the FTT erred in law in upholding this particular penalty.

 

14.  In my view that concession was correctly made. The Appellant may have been late in providing his explanation, and he may not have had a satisfactory reason for failing to attend the Ingeus appointment, but the DWP decision maker had “jumped the gun” by imposing the sanction before the time given for responding had elapsed. Given the relevant legislation involves a financial penalty, it should be construed strictly. In this particular case the proper procedure was not followed and the sanction was wrongly imposed.

 

Conclusion

15.  I therefore allow this appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The decision that the FTT should have made is as set out at the head of these reasons (section 12(2)(b)(ii)). In short, in the present case, whatever the position as regards the other sanction decisions, the Appellant’s appeal should have been allowed by the FTT.

 

So what happens to the other five cases?

16.  In the five other appeals it appears that the proper procedures were followed in that the five day period was allowed to elapse before a decision was made to impose a sanction. The decisions in the other five cases are therefore not flawed in the same way.

 

17.  However, the other five appeals raise a separate point. This concerns the effect of the Court of Appeal’s decision in R (on the application of Reilly and Wilson) v Secretary of State for Work and Pensions [2013] EWCA Civ 66 and of Parliament’s subsequent hasty decision to pass new legislation in the form of the Jobseekers (Back to Work Schemes) Act 2013. These five appeals are just five amongst a number of appeals pending before the Upper Tribunal which concern this same issue (and many more before the FTT).

 

18.  In those circumstances it is appropriate to wait until a lead case is identified and decided before ruling on the other five cases involving this Appellant. Separate directions will be issued on those appeals staying (or, in effect, suspending) any further proceedings until such a lead test case is determined.

 

 

 

 

Signed on the original                                Nicholas Wikeley

on 25 June 2013                                           Judge of the Upper Tribunal

2013 UKUT 262 AAC CE 3477 2012 - ESA claimant argued should have been in Support Group rather then WRAG due to surgery

2013 UKUT 262 AAC CE 3477 2012 Where Reg 35(2) is in issue on an appeal the Secretary of State appeal response must address what 'work related activity' is for the appellant and with no substantial risk

 

IN THE UPPER TRIBUNAL                            Appeal No: CE/3477/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

            The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Stockport on 21.06.12 under reference SC944/12/00227 involved an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to decide whether the appellant was entitled to employment and support allowance with the support component from and including 30.11.11. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.     

 

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

 

 

DIRECTIONS

 

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

 

  1. The new hearing will be at an oral hearing.

 

  1. The appellant is reminded that the tribunal can only deal with her situation as it was down to 10 November 2011 and not any changes after that date.

 

  1. If the appellant has any further evidence that she wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Liverpool Appeals Service Centre within one month of the date this decision is issued.

 

  1. By no later than one month of the date of issue of this decision the Secretary of State must have lodged with the First-tier Tribunal a further appeal response that sets out (a) the precise statutory basis of the 10.11.11 decision that the appellant be treated as having limited capability for work, and (b) the work-related activity the appellant was found to be capable of without substantial risk to her or another person’s health.           

 

  1. The First-tier Tribunal should have regard to the points made below.

     

 

 

 

REASONS FOR DECISION

 

 

 

  1. This is an appeal by the claimant from a decision of the Stockport First-tier Tribunal (SEC) dated 21.06.12. I will refer to this from now on as “the tribunal”. The tribunal dismissed the claimant’s appeal from the Secretary of State for Work and Pension’s decision of 10.11.11. The Secretary of State’s decision of that date had converted the appellant’s award of incapacity benefit to an award of employment and support allowance (“ESA”) with the work-related activity component with effect from 30.11.11.

 

  1. The appellant’s appeal against this decision, dated 6.12.11, ranged across many areas. For present purposes it is necessary to highlight only the following.  First, the appellant said she should be in the support group.  Second, she asked how she could have been transferred onto ESA “as the ESA has not yet been approved by Parliament”.  Third, she referred to recently having been an in-patient in hospital where she had had “‘open’ (not keyhole) surgery requiring approx 30 clips.  An open wound was left to heal from the inside outwards and I continue to have the dressings changed on a regular basis by a District Nurse”.  Fourth, she referred to having been in hospital from the 12 to the 21st of October 2011 for the said operation and a hernia repair.  On this basis it would appear that the appellant had been out of hospital for just under three weeks at the date of the Secretary of State’s decision. Fifth, she took issue (in point (12) of her grounds of appeal) with the assertion that she did not fall within regulation 35(2)(b) of the ESA Regs.  

 

 

 

 

  1. The tribunal dismissed the appellant’s appeal on 21 June 2012.  In its Decision Notice of that date it said “we are satisfied that the appellant does not satisfy any of the descriptors in Schedule 3 of the [ESA Regs].  The appellant was at the date of the decision entitled to receive [ESA] during a period of post operative recovery”.                           

   

  1. Permission to appeal to the Upper Tribunal was refused in the first instance by a District Tribunal Judge on 31.08.12, however on the renewed application to the Upper Tribunal I granted the appellant permission to appeal on 15 November 2012.  I gave permission to appeal on the basis that it was arguable the tribunal had erred in law in the following respects.

 

[The appellant] had raised in her appeal (page 8) whether she ought to have been “converted” over from incapacity benefit to employment and support allowance.  This is not addressed by the tribunal in the decision notice or the statement of reasons.  As this was an issue raised on the appeal, ought not the tribunal to have addressed it and set out its reasoning and findings on this issue and why the condition precedent to [the appellant] being assessed under the ESA scheme (i.e. conversion) was here satisfied?

 

The basis of the 10.11.11 decision under appeal (which is not in the papers) was that (page 39), [the appellant] was recovering from in-patient treatment and should therefore be treated as having limited capability for work.  The operation seemingly occurred on 12.10.11, when [the appellant] had her gall bladder removed.  The lack of the 10.11.11 decision and the lack of detail on page 39 hampers identifying on what basis the Secretary of State treated [the appellant] as having limited capability for work.  On the face of it, however, the only deeming provision that could have applied is regulation 29(2) of the ESA Regs 2008.  But if that is correct, then is it not arguable that the First-tier Tribunal ought to have said more about why, as at 10.11.11, regulation 35(2) of the ESA Regs was not satisfied by the appellant, given her post-operative state? Would that not have required the tribunal to address more fully what work related activity [the appellant] was likely to have to engage in and then how she would have engaged in it without substantial risk to herself?  And is it relevant in this context that the evidence taken by the tribunal from [the appellant], as recorded in the record of proceedings, seemingly was about what she was doing and was able to do at the time of the appeal hearing and not what she was able to do on or about 10.11.11”.

 

 

  1. The Secretary of State argues that the above constituted errors of law in the tribunal’s decision, in a submission on the appeal dated 31.01.13, and he asks for it to be remitted to the First-tier Tribunal to be re-decided.  That submission very usefully points out an error in my view that the only deeming provision was regulation 29(2)(b) of the ESA Regs and points out that the more likely deeming provision applied by the Secretary of State in his decision (and thus upheld by the tribunal) was instead regulation 25 of the ESA Regs. That regulation deals with hospital in-patients and, in effect, deems a person as having limited capability for work on a day of recovery from medical or other treatment in a hospital or similar institution.

 

  1. I am grateful to the Secretary of State’s representative for pointing this out, and apologise for my omission.  Given the language used on the ESA85A form I agree that it is most likely that the decision of 10.11.11 was made under regulation 25 of the ESA Regs and not regulation 29(2)(b).  

 

  1. I add, if I may, that it is unsatisfactory that the precise legislative basis of the decision under appeal was not made clear in the appeal bundle, and that even now the Secretary of State’s representative is having to speculate as to the basis of the decision. The record of the decision is not in the appeal bundle. That should have referred to regulation 25 of the ESA Regs (if that was the regulation the decision was based on).  But as the decision was not present in the appeal bundle the Secretary of State ought to have made the basis of the decision clear in his appeal response to the First-tier Tribunal. I say this because rule 24(4)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “TPR”) imposes an obligation on the Secretary of State’s decision maker to provide with the response “a copy of any written record of the decision under challenge, and any statement of reasons for that decision, if they were not sent with the notice of appeal”.  There is no evidence that the closing words of this provision applied here, but rule 24(4)(b) of the TPR would seem to require these documents to be provided with appeal in any event. In circumstances where the actual record of decision is missing, and any reasons for it, it seems in my judgment that the requirements under the overriding objective in rule 2(4) of the TPR to help the tribunal to further the overriding objective and co-operate with the tribunal generally should have led the response writer to fill the hole left by the absence of the decision (and the reasons for it) under rule 24(4)(a) of the TPR by explaining in the response the basis of the 10.11.11 decision (including which regulation(s) it had been made under).                                                    

 

  1. The appellant in her observations in reply of 7.03.13 makes extensive reference to facts of her case, concedes that she is not fully conversant with the finer points of law, and ask for an oral hearing of her appeal to the Upper Tribunal “in case there are any questions that need answering”.

 

Oral hearing

 

  1. It may be that the appellant remains under a misapprehension (which I sought to correct when I gave permission to appeal) as to the function of the Upper Tribunal when deciding an appeal. Its function is not to rehear and re-decide the appeal on the facts.  The Upper Tribunal’s function is to decide whether the tribunal below erred in law.  In these circumstances, and given that there are no questions that the Upper Tribunal needs answering, I refuse the appellant’s request for an oral hearing of this appeal to the Upper Tribunal. Her appeal will, however, be the subject of fresh hearing before the First-tier Tribunal where the appellant will be able to attend and where all facts relevant to her ability to engage in work related activity (without substantial risk to her health) as at 10 November 2011 will have to be considered.  The evidence the appellant sets out on pages 122-133 may well be relevant at that stage.

 

 

Conversion

 

  1. I agree with the Secretary of State that although the tribunal erred in law in not addressing in its reason why the appellant was eligible to be converted from incapacity benefit to ESA, that error in reasoning alone would not have been sufficient to merit the tribunal’s decision being set aside.  This is because I could address in this decision the concerns the appellant raises about the conversion process.  For example, her concern about ESA not having been approved by Parliament by December 2011 (page 8) is misplaced and simply wrong.  ESA was introduced as a benefit under the Welfare Reform Act 2007 and in the 2008 ESA Regs.

 

  1. In any event, the wider legal arguments on the validity of the conversion notices (in this case it is asserted that such a notice was provided to the appellant on 20.08.11), have recently been addressed and rejected by a Three Judge Panel of the Upper Tribunal in JM-v- SSWP (ESA) [2013] UKUT 234 (AAC). As the appeal has to go back to another First-tier Tribunal in any event, it seems to me that the sensible course to take is to leave it to the appellant to raise with (if she still wishes) that tribunal any arguments about the conversion process in the light of my comments above and the decision in JM.

 

Regulation 35(2)(b) ESA Regs

 

  1. The critical error of law in the tribunal’s decision is the failure of the tribunal to give adequate reasons as to why it found that some four weeks after her operation there was no substantial risk to the appellant’s (or another’s) health in her engaging in work-related activity. I am satisfied from consideration of the record of proceedings that – as the Secretary of State agrees – the tribunal failed in its questioning of the appellant to focus on how she was in or around November 2011, or at least it failed to explain adequately how and why the evidence it took from the appellant was relevant to her situation in November 2011.

 

  1. There is, however, a related but equally important error and that concerns the failure of the tribunal to identify, to use the words of Upper Tribunal Jacobs in paragraph [26] of AH –v- SSWP [2013] UKUT 118 (AAC) “the range or type of work-related activity which [the appellant] was capable of performing and might be expected to undertake sufficiently to assess the risk to health either to h[er]self or to others”, applying Charlton –v- SSWP (R(IB)2/09) to regulation 35(2) of the ESA Regs .  I respectfully adopt and agree with all that Judge Jacobs says in AH.  That error was fundamental  because without establishing that range of work-related activity there was nothing against which to assess the regulation 35(2) risk.    

 

  1. However, the tribunal was not aided in this task by the failure of the  Secretary of State to provide it with any useful  information as to what work-related activity was for the appellant in November 2011 which she was capable of engaging in, or undertaking, without substantial risk to herself or others.  All the Secretary of State told the tribunal about the application of regulation 35(2) of the ESA Regs to the appellant’s case is contained in paragraphs 5 and 6 of Section 5: The response of his appeal response.  Neither paragraph, however, explains what work-related activity in fact is, either generally or for this particular appellant. Consideration of the evidence before the tribunal did not explain what work-related activity was either: the form ESA85A merely repeats the key words of regulation 35(2) of the ESA Regs. And, as I have said earlier, the actual decision is nowhere to be seen.  

 

  1. The Secretary of State’s omission of this highly relevant information from the information he put before the tribunal was a mistake and a serious breach of his duties to that tribunal.  As Judge Jacobs pointed out in paragraph [28] of AH, the evidence on work-related activity can only come from the Secretary of State.  I also agree, subject to one slight caveat, with what Judge Jacobs said at paragraph [15] of ML –v- SSWP [2013] UKUT 174 (AAC):

 

Despite having dealt with numerous cases involving the support group, I still have no idea of what work-related activities involves beyond the general, formulaic statements such as those I have quoted from the Secretary of State’s argument. I accept that it is not possible to say in advance what precisely would be expected of any particular claimant. However, it must be possible to give a sufficient indication of what is involved in order to allow a claimant to provide evidence and argument, and to allow a tribunal to make a decision. The decision whether or not a claimant satisfies the conditions for the support group carries the right of appeal to the First-tier Tribunal under section 12 of the Social Security Act 1998. It is not one of those decisions that are excluded from the right of appeal. The existence of a statutory right of appeal requires that it must be effective. It cannot be effective without the necessary information for claimants to participate in the appeal and for the tribunal to make a decision”.

 

  1. My caveat is based on two considerations. First, it may well be that in most cases a general indication of what is involved in work-related activity may suffice to meet the Charlton/AH test of “the range or type of work-related activity which [the appellant] is capable of performing and might be expected to undertake” so as to allow the First-tier Tribunal to assess (a) whether the appellant is capable of performing those activities, and (b) if he is, any risks associated with his so doing. However, in particular cases more specific information may be required.  For example, what might be thought of as a standard work-related activity of attending an interview at a Jobcentre might not be an activity that a severely agoraphobic and anxious person who has scored 15 points under descriptors 15(b) and 16(c) of Schedule 2 to the ESA Regs is capable of undertaking, and more tailored work-related activity may be needed.

 

  1. The second consideration arises from the fact that on this appeal the appellant had expressly raised as a ground of appeal whether she came within regulation 35(2) of the ESA Regs (see point (12) in her letter of appeal on page 10), and the Secretary of State had accepted this was an issue raised by the appeal (as he had addressed regulation 35(2), however inadequately, in his appeal response). In these circumstances rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 (the “TPR”) placed the Secretary of State under a mandatory obligation to say whether he opposed the appellant’s case on regulation 35(2) and, as he did, state “any grounds for such opposition which are not set out in documents which are before the Tribunal”.

 

  1. As I have noted already, none of the documents before the tribunal addressed work-related activity either in a general sense contemplated by Judge Jacobs in ML above or in the more specific sense of the work-related activity the Secretary of State contended the appellant was capable of performing and might be expected to undertake.  Nor do the documents state the grounds why the Secretary of State considered the appellant’s (or another’s) health would not be at substantial risk if she undertook such activity (an omission which follows as a matter of logic from the fact that no work-related activity had been identified to measure the health risk against).

 

  1. In these circumstances rule 24(2)(e) of the TPR in my judgment obliged the Secretary of State to set out, in the written appeal response, his case on why the appellant did not come within regulation 35(2) of the ESA Regs, and his failure to do so in any meaningful way was a serious breach of his obligations under the TPR.  By “set out his case” I mean state his grounds for opposing the appellant coming within regulation 35(2), and that must, as far as I can see, per Charlton, AH and ML, have required him to:

 

(a)      set out the range or type of work-related activity which the appellant was capable of performing and might have been expected to undertake, and

 

(b)      explain why, on the evidence of the appellant’s situation some three weeks after her gall bladder had been removed, there would be no substantial risk to the appellant’s (or another’s) health if she were found not to have limited capability for work-related activity.

 

To this extent the information ought to relate to the specific appellant, and it ought to be information provided in advance (contra to paragraph 15 of ML), in the sense of being contained in the Secretary of State’s written response on the appeal.     

 

  1. I fail to see why this amounts to an unusual or onerous burden given that the Secretary of State had already made a decision to the effect that the appellant did not come within regulation 35(2) and so must have addressed these matters already. This, it seems to me, must be the consequence of sections 2(3)(b) and 4(5)(b) of the Welfare Reform Act 2007 in this context (i.e. where the limited capability for work decision has in fact been made – SSWP-v-PT (ESA) UKUT 317 (AAC); [2012] AACR 17 addressing a differing context), which give as a condition of entitlement to the work-related activity component of ESA “that the claimant does not have limited capability for work-related activity”, and that condition in this context can only in my judgment be satisfied by an affirmative decision to that effect.                       

 

  1. Of course none of this discussion on rule 24 of the TPR concerns, directly, whether the appeal tribunal erred in law. However, I have addressed it in some detail because: (a) from the Upper Tribunal’s perspective from cases which come before it, it (and regulation 35(2) of the ESA Regs and “work-related activity” more generally) is an issue of general importance; (b) this decision may provide helpful guidance for the content of the Secretary of State’s appeal responses in future cases; (c) it is necessary to explain direction (4) above; and (d) it provides a further perspective on where the tribunal went wrong in law.

 

  1. Turning back to the tribunal, I have some considerable sympathy with the predicament it found itself in at the hearing given the absence of any useful information from the Secretary of State on work-related activity under regulation 35(2) of the ESA Regs.  But it was not obliged to decide the case there and then on 21.06.12.  Given what I have said above, it may have been that the most sensible course was to have adjourned the hearing so as to be provided with a supplementary response from the Secretary of State that properly addressed work-related activity and why there would be no substantial risk to the appellant from her engaging in such activity as at 10 November 2011.  Having chosen not to do that, however, and chosen to decide the appeal, it was incumbent on the tribunal to consider properly and determine all of the relevant regulation 35(2) issues, and the tribunal (through its reasoning) failed to do that here.                               

             

  1. It is for all these reasons that the tribunal’s decision dated 21.06.12 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law as set out above and once it has properly considered all the relevant evidence.

 

 

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

                                                                                                          

Dated 22nd May 2013         

2012 UKUT 256 AAC CE 2894 2011 - ESA WCA - disputed WCA on grounds HCP is "experienced"

IN THE UPPER TRIBUNAL                         

Case No  CE/2894/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Manchester on 29 June 2011 under reference SC946/11/00570 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 10 of the Reasons.

 

REASONS FOR DECISION

 

1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

 

2. The claimant had been in receipt of disability living allowance (“DLA”) , at the higher rate of the mobility component and the lowest rate of the care component, pursuant to an indefinite award made in 2003.  So far as employment and support allowance was concerned, following a medical examination by Healthcare Professional (“HCP”), a registered nurse, on 29 October 2010, the claimant was awarded 0 points under the Work Capability Assessment.

 

3. The claimant appealed, submitting a copy of the HCP’s report, on which she had written her comments.  The comments included instances where she disputed that she had performed the task she had been recorded as having performed or that she had displayed abilities which were recorded as noted on examination.

 

4. The tribunal indicated that it “preferred the evidence in the report from the Health Care Professional because she was an experienced Health Care Professional  because she had nothing to gain by misrepresenting the facts.”

 

5. The Secretary of State accepts that the tribunal should have recorded why they rejected the claimant’s evidence and that in failing to do so it erred in law.  It must follow that he considers that the explanation that was given was insufficient.

 

6. When I granted permission, I queried (among other matters) whether the tribunal was entitled to rely on its assertion that the HCP was “experienced” when, so far as I could see, there was no evidence of this.  The definition of a “health care professional” for this purpose is in regulation 2(1) of the Employment and Support Allowance Regulations 2008 and is (so far as relevant) “ ‘health care professional’ means (a)…; (b) a registered nurse; or (c)….”  The person who conducted the examination was a registered nurse, which fulfilled the requirement.  The Secretary of State submits, and for the purposes of this decision I accept, that to be appointed as an HCP,  the registered nurse would have had to have gone through the necessary training to enable her to perform examinations.  It seems to me that there is no basis for inferring a requirement of “experience” (as opposed to qualification) from the statutory scheme and the Secretary of State submits that such a person will have to be trained, but again, no mention is made of experience.  I consider that the tribunal was in error for having no evidence to conclude that the HCP was “experienced” and that the error was material.

 

7.The tribunal further erred in law by  not considering the possible relevance of the existing award of DLA or, if they did consider it, by indicating what they made of it.  While the tests for the two benefits are not the same, there is sufficient common ground that one may provide material evidence for the other.

 

8. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

 

9. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (1 December 2010) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

 

10. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

 

(signed)                                                                    

 

 

C.G.Ward

Judge of the Upper Tribunal

11 July 2012

2012 UKUT 255 AAC CE 1295 2011 ESA, WCA & application of WCA mental health descriptors

IN THE UPPER TRIBUNAL                         

Case No  CE/1295/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision:  The appeal is allowed.   The decision of the First-tier Tribunal sitting at Durham on 26 January 2011 under reference 225/10/01280 involved the making of an error of law and is set aside. 

 

Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007, I substitute the decision which the First-tier Tribunal ought to have given, namely:

 

The decision dated 31 March 2010 of the Secretary of State is not upheld.

 

While the Secretary of State was entitled to supersede the decision of the decision maker awarding Employment and Support Allowance from and including 4 January 2010, as he had received a report from a healthcare professional, the claimant met the following descriptors:

 

17 (c) - 6 points

20 (d) – 9 points

21 (e) – 6 points.

 

Consequently he met the threshold of limited capability for work.  He was not disentitled from receiving Employment and Support Allowance from 31 March 2010 on the ground of failure to meet the threshold.

 

REASONS FOR DECISION

 

1.  The claimant asserted problems with both his physical and mental health.  By a decision dated 31 March 2010, taken following a medical examination by a healthcare professional, he was assessed as scoring 0 points.  He appealed, writing a letter which, as I need to refer to it below, I set out in full (block capitals in original):

 

            “I HEREWITH APPEAL AGAINST YOUR DECISION BECAUSE IT IS            WRONG AND UNJUST, AND I AM ILL AND NOT WELL ENOUGH AT             THE MOMENT TO GO INTO EMPLOYMENT.  YOUR DECISION IS   NOT CORRECT, IT IS WRONG, VERY WRONG.  I AM NOT WELL, I      AM ILL, YOUR DECISION IS NOT CORRECT, IT IS WRONG AND   VERY UNJUST, SO I APPEALED AGAINST IT, BECAUSE I AM ILL.”

 

The decision was upheld by the First-tier Tribunal.  Following an oral hearing of the claimant’s application held at Doncaster County Court on 17 October 2011 I gave permission to appeal.  The Secretary of State does not support the appeal.

 

2. The claimant seeks a further oral hearing of his appeal.  However, I do not consider that one is necessary in order to decide the case and so I do not agree to the request.  He has already had the chance to tell me where he thinks the previous tribunal went wrong and to give oral evidence so I know what he would have said if the tribunal had asked more questions than it did.  The Secretary of State, who has received my record of the claimant’s evidence set out in my determination giving permission to appeal, has not sought an oral hearing in order to challenge the claimant's evidence or for any other reason. 

 

3. This is not an easy case.  It highlights the difficulties that there may sometimes be in forming a view as to whether a person meets the mental health descriptors for ESA.  In particular, the context of a particular piece of evidence may be very important.

 

4. I need say no more about the claimant’s physical difficulties: they were not such as to score points under the Work Capability Assessment and no challenge is made to the tribunal’s conclusion to that effect.

 

5. The claimant had received treatment from psychologists and counsellors until September 2009 for depression which, he said, they had never got to the bottom of.  By the time of the hearing (January 2011) he was on the waiting list for counselling again.  He remained on medication throughout (Venlafaxine).

 

6.The claimant had however been able to care for his elderly parents with whom he lived until the deaths of first his mother (in April 2009) and then his father (in December 2010).  He had physically assisted his mother with all aspects of her daily self care as well as doing the housework, shopping and gardening.  He told the tribunal that his mother “was the centre of my life for so long”.  Following her death he then continued to keep house and carry out supervisory care for his father, which he was doing down (apart from a short holiday) at the date of the DWP’s decision.  The claimant indicated that his relationship with his father had generally not been good.   

 

7. The tribunal noted that the claimant had indicated that he was unable to attend for medical examination on a Monday because it was his shopping day or on a Thursday because that was his art class.  At the date of decision, while his sister cared for his father, he had been on holiday on his own, camping and walking in the Lake District, driving a car to get there and back and had been for an 8 hour walk a few days before the medical examination.

 

8. The tribunal’s conclusion was summed up in para 5 of its decision:

 

            “Taking into account all of the evidence and on the balance of         probability, the tribunal found that [the claimant] had no significant     problem with any of the physical activities and, although he has a history of mental health problems, he had been discharged from      psychiatric care, and completed a course of counselling, by September   2009 and by the date of the decision under appeal he was able to lead           a normal active life.  By July 2010 he was able to begin employment in     a café.”

 

9. I infer from that that the tribunal did rely on the fact that the claimant was able to work in a café in July 2010 as evidencing that he was free from limitations resulting from his mental health condition at 31 March 2010.  I agree that the ability to hold down a job after the date of decision could be evidence of circumstances obtaining at the date of decision (depending on the circumstances) and so not fall foul of section 12(8) of the Social Security Act 1998.  But it all depends on the facts found.  As to the café, the tribunal merely found that the claimant had been able to visit the café (by implication around the date of decision), had begun to work there by July 2010 and at the date of hearing was working there full-time. 

 

10. The Secretary of State argues that the job is not relevant, in that (a) the Work Capability Assessment does not look at the ability to carry out an actual job and (b) if regulation 29 be relevant, again one does not on the authorities have to look at an actual job.  However, neither was how the tribunal was using the job.  Rather, it was using the ability to do it, as a tribunal might use other aspects of human activity, to draw inferences as to the extent of the effects of the claimant’s ill-health at the material time.

 

11. The tribunal did not make a finding as to the hours when he started, even though evidence had been given that it was a part-time job for 15 hours only at that point.  That was one of a number of findings which the tribunal should have made, but did not.  The claimant represented himself in the tribunal.  He is a man who with his mental health difficulties has not at all times found it easy to maintain the sense of proportion that others might.  It was reasonable therefore to expect the tribunal, if it proposed to place reliance on his café work, to adopt an inquisitorial approach so that evidence was given to enable it to find the necessary facts.

 

12. Had it done so, it would have established that:

 

            a. The place where he works is a privately owned café run by a little           team of five people, “like a family”.  The claimant makes coffees, clears         tables, takes money and prepares food. 

 

            b. He had been a customer of the café since it opened.  It was the first      proper coffee shop in the town where he lives.  He had known the     people running the cafe since the beginning of 2009 and they knew          him.  This personal knowledge was very important to him in terms of    taking the job.  Having been very close to his mother as her carer until      she died, he had found her death very hard to cope with.  (This bereavement was superimposed on a pre-existing mental health problem.)  He found dealing with strangers hard and would panic about       strange places on occasions, thus knowing the place and people he        would be working with was an important factor. 

 

            c. The idea of the job arose when one of the workers in the coffee shop    had had to go home ill leaving two on duty.  The shop was very busy       and the staff were overrun.  The claimant started to help and they saw      his potential.  When the vacancy arose in July 2010 he asked the boss if he could work there. 

 

            d. When he started in the café in July 2010 he did part-time hours (variously expressed as 15 or 18 – the difference is not material for this            decision), only going to full‑time work on 4 December 2010.  In       July 2010 he had not known whether he would be up to working in the           café and the boss had said “let’s start slowly and see if you can cope.” 

 

            e. In the early days there were misunderstandings with colleagues and   customers.  The claimant took things too personally.  For instance one            of his colleagues told him he was not making the cappuccinos quite        right and he went very quiet, “shutting the doors” as he put it, which was not good for the atmosphere in the café.  It took him a few weeks       to get over this and realise that people were not having a go at him          personally but just telling him how the work needed to be done.  As his    colleagues there knew his situation they were able to help him to   handle this sort of difficulty.

 

13. The task for the tribunal was to decide how the claimant had been in late March 2010.  Far from suggesting that he was able then to lead a normal active life the evidence about the café suggests that even a little over three months later familiarity with the place and people was important; even then, people who knew him from his being a visitor were unpersuaded that he could cope; that he had been able to get started in an environment where he had first been able to try out the work by helping out; that he only worked part-time; that even then, there were difficulties, including the example given where it took the claimant “a few weeks” to get over the sort of comment that would be routine in a work situation; and that it was his supportive colleagues who knew about him from his time as a customer who were prepared to help him, even though the manifestations of his mental illness cannot have helped the climate for the business.

 

14. In my view, had the tribunal asked the right questions and made the necessary findings, it would have recognised that the claimant was fortunate enough to have been offered work which, although real enough, was therapeutic for him, carried out as it was in an environment where the kindness and solidarity of others created a supportive environment in which he could move forward.  It did not mean that at the date of decision he was free of disability resulting from his mental ill-health.  Nor can it be inferred from the many things which the claimant was able to do that he did not experience scoring limitations on any of the mental health descriptors.  It follows that the tribunal’s failure to adopt an inquisitorial approach and to make the necessary further findings was material and an error of law.

 

15. While it would be open to me to remit the case for re-hearing I am reluctant to do so.  It was clear from the permission hearing that the claimant had to a degree been able to move on from his difficulties and I would not lightly wish to cause him to have to revisit a difficult time for him.  Further, the impact of commencing first part-time and then full-time work on his ESA claim is yet to be determined but may have the effect of limiting the period for which this decision makes a meaningful difference.  I therefore propose to substitute a decision if I properly can.

 

ESA 50

 

16. Before turning to the specific descriptors which I regard as being in issue, I note, as it is relevant to the evidence I have to consider, the claimant’s observations under “Other Information” on the form regarding the difficulties that the information-gathering process via the questionnaire in Form ESA50 caused him:

 

            “I was very unsure about all the questions.  They are not easy to     answer, and not easy to understand.  I was very anxious just looking at      this form.  I had nobody to help me fill the form in. I would look at it             every day, read the questions, and I didn’t know how to answer them,          most of them do not apply to me, and some made me feel really stupid,   so I put it down again and again; but I knew I would have to fill it in          eventually.”

 

Descriptor 21: Dealing with other people

 

17. The claimant had marked the boxes on the form to indicate that he often got upset because he could not get on with other people and that he found himself getting annoyed with other people very quickly.  In the narrative box he indicated:

 

            “It happens a lot, or I keep myself to myself if I can, but that isn’t what I      want, or that upsets me even more. I just don’t know what to say, or        how to say it.”

 

I find corroboration for this in the terms of his appeal letter, quoted at [1] above.  In that short letter, the decision is said to be wrong four times and unjust twice and the claimant is said to be ill three times and not well twice.  The claimant is an intelligent man and a fluent English speaker.  The contrast between the letter of appeal, with its heavy, unnecessary repetition and use of capitals on the one hand and the reflective quality of the extracts from the ESA50 quoted suggests that at that time, the claimant was indeed very quick to anger and disproportionate in the manner in which he would pursue a point if he did so.  There are other examples in the papers too.

 

18. There is also evidence of a degree of conflict with siblings in relation to their father’s house.  While that would be post-decision, it is entirely consistent with such a disposition having existed at the date of decision.

 

19. I find that the claimant was unaware of the impact of his own behaviour, in the sense that he would often not get on with other people and not understand why this was so.  I have no doubt that over the course of a prolonged period such as a week, such incidents would occur.  It seems to me that if a person manages the incidence of such episodes by keeping away from others (as did the claimant to some extent) , they should not be worse placed in complying with the descriptor than those who are more exposed to the society of others.  I find descriptor (e), carrying 6 points, to be made out. 

 

Descriptor 20 Propriety of behaviour with other people

 

20. The questions on form ESA50 do not appear to be closely directed to the terms of this descriptor.  In my view the most telling evidence is provided by the claimant’s reaction to being told that he was not making the cappuccinos quite right.  That is the routine stuff of being employed and to take several weeks to get over it does indeed constitute “a strongly disproportionate reaction to minor events or to criticism”.  Is it to the extent that the claimant cannot manage overall day to day life when such events or criticisms occur? In my view, shutting the doors, as the claimant put it, to the detriment of the atmosphere in a workplace where customers go to relax, and doing so for a prolonged period, is not managing day to day life.  When people are told to do something differently at work in a minor respect, they may initially be annoyed or frustrated, but they generally manage it by realising they have to accept it and move on.  It is clear that the claimant, because of his mental ill-health, was not able to do this in a conventional timeframe and was only able to do it at all because of the support of his understanding colleagues.  There is no reason to suppose that this aspect of his behaviour would have been any different at the date of decision from how it was a few months later when this incident must have occurred.  I therefore find descriptor (d), carrying 9 points, to be made out.

 

Descriptor 17 Coping with Change

 

21. I am also prepared to infer that the claimant achieved descriptor (c), attracting a further 6 points.  He had latterly led a life in which routine was very important.  Such is indeed often a hallmark of having significant caring responsibilities.  But it went further than that. He was reluctant to go to a medical on Monday (because that was his shopping day).  As he lives on the edge of a town, there was no objective reason (e.g. limited availability of public transport) why he could not have gone shopping on another day.  He could not go to a medical on Thursday because that was his art class.  While I can readily understand that he enjoyed his art class and found it helpful, it is difficult to see why one session could not be missed for the important purpose of undergoing a medical examination for benefit purposes.  When taken together with the claimant’s tendency to get annoyed very quickly and to express himself in a poorly judged manner as a result, thus risking prompting a negative reaction from others, I consider that his reaction to minor, unforeseen changes in routine would have been likely to have the effect that overall his day to day life would be made significantly more difficult.  His own evidence on from ESA50 was that he could “usually” cope with change but felt unsure and unsafe if his routine changed too much.  Bearing in mind what he said in [16] above about the ESA50 process, I consider that he was only able to manage change to the extent that he did  by minimising the scope for it to occur.

 

Subsequent changes

 

22. This decision is of course only concerned with the correctness of the decision about whether the work capability assessment was met at 31 March 2010.  I have found that at that time the claimant did meet the threshold of limited capability for work.  Since then, of course, much has changed, including his commencement of first part-time and subsequently full-time work.  The effect of that for ESA purposes will have to be determined by the DWP on a fresh decision, taken on supersession.  The claimant will have fresh appeal rights if he disagrees with it.

 

 

CG Ward

Judge of the Upper Tribunal

12 July 2012

DMG 24/12 USE OF AIDS AND APPLIANCES - Decision Makers Guide

Contents Paragraphs

Introduction 1

Background
General application
Aid or appliance prescribed or advised Aid or appliance not prescribed or advised Annotations
Contacts
Appendix

INTRODUCTION

2 –4 5 –6 7 –8 9 – 13

1 This memo clarifies guidance on the use of aids and appliances when assessing LCW following a UT decision, CE/1217/111.

1 [2011]UKUT 449 (AAC); ESA Regs, reg 19(4)

BACKGROUND

  1. 2  The facts of the UT decision were as follows. The claimant suffered from problems with his knee. He had not been advised to use a walking stick, and did not do so. Following application of the WCA, the DM determined that the claimant did not score any points, and ESA was terminated. On appeal, the FtT awarded 9 points for descriptor 3(b) (bending or kneeling). They considered that the claimant’s difficulties with walking, standing and sitting could be helped by the use of a walking stick. As the score was still less than 15 points, the DM’s decision was upheld.

  2. 3  On a further appeal, the UT Judge held that

1. where a claimant normally uses an aid or appliance, they must be assessed as if they were using it

Memo DMG 24/12

  1. if an aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as using it unless it would be unreasonable for them to use it

  2. if a claimant does not use an aid or appliance, and it has not been prescribed or recommended, the claimant must be assessed as if using it if

    1. 3.1  it is normally used by people in the same circumstances acting reasonably and

    2. 3.2  it would be reasonable for the claimant to use it.

4 The Judge also held that where paragraph 3 3. applies, the DM must explain

how an aid or appliance would help the claimant.

GENERAL APPLICATION

  1. 5  The Judge's application of the test of normal use of an aid or appliance applies to the assessment of all of the physical activities in the WCA1. It is not restricted to those activities that make specific reference to aids or appliances.

    1 ESA Regs, reg 19(4)

  2. 6  Four of the physical activities1 refer specifically to the use of aids. Activity 1 (mobilising) and Activity 7 (understanding communication) refer to the reasonableness of the use of an aid, while Activity 8 (navigation) and Activity 9 (continence), refer to aids that are normally used. The DM should apply the test in a way that displays consistency between the WCA as a whole and the assessment of each descriptor in particular.

    1 ESA Regs, Schedule 2 Part 1

AID OR APPLIANCE PRESCRIBED OR ADVISED

  1. 7  The DM should establish whether the claimant normally uses an aid or appliance, and if not, whether the use of it has been prescribed or advised.

  2. 8  If the claimant does not have an aid or appliance which they have been prescribed or advised to use, the DM should establish

  1. whether it would help the claimant

  2. why they are not using one

3. whether the explanation is reasonable.

Example 1

Billy has been advised by his GP to use a walking stick to help with balance problems when walking and standing. He states that he doesn’t like the idea of a walking stick because it makes him look old. The DM considers that it would be reasonable to expect Billy to use a walking stick, and assesses LCW as if he is using it.

Example 2

Annie lives in a one bedroom apartment on the upper storey of a two storey block. There is no lift. She has been advised by her GP that a wheelchair would help her to mobilise over longer distances and that a wheelchair could be provided on request. Annie states that she could not get a wheelchair into her apartment, and could not store a wheelchair, either in her apartment or elsewhere. The DM considers that it would not be reasonable to expect Annie to use a wheelchair, and assesses LCW without it.

AID OR APPLIANCE NOT PRESCRIBED OR ADVISED

  1. 9  The DM must consider all the circumstances in order to determine whether it would be reasonable to assess the claimant as using an aid or appliance that has not been prescribed or that they have not been advised to use.

  2. 10  Factors include whether

  1. the claimant possesses the aid or appliance

  2. the claimant was given specific medical advice about managing their condition, and it is reasonable for them to continue following that advice

  3. the claimant would be advised to use an aid or appliance if they raised it with the appropriate authority such as a GP or occupational therapist (advice may only be given on request)

  4. it is medically reasonable for them to use an aid or appliance

  5. the health condition or disability is likely to be of short duration

  6. an aid or appliance is widely available

  7. an aid or appliance is affordable in the claimant’s circumstances (people are not routinely required to buy equipment where it can be prescribed.)

8. the claimant is able to use and store the aid or appliance

9. the claimant is unable to use an aid or appliance due to their physical or mental health condition, for example they are unable to use a walking stick or manual wheelchair due to a cardiac, respiratory, upper body or mental health condition.

Example 1

Miranda has significantly reduced mobility due to arthritis of the right hip and is on the waiting list for a hip replacement. She uses a walking stick to help with balance, but this does not enable her to walk any further than 200 metres before she experiences pain. She has not been advised to use a wheelchair. The HCP advises that she has no other health problems, and in their opinion based on clinical experience, would be provided with a manual wheelchair if she asked her consultant about this. If she had a wheelchair, she would be able to mobilise over longer distances. The DM decides that it would be reasonable, having considered all relevant factors, for Miranda to use a manual wheelchair, and that none of the Activity 1 descriptors apply.

Example 2

Gary has problems standing due to a condition which affects his balance. He would normally be helped by the use of a walking stick. However, the HCP advises that due to arthritis of the hands, Gary would have difficulty using a stick because he has reduced grip. The DM determines that it would not be reasonable to assess Gary taking a walking stick into account.

  1. 11  Where it is considered that the claimant should be assessed using an aid or appliance they do not have, the DM must give a clear explanation of how it could help the claimant. In the majority of cases the HCP will give advice on their use in the medical report. If not, or if the advice is not clear, the DM should seek further advice as to how reasonable it is to expect the claimant to use or benefit from the aid or appliance.

  2. 12  The aid or appliance must be relevant to the activity being assessed. For example, when assessing activity 5, manual dexterity, it is not appropriate to consider the use of devices, such as a grabber, which substitute for the hands, other than prosthetic hands.

  3. 13  DMs are additionally reminded that some activities and descriptors specify that the person must be assessed without the help of another person.

ANNOTATIONS

Please annotate the number of this memo (Memo DMG 24/12) against the following DMG paragraph:

42156.

CONT ACTS

If you have any queries about this memo, please write to Decision Making and Appeals (DMA) Leeds, GS36, Quarry House, Leeds. Existing arrangements for such referrals should be followed, as set out in Memo DMG 14/11 - Obtaining legal advice and guidance from DMA Leeds.

DMA Leeds: [month] 2012

 

2012 UKUT 70 AAC CE 2045 2011 Employment and Support Allowance- Schedule 3, activity 2, rising from sitting and transferring.

2012 UKUT 70 AAC CE 2045 2011 Employment and Support Allowance- Schedule 3, activity 2, rising from sitting and transferring.

ML v Secretary of State for Work and Pensions (ESA)

[2012] UKUT 70 (AAC)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of thePreston First-tier Tribunal dated 06 April 2011 under file reference SC068/11/01788 involves an error on a point of law.  The First-tier Tribunal’s decision is set aside.  The Upper Tribunal is able to re-make the decision under appeal. The decision that the First-tier Tribunal should have made is as follows:

 

The appellant’s appeal against the Secretary of State’s decision dated 28 October 2010 (at page 58 of the papers) is allowed.  That decision is accordingly revised.

 

The correct decision is that the appellant has both limited capability for work and also has limited capability for work-related activity and so qualifies for the “Support Group”.

        

She has limited capability for work because she scores more than 15 points under Schedule 2.

 

She has limited capability for work-related activity because she meets both of the conditions for the rising from sitting and transferring activity (function 2 in Schedule 3).

 

It follows that she is entitled to employment and support allowance (ESA) and should be placed in the “Support Group” not the “Work-related Activity Group”.

 

This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

REASONS FOR DECISION

 

The Upper Tribunal’s decision in summary

 

1.         The appellant’s appeal to the Upper Tribunal is allowed.  The decision of theFirst-tier Tribunal dated 06 April 2011 following a “paper hearing” at Preston (under file reference SC068/11/01788) involves an error on a point of law and is set aside.  Its decision is of no effect.

 

2.         The usual outcome for appeals that succeed before the Upper Tribunal is that the claimant’s original appeal needs to be reheard by a new First-tier Tribunal.   However, for the reasons that follow that is not necessary in the particular circumstances of this case.  I therefore both allow the appellant’s appeal to the Upper Tribunal and also re-make the decision that the First-tier Tribunal should have made.

 

The proceedings before the Upper Tribunal

 

3.         In giving permission to appeal, following an oral hearing of the application at Manchester on 20 October 2011, I commented as follows:

 

‘3         I have considered the various points that you have made on the UT1 Form and in your correspondence, as well as at the hearing.  The question for the tribunal in Preston was not whether you were unfit for work, as you clearly scored more than 15 points.  The issue for the tribunal waswhether you met the stricter conditions for the so-called “support group”.  This covers people who are not only unfit for work, but also do not need to take part in e.g. work-related activities like interviews and retraining programmes.  The detailed rules are in regulation 34 of, and Schedule 3 to, the Employment and Support Allowance Regulations 2008 (SI 2008/794; the “ESA Regulations 2008”).

 

4.         Looking first at the “fit for work” question under Schedule 2, the DWP accepted that you scored points for difficulties you have with walking (9 points), standing & sitting (6 points), bending & kneeling (6 points) and manual dexterity (9 points).  That obviously came to more than 15 points and so you were found unfit to work under Schedule 2 to the ESA Regulations 2008.

 

5.         The question as to whether you also qualified for the support group under Schedule 3 is more complex.  In order to qualify for the support group on the basis of walking, your mobility would have to be limited to as little as 50 metres, which your Schedule 2 score would suggest was not the case at the time in question.  Bending & kneeling does not feature at all in the Schedule 3 list of qualifying conditions.  The manual dexterity test is also very strict and again your Schedule 2 score would suggest that you did not qualify for the support group on that basis at the time in question.

 

6.         That leaves the question of standing & sitting, which we discussed at some length at the oral hearing in Manchester.  At the time in question – the law has been changed since – this ability was defined more narrowly as “Rising from sitting and transferring from one seated position to another”.  A person met the Schedule 3 test for this activity if theycould not complete both of the following activities:

 

“(a) rise to standing from sitting in an upright chair without receiving physical assistance from someone else; and

(b) move between one seated position and another seated position located next to one another without receiving physical assistance from someone else.”

 

7.         In your case it would appear that condition (a) was met.  The examining doctor said that you could not rise from sitting without assistance and this was consistent with your condition (see e.g. page 53 of the tribunal file).  It was also consistent with what you said on the ESA claim form (page 15).

 

8.         So the critical question was whether condition (b) in paragraph 6 above was also met.  The examining doctor seemed to think it was not met – at page 34 the doctor recorded that you had said that you could move independently from sitting on a bed to a chair, when they were next to each other.  At page 46 he expressed the view that you should be able to rise and transfer yourself independently.  However, there was contrary evidence.  On your ESA claim form, you had stated that you could not move from one seat to another nearby without help from another person (page 15).

 

10.       I think it is therefore arguable that the tribunal may have erred in law.  The tribunal did not really examine the evidence on the relevant test under Schedule 3 – if they did, they should have spotted this difference.  I am also not at all sure that the evidence recorded by the doctor actually relates directly to the proper legal test.  The doctor referred to moving from sitting on a bed to sitting on a chair, while the legal test appears to be about moving from a seat to another seat.  It may be possible to manage the former but not the latter.  I am also unsure whether the tribunal seriously considered whether you could do this activity on a regular basis (see also regulation 34(2)).

 

11.       For all those reasons I give permission to appeal.  The tribunal’s very brief statement of reasons makes me question how thoroughly these issues were considered. I therefore propose to allow the appeal also, and either decide the Schedule 3 matter myself or send the case back for re-hearing.  The basis for allowing the appeal would be that the tribunal erred in law by (i) failing to give adequate reasons for its decision; (ii) failing to investigate fully and make findings of fact in relation to the activity of rising from sitting and transferring.  I am making further directions accordingly.

 

12.       These directions ask you whether you agree with the approach suggested above.  The Upper Tribunal office will write to the DWP with the same question.  I shall then consider both responses.’

 

4.         I am repeating this passage here mostly for the benefit of the previous tribunal, so they understand why their decision has been overturned.  I should also clarify that those observations were not numbered correctly, so there is no missing paragraph 9.

 

5.         Ms Lesley Worrall, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, does not object to the decision of the First-tier Tribunal (FTT) being set aside on this basis.  The appellant has also agreed.   I therefore formally find that the FTT’s decision involves an error of law for the reason set out at paragraph 11 in the extract above when I gave permission to appeal. 

 

What happens next?

 

6.         The usual practice when an appeal to the Upper Tribunal is allowed is to send the case back for re-hearing on the facts before a new FTT.  However, I do not think that is necessary in this case.  I had the opportunity to speak to and observe the appellant at the oral hearing of the application for permission, and so have some understanding of the difficulties that she faces (although of course the original appeal was made at an earlier date when her condition may have been rather better).  It is highly unlikely that any new evidence is going to come out now about how she was back in October 2010, when the original decision was made.  It is therefore appropriate for me to go ahead and decide the case on the basis of the evidence that we do have.

 

7.         My conclusion is that at the relevant time (October 2010) the appellant met both of the criteria for the “Rising from sitting and transferring from one seated position to another” function in Schedule 3.

 

8.         The first condition ((a)) is that you could not “rise to standing from sitting in an upright chair without receiving physical assistance from someone else”.  This conclusion is supported by your own statement on the questionnaire (page 15 of the file) and by the examining doctor’s statement in his report (at page 53).

 

9.         The second condition ((b)) is that you could not “move between one seated position and another seated position located next to one another without receiving physical assistance from someone else”.  This conclusion is supported by your own statement on the questionnaire (page 15 of the file) and by the examining doctor’s findings of severe arthritis in both knees and severe disability due to impairment in both hips and knees (page 37), along with findings of loss of function due to pain and stiffness in the arms and severe arthritis in the right wrist (pages 50-51).  I disregard the examining doctor’sview that you should be able to rise and transfer yourself independently (page 46) on the basis that it is simply inconsistent with the weight of the evidence.

10.       It follows that at the relevant time you met both the conditions for the rising from sitting and transferring activity (function 2) in Schedule 3 to the Regulations. On that basis (see regulation 34) the FTT should have found that you not only had limited capability for work, but you also had limited capability for work-related activity, and so qualified for the “support group”.

 

11.       The decision that the First-tier Tribunal should have made, and which I now make, is therefore as follows:

 

The appellant’s appeal against the Secretary of State’s decision dated 28 October 2010 (at page 58 of the papers) is allowed.  That decision is accordingly revised.

 

The correct decision is that the appellant has both limited capability for work and also has limited capability for work-related activity and so qualifies for the “Support Group”.

        

She has limited capability for work because she scores more than 15 points under Schedule 2.

 

She has limited capability for work-related activity because she meets both of the conditions for the rising from sitting and transferring activity (function 2 in Schedule 3).

 

It follows that she is entitled to ESA and should be placed in the “Support Group” not the “Work-related Activity Group”.

 

Conclusion

 

12.       The decision of the First-tier Tribunal involved an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). I also re-make the tribunal’s decision (section 12(2)(b)(ii)) in the terms set out above. 

 

 

 

 

Signed on the original                                Nicholas Wikeley

on 09 February 2012                                                Judge of the Upper Tribunal

2011 UKUT 492 AAC CE 1826 2011 ESA WCA activity 5: Whether claimants ability to be assessed by reference to each hand used alone

MH v Secretary of State for Work and Pensions (ESA)

[2011] UKUT 492 (AAC)

 IN THE UPPER TRIBUNAL Case No. CE/1826/2011

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Carlisle on 24 March 2011. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal.

 

2. The Claimant is a woman now aged 46 who suffers from a tremor and certain mental health problems.

 

3. The First-tier Tribunal’s decision was to dismiss the Claimant’s appeal against a decision, made on 19 May 2010, superseding and removing with effect from that date the Claimant’s award of employment and support allowance/credits on the ground that she did not have limited capability for work in accordance with the limited capability for work assessment. The decision maker, accepting the opinion of the examining doctor, considered that the Claimant did not score any points from either the physical or mental health activities comprised in that assessment.

 

4. The Tribunal, however, found that the Claimant satisfied descriptor 6(e) (“cannot physically use a conventional keyboard or mouse”), worth 9 points.

 

5. In the written submission to the Tribunal on behalf of the Claimant it was submitted (among other things) that the Claimant satisfied descriptor 5(b) (“cannot pick up and move a one litre carton full of liquid with either hand”), which would have been worth an additional 9 points. The Claimant stated, in her ESA 50 questionnaire, that she needed both hands to steady herself. That appears also to have been the effect of her oral evidence. The Tribunal’s reasoning in relation to activity 5 appears to have been confined to the last sentence of para 5 of the Statement of Reasons: “On her own evidence she could pick up and move things, when necessary using two hands.”

 

6. It is submitted on behalf of the Claimant that the Tribunal thereby erred in law in that descriptors 5(a) and 5(b), in referring to inability to pick up and move the specified carton full of liquid “with either hand”, require one to ask whether the claimant can perform the activity with either hand alone, and that the fact that the claimant could do it with both hands together does not prevent points being scored.

 

7. The Secretary of State, in supporting this appeal, appears to agree with that contention. On the whole I think that the contention is correct. It is arguable that those descriptors are merely looking at whether the claimant can pick up and move the carton, and that if he can do so using both hands, he should not score points. However, if that had been the case it would not seem to have been necessary to add the words “with either hand”. That point wouId seem to acquire additional force in the light of the wording of descriptor 6(i): “cannot pour from an open 0.5 litre carton full of liquid”. That would seem not to be satisfied if the claimant could pour using both hands (unless one takes the view that the activity of pouring is one which involves using only one hand, as the other is often necessary in order to hold or steady the receptacle). It seems to me that the addition of the words “with either hand” in descriptors 5(a) and (b) (as in descriptors 6(a), (b) and (c)) does indicate that the claimant’s ability is to be determined by reference to each hand used alone.

 

8. I note that the position is different under the version of Schedule 2 to the Employment and Support Allowance Regulations 2008 which came into force on 28 March 2011, where the words “with either hand” are removed from the equivalent descriptors.

 

9. The First-tier Tribunal does not appear to have made a finding that the Claimant could not pick and move a one litre carton with either hand alone, but merely that she could do so using both hands “when necessary”. I cannot therefore, in reliance on the First-tier Tribunal’s findings of fact, substitute a decision in the Claimant’s favour.

 

10. In view of my conclusion in relation to this first ground of appeal, it is unnecessary for me to express any view in relation to the two other grounds, which were also supported by the Secretary of State.

 

11. The new tribunal will reconsider the appeal afresh, but will apply the law as set out in paragraph 7 above.

 

 

 

 Charles Turnbull

Judge of the Upper Tribunal

 19 December 2011

 

 

CE/343/2011 — Risk to health in being found capable of work / application of Charlton - rightsnet.org.uk

CE/343/2011 — Risk to health in being found capable of work / application of Charlton

[2011] UKUT 416 (AAC)

Background

The claimant, who was aged 17, suffered from a renal condition and was said by his consultant to be suffering from 'recurrent episodes of severe bilateral loin pain and suprapubic pain associated with frank haematuria [i.e., blood in his urine]'. The episodes occurred on a frequent basis and were of such severity that the claimant had required hospital admission to control the pain. In addition, the condition caused the claimant repeatedly to form kidney stones.

The claimant was awarded employment and support allowance (ESA) in November 2009. However, following an assessment under the work capability assessment, it was decided that he was no longer entitled to ESA.

The claimant's appeal against that decision, on the basis that he should be treated as treated as having limited capability for work by virtue of regulation 29 (exceptional circumstances) of the Employment and Support Allowance Regulations 2008, was disallowed by a tribunal and he then appealed to the Upper Tribunal.

Issue before the Upper Tribunal

Whether the claimant fell within regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008, i.e. whether there would be a substantial risk to his mental or physical health if he were to be assessed as not having limited capability for work.  

Reasons for decision

Judge Poynter says that the tribunal failed to give adequate reasons for its conclusion that there was no substantial risk to the claimant's mental or physical health if he was found capable to work.

In particular, he says that this conclusion was not supported by its assertion the claimant had a positive approach to life. Noting the claimant's submission that he was only capable of manual work and that this work would lead to one of the episodes described by his consultant, Judge Poynter says -

'It is no answer to that submission to say that, if so, the claimant will embrace the situation with a positive mental attitude and do everything in his power to make the best of it.' (paragraph 13)

In addition, Judge Poynter finds that the tribunal erred in not following the decision of the Court of Appeal in Charlton which held (at paragraph 35) that the legal test was '… whether a substantial risk should be foreseen in the light of the work the claimant might be expected to perform in the workplace in which he might be expected to be'.

Judge Poynter says that there may be cases in which it is possible to say that any type of work will give rise to a substantial risk to the health of the claimant. However, Judge Poynter says that this was not such a case, and that -

'The Tribunal should therefore have followed CIB/360/2007 (as approved in Charlton) and :

(a) made findings as to the range or types of work for which the claimant was suited as a matter of training or aptitude and which his disabilities did not render him incapable of performing; and then

(b) decided whether, within that range, there was work that he could do without the degree of risk to health envisaged by regulation 29(2)(b).' (paragraph 19)

Decision

Having set aside the tribunal's decision, Judge Poynter goes on to substitute his own decision accepting the claimant's submission that he was only capable of manual work and finding that even light manual work would increase the frequency of the exacerbations from which he suffered. As a result, Judge Poynter decides that the claimant fell to be treated as having limited capability for work by virtue of regulation 29(2)(b) and continued to be entitled to ESA from the date it stopped.

Decision in full: CE/343/2011

Commissioner / Judge: Poynter

Date of decision: 11 October, 2011

Benefit: ESA

2011 UKUT 449 AAC CE 1217 2011 - Whether tribunal right to assess claimant as though he normally used a crutch

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.

Decision in full

CE/1217/2011 — [2011] UKUT 449 (AAC)

Commissioner / Judge

Levenson

Date of decision

20 October, 2011

Benefit

ESA

Memo DMG 26/11 REQUEST FOR STRIKE-OUT WHERE THE DECISION MAKER CONSIDERS THERE IS NO REASONABLE PROSPECT OF SUCCESS

Memo DMG 26/11


REQUEST FOR STRIKE-OUT WHERE THE DECISION
MAKER CONSIDERS THERE IS NO REASONABLE
PROSPECT OF SUCCESS


Contents     Paragraphs
Introduction     1
Background      2 - 3
Types of appeals suitable for strike out request on grounds of no 4 - 5
reasonable prospect of success
Action to take     6
Annotations  
Contacts
Appendix


INTRODUCTION


1      The guidance contained in this memo is to advice DMs how and what circumstances
they should consider applying to the FtT for an appeal to be struck out on the grounds
of no reasonable prospect of success.


BACKGROUND


2      DMs already apply for appeals to be struck out where the FtT has no jurisdiction to
deal with the issue1 (see DMG 06150). However, legislation also provides that the FtT
has the authority to strike out an appeal where they consider it has no reasonable
prospect of success2. Whilst current guidance in Chapter 06 of the DMG does not
make any reference to a DM requesting that the FtT consider using their powers to
strike out an appeal on the grounds of no reasonable prospect of success, there is no
reason why this cannot be done.  
1TP (FtT)(SEC) Rules, rule 8(3)(a); 2 rule 8(3)(c)
 
3      The purpose of this memo is therefore to raise awareness of the provision. The
process that DMs should follow when making an application is detailed in CAP Bulletin
02/11. In identifying suitable cases and following the application process, DMs will not
have to go through the process of writing a full response. This will enable
1.      a more effective use of resource within DWP  
2.      support for HMCTS in their aim of disposing of appeal cases in the most
effective way
3.      the appellant to have a speedier resolution to their appeal by making it clear at
the outset that the appeal has no hope of success
whilst ensuring that the overriding objective of the FtT to deal with cases fairly and
justly is achieved1.
1 TP (FtT)(SEC) Rules, rule 2


TYPES OF APPEALS SUITABLE FOR A STRIKE OUT REQUEST ON
GROUNDS OF NO REASONABLE PROSPECT OF SUCCESS


4      Cases that can be selected for a request to strike out should be where the DM
considers that there is no reasonable prospect of the appellant’s case being
successful at a hearing. Appeals for all benefits can make use of this facility. The
Appendix to this memo gives a range of examples covering the types of case that may
be suitable and that the DM should consider applying for strike out on grounds of no
reasonable prospect of success.
5      Cases selected as suitable for this type of strike out request are most likely to be
identified while undertaking a reconsideration of the DMs original decision. The
reconsideration process should still be completed (see DMG 06000 et seq). However,
at any stage where a case is looked at again there would be an opportunity to identify
a case where a request for strike out on the grounds of no reasonable prospect of
success is appropriate.


ACTION TO TAKE


6      Once the DM has identified a suitable case and submitted their application to the FtT
for the appeal to be struck out as per CAP Bulletin 02/11, they should await
notification from HMCTS of the FtT’s decision. HMCTS will notify the appellant of the
FtT’s decision. If the application is rejected and the FtT admit the appeal, the DM must
write a full appeal response as normal.

ANNOTATIONS


Annotate the number of this memo (Memo DMG 26/11) against DMG paragraphs
06100 & 06232.


CONTACTS


If you have any queries about this bulletin, please write to Decision Making and
Appeals (DMA) Leeds, GS36, Quarry House, Leeds. Existing arrangements for such
referrals should be followed, as set out in Memo DMG 14/11  - Obtaining legal advice
and guidance from DMA Leeds.
DMA Leeds: October 2011
 

APPENDIX

 
EXAMPLES OF THE TYPES OF CASE SUITABLE TO
REQUEST STRIKE OUT ON THE BASIS OF NO REASONABLE
PROSPECT OF SUCCESS


This list is not exhaustive but is a selection of situations that have been identified as the type
of case that may be suitable for the DM to request strike out. It covers as many benefits as
possible but where a benefit is not listed, this would not necessarily mean that DM requested
strike out was not possible. It would be up to the DM to decide whether any other type of case
was suitable using the principles set out in this memo.


EMPLOYMENT AND SUPPORT ALLOWANCE


Work Capability Assessment


Evidence indicates a physical medical condition where the claimant cannot score 15 points
under the physical descriptors. Suitable referrals would mainly focus on those claimants that
have been deemed by the DM only to satisfy one or two physical descriptors due to their
physical medical condition. The available evidence should support the view that the claimant
cannot score 15 points. No case where the claimant has indicated that there are mental
health issues should be put forward for consideration.


Contribution condition


Appellant does not dispute their earnings but they believe they should be entitled to the
contributory based element of the benefit.  These conditions are laid out in law and must be
met for a contributory based payment to be made. This would only be suitable where HMRC
have made a decision confirming that the NI record is correct.


Age limitation


Decision not to pay IB/ESA cases where the appellant has attained State Pension age and
therefore the benefit cannot be paid beyond that date.
 
DISABILITY LIVING ALLOWANCE/ATTENDANCE ALLOWANCE

 

Age limitation
 

DLA Higher rate mobility for children under 3 years of age
DLA Lower rate mobility for children under 5 years of age
DLA Main meal test for people under 16 years of age
Over 65 and DLA is requested

 

Age
 

A decision not to award DLA to a claimant who is over 65 (no recourse to DLA unless
previously in receipt of DLA on 65th birthday and claims again within one year, could be
entitled to mobility component).

 

Backdating
 

A decision where there is no entitlement before the date of claim (ie no claim was made); or
where there is no indication of a previous claim (ie no alleged earlier claim).  This does not
include instances when a renewal claim is received late as the FtT may wish to look at the
appropriateness of closing the previous claim.

 

Residence and presence
 

Disallowances re eligibility.  Dates or other information (including exportability rules) may
need clarifying before deciding it is appropriate to apply for appeal to be struck out on
grounds of no reasonable prospect of success.

 

No physical disability
 

Claiming higher rate mobility when there is no evidence of a physical disability (i.e. mental
health issues only) when deeming provisions do not apply.

 

Payability
 

Imprisonment – claimant is appealing against payability decision. Issues relating to dates,
type of conviction etc - establish that there is no dispute as to the primary facts before
deciding it is appropriate to apply for appeal to be struck out on grounds of no reasonable
prospect of success.
 
Hospital/residential care – claimant is appealing against payability. Issues in respect of
admittance, discharge dates, types of hospital funding, residential care funding arrangements
- establish that there is no dispute as to the primary facts before deciding it is appropriate to
apply for appeal to be struck out on grounds of no reasonable prospect of success.

 

Change of circumstances/deterioration
 

Only if the change of circumstances or deterioration has occurred after the date of the
decision being appealed.

 

CARERS ALLOWANCE
 

Qualifying benefit
 

No qualifying benefit in payment on a new claim.
 

JOBSEEKERS ALLOWANCE
 

Good cause
 

Decision not to consider good cause where the claimant appeals against the specified time
limit (5 days) in which they must provide an explanation for failure to attend a mandatory
interview (usually fortnightly job review) and they are not disputing that they did not respond
within 5 days but the only reason they provide is that they forgot their appointment.

 

INCOME SUPPORT
 

Conditions of Entitlement
 

Lone parents claiming IS when they do not satisfy the “lone parent” conditions anymore due
to the changes in ages for youngest child.   

 

Deductions
 

Decision to implement deductions at set rates.  For example, fines that are deducted at a
fixed rate cannot be changed and claimants may appeal the amount being deducted because
they consider it too high.

Occupational Pension income
 

Benefit is terminated because the claimant has reached pension age and receives
occupational pension that is higher than there is entitlement. Appeals may be received
because there is a disregard for occupational pensions for those receiving IB whereas in IS
the whole amount of an occupational pension is taken into account.

 

INDUSTRIAL INJURIES DEATH BENEFIT
 

Cannot claim within 3 years of a disallowance
Claimant disallowed and advised they cannot claim again within 3 years but does claim again
an appeals disallowance. The 3 year period is set in law and cannot be altered.

 

Not on prescribed list
 

A decision where the claimant is claiming with an illness not on the prescribed illness list and
who had been disallowed.

 

SOCIAL FUND
 

Winter fuel payments
 

A decision not to award a payment because
•     the person applying has not attained the qualifying age
•     the person is in legal custody under sentence imposed by a court
•     the appeal is against the amount which is prescribed for the specific circumstances of
the claimant.

 

Sure start maternity grants
 

A decision not to award a payment because
•     the claimant (or partner) does not have an award of qualifying benefit in respect of the
date of claim and that is not in dispute
•     the claim is made outside the prescribed time limits

Funeral payments
 

A decision not to award a payment because
•     the claimant (or partner) does not have an award of qualifying benefit or is not a
person in respect of whom CTB (second adult rebate) could be awarded in respect of
the date of claim
•     the claim is outside the prescribed time limits

 

RETIREMENT PENSION
 

NI Contribution disputes
 

Appeals against decisions which are based on NI qualifying conditions and where HMRC has
given a formal decision confirming that the NI record is correct.

 

Disputes involving paydays
 

The claimant disputes non payment of RP for a part week from the date they attained state
pension age to the beginning of their first benefit week.

 

BEREAVEMENT BENEFIT, WIDOWED PARENT’S ALLOWANCE,
BEREAVEMENT ALLOWANCE & BEREAVEMENT PAYMENT

 

Qualifying conditions not met
 

A decision not to award benefit because
•     there was no marriage
•     there were no/insufficient contributions and that is not disputed
•     the cessation of widowed parent’s allowance where the qualifying child has attained
the age at which there would be no entitlement to child benefit.

 

52 week maximum period
 

Appeals against the 52 week maximum period of an award of bereavement allowance.
 
STATE PENSION CREDIT

 

Conditions of entitlement
 

A decision that there is no entitlement because the appellant has not reached the qualifying
age for SPC.

Commission requests UK to end discrimination of EU nationals residing in UK regarding their rights to specific social benefits

Social security coordination: Commission requests United Kingdom to end discrimination of EU nationals residing in the UK regarding their rights to specific social benefits

Brussels, 29 September 2011 - EU nationals who habitually reside in the UK are subject to the so-called 'right to reside' test to qualify for certain social security benefits. As this test indirectly discriminates non-UK nationals coming from other EU Member States it contravenes EU law. This is why the European Commission has requested the United Kingdom to stop its application. The request takes the form of a "reasoned opinion" under EU infringement procedure. The UK has two months to inform the Commission of measures it has taken to bring its legislation into line with EU law. Otherwise, the Commission may decide to refer the UK to the EU's Court of Justice.

EU rules on the social security coordination (EC Regulation EC 883/2004) allow the UK to grant social benefits only to those persons who habitually reside in the UK, however Article 4 of this Regulation prohibits indirect discrimination through the requirement for non-UK citizens to pass an additional right to reside test. Any discrimination in providing social security benefits (including non-contributory cash benefits) also constitutes an obstacle to free movement guaranteed by Article 21 of the Treaty.

Under UK law, certain social security benefits - namely Child Benefit, Child Tax Credit, State Pension Credit, Income-based Allowance for Jobseekers, Income-based Employment and Support Allowance - are only granted to persons with a "right to reside" in the UK. While UK nationals have the right to reside solely based on their UK citizenship, other EU nationals have to fulfil additional conditions in order to pass a so-called 'right to reside' test. This means the UK indirectly discriminates against nationals from another Member State.

For example, a non-UK citizen from another Member State came to the UK from Italy (where she had lived since 1989) to work for an Italian company. She worked in the UK from April 2007 until April 2009 when she was made redundant. All throughout her employment in the UK, she paid taxes and national insurance contributions, yet her claim for income-based jobseekers' allowance was refused on the grounds that she did not have a right to reside in the UK. If the UK had applied EU social security coordination rules, those citizens confirmed as habitually resident in the UK would enjoy the same protection as habitual residents in other EU Member States.

The concept of habitual residence has been defined at EU level as the place where the habitual centre of interests of the person is located. The Commission considers that the criteria for assessing habitual residence are strict and thus ensure that only those persons who have actually moved their centre of interest to a Member State are considered habitually resident there. This is a powerful tool for the Member States to make sure that these social security benefits are only granted to those genuinely residing habitually within their territory.

Background

EU social security coordination rules (EC Regulation EC 883/2004) concern social security benefits and not social assistance benefits. Under these rules, EU citizens have the same rights and obligations as nationals of the country where they are covered.

The EU directive on the free movement of EU citizens (Directive 2004/38/EC) allows for restrictions of access to social assistance only, but it cannot restrict the access to social security benefits (including special non-contributory cash benefits). In the absence of any such explicit derogation, the principle of equal treatment ensures that EU citizens may not be treated differently from the nationals of a Member State.

Further information

EU Social Security Coordination:

http://ec.europa.eu/social/main.jsp?langId=en&catId=849

For more information on the infringement procedures:

http://ec.europa.eu/eu_law/infringements/infringements_en.htm

MEMO/11/646 - Infringement package overview

Substantial risk to health if claimant found capable of work

from rightsnet.org.uk

Substantial risk to health if claimant found capable of work

New DMG Memo following Court of Appeal decision in Cattrell

 

01 September, 2011

 

The DWP has issued new guidance in relation to assessing whether there would be a substantial risk to health if a claimant were found capable of work.

In DMG Memo 22/11, the DWP advises that, in Secretary of State for Work and Pensions v Cattrell, the Court of Appeal deals with the issue of whether a claimant is suffering from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found capable of work.

The DWP says that, although the judgment relates to incapacity for work, its findings may equally apply when determining limited capability for work and limited capability for work related activity.

The DWP goes on to advise that, whilst the Upper Tribunal had confirmed the decision of a tribunal that there was no work that a claimant with a rubber and latex allergy could safely do, and that, as a result she should be treated as incapable of work, the Court of Appeal rejected the Secretary of State's appeal against that decision on the basis that it contained no point of law.

The DWP says that decision makers should note that the Court did not overturn the judgment in Charlton and that they should still adhere to DWP guidance based on that judgment in assessing whether there is a substantial risk to the mental or physical health of any person if the claimant were found to be capable of work.

However, the DWP also says that, in cases where the claimant suffers from an allergic health condition and where consideration of the substantial risk issue is required, decision makers are advised to seek further evidence and goes on to give examples of further evidence which may inform the decision making process. In addition, the DWP gives examples of further evidence which may inform the decision making process in cases where the claimant is suffering from another kind of health condition, but where the decision maker is considering the substantial risk issue.

In conclusion, the DWP advises that any additional evidence obtained should be identified and its relevance, or otherwise, argued, within the appeal writer’s response to a tribunal, and that, if a tribunal finds against a decision maker in future cases of this kind and the decision maker is not content with the decision, they may consider referring the case to DMA Leeds for consideration of a potential appeal to the Upper Tribunal.

DMG Memo 22/11 is available from the DWP website.

See also the related rightsnet news stories –

2011 UKUT 224 AAC CE 2541 2010 Tribunal Practice - Hearing a DLA and ESA appeal at the same time.

2011 UKUT 224 AAC CE 2541 2010 Tribunal Practice - Hearing a DLA and ESA appeal at the same time.

THE UPPER TRIBUNALAppeal No.  CE 2541 2010

ADMINISTRATIVE APPEALS CHAMBER

PJ v SSWP (ESA)

 

DECISION

 

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

 

Directions for new hearing

 

A            The new hearing will be at an oral hearing.

 

B            The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

 

C            The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

 

D            The parties are to provide the tribunal within one month of the issue of this decision with any relevant papers held by that party dealing with the history of the appellant’s claims for employment and support allowance or incapacity benefit or similar since July 2007 and any relevant medical evidence for the period from July 2007. 

 

E            Subject to any request by the parties or direction by the tribunal, the record of proceedings and statement of reasons for the decisions taken by the First-tier Tribunal are to be excluded from the papers put to the new tribunal.

This is because they are not limited to consideration of this appeal but include consideration by another tribunal of another appeal.

 

F            If the appellant has any further written evidence in addition to the above  to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

 

These directions are subject to any later direction by a tribunal judge.

 

REASONS FOR DECISION

 

1            This decision concerns one of two appeals heard together by a first-tier tribunal. They were taken together by the tribunal concerning two separate decisions made for the Secretary of State for Work and Pensions about benefit entitlement of the appellant (J):

 

1.1            The ESA appeal. On 18 07 2009 a decision maker acting for the Secretary of State superseded a decision awarding Employment and Support Allowance (“ESA”) to J on the ground that he was no longer to be treated as having limited capability for work (“the ESA decision”). J had been awarded ESA from 27 03 2009, apparently because of post-operative problems. That is the subject of this decision.

 

1.2            The DLA appeal. On 5 09 2009 a decision maker acting for the Secretary of State refused to award disability living allowance (“DLA”) to J in respect of a claim made on 11 06 2009 (“the DLA decision”). That is a decision dealt with by me separately under file number CDLA 2539 2010.

 

The hearing by the First-tier Tribunal

2            J requested oral hearings of both the appeals to the First-tier Tribunal. Both came before a tribunal in the same session on 26 03 2010. The records of proceedings of the tribunal hearing show that the tribunal hearing the appeal against the ESA decision consisted of Judge Sansam and one member. It states the start and finish time for the tribunal but refers to the other record of proceedings for the full record. There is a separate full record of proceedings of the appeal against the DLA decision. This states that the judge sat with two other members, the third member being the disability qualified member. At the start of that record of proceedings it is stated that:

 

… if [J] has no objection will hear both appeals tog, but [the disability qualified member] will not take part in decision on ESA although she will take account of all his evidence when contributing to the DLA decision.”

           

It records that J had no objection to this way of dealing with the appeals. The single record of proceedings that follows indicates no clear distinction between the evidence and submissions for the ESA decision and those for the DLA decision.

 

3            The tribunal dismissed both appeals. The judge later provided a single statement of reasons for the two decisions, which I discuss below.

 

The factual background

4            I refrain in these reasons from commenting on factual matters that are specific only to one of the two appeals before me. For the reasons below, my decisions are to set aside the two decisions made by the First-tier Tribunal in this and the other decision and refer them to separate tribunals. My decision in the other appeal adopts the reasons set out here. The record to date has confused the two appeals in a way that should not have occurred. While I give a common set of reasons for these decisions because of that, I refrain from comments specific only to one of the appeals. I refer to the factual background to these appeals only to the extent necessary to deal with the issues involved in this decision. It will be for the new tribunals to consider the appeals entirely afresh on the evidence properly before them. For this reason, the common record of proceedings and statement of reasons given by the First-tier Tribunal in these appeals are to be excluded from the record presented to the new tribunals.

 

5            The ESA decision was a supersession decision as discussed below. J confirmed that the DLA claim was a new claim. J was not aware of that allowance until advice was taken about the decision stopping the payment of ESA.

 

6            J was seen by a registered general medical practitioner on 15 07 2009. The resulting computer-based ESA85 report formed the evidential basis for the decision stopping ESA for J. J’s representatives wrote to J’s general practitioner asking for comments on specific physical limitations and on J’s mental health. The general practitioner was unable to confirm specifically the physical limitations save that they were consistent with the injuries. He gave details of mental health problems. The representatives produced a short submission for the tribunal contending that J had relevant specific physical and mental health limitations.  

 

7            The claim form for DLA was completed a week after the ESA85 report was made. It claims needs that required consideration of both the lower rate of the mobility component and the care component. Representatives then acting for J submitted the evidence obtained from the general practitioner for the ESA decision as evidence in this appeal, with a supporting submission. They made no other submission about the ESA appeal in the context of the DLA appeal.  

 

8            The full record of proceedings states that J attended the tribunal with a friend, but was not represented. The Secretary of State for Work and Pensions was not represented.

 

The decisions under appeal

9            The tribunal issued a single full statement of reasons setting out the findings and reasons for the DLA decision and then those for the ESA decision. With regard to the ESA decision, the tribunal accepted that J had a limited ability with a physical descriptor. The statement ends with a separate paragraph in bold emphasising that the disability qualified member did not take part in “this decision”, which I take to mean the ESA decision.

 

Grounds of appeal

10            The main ground of appeal submitted by those now representing J was that the tribunal heard the two appeals, ESA and DLA, concurrently and not consecutively. This was, it was submitted, a breach of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (“the Composition Order”). The representatives assumed from the record that the tribunal heard both appeals with all three members present before deciding either appeal. The representatives also submitted that the tribunal had failed to deal adequately with the differences between the two appeals, for example with regard to dates and that it gave inadequate reasons for the two decisions when considered separately.

 

11            Permission to appeal was given by a First-tier Tribunal judge because these grounds of appeal raised important issues affecting not only these appeals.

 

12            On first considering the appeals, I directed a full submission for the Secretary of State for Work and Pensions. In summary, that submission supported the appeal for J with regard to the ESA decision, but not with regard to the DLA decision. More generally, the submission on the general issue of the tribunals sitting together was that the tribunal did not err in law in proceeding in the way it did. The Secretary of State invited me to set aside the ESA decision, replacing it with the correct decision, and to confirm the DLA decision.

 

13              In response to that submission, J’s representatives made a series of related points. The first was to question whether the disability qualified member had been supplied with the papers for the ESA decision or had seen them. They submitted that the disability qualified member should not have heard the ESA decision evidence as a matter of course. With regard to the hearing, that should have been separated between the separate appeals – not merely a separation for the decision making. There was a total absence of any indication in the papers as to why the appeals were heard together, and of whether there had been any case management direction. The power of the tribunal to hear two or more appeals together was a power to deal with common issues (Rule 5(3)(b) of the Tribunal Procedure (Social Entitlement Chamber) Rules 2008 (“The Rules”)). In hearing these cases together the tribunal had failed to identify the common issues separately from the different issues, such as dates. The representatives again emphasised that if the tribunal’s record was segregated between the statements and record relevant to the ESA appeal and those for the DLA appeal, both were inadequate. There should have been separate decisions, records and statements.

 

The composition of the tribunal

14             As both representatives are plainly aware, the First-tier Tribunal is under considerable pressure in hearing ESA appeals and related appeals, and it is clearly in the interests of all concerned that tribunals deal with appeals efficiently as part of the duty to act fairly and justly. That is emphasised in rule 2 of the Rules and the common rules of procedure of all the First-tier Tribunal and Upper Tribunal Chambers. But that rule ((2)(2)(e)) itself include a word of caution - this means “avoiding delay, so far as compatible with proper consideration of the issues”.  There is obviously considerable advantage in considering multiple appeals by a single appellant against decisions of the same respondent at the same session of a tribunal. The question here is whether there was proper consideration of the issues. 

 

15            The most important aspect of that is whether the appeals were heard by the required tribunal. Schedule 4 to the Tribunals, Courts and Enforcement Act 2007 provides that the constitution of individual tribunals is to be in accordance with an Order of the Lord Chancellor. Article 2 of the Composition Order states that the composition of a First-tier Tribunal must be determined by the Senior President of Tribunals.

 

16            The Senior President so determined in his Practice Statement on Composition of tribunals in social security and child support cases in the social entitlement chamber on and after 3 November 2008”. Paragraph 4 of that statement states that a tribunal dealing with a DLA appeal must contain three members, subject to stated exceptions. Paragraph 5 states that, again subject to stated exceptions, a tribunal dealing with ESA appeals must consist of two members. None of the exceptions are relevant to these appeals.

 

17            The operative word in the Senior President’s Practice Statement is “must”, reflecting the use of the same term in the Composition Order. None of the exceptions listed in the Practice Statement apply in this case. No discretion is delegated either to the tribunal or any tribunal judge to vary the composition, by consent or otherwise.

 

18            To what does the Composition Order apply? It refers (in Article 2) to “the tribunal who are to decide any matter”. The Practice Statement refers in paragraphs 4 and 5 to “the appeal” and in paragraph 6 to “any other case”. In my view that language refers to the whole decision-making process of a tribunal when hearing and considering an appeal in a particular session, whether making case management decisions, hearing evidence, considering papers, finding facts or reaching any procedural, provisional, or final decision on them. Paragraph 10 of the Practice Statement makes express provision for a judge acting alone to make decisions under or in accordance with specific rules in the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008. That deals with most case management issues, and would apply, for example, to a direction ahead of listing that these two appeals be heard at the same session by the tribunal. But that is a limited power. It does not deal with the full hearing of an appeal, and it does not provide power for the tribunal to alter its own composition.

 

Application to these appeals

19            In these cases the tribunal heard the two appeals together, rather than consecutively. That is a breach of the Composition Order. It is beyond question that “the tribunal” could hear the appellant’s appeals at the same session, and that different tribunals can have overlapping membership if they proceed correctly in handling each appeal. But that is not what happened here. Correct procedure involves, above all, correct composition.             Was the tribunal correct in saying that the disability qualified member did not take part in the ESA decision? The record shows that the tribunal interpreted this as meaning that all three members could take part in all aspects of the hearing, but that only two members could take part in the actual ESA decision. That is too narrow a view. For the reasons set out above, the Composition Order applies to the whole process on the hearing day not merely the final decision making. 

 

20            That is not merely formality. It reflects the need to ensure that tribunals hear issues fairly and justly in accordance with the Rules and using “particular skills, expertise or knowledge” (Rule 2(2)(b) of the Rules). It cannot be assumed that a disability qualified member has any relevant expertise about ESA. And, as J’s representatives submitted, the tribunal can hear the appeal properly only if all its members have equal access to all the submissions and evidence for that appeal, and only to that evidence.

 

The DLA decision

21            What papers did the disability qualified member see for the DLA appeal? The papers provided to the tribunal for considering the DLA decision included only the general practitioner comments on the ESA decision. There was no medical evidencein the DLA appeal papers apart from that letter from the general practitioner. It is not easy to tell from the official decision on file whether the DLA decision maker had access to the ESA evidence, but it would appear not. The explanation shown in the papers for the decision is: “Evidence used: Disability Codes: Main disability code P40; Secondary Disability Code F41; Evidence Code 1; Claim pack.” The accompanying letter states that the decision was made on the basis of the claim pack only. The reconsideration of the decision under appeal appears to have taken place on the same day as the original decision and before the decision was issued to Mr J, so adds nothing of value.

 

22            The implication is that the tribunal deciding the DLA appeal could not rely on the ESA85 unless it was submitted in evidence by one of the parties (which it was not) or the tribunal specifically directed it to be put in evidence in the DLA appeal (which the representatives contend did not happen) and in any event provided that the disability qualified member had full and equal access to it  (which the representatives contend also did not happen) and that both parties had notice of all the evidence being considered (which the Secretary of State did not and the appellant was not warned about by the tribunal). Otherwise, the tribunal should have decided the DLA appeal on the uncontested evidence of the appellant as tested at the hearing without reference to the ESA85.

 

23            The record of proceedings indicates that the tribunal decided the DLA appeal before the ESA appeal. That is a clear error on the face of the statement of reasons, itself concealing another error. The clear error is that the tribunal relied on evidence from the ESA medical examination for its findings when that evidence was not properly before it and had been contested, but not tested, in an appeal at the time of that decision. The concealed error is that the challenge to the ESA85 was seen by some members of the DLA tribunal but not all of them.

 

24            This case also illustrates that evidence in an ESA85 report can only be tested by an ESA tribunal. J raised a number of specific objections to the findings by the doctor in the ESA85. The ESA tribunal did not accept some of those objections, but it did accept others. Only when the ESA tribunal had made those findings could the DLA tribunal consider the evidence from the ESA85 properly, (again assuming it was in evidence when the DLA appeal was considered). Put another way, until the ESA decision was made, there were unresolved conflicts of evidence about the findings in the ESA report which the DLA tribunal was unable to resolve. It follows that if the DLA decision was made before the ESA decision, as the statement of reasons indicates, then it was wrong in law.

 

The ESA decision

25            Those practical problems did not affect the evidence for the ESA decision. Leaving aside the issue of composition, was this decision taken properly? Again, I avoid specific details. The history strongly suggests that J had been claiming ESA or incapacity benefit for some time. The official submission on the ESA decision contains no details of that history. The decision before the tribunal was, in effect, a decision by the Secretary of State that J had now sufficiently recovered from previous problems to be regarded as no longer capable of limited work only. It was a supersession decision, with the burden of proof on the Secretary of State to indicate the improvements. This required consideration of the history – a history absent from the papers. That points to the need for a chronological view of the evidence.

 

26            There is nothing in the statement of reasons dealing with this aspect of the ESA appeal. It reads much the same as the statement for the DLA decision, which was of course a decision on a new claim.  Did the tribunal have in mind that the ESA decision was a supersession decision? It is not clear that it did. The representatives were right to draw attention both to inadequacy in the ESA decision and a failure to distinguish between the two appeals in the grounds of appeal.  Further, it is not possible to tell from the record of proceedings whether the questions put by the disability qualified member influenced the tribunal hearing the ESA appeal. That may have happened.

 

27            The representatives also argued that it erred on another chronological issue. The two tribunals needed to have in mind when the respective ESA and DLA decisions were made as circumstances may have changed between the dates of the two decisions. While the two original decisions were not separated by a long interval, I agree with the representatives that the tribunal appears to have failed to have any clear time frame in mind when viewing these decisions.               

 

28             The Secretary of State’s representative raised a narrower but related point. In is submission the tribunal, following the Secretary of State, made the supersession decision from the wrong date. The formal decision was dated 20 07 2009. it should have been 18 07 2009. I agree. The tribunal in ifs formal decision confirmed the decision of the Secretary of State by reference to the date of the decision only, but in doing so confirmed the operative date of the decision. That date, put at 20 07 2009, was wrong and should have been 18 07 2009. I draw this to the attention of the tribunal to which the ESA appeal is referred.

 

Conclusions

29            These appeals must be reheard by correctly constituted tribunals. Accordingly I formally give separate decisions for the two tribunals and separate directions. But I also recognise that it is for the First-tier tribunal to deal with its own procedure. So I leave as a suggestion only that issues I have not discussed in this decision may suggest that the ESA appeal could conveniently be heard by an ESA tribunal and that the DLA appeal could then be heard. I see no reason why the same judge and medical member should not hear both appeals, although they will need to indicate to the disability qualified member (preferably at a hearing with any party present who wishes to be present) the findings on the ESA appeal relevant to the DLA appeal. No assumption should be made that anything in the ESA appeal is evidence in the DLA appeal unless that has been made clear to all concerned, and all involved have full copies of that evidence.

 

30            As argument before me reflected the concern of the First-tier Tribunal about the way these cases were heard, I add the following more general comments where a DLA or similar appeal falls to be decided in the same session as an ESA or similar appeal. 

 

31            Tribunals must always comply with the Composition Order with regard to the hearing of appeals. That applies to the full hearing on the day of any oral hearing, not merely the decision-making after a hearing. That prevents a common hearing of the two appeals. While tribunals have power to waive aspects of their procedures, particularly if parties consent, they cannot alter their composition.   

 

31            Where appeals listed in a single session have both a common appellant and a common respondent but require different constitutions, it is relatively easy for the judge and the medical member to hear an ESA appeal either before or after the three members hear a DLA appeal. In some cases, there may be a natural order for the two cases to be considered, for example for chronological reasons. The order is a matter for case management directions or for the tribunal on the day, and of course an explanation to the appellant.

 

32            In deciding the order, tribunals should have in mind that the disability qualified member will not have seen the evidence and submissions for the ESA decision before the hearing unless they have been incorporated expressly into the DLA papers. More generally he or she may have no expertise in such matters. He or she should not take part in the hearing of the ESA appeal. If he or she is present during the ESA appeal hearing it is in the formal sense only as a member of the public.

 

33            Although there is a common respondent, in practice this may be in name only. The tribunal should have in mind that different parts of the Department for Work and Pensions are often not aware of actions of other parts of the Department related to a single claimant. Assumptions should not be made about what is actually in evidence in separate appeals in the same session if evidence for one appeal has not been put in evidence or referred to in the other appeal by either party or any case management direction. Tribunals should take care not to rely in one appeal on evidence contested in another appeal until the contested issues have been resolved and it is accepted that that evidence and any the tribunal findings about it are in issue in the other appeal.

 

34            Separately constituted tribunals should make separate decisions, and should ensure that the relevant parts of any record of consecutive proceedings are separate and any statements of reasons are separate. That will ensure that only the appropriate evidence is considered in each appeal and that separate consideration is given to issues that are not common to the appeals. Failure to do that causes problems on any further appeal on either or both the decisions and, as here, can cause problems for any rehearing.

 

David Williams

Upper Tribunal Judge

7 06 2011

 

[Signed on the original on the date stated]

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