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)  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
- 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.
- 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.
(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.’
- 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.
- 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.…’
- 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
(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
(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
(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
(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)  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  UKUT 376 (AAC) and that of Commissioner Stockman (Northern Ireland) in MG-v-Department of Social Development 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) 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