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Selected upper tribunal decisions from April 2013 to March 2014

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Attendance allowance

CA/3419/2012 [2013] UKUT 241 (AAC): Tribunal’s use of mantra 'GP's evidence is based just on what patient told him' is best avoided

In this decision, the Upper Tribunal holds that a tribunal’s use of the mantra 'GP's evidence is based just on what patient told him' is best avoided, but if used must be justified.

In the evidence before the tribunal there was a stark difference between the appellant’s GP’s report provided direct to the DWP on its standard form and the GP’s later letter.

The former did not refer to the claimant’s arthritis at all and suggested that he had no significant restriction with self-care or walking.  The latter referred to right hip pain which was worse on walking, a diagnosis of osteoarthritis of the hip from 1995, a diagnosis of knee arthritis from 2004, problems with bending and walking and offered an explanation about why the earlier GP report form on did not mention arthritis.

The tribunal dismissed the claimant’s appeal on the grounds that it accepted the first GP’s report as accurate and preferring it over the later letter.

In upholding the claimant’s appeal Upper Tribunal Judge Wright holds that the tribunal’s reasons were contradictory and inadequate.

This was because -

  • the tribunal’s claim that the first GP report was “accurate” was undermined by the tribunal’s findings of fact that the appellant had osteoarthritis of the hip diagnosed in 1995 and knee arthritis diagnosed in 2004: those findings could not have come from the GP report because it made no mention of arthritis and it can only have come from the later GP letter; and
  • the tribunal’s criticisms of the GP’s letter failed to address the explanation for the difference between that letter and the report on that the GP subsequently gave.

Moreover, Judge Wright says that the tribunal used “the regrettably overused mantra” that GP’s letter’s explanation of the appellant’s restrictions in terms of self-care and walking was of less evidential worth than the views expressed in the report because it was ‘just the GP reiterating what the appellant had told him’:

“This finding appears in many First-tier Tribunals’ statements of reasons but rarely, in my experience at least, with proper findings of fact or evidential base to back it up or a proper explanation as to why the tribunal drew this inference (or, indeed, an exploration with the appellant about why his or her GP may simply be saying what he or she had been told by the appellant).  A claimant’s GP is just as professional as any other doctor or health care professional who gives evidence to a tribunal, and, save where a proper explanation is given as to why he or she would do this, should not be assumed to simply be a vehicle for repeating what the claimant has told the GP as opposed to offering the GP’s professional opinion.

Moreover, GP’s can express their evidence in careful terms if it is no more than what they are being told. For example, they may say “Miss Smith tells me that she cannot walk more than 20 metres without having to stop due to pain”. That statement, of course, may still have some evidential worth as evidence of what Miss Smith says she cannot do, but it would have little or no worth as evidence of the GP’s observation or opinion. On the other hand, if the GP, on this example, says “I have been Miss Smith’s GP for 10 years and see her regularly, and in my opinion due to her hip and knee arthritis she can only walk 20 metres before she has to stop due to pain”, absent evidence that shows that this was not the GP’s opinion, in my judgment it has to be taken as evidence of the GP and given appropriate weight."

In this case, Judge Wright says:

“The GP’s letter was far closer to the latter example than the former. For example, he writes that “due to his hip and knee osteoarthritis and low back pain [the appellant] has poor stability reduced while walking”. On its face that seems to be an expression of the GP’s opinion based on his 21 year knowledge of the appellant as his patient and his medical records. At the very least, if it was instead a statement based just on what the appellant had told his GP (and on which the GP did not agree or did not wish to express a view, which is the plain implication of tribunals finding [in its] statement of reasons), then the tribunal’s reasons had to explain why the tribunal came to that view.”

CSA/140/2013 [2013] UKUT 158 (AAC): Proper approach to evaluating and weighing medical evidence

Upper Tribunal Judge Bano
21 March 2013

The claimant, who had angina, diabetes, osteoarthritis, anxiety and depression, appealed against a decision refusing a claim for attendance allowance made in May 2012. 

She explained that among other difficulties she was at risk of stumbles and falls caused by her left knee giving way. 

The evidence before the tribunal included a letter from the claimant’s consultant orthopaedic surgeon dated July 2012 referring to a fall on a bus in late 2010 and stating that: “…globally there is no doubt that [the claimant] has therefore got an altered walking ability and there is an element of altered safety as well”,

There was also a further letter from the consultant dated September 2012 stating that the claimant continued to have significant problems in terms of pain, falling and poor gait.

In her evidence to the tribunal the claimant said that on one occasion she had had to summon help through an alarm system as she had been unable to get up after a fall at her home.

However, the EMP who examined her in June 2012 reported that there were no findings to support any undue susceptibility to falls and the tribunal also expressly found that “the claimant does not have any undue susceptibility to falls”.  

It dismissed her appeal on the grounds that it they preferred the EMP’s evidence to the evidence submitted on behalf of the claimant.

In upholding the claimant’s further appeal and remitting her case to a new tribunal, Upper Tribunal Judge Bano says that  the flaw in the tribunal’s reasoning was the common one of viewing the case as a contest between the EMP’s evidence and evidence from other professionals involved in the claimant’s care:  

“Thus, the tribunal stated that the reason they preferred the evidence of the EMP to the evidence submitted on behalf of the claimant was that the EMP’s report was an independent report, not subject to any pressure and in the view of the Tribunal set out in a logical and clear manner, which came to a reasoned conclusion based on clinical examination. 

However, whether the EMP was more independent or less susceptible to pressure than the claimant’s orthopaedic surgeon may be open to question and, in any case, was not the point.  The EMP and the orthopaedic surgeon both provided evidence from different perspectives, each of which was of value to the tribunal in reaching reasoned conclusions on the basis of all the available evidence. 

Thus, for example, the EMP gave a detailed account of the claimant’s daily activities, but the orthopaedic surgeon gave an informed account of the claimant’s orthopaedic history.  The EMP did not state that the claimant was not susceptible to falls, but only that there were no findings to support such a susceptibility. 

It may well be that the problems reported by the orthopaedic surgeon which might cause a propensity to fall would not have revealed themselves on examination by the EMP, but in any case there was nothing in the EMP report which in my view provided a rational basis for rejecting the evidence of the orthopaedic surgeon and the claimant herself and for making an unqualified finding that the claimant had no undue susceptibility to falls.”

Disability living allowance

CDLA/937/2012 [2013] UKUT 27 (AAC): Whether rule restricting payability of DLA in respect of child in hospital for more the 84 days breaches article 8 of the Human Rights Act 1998 (right to respect for private and family life)

Upper Tribunal Judge Ward
15 September 2012

The claimant (C) was a three year old child who had both cystic fibrosis and Duchenne’s muscular dystrophy (one of only two children in the UK to have both conditions). 

He was entitled to disability living allowance at the higher rate of the mobility component and the highest rate of the care component.  However, he had to go into hospital for a prolonged period in July 2010 and, once he had been there for 84 days, DLA ceased to be payable (in accordance with regulations 8, 10, 12A and 12B of the Social Security (Disability Living Allowance) Regulations 1991).

With a tribunal having dismissed his father’s appeal against the decision to halt DLA payments to C he appealed to the Upper Tribunal.

In giving his decision, Judge Ward highlights that while in hospital, both parents were, as a matter of routine, involved in undertaking chest physiotherapy, the administration of medicines and supplements, and stoma care and much more.

He adds that it is testimony to the involvement of the parents in their son’s care that they were able to suggest a number of improvements and innovations in treatment, some of which have since been disseminated for use in the treatment of other children. 

Evidence had also been submitted to the cost of meals in hospital for the carer, of car parking, petrol, donations to contribute towards the cost of accommodation provided, laundry tokens and the cost of drinks and snacks for the claimant, selected to meet the particular requirements of his digestive system, and as to the books, DVDs and other items needed to occupy a three year old. 

It was estimated by the claimant’s father that the additional costs for the family were £8,000 over the course of his son’s stay in hospital and the amount of DLA not paid because of the DWP’s decision a little over £7,000. 

It was submitted to Judge Ward that the 84 day rule had breached the claimant’s rights under Article 8 and 14 of the Human Rights Act 1998:

“Article 8

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“Article 14:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

However, while considering the human rights issues at length, Judge Ward dismisses the appeal, concluding that there is “objective and reasonable justification” for the rule providing for the removal of DLA from children in hospital:

“While I accept that there is no direct correlation between what constitutes “attention in connection with bodily functions” and nursing care, the Secretary of State’s statutory duty in respect of the latter does provide a measure of support for the Minister’s position.  If C’s parents, in the course of rising lovingly to the challenge which their son’s disability posed, attended to aspects of personal care such as the emptying of stoma bags, administration of medicines and supplements or performing physiotherapy, as well as a whole host of activities directing at the well-being of C and of the family as a whole, it still does not mean that the NHS would not have done the former group if the need had arisen.  

But even if I am wrong in that and there are a small number of children whose needs are at the extreme end of the spectrum whose needs for attention in connection with their bodily functions cannot fully be met by the NHS and whose families may, as here, incur additional costs as a result, that is merely one facet of how adopting a bright line rule operates in practice.  Even if the number of such children has increased since the early 1990s, there is no suggestion that the number represents more than a small minority even now.  As long as the general position is that the NHS will meet all in-patients’ disability-related needs (in the sense of those that might otherwise found an entitlement to DLA), the position has a rational foundation.  Hospitalisation remains a proxy, albeit an inexact one, for the provision of care from an alternative source and for a consequential impact on costs."

Judge Ward adds that:

“I also consider that it so relevant that some care has gone into determining the effects of hospitalisation on particular benefits, depending on the need which that benefit serves.  Thus… different rules exist for income replacement benefits, where ongoing financial commitments may exist in respect of a person despite his or her admission to hospital.  It is relevant here to note … that a family who is on income support, child tax credit or housing benefit (and there may be others) will retain the beneficial treatment that they receive in recognition of their child’s needs.  The need for extra help with housing costs, for instance, is not something which could be adjusted readily to reflect the fact that a child was in hospital rather than at home.

… The preservation of favourable treatment in income related benefits such as income support or child tax credit means that the family of a child whose food and basic care needs are being met by the NHS while he is in hospital will still be receiving the additional payment to which they were entitled as a consequence of the child’s disability which, as it would not be being used on supporting the child at home, would be available towards supporting a child in hospital through visits, treats and so on.”

CDLA/1071/2012 [2013] UKUT 168 (AAC): Whether tribunal should consider use of aids designed for the use of disabled people in relation to the cooking test / tribunals’ consideration of medical evidence

Upper Tribunal Judge Paines
28 March 2013

The claimant had suffered an injury to his left shoulder after an accident on a building site where he was then employed. As a result he experienced both pain and limited movement in his left shoulder and depression.

With a tribunal dismissing his appeal against a decision to refuse him any rate of DLA he appealed to the Upper Tribunal.

In upholding the claimant’s appeal, Upper Tribunal Judge Paines finds that the tribunal had erred in law in holding that the claimant could cook using “aids that can be used one-handed”. 

He says:

“Though Social Security Commissioners and Upper Tribunal judges have not taken a unanimous view on the question of the extent to which the ‘cooked main meal’ test envisages equipment that is out of the ordinary (itself an imprecise concept), I respectfully agree with those who have said that postulating the use of devices designed specially for the disabled is outside the scope of the test.  That is because the ‘cooked main meal’ test is, as Lord Hoffmann said in Moyna v Secretary of State for Work and Pensions (reported as R(DLA) 7/03) a ‘thought experiment’ designed to identify a level of disability intended to entitle a claimant to the lowest rate of the care component of DLA.

In my view, Parliament intended the relevant level of disability to be that indicated by an inability to prepare a meal in much the same way as an able-bodied person would do.  It does not have to be in an identical manner – the claimant has to be ‘so severely disabled’ as to be ‘unable’ to do it.  The fact, for example, that a claimant might sit on a stool to perform operations that an able-bodied person would perform while standing would not necessarily qualify him for the care component.  But to envisage the use of appliances designed specifically for the disabled seems to me to be inconsistent with the test’s aim of using inability to prepare a meal as a benchmark for a degree of disability entitling a claimant to the component.”

In separate remarks, Judge Paines holds that the tribunal also erred in concluding that it had to accept the GP’s report before it “as a whole or disregard it in its entirety”:

“In my judgment it is an error of law to say that a tribunal is faced only with the alternatives of accepting or rejecting the entirety of the evidence of a particular witness.  The fact that a tribunal is not persuaded by the evidence of a witness on a particular point does not inevitably mean that his evidence is unreliable on another point. Nor does the fact that a tribunal find a witness persuasive on one point mean that they must find his evidence persuasive on all other points. 

I can see no inconsistency or self-contradiction in the representative’s stance of inviting the tribunal to give the greatest weight to the claimant’s own evidence and only to accept the GP’s evidence where it was consistent with his.  The tribunal were not obliged to take this course (a tribunal may, for example, find a GP’s assessment to be more objective than the evidence of a claimant), but it would not be fair to stigmatise the approach as ‘cherry-picking’."

Judge Paines concludes by upholding the claimant’s appeal and remitting it for rehearing by a new tribunal.

CDLA/2252/2012 [2013] UKUT 132 (AAC): “Special rules”: on renewal claim tribunal may need to address the different ways in which the "special rules" operate in relation to care and mobility components of DLA

Upper Tribunal Judge Ward
11 March 2013

The claimant, a man aged 82 had what an indefinite award of the mobility component of DLA dating back to at least 1992. 

In 2008 his existing indefinite award of DLA was superseded when the he was diagnosed with oesophageal cancer and he was then awarded DLA under the “special rules” for people with life-threatening conditions. 

The award was made for a three year period both in respect of the higher rate of mobility component and the highest rate of care component.

The claimant responded well to his cancer treatment and a tribunal dismissed his appeal against the decision to refuse him both components of DLA at any rate on renewal of his claim.

In upholding the claimant’s appeal and remitting it for rehearing, Judge Ward outlines what was implicit in the claimant’s 2008 DLA award:

“The effect of the special rules is not the same in relation to the care component as to the mobility component.  In relation to the care component, a person who falls within the special rules is deemed to meet the “day” and “night” conditions and so to be entitled to the highest rate of the care component:  see 1992 Act, section 72(5).

In the case of mobility component however the effect of falling within the special rules is only that the three month prior qualifying period is rendered inapplicable and the requirement for the condition to be likely to continue for a six month period is modified:  see section 73(12)."

He continues that:

“It is therefore a necessary part of the Department’s decision in 2008 that the Department considered that the claimant actually met the requirements for mobility component in terms of being virtually unable to walk, not that he was to be treated as having done so by virtue of the special rules. 

The 2012 tribunal’s decision did not address this distinction at all and consequently failed to engage with the question of how likely it realistically was that the claimant’s apparently long-impaired walking ability, which was due to a previous accident and not linked to his cancer, had improved between 2008 and 2011, particularly in the face of evidence … that he had additionally developed rheumatoid arthritis in 2009. 

In R(M) 1/96 it was held that on a renewal claim, if a tribunal was departing from the decision of the previous decision?maker it should be prepared to give an explanation of why it was doing so unless it was reasonably obvious.  This, for the reasons given above, the tribunal failed to do.”

CDLA/2414/2012 [2013] UKUT 68 (AAC): severe impairment of intelligence and social functioning

Upper Tribunal Judge Bano
1 February 2013

The claimant was born in 29 January 2008 with autistic spectrum disorder and was awarded the highest rate of care component of disability living allowance from June 2010 to January 2013. 

A supersession application was made on 23 February 2011 seeking in addition an award of higher rate mobility component, for which the claimant would have been eligible if he satisfied the entitlement conditions from the date of his third birthday, on 29 January 2011.  The application was refused and the claimant, acting through his mother and appointee, appealed.

The case for higher rate mobility component was that the claimant satisfied the conditions of entitlement in section 73(3)(a) of the Social Security Contributions and Benefits Act 1992 of being severely mentally impaired and displaying severe behavioural problems (as defined in regulations 12 (5) and (6) of the Social Security (Disability Living Allowance) Regulations 1991).  

While the tribunal accepted that the claimant “suffered from a state of arrested development or incomplete physical development of the brain” (regulation 12(5)) it found that that this did not result in “severe impairment of intelligence and social functioning”, because in their view:

“… in comparing [the claimant] to a normal child of his age it was not probable that…he had severely impaired intelligence and social functioning”. 

The tribunal also found that the claimant needed physical restraint, but not for most of the time.

The claimant appealed on the grounds that in considering regulation 12(5) the tribunal had misdirected itself in comparing the claimant to a normal child of the same age, and also in failing to make sufficient findings of fact in relation to the claimant’s sense of danger in deciding the extent to which his intelligence was impaired

In allowing the claimant’s appeal and remitting it for rehearing Judge Bano holds that: 

“Regulation 12(5) does not require a comparison between a claimant and a child of the same age, but does require an evaluation of a claimant’s ‘useful intelligence’, including what the Court of Appeal in R(DLA) 2/00 called “insight and sagacity”.  Mrs Dean, on behalf of the Secretary of State has in my view helpfully and accurately equated those qualities to “the ability to function in real-life situations”, and I agree with her that in order to assess that ability the tribunal ought to have taken into account the very considerable body of evidence in this case concerning the claimant’s lack of sense of danger.”

Judge Bano concludes by directing that the new tribunal should apply the guidance in the recent decision in CDLA/943/2011 and in applying regulation 12(6) should note in particular that the claimant’s behaviour indoors as well as outdoors should be taken into account.

CDLA/2689/2012 [2013] UKUT 110 (AAC): Assessment of a child’s supervision needs

Upper Tribunal Judge Bano
28 February 2013

The claimant was 14 years old and one of twin sisters both of whom had been diagnosed as having ADHD.

While the claimant’s sister was awarded the lower rate mobility component and middle rate care component, no DLA award was made to the claimant. 

The claimant’s mother appealed and presented to the tribunal:

  • a psychiatrist’s report stating that the claimant was liable to be at risk as a vulnerable and impulsive young woman; 
  • a school report describing the claimant’s behaviour as very challenging if she did not take her medication;
  • a further letter from the school referring to a deterioration in the claimant’s behaviour as a result of exam pressures; and
  • a letter from the support worker describing the claimant’s behaviour at home since the birth of a baby sister as “very demanding of attention and support”. 

However, the tribunal dismissed the claimant’s appeal and her mother appealed to the Upper Tribunal.

Upper Tribunal Judge Bano upholds the appeal, finding that the tribunal had erred in its consideration of the issue of the claimant’s supervision needs.

He then advises as follows:

“As I pointed out in CDLA/3779/2004, children of school age are generally supervised for much of the time, so that their behaviour in those conditions may not provide an accurate indication of the risks to the child if that supervision is not given.  In order to answer that question, the tribunal will need to consider the evidence available from all sources, including that of the school and those involved in caring for the child, for the purpose of assessing the risks to the claimant if continual supervision, or supervision when walking out of doors, were not provided. 

If the tribunal is satisfied that supervision is required to the extent that an adult claimant would qualify either for care or lower rate mobility component, the tribunal will then have to make the comparison with the requirements of people of the same age as the claimant with normal physical or mental health required by section 72(1A) of the SSCBA 1992 in the case of care component and section 73(4A) in the case of lower rate mobility component in order to decide if a claimant who is under sixteen qualifies for benefit.”

As the tribunal had failed to apply this approach he sets its decision aside and refers the case for rehearing before a new tribunal.

CDLA/3710/2012 [2013] UKUT 403 (AAC): Tribunal’s need to offer an adjournment if it is considering removing client’s DLA award

The claimant, who had rheumatoid arthritis, slipped discs, white finger, irritable bowel syndrome and a heart condition, was in receipt of higher rate mobility component and middle rate care component.  He appealed against the decision made on his renewal claim awarding him only lowest rate ‘cooking test’ care component. However, at a hearing the tribunal not only dismissed the appeal, but also removed the award of lowest rate care component. 
The claimant applied on grounds including that entitlement to the cooking test was not an issue raised by the appeal and because it was not clear from the statement of reasons why the tribunal exercised its discretion to consider that issue.
In setting aside the First Tier Tribunal’s decision, Upper Tribunal Judge Bano explains as follows:

“In a submission supporting the appeal dated 19 February 2013 the Secretary of State’s representative has submitted that entitlement to care component was an issue in the appeal raised by the claimant’s grounds of appeal to the tribunal, but in CDLA/1000/2001 it was held that the question whether an issue “is raised by the appeal” is to be determined by reference to the substance of the appeal and not just by the wording of the letter of appeal. 
Although the submission prepared by the claimant’s representative contained some references to case law relevant to care component, the factual content of the submission related solely to higher rate mobility component and the tribunal did not in fact deal expressly with care component, except to the extent of removing the earlier award.  I would therefore hold that entitlement to lowest rate care component was not an issue raised by the appeal and that the tribunal therefore erred in law by failing to give reasons for their decision to consider that issue - see paragraph 5 of DH v Secretary of State for Work and Pensions [2012] UKUT 330(AAC).
Even if, however, entitlement to lowest rate care component was an issue raised by the appeal, I am not satisfied that the tribunal acted fairly in the way in which it dealt with the issue.  It is of course true that the tribunal made it perfectly clear to the claimant and his representative that they had power to remove the award of care component. 

However, in CDLA/884/2008 the Commissioner pointed out that it was not necessarily enough to give a claimant an opportunity to withdraw his appeal: as had been said in R(IB) 2/04 the claimant had to be given sufficient notice to enable him to prepare his case on the new issue.  For that reason, the Commissioner held that tribunals should refrain from making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases (e.g., where the evidence is overwhelming or the facts are not in dispute and no element of judgment is involved or where the law has been misapplied by the secretary of State), or after an appropriate adjournment.
The Commissioner’s observations with regard to the need not to take a claimant by surprise apply equally whether or not the issue which the tribunal has it in mind to consider is technically one which is raised by the appeal. 
It is clear from the evidence in this case that the question of whether the claimant satisfied the ‘cooking test’ was not straightforward.  There was evidence that the claimant needed some form of support when cooking and that he often burned himself when doing so, and the claimant has stated that he told the tribunal that he had cut himself when chopping food.  There was therefore clearly an element of risk to the claimant from cooking and in my view fairness required that the claimant and his representative should at the very least have been given an opportunity of preparing his case on lowest rate care component before it was considered by the tribunal.

I can find no indication that the claimant was offered an adjournment to prepare his case on the ‘cooking test’, or to discuss with his representative whether the risks of losing lowest rate care component outweighed the benefits of proceeding with the appeal in the hope of being awarded higher rate mobility component.”

CDLA/1044/2013 [2013] UKUT 364 (AAC): Higher DLA mobility component: severe mental impairment and severe behavioural problems

This appeal concerns whether a child was both severely mentally impaired and had severe behavioural problems and so entitled to the higher rate of the mobility component.

The child was awarded the highest rate of the care component and lower rate of the mobility component. The parents applied to have the award increased because she was gradually getting worse. In particular, they said that she was now always in danger from running out of the house and into the road and of putting things into her mouth. She suffered regular nose bleeds and did nothing about them but let the blood flow. She increasingly suffered from drop fits, dropping to the floor without notice. As a result she now wore a protective helmet at all times. She also had multiple small “absences” – lapses in consciousness - every day, sometimes up to 40 times a day.

However, the application for her to be awarded the higher rate of the mobility component was refused and a First Tier Tribunal upheld this decision.
In considering her parent’s appeal, Upper Tribunal Judge Williams first sets out that  the relevant legislation is in section 73(3) of the Social Security Contributions and Benefits Act 1992 read with regulation 12(5) and (6) of the Social Security (Disability Living Allowance) Regulations 1991.

Section 73(3) provides;

“(3) A person falls within this subsection if –
(a) she is severely mentally impaired; and
(b) she displays severe behavioural problems; and
(c) she satisfies both the conditions mentioned in section 72(1)(b) and (c) above.”
Regulation 12(5) of the Regulations provides:

“A person falls within subsection (3)(a) … if she suffers from a state of arrested  development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.”

Regulation 12(6) provides:

“A person falls within subsection (3)(b) … if she exhibits disruptive behaviour which –
(a) is extreme,
(b) regularly requires another person to intervene and physically restrain her in order to prevent her causing physical injury to herself or another, or damage to property,                                                         and
(c) is so unpredictable that she requires another person to be present and watching      over her whenever she is awake.”

Severe mental impairment

The tribunal had found that the child did not suffer from a state of arrested  development of the brain.

“From the information we were given … she appears to have met the normal development milestones until nursery … there was in our view no evidence available to show that she was suffering from a state of arrested development or incomplete physical development of the brain, although she clearly has severe impairment of    intelligence and social functioning.”

After discussing the evidence before the tribunal and Decision Maker’s Guidance (itself based on Upper Tribunal decisions), Judge Williams holds -

“That guidance supports the view that the statement of the tribunal is plainly wrong in law in concluding, on this evidence, that there is “no evidence” of arrested development and relying on the child’s development to nursery age to establish this. Brain development plainly does not stop then. There is a genuine difficulty here in that the experts - the consultant; the general practitioner; the experts consulted in connection with the child’s special educational needs - have been unable to put an exact label on the appellant’s problems.

But they all find that the child’s skills and development age is significantly behind her chronological age. That is evidence suggesting that there is arrested development of something, and I can see nothing significant suggesting that this does not include development of the brain. In those circumstances it is in my view appropriate to remember that entitlement is determined in disability living allowance on probabilities. Is it more likely than not that this child is suffering, on all this evidence, from arrested development of the brain? “

Severe behavioural problems

In relation to the issue of severe behavioural problems the tribunal found -
“We considered that she does display severe behavioural problems … requiring another person to intervene; however we do not consider from the evidence before us that this is extreme … we also did not consider her behaviour to be unpredictable. Her class teacher’s statement effectively shows she has behavioural problems if she does not get what she wants – that is in our view not unpredictable.”

Judge Williams stresses however that -

“This is not a full reflection of regulation 12(6). The focus is on “disruptive” behaviour. That is problematic in this case because the appellant suffers from patterns of behaviour caused by the presence of severe epilepsy as well as by her severe impairments. One relevant pattern of behaviour is of outbursts of challenging behaviour. Another is of falling over without warning because of a fit, accompanied by jerking movements, and then being comatose for a period. Additional behaviours such as ignoring regular nose bleeds may be relevant, as may behaviour occasioned by a total absence of any sense of danger. So might unresponsiveness occasioned by minor fits. The tribunal has plainly focussed on part only of those patterns as the loss of consciousness and unresponsiveness due to fits is shown to be unpredictable on the evidence. Was it right to do so?"

After citing with approval and quoting extensively from CDLA/943/2011 Judge Williams holds that -

“The Oxford Dictionary definition of “disruptive” is that it is something that disrupts. Disruption is “disturbance or problems which interrupt an event, activity, or process.” That does not in my view require disruptive behaviour to be violent or physically aggressive. Talking in a school class is disruptive to the class as is fog to an airport timetable. There is no required issue of violence in that term. The relevance of injury or damage arises from elsewhere in regulation 12(6) and the paragraph must of course be read as a whole.

My conclusion is that “disruptive behaviour” is to be treated as an ordinary English term, but that it is to be given its full meaning. If it disrupts, it is disruptive. If it disturbs or causes problems that interrupt what would otherwise happen, it disrupts. That being so, in my view a tribunal should consider all relevant disruptive behaviour to see if the total behaviour patterns of the individual meet the requirements of that paragraph. As this tribunal did not do that, it is again in error of law in the way it applied this test.”

Judge Williams concludes by setting aside the tribunal’s decision and awarding the child the higher rate of the DLA mobility component.

CDLA/4294/2012 [2013] UKUT 613 (AAC): No need to peel root vegetables before cooking

Upper Tribunal Judge Jupp
3 December 2013

In this decision, Upper Tribunal Judge Jupp holds that while the DLA cooking test has to embrace the proper preparation of vegetables, as opposed to the use of pre-prepared vegetables, there is no requirement in the preparation of an adequate meal that it is necessary to use root vegetables:

“It is not necessary always to use root vegetables, nor even that root vegetables such as potatoes, carrots or parsnips need to be peeled and cut up before cooking.  It is possible that the claimant's submission may have had potatoes in mind, but potatoes, as well as carrots and parsnips, may be boiled in their skins with any necessary cutting up being done after cooking has taken place and the vegetables removed from the hot pan with, if necessary, a slotted spoon. This would not inevitably prevent the meal satisfying the criterion that it should be a “traditional cooked main meal” – see KS v SSWP[2011] UKUT 29 (AAC).”

Employment and support allowance

CE/829/2012 [2012] UKUT 469 (AAC): ESA and fair hearing - failure to provide tribunal with previous ESA85 medical report breaches claimant’s right to a fair hearing

Upper Tribunal Judge Wright
5 December 2012

While the claimant was found to have limited capability for work following an subsequent ESA85 medical report it was decided that she did not have limited capability for work following a further report (by the same doctor).

Following a tribunal dismissing her appeal, despite not having the previous ESA85 report put before them, the claimant appealed to the Upper Tribunal.

Judge Wright holds that the issue in this appeal is whether there is a breach of natural justice and the appellant’s right to a fair hearing (article 6(1) of the European Convention on Human Rights) when a previous ESA85 medical report was not put before the First-tier Tribunal considering an appeal from a decision that arises from a subsequent ESA85 medical report concerning the same claimant.

He then outlines that rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 provides that:

“The decision maker must provide with the response [to the First Tier Tribunal] … copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise”.

Judge Wright then adds:

“The key word here is “relevant”. The use of the word “must” also makes clear that the Secretary of State’s decision maker is under a legal obligation to provide the Fist-tier Tribunal with copies of all documents relevant to the case that he has in his possession: an obligation that is not on its face cut down by consideration of what the appellant might have in his or her possession and be able to put before the tribunal.

Furthermore, there is no evidence of any practice direction or direction being in place on this appeal that would have excused the Secretary of State from providing copies of all relevant documents with the appeal response.

So, as far as I can see, the Secretary of State’s decision maker is obliged to provide the tribunal with all relevant documents in his possession, or at least explain to the tribunal which documents are not in his possession and why they are not.”

In upholding the claimant’s appeal, Judge Wright does concede that

“… once it is recognised that the decision to be reached is the substantive one of whether the person has limited capability for work, and that depends on weighing the evidence in the ESA85 medical report along with all other relevant evidence, then the ESA85 report cannot be the only relevant evidence.  What other evidence is relevant will depend on the facts of each case.”

However, he then highlights that:

“… where, as here, it is plain from what is being said by or on behalf of the claimant that she is no better (and maybe even worse) since she was last awarded ESA or was last subject to a limited capability for work assessment, and where (as here) there has been no relevant  supervening  event such as a change in the law or a successful medical operation, I cannot see any lawful basis for the Secretary of State or his decision makers denying to the First-tier Tribunal the previous ESA85 medical reports concerning the appellant (or at least the knowledge that such existed, and the ESA decision(s) made subsequent to them, if they are lost and no longer in his possession)."

While Judge Wright allows that it is for the decision maker to decide what is relevant, as it is they who is responsible for the appeal response he stresses however that they:

“… must do so bearing in mind (a) his and the tribunal’s obligation under article 6(1) of the Convention to decide the appeal fairly, and (b) that the tribunal will not know what else the Secretary of State has in his possession that may be of relevance. 

In these circumstances it seems to me that the Secretary of State and his decision makers ought in all appeal responses to at least refer the First-tier Tribunal to all the documentary evidence in the Secretary of State decision maker’s possession that he considers may be relevant, whilst always providing that tribunal with copies of previous ESA85 medical reports …”

Judge Wright concludes by holding that even if an appellant has their previous ESA85 report this is no reason for the decision maker not to include it as evidence (unless the appellant supplies it to the tribunal themselves).

CE/1421/2012 [2013] UKUT 139 (AAC): Whether to proceed with a paper hearing: need to address claimant’s answers on the standard enquiry form

Upper Tribunal Judge Ward
19 March 2013

The claimant suffered from depression, had been a heroin user in the past and at the time of decision was drinking a bottle of Lambrini a day.

She had attended a medical examination, with a healthcare professional (HCP) having travelled to the examination centre with a friend.  The HCP that the claimant had been “admitted to hospital 3 days ago for treatment” and also noted that the claimant’s mood “was over-familiar” and that “she was asked to put her coat…back on again as she was only wearing her bra underneath her coat.”    He recorded that the claimant had occasional thoughts of self-harm, but the remainder of the mental health findings were normal.

The decision maker subsequently awarded 0 points and employment and support allowance was refused and the claimant appealed.

The claimant was sent the conventional enquiry form and in response to the question offering her a hearing, she had ticked "no".  However, question 8 asks “Use this box to tell us about any other special arrangements you need.  For example, hearing loops, or access for people with disabilities.”  The claimant replied “I am not capable of attending a tribunal with my state of mind, could you take that into account.”

The tribunal dismissed her appeal and in its statement of reasons said that the claimant:

“… did not attend the hearing having elected to have the appeal decided on the evidence in the papers and without her attendance. The tribunal considered the overriding principles of rule 2 and the interests of justice, and decided that there was no need to adjourn, that there was sufficient information to enable the tribunal to reach a decision, and it was appropriate to proceed in her absence …”

In upholding the claimant’s appeal to the Upper Tribunal Judge Ward holds that there were at least two activities in respect of which there might have been sufficient evidence to qualify:

“As to activity 15, there was evidence to suggest that she might have any difficulty in going alone to an unfamiliar place.  She had been accompanied to the medical examination- that may have been someone offering a lift to be helpful but it may have been more than that.  Further, the reply on the tribunal’s file (quoted above) was itself evidence that she might would have such difficulty.

As to activity 17, which is concerned inter alia with episodes of “disinhibited” behaviour unacceptable in any workplace, over-familiarity coupled with attending a medical examination with no intervening layer of clothing between her bra and her coat might fairly be viewed as “disinhibited”. “

He also says that there was a question-mark over a significant part of the medical evidence in the form of the HCP report.  On the information available to it, the First-tier Tribunal was told that the claimant had been treated in hospital for depression only three days before the medical examination which had concluded that her mental state was normal. 

Judge Ward concludes that given these gaps and uncertainties and with the claimant’s request for help on the enquiry form the tribunal did not “do enough”:

 “There is no indication that the tribunal thought about - or even noted - the claimant’s response to question 8.  Had it done so, it would have needed to think, in the light of the evidential issues and gaps identified above, what further steps, if any, were appropriate, even though the claimant had not requested a hearing.  Such steps might, without limitation, have included offering a domiciliary hearing if the claimant could get objective medical support for one; or providing her with encouragement to attend a resumed oral hearing, perhaps bringing a friend along; or putting questions to her in writing.” 

As a result, Judge Ward sets the tribunal’s decision aside and refers the claimant’s appeal for rehearing by a new tribunal (which he encourages the claimant to attend if possible).

CE/1750/2012 [2013] UKUT 118 (AAC): Meaning of “repeatedly” and “reasonable timescale” / need for evidence to correctly consider “substantial risk to physical or mental health”

Judge Jacobs
5 March 2013

This appeal raises two issues relating to determining whether someone should be placed in the ESA support group:

  • how should tribunals deal with words like “repeatedly” and “reasonable timescale”?
  • how should the tribunal deal with the issue of whether there is “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.”

The claimant suffered from spinal stenosis, angina, back pain, stress and depression, and chronic fatigue syndrome.

A tribunal dismissed his appeal against the decision that while he had a limited capability for work he did not have a limited capability for work related activity.

He then appealed to the Upper Tribunal on the following two grounds:

  • that the tribunal had misapplied Activity 1 Descriptor (b) of Schedule 3 of the ESA Regulations 2008 (mobilisation);
  • that as he chronic fatigue syndrome, he should have satisfied regulation 35(2) of the 2008 Regulations (substantial risk).

Activity 1 of Schedule 3 of the ESA Regulations 2008 provides:

Activity

1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.

Descriptors

Cannot either:

(a)     mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or

(b)     repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.

The claimant maintained that the tribunal had misapplied descriptor (b) of Activity 1.

In considering this, Upper Tribunal Judge Jacobs holds that:

“The words ‘repeatedly’, ‘significant discomfort or exhaustion’ and ‘reasonable timescale’ are normal words in everyday use. Like all words, they take their meaning from their context, or at least the context colours their meaning. I can, though, see no reason why they should have a different meaning just because they appear in Schedule 3.”

However, he then says that:

“I am not going to attempt to define what these words mean. That would be wrong. It would be the wrong approach to statutory interpretation and would trespass impermissibly into the role of the First-tier Tribunal.

It is not for the Upper Tribunal to give more specific content to the law than the language used in the legislation. The Upper Tribunal will not decide that ‘repeatedly’ means five times, ten times or any other number. Nor will the Upper Tribunal decide that ‘reasonable timescale’ means five seconds, five minutes or any other time.”

He therefore holds that:

“The key to applying the words of Activity 1 lies in making findings of fact relevant to those words that are as specific as the evidence allows. And, if the claimant is present at the hearing, the tribunal should ensure that it obtains evidence that is sufficient to that purpose."

In addition, he stresses that:

“The evidence is the key to applying that paragraph. It consists of two elements and there must be appropriate evidence relevant to each element. The elements are the nature of the work-related activity and the claimant’s health.”

Importantly, Judge Jacobs holds that: "The evidence on the work-related activity can only come from the Secretary of State.”

He then highlights that in this case the only evidence the Secretary of State had provided was as follows:

“The purpose of being in the Work Related Activity Group is to take the first steps into looking at the barriers to future work and seeing if there are any ways to overcome these, including any reasonable adjustments that would need to be made to any work place, work station or job role. Mr H… would receive support throughout this from the Health and Disability Employment Advisor and it is not considered that this would cause a substantial risk to his mental or physical health. In form ESA113, [his GP] suggests voluntary work would actually aid Mr H…’s mental state.”

Judge Jacobs holds that it is the nature of the claimant’s disabilities will determine the nature of the evidence that the tribunal needs in order to decide whether regulation 35(2) applies, adding that:

“Broadly, there are two possibilities. In some cases, the tribunal will need only general information in order to decide that a particular claimant does or does not satisfy section 35(2). For example: a claimant whose only disability is restricted mobility should have no difficult in attending an interview or an appropriate course. In other cases, the tribunal will need evidence on the specific nature of the activity that the claimant would have to undertake.” 

He adds that while the tribunal was, therefore, presented with evidence in the most general terms from the Secretary of State it was presented with a carefully argued case on behalf of the claimant.

As a result, he concludes that the tribunal had erred it had insufficient evidence form the Secretary of State:

“In this case, Mr H’s mobility was restricted. If that had been all, the tribunal might have been able to deal with the argument on the limited information in the Secretary of State’s submission. But there was more to the argument than that. Mrs Mitchell argued that Mr H also experienced fatigue and based her argument on the impact that work-related activity would have on this aspect of his health.

The tribunal could not have dealt with that argument without having some specific evidence of the type of activity that Mr H might be expected to undertake. Just to take a couple of examples: What type of adjustments might be reasonable in Mr H’s case? What sort of support would the Advisor be able to provide for him? In the absence of that evidence, it was unable to decide how regulation 35(2) applied. Its decision that it did not was not soundly based in evidence.”

CE/1936/2012 [2013] UKUT 77 (AAC): Whether tribunal considered the claimant’s capacity to perform the limited capability for work activities regularly, reliably and repeatedly

Upper Tribunal Judge Paines
15 February 2013

The claimant reported having bursitis, depression, shoulder pain, a hip problem, high blood pressure and a stomach ulcer.

With a tribunal having dismissed her appeal against the decision that she did not have a limited capability for work she appealed to the Upper Tribunal.

Among her grounds for appeal was that the tribunal’s statement of reasons did not indicate that it appreciated the need to assess her capacity to perform the activities in the limited capability for work assessment regularly, reliably and repeatedly.

The claimant’s sought to rely on the decision of Judge Turnbull in CE/1992/2010. 

In that case the First-tier Tribunal had rejected a submission that they needed to have regard to the claimant’s ability to perform the task in the descriptor repeatedly and reliably on the ground that the limited capability for work assessment did not contain any descriptor for inability to perform the task ‘sometimes’.

However, Judge Turnbull concluded that the omission of a descriptor for ‘sometimes unable’ did not mean that the descriptor in issue had to be given that extreme interpretation. As with activities for which there had never been a ‘sometimes’ descriptor, there remained a need for tribunals whether the task could be performed with ‘some degree of repetition’. 

Nevertheless, Judge Turnbull also held that:

”A tribunal is unlikely to need expressly to consider this issue unless there is something in the facts which suggests that the claimant might not be able to perform the activity with some degree of regularity”.  In that case the claimant had complained of fatigue, with the result that the tribunal’s wrong approach to the question of reasonable regularity might have made a difference."

In dismissing the claimant’s appeal, Judge Paines says that he agrees with the above point and that:

“There is nothing in the tribunal’s decision in the present case to suggest that their silence on the question of reasonable regularity means that they adopted the wrong approach to the interpretation of the descriptor that had been adopted in Judge Turnbull’s case.”

He then finds that: 

“The ‘statutory question’ posed to decision-makers and tribunals by the descriptors in the limited capability for work assessment (and similar previous assessment models) is whether the description set out in a descriptor fits the claimant – in other words, whether the claimant can fairly be described, for example, as someone who cannot bend, kneel or squat as if to pick up a light object off the floor and straighten up again. 

It is implicit in this that a description set out in a descriptor will not fit a claimant who can only perform the relevant task exceptionally or infrequently; conversely, even the fittest person could not perform an indefinite series of repetitions of, for example, the bending and kneeling task that I have referred to.  Judicial references to ‘reasonable regularity’ reflect this.  But judicial expositions of the meaning of legislative provisions should not be treated as extending the wording of the provision in such a way that tribunals that do not recite the extended wording are to be taken to have misdirected themselves.”

CE/2834/2012 [2013] UKUT 55 (AAC): ESA: claimant's adult daughter terminally ill - no mental health points scored; regulation 29 (2)(b) exceptional circumstances not met

Upper Tribunal Judge Wikeley
28 January 2013

The claimant had an adult daughter who had terminal cancer. The question for the First-tier Tribunal (the FTT) was whether; as a result, she had limited capability for work and so was entitled to employment and support allowance (ESA).

The FTT dismissed the claimant’s appeal and so confirmed the Secretary of State’s decision that there was no entitlement to ESA and that she had correctly scored 0 points at a work capability assessment examination.

In also dismissing the claimant’s appeal, Judge Wikeley finds that the FTT decision did not involve an error of law.

Among his reasons are that:

“… the evidence before the FTT did not suggest that the appellant had any serious problems with the various activities laid down in the mental health descriptors. It was clear from the evidence that the appellant had difficulties sleeping. However, this was not enough to meet any of the scoring descriptors. In addition, the description of a typical day did not raise any real prospect that any mental health points were relevant.

While Judge Wikeley agrees that having a child with terminal cancer is, in plain English, an exceptional circumstance he rejects that this means regulation 29 of the Employment and Support Allowance Regulations 2008 applies:

“In order to qualify under regulation 29(2)(b), the claimant must have a condition which means that there would be a substantial risk to the mental or physical health of any person if they were found capable of work or work-related activity. There was no evidence on which the FTT could conclude that the appellant herself would be at any such substantial risk.

One may well speculate, of course, that there might be a substantial risk to the daughter’s mental or physical health, but again there was no evidence to that effect. Should the FTT have adjourned to seek further evidence? I think it was entitled to proceed. The appellant’s own evidence from the examining doctor’s report was that she visited her daughter regularly and spent about 2 hours a day with her. There is, of course, no reason why that level of input could not also be maintained when claiming jobseeker’s allowance, or indeed when in either part- or full-time work.”

Judge Wikeley concludes by saying that:

“The reality is that ESA is not designed to cover a difficult case such as this. If the daughter was in receipt of the middle or highest rate of the care component of disability living allowance (DLA), then of course a claim by the appellant for carer’s allowance might be appropriate. That may or may not still be the case today.”

CE/2956/2012 [2013] UKUT 172 (AAC): Severe disability premium - meaning of "normally residing"

Upper Tribunal Judge Mark
4 April 2013

The claimant was in receipt of ESA and was a student at Nottingham University and had a rented room in a hall of residence.

However, the decision maker rejected his claim for severe disability premium on the ground that his permanent address was his home address in Cheshire. This was on the grounds that he spent at least 20 weeks a year there full time and at weekends and was not registered with a dentist at his term time address.

At a paper hearing, the tribunal dismissed the claimant’s appeal citing the findings of the decision maker and adding as follows:

“The Tribunal considered the matter after reading all of the documentation within the Schedule and concluded that his permanent address would be that of his parents.

… It is not an uncommon situation for students to live in Halls of Residence during term time and thereafter to return to live with their parents both before the commencement of the course and upon its termination and in the meantime returning for Christmas and Easter vacations and occasional weekends. 

Although [the claimant] stated that he had started a week early that was his choice and was not a requirement and did not take away the fact that he had accommodation available [in the family home].”

The tribunal went on to conclude that the claimant had two addresses one of which, the family home, was permanent, and was used for his correspondence in relation to this claim and in relation to his earlier claim for DLA. The other address, in Nottingham, was a temporary address.

In upholding the claimant’s appeal, Upper Tribunal Mark says that:

“The problem with these reasons is that they do not address the test for severe disability premium set out in paragraph 6 of Schedule 4 to the Employment and Support Allowance Regulations 2008. 

The relevant part of this test is that “the claimant has no non-dependants aged 18 or over normally residing with the claimant or with whom the claimant is normally residing”. 

The question therefore for the tribunal was whether the claimant was normally residing with his parents (or they with him) during the period for which he was claiming the premium. 

The question which the tribunal asked itself as to the claimant’s permanent residence was the wrong one.  So too, it was wrong to focus on the supposed norm of a student going home at weekends and for vacations. 

The question was what this student did and where he was living in the period in question.  It was also wrong to disregard the fact that the claimant went up to university a week early on the basis that it was his choice, 

It is indeed the claimant’s choice where he lives and if he chooses to start to live in Nottingham a week before term begins, that does not mean that he is to be treated as living somewhere else.”

Adding that the term “resides with” is to be given its ordinary meaning, that the claimant and some other person are living in the same residence or dwelling (R(IS) 12/96) and that the question of normal residence is a practical one to be determined in the light of common sense (CIS/14850/1996).

Judge Mark then clarifies that:

“Of course, if the absence from the permanent home is a short one, for example, because the claimant is on holiday or is undergoing treatment away from home for say a month, as a matter of common sense he still would reside at his permanent residence. 

But if he has to go for 9 months to another place and live there, then as a matter of common sense he is not residing during that period at his permanent address.  Nor is he residing there because, for convenience, it is used as a postal address for benefit claims being pursued on his behalf by his mother.”

Setting aside the tribunal’s decision, Judge Mark awards the claimant was living in Nottingham to include any short periods when he was not there (for example because he was spending Christmas or Easter at the family home) as this did not affect whom he was normally living with in this period. 

CE/3378/2011 [2013] UKUT 126 (AAC): ESA appeal: decision maker should include in their submission evidence relating to an award of DLA not long before the date of decision under appeal

Upper Tribunal Judge Ward
7 March 2013

The claimant reported difficulties with continence, walking, sitting and standing, bending or kneeling, speech and consciousness.  She also had some mental health difficulties.

However, at a paper hearing a First-tier Tribunal (FtT) dismissed her appeal against the decision that he did not have a limited capability for work.

As part of her application to the Upper Tribunal the claimant attached a copy of a letter notifying her of an increase in disability living allowance.  She had been awarded the middle rate of the care component “for help with personal care” and the lower rate of the mobility component, in each case from 9 March 2010 indefinitely.  While the exact date of the DLA decision was unclear, it was evident that the DWP accepted that as at the date of the ESA decision, she had a level of disability sufficient to qualify her for the rates of DLA awarded.

The tribunal had been unaware of the claimant’s DLA award so

Judge Ward holds that no criticism can attach to it:

“It cannot be an error of law for the FtT to fail to address evidence when it was not before it.  Further, while I accept that the FtT’s jurisdiction is inquisitorial, there was nothing here which ought to have triggered a duty on the FtT to investigate further, effectively on the off-chance that a person claiming ESA might have an existing award of DLA which neither party had seen fit to mention.”

However, in upholding the claimant’s appeal Judge Ward reasons that the Secretary of State was under a duty to disclose the information to the tribunal:

“On the face of it, the award of DLA suggested inter alia that, for instance if it was the day condition that was met (which I do not know), the claimant was so severely disabled physically or mentally that by day she required from another person frequent attention throughout the day in connection with her bodily functions: cf. Social Security and Contributions and Benefits Act 1992 s 72(1)(b).  

Whether the origin of that need was physical, mental or a combination of the two, the fact of the award (operative from only a few months prior to the ESA decision) and the evidence underpinning it were clearly capable of having probative value.”

Judge Ward then cites  with approval SC v LB Islington (HB) [2011] UKUT 490 (AAC) holding that the principles applicable to local authority in a housing benefit case are not equally applicable to the Secretary of State.

In that case, Judge Jacobs observed:

“The local authority is a party to the proceedings before the tribunal. However, it is disinterested in the outcome of the case in that      its function is not simply to defend its decision. Its function is to assist   the tribunal to ensure that the correct decision is reached on the evidence. In order to do that, the tribunal must have all relevant documentation before it. And it is the duty of the local authority to provide all relevant documentation in its possession.”

As a result, Judge Ward directs that the First-tier Tribunal hearing to be re-run with the benefit of whatever material was available about the DLA award and the evidence on which it was based.

CE/3431/2012 [2013] UKUT 228 (AAC):  Whether use of a wheelchair is reasonable

In this decision, the Upper Tribunal usefully set out the factors that should be considered in deciding whether a claimant who does not use a wheelchair can nevertheless be reasonably held to be able to make use of one.
The claimant suffered serious injuries at work because of an incident many years ago when she fell down cellar stairs while carrying a large object. She suffered spinal and pelvic fractures. Following this she was awarded industrial injuries disablement benefit and disability living allowance in addition to incapacity benefit. Her appeal arose from a consideration of her case for the award of employment and support allowance on conversion from incapacity benefit.

A First Tier Tribunal dismissed her appeal finding that she had no significant upper limb restrictions and that as she was able to sit for reasonable periods of time there was “no reason why she could not mobilise in a manual wheelchair”.
She then appealed to the Upper Tribunal on the grounds that the tribunal’s reasons were simply inadequate and failed to address the many issues regarding wheelchair use which is why there is a formal wheelchair assessment unit at [the local hospital] combining physiotherapists, psychologists, clinicians. This was raised at the tribunal and has been ignored.”
In upholding the claimant’s appeal, Upper Tribunal Judge Williams explains that the test in paragraph 1 of the revised Schedule 2 to the ESA Regulations 2008 refers to:

“Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.”

He then cites with approval the decision of Upper Tribunal Gamble in CSE/151/2012 in which he emphasised that the matter of reasonableness was “one requiring a broad exercise of their independent judgment to all the factors that are relevant in each individual case. Those factors should not be restricted to a consideration of a claimant’s physical ability to use a manual wheelchair.” Judge Gamble allowed the appeal for that reason.

In then upholding the claimant’s appeal and remitting it for rehearing, Upper Tribunal Judge Williams then directs the new tribunal as follows:

“The tribunal should approach this descriptor, as any descriptor, on the basis of the evidence before it. I emphasise this because of the absence of relevant evidence in the record of decision in this case and a lack of factual findings. In particular I can see no finding made by the tribunal about the extent to which, if at all, the appellant can walk with or without aids. For example, would crutches or a walking or Zimmer frame (perhaps with an added seat) be available and suitable to assist? It appears to have gone ahead to consider the use of a wheelchair without first deciding if in its view aids are reasonably needed by the appellant for mobility.

There is a very lengthy and thorough record of proceedings but little of relevance about this descriptor and no record of any discussion about the use of a wheelchair or other aids of the kind mentioned by the representative and undertaken in the statement of reasons. There is nothing directly relevant in the decision of the Secretary of State from which the appeal is brought. The appellant omitted answering the specific questions in the ESA50 (which does refer to a manual wheelchair). She confines her answer to a more general comment. In the ESA85 the nurse accepts limited mobility but makes no specific finding or comment about either wheelchair use or use of any other aid. I am unable therefore to consider the matter further on the basis of findings or evidence of the appellant’s ability to mobilise. 

This decision puts the appellant and representative on notice that the use of a wheelchair or other aid to mobility is expressly in issue in this appeal. They should therefore make any submissions they wish and produce any evidence they wish for the tribunal rehearing this case about this. For its part, the tribunal should in this case first make express findings about the ability to walk with or without any use of aids and then if relevant turn to other forms of mobility and any prescription for or expert advice about use of a wheelchair or other aid. And it should seek the views of the appellant about how the full descriptor should be applied reasonably to her.”            

CE/3482/2012 [2013] UKUT 263 (AAC):  Whether a tribunal should adjourn

In this decision, the Upper Tribunal usefully outlines how a tribunal should consider a request for an adjournment to seek medical evidence and/or secure representation.

The claimant, who had been in receipt of incapacity benefit, appealed against a decision made on 16 December 2011 refusing him an award of ESA. 

The appeal was listed for hearing on 12 July 2012, but on 21 June a welfare rights officer acting on the claimant’s behalf wrote to the tribunal asking for a postponement because:

  • he would be unable to prepare the case in the time available; had other commitments on the day fixed for the hearing; and
  • the claimant’s medical records were being obtained and the representative believed that further medical evidence would be vital for the claimant’s appeal. 

The postponement request was however refused by a district judge, without reasons being given, on 26 June 2012.  

The claimant attended the hearing accompanied by his wife who  told the tribunal at the outset of the hearing that the claimant had been to the welfare rights office three to four weeks previously and that a postponement request had been refused.  The tribunal again refused to adjourn the hearing on the basis that:

  • it was the applicant’s evidence which was the most important;
  • and many applicants were unrepresented.

In considering the claimant’s appeal, Upper Tribunal Judge Bano stresses that the correct questions for the tribunal were whether it was in the interests of justice to adjourn for the claimant’s representative to obtain the further medical evidence and whether, in the particular circumstances of the case, the claimant would be materially disadvantaged if he was not represented at the hearing .

In then allowing the claimant’s appeal, Judge Bano holds that:

“In considering whether to exercise the power to adjourn conferred by rule 5(3)(h) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008, the tribunal is required by rule 2(3) to give effect to the overriding objective of dealing with cases fairly and justly. 

In relation to adjourning for additional medical evidence to be obtained, the question for the tribunal was not whether there was already some medical evidence on which the tribunal could base its decision, but whether fairness required that the claimant should be given an opportunity of obtaining the additional evidence which the claimant’s representative considered to be important."

CE/3650/2012 [2013] UKUT 434 (AAC): Descriptor 5(d): Cannot use a suitable keyboard or mouse

3 September 2013
Upper Tribunal Judge Mark

 In this decision, Upper Tribunal Judge Mark looks art how a tribunal should consider descriptor 5(d): Cannot use a suitable keyboard or mouse.

He explains that an earlier version of this descriptor, applicable until March 2011, read “Cannot physically use a conventional keyboard or mouse”:

“This was considered by Judge May QC in DW v SSWP (ESA), [2010] UKUT 245 (AAC), where a claimant could physically use a keyboard using one hand but was unable to do so using two hands.  His ability to use a mouse does not appear to have been in question.   It appears to me that in the context of using a computer, a person generally needs to be able to use both the keyboard and the mouse, so that where the descriptor refers to a suitable keyboard or mouse, an inability to use either is sufficient to score points on this descriptor.

Judge May held that the proper approach to this descriptor was to follow the approach set out by the House of Lords in Moyna, R(DLA) 7/03, and to take a broad view on whether the claimant could or could not satisfy the descriptor.  The fact that he could use it to a very limited extent did not mean that he could use it in the way in which it was intended to be used.  There are no absolutes by reference to which “can” and “cannot” are to be defined.”

Judge Mark says:

“I agree with this approach and in my judgment it applies equally to the present amended descriptor.  The dropping of the word “physically” permits regard to be had to other factors that preclude such use if a person has additional problems using the keyboard or mouse in addition to a relevant disease or disablement.  The change of wording from “conventional keyboard” to “suitable keyboard” would be potentially relevant if there was evidence of a suitable ergonomic keyboard which could be more easily operated with one hand than a conventional keyboard, or which permitted greater use of the claimant’s second hand than a conventional keyboard.  The keyboard would have to be one which the claimant could reasonably be expected to be able to learn to operate within a short time.  Whether there is currently such a keyboard I do not know."

Judge Mark then draws attention to a comment in volume 1 of the Social Security Legislation volumes for 2012/13, at 9.388, which suggests that the new descriptor jars with the approach taken by Judge May because it was based on a view taken by the review body which produced the new descriptor that ability to do things with one hand showed capability to perform the specified activity.

However, Judge Mark does not see any such conflict: 

“Judge May’s decision requires an overall view to be taken whether a person could use a conventional keyboard.  I have some difficulty is seeing why a person is necessarily unable to do so with only one hand and in particular, to take the matters put before Judge May,  I do not see why a person should be unable to use the shift key or the @ key if only one hand is used.  In writing this I am in fact using the @ key on a conventional keyboard with only one hand, holding down the shift key with another finger.  If I wish to use capital letters, I can either adopt the same approach as with the @ key, or I can use the caps lock key.   

On the other hand, it would plainly be much harder to operate a keyboard with only one hand rather than with two.  At the very least such use would be much slower than use by a competent user with two hands and combinations of three keys, such as control, alt and delete, would seem to be excluded at least on a conventional keyboard.”

Upholding the claimant’s appeal, Judge Mark concludes that:

“It is plain that on the evidence before the tribunal the claimant had problems with using a keyboard that brought this descriptor into play. The tribunal therefore needed to address it and to make findings as to it. 
There is the real possibility that it may have concluded, applying the test as set out in Moyna and by Judge May that the claimant could not properly be described as able to use a suitable keyboard using only one hand which would also need to operate the mouse.  The issue was not investigated and the tribunal was in error of law in failing to do so.”

CE/3883/2012 [2013] UKUT 269 (AAC) - Opinion of physiotherapist Atos Healthcare Professional on limited capability for work related activity of claimant with mental health problems of “no probative value whatsoever” / whether substantial risk to health if found not to have a limited capability for work related activity

Upper Tribunal Judge Mark
5 June 2013

The claimant suffered from extreme bouts of anger and rage which could lead him to become very depressed to the point that he had to lock himself in his room for fear of losing his temper and becoming violent.

He appealed a decision that he should be placed in the work related activity group for ESA rather than the support group. He was then assessed by an ATOS approved disability analyst. Despite the fact that his problems were entirely mental ones the disability analyst was a registered physiotherapist with no apparent professional expertise in mental health matters.

The entire examination took 15 minutes and the analyst had no access to the claimant’s medical records. She recorded that the claimant was taking no medication for depression, that the problem started many years previously and that his main problem was with irritability and managing his anger.  He also had low moods and had days when he was furious with everybody and everything.  He would lock himself in a room and not go out some days because of this.  This had last happened a week and a half previously. 

There was no other medical evidence before the tribunal, but the claimant had written a letter dated that he wished to continue with his appeal but did not want to appear at a hearing in essence because of his serious anger management problems and depression. 

He did not consider that his illness had been accurately represented by the physiotherapist in her report.  He explained that he suffered from severe bouts of depression brought on by uncontrollable anger and rage and had seen numerous mental health professionals and been given many different diagnoses, the two most common being depression and narcissistic personality disorder.  He was currently on an 18 month waiting list for individual psychiatric behavioural therapy because he could not be placed in group therapy. 

Nevertheless, the tribunal dismissed his appeal, holding that he did not satisfy any of the descriptors in Schedule 3 to the Employment and Support Allowance Regulations 2008. It also found that there was no substantial risk to his or other people’s health if he were found not to have a limited capability for work related activity (regulation 35 of the regulations). 

However, Upper Tribunal Judge Mark upholds the claimants appeal to him and redirects that his appeal be heard by a new tribunal.

Judge Mark says:

“In my judgment, the tribunal was in error of law in failing to adjourn and direct the production of the claimant’s medical records insofar as they related to his mental problems. 

Having failed to adjourn, it also failed to explain how it dealt with the hearsay medical evidence provided by the claimant in his questionnaire and letter.  That evidence clearly related to the claimant’s need for individual therapy because of his behaviour towards other patients in group therapy and to hostile behaviour generally.  If the tribunal accepted that the claimant had accurately represented that evidence, then it had probative value as expert medical evidence, although it was plainly preferable to have the original records as evidence if available. 

The tribunal was also in error of law in failing to adjourn to obtain the medical and other evidence on which the [appealed] decision … was taken.  That was only a few months earlier and there was no suggestion of any change in the claimant’s mental health in the meantime.  As the tribunal pointed out, the Schedule 3 descriptors had changed in the meantime, but that did not mean that there was no earlier evidence that was relevant either to the new descriptors or the application of regulation 35.”

Judge Mark adds:

“Further, the only evidence before the tribunal, apart from the evidence of the claimant, was that of the physiotherapist.  I have no doubt that the physiotherapist has received training to ask relevant questions and to make relevant observations.  Subject to any question as to their accuracy, the report on what the claimant stated and on the observations made is clearly relevant evidence.  Where the disability analyst possesses relevant medical expertise, any opinion expressed based on that expertise is also relevant evidence. 

Where, however, the disability analyst is a physiotherapist and the problems she is dealing with are mental health problems the opinion of the physiotherapist as to the conclusions to be drawn have no probative value whatsoever.  This is because the physiotherapist has no professional expertise in mental health matters.  Although the strict rules of evidence do not apply, a tribunal can only take into account evidence that has probative value, so that, for example the decision of another judge as to the facts is simply his or her opinion as to the facts and has no probative value …“

Judge Mark continues:

“I can only express my surprise that in a case where the only issue was the mental health of the claimant and its effect in relation to the mental health descriptors, the report was prepared by a physiotherapist following a 15 minute interview.  It is plainly important that questions of mental health should be assessed by a disability analyst with appropriate mental health qualifications if their opinion is to be of any evidential value. Even then tribunals should beware of placing too much weight on such reports, based as they are on a very short interview with a claimant and without access to medical records. 

Given the evidence that the claimant was irritable and abrupt at a 15 minutes interview, and given a history of frequent loss of control of his temper, and the absence of medical records, I do not see how any competent mental health professional could have expressed any firm opinion as to the risks if the claimant was found not to have limited capability for work-related activity.  The opinion of somebody with no mental health qualifications in such circumstances should have carried no weight at all.  I would add that in addition I am not even clear how far the physiotherapist was aware of what those work-related activities would be.”

Judge Mark directs that a new tribunal will need copies of the claimant’s medical records insofar as they relate to his mental health and copies of the evidence on which the earlier work capability assessment decisions were based.  He stresses that the new tribunal will also need to bear in mind that if the claimant has only avoided a substantial risk to his or another person’s mental or physical health by shutting himself up in his room and avoiding contact with others for the majority of the time, that situation may change if he is required to undertake work-related activity and does so.

Judge Mark concludes by considering the issue of whether the tribunal should have made findings as to the work related activity that the particular claimant would be required to undertake in reaching a conclusion in relation to the application of regulation 35.

He outlines that:

“If a person is found not to have limited capability for work-related activity, he will be required to undertake such activity.  At the date of the decision, the decision maker may not know exactly what that will involve, although the Secretary of State will then need to notify the claimant of a requirement to undertake work-related activity by including the requirement in a written action plan given to the person, which must specify the work-related activity which the person is required to undertake and any other appropriate information (see regulation 5 of the Employment and Support Allowance Regulations 2011, in force from 1 June 2011).  Work-related activity is defined in section 13(7) of the Welfare Reform Act 2007, in relation to a person, as activity which makes it more likely that the person will obtain or remain in work or be able to do so."

He then holds that:

“… except to the extent that the written action plan takes into account matters which occur after the date of the decision, it is evidence of the sort of work-related activity which the claimant can have been expected to undertake at the date of the decision, and that to enable the tribunal properly to consider the application of regulation 35, a copy of that plan ought to be provided by the Secretary of State to the tribunal.  That was not done in the present case.”

Judge Mark therefore directs that:

“The new tribunal should be provided by the Secretary of State with a copy of that plan and of any other information as to the work-related activities that the claimant is expected to undertake so as to enable the new tribunal properly to consider regulation 35.  The question whether the claimant has undertaken those activities and, if so, with what effect, may also be relevant insofar as it sheds light on the risk, judged as at the date of the decision, to the mental or physical health of any person of the claimant being found not to have limited capability for work-related activity.”

CE/578/2013 2013 [UKUT] 496 (AAC): Consciousness during waking moments - drug induced drowsiness

Upper Tribunal Judge Mark
2 October 2003

The claimant had Parkinson’s disease which affected his right side. He was taking medication for this 3 times a day and once at night.

The tribunal found that the daytime medication effectively eliminated his symptoms for periods of between 30 and 90 minutes on each occasion. From this it concluded that for the majority of time he could perform the various descriptors and therefore scored no points from them.

However, Upper Tribunal Judge Mark sets aside the tribunal’s decision on the grounds that its reasoning was wholly inadequate:

“There is no finding that the claimant could perform any of the descriptors on which he relied, other than climbing steps in his home, when the medication had worn off entirely.  Nor is there any finding as to when, after taking it, the medication would begin to have effect, nor when its effect would be such as to enable him to perform any particular descriptor and to what extent - one would expect this to vary between descriptors.  Nor is there any finding how long the medication would take to wear off entirely or at what points when wearing off the claimant would become unable to perform any descriptor at all or to some extent.”

The claimant also contended that the side effects of his medication left him drowsy and that the tribunal had not properly considered this.

Judge Mark finds that as the claimant’s drowsiness was the direct side effect of the medication taken to counter the effects of the Parkinson’s disease it clearly arises as a direct result of treatment provided by a registered medical practitioner for that disease i.e. it was not natural tiredness but tiredness induced by the medication. 

He then holds that as a result the effects of the client’s tiredness could be considered under Descriptor 10, as then in force, headed “Consciousness during waking moments.”:

“Sleep is a form of lost consciousness just as much as a state induced by an epileptic fit.  A person is not awake if they have lost consciousness and the reference to ‘remaining conscious during waking moments’ or, as here, ‘consciousness during waking moments’ is plainly concerned with involuntary loss of consciousness of any type.  I can see no difference between losing consciousness due to narcolepsy and losing consciousness due to any other cause.

In my judgment, drug induced drowsiness can, if severe enough, amount to or result in an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration.  It is for the tribunal to investigate the cause, nature and extent of the problem and to determine whether there are occasions when the side effects of the claimant’s medication have that effect on him, and if so, how frequently they occur.  The tribunal in the present case do not make adequate findings of fact in this respect and on this account also the decision is in error of law.”

CE/587/2013 [2013] UKUT 573 AAC: ESA Regulation 35: Secretary of State’s appeal response must set out the specific work-related activity the individual appellant is capable of doing and can do without substantial risk

The Secretary of State had decided that the appellant had limited capability for work because she could not get to a place with which she was familiar without being accompanied by another person (descriptor 15(b) in Schedule 2 to the ESA Regulation 2008 – worth 9 points) and she was unable to engage in social contact with someone unfamiliar to her for the majority of the time (descriptor 16(c) in Schedule 2 – worth 6 points).

A First Tier Tribunal dismissed the claimant’s appeal made on the grounds that she should have been placed in the support group. Its statement of reasons explained that:

“The Tribunal did consider whether or not the Exceptional Circumstances set out in Regulation 35 of the ESA Regulations applied by taking into account all the evidence available, the facts found by the Tribunal and the reasons for those facts as mentioned above and the Tribunal concluded that none of the conditions of entitlement set out in Regulation 35 were satisfied”.    

In setting aside the tribunal’s decision, Upper Tribunal Judge Wright says that this reasoning was “manifestly inadequate”:

“Even ignoring the staged analysis required by regulation 35(2), it is simply a narrative record of what the tribunal did rather than explaining what the work-related activity was that the appellant was capable of doing and why she could engage safely in that work-related activity notwithstanding her inability to go out on her own and her significant problems with social engagement.”

 Moreover, it is no answer to this to argue, as the Secretary of State seeks to argue in his submissions on this appeal, that, given what the appellant could do, it was not unreasonable for the tribunal to conclude that she was able to undertake “some form of [work-related activity]”.  This is the wrong way to view the test, as Upper Tribunal Judge Gray has said in MT –v- SSWP (ESA) [2013] UKUT 0545 (AAC). [CE/973/2013]

The Secretary of State has already affirmatively decided that the appellant does not have limited capability for work-related activity, within that he has decided that there is work-related activity in which she can safely engage despite her severe anxiety problems, and … only he knows what work-related activity is in fact. In these circumstances it was for him to prove his case by saying what the specific work-related activity was that the appellant could safely engage in, and for the tribunal on the appeal to be satisfied as to the same.” 

While Judge Wright says that it may be relatively easy for the Secretary of State to discharge this onus in cases where a claimant has scored 15 points for the physical descriptors, he continues that:

“However, it is where the 15 points have been scored for the mental descriptors that the issue may be more difficult and nuanced.  For example, if a claimant cannot anywhere outside on her own due to acute anxiety, cannot call on any regular outdoor companion, doesn’t have a computer and either doesn’t have or finds it difficult to use a phone, how is she to be able to engage in a face to face interview at the jobcentre, get help writing her curriculum vitae or participate in basic literacy or numeracy courses (page 68)? This is not to suggest that thee is no work-related activity such a person could safely do, but merely to highlight that the identification of that work-related activity will take care and thought.”    

Judge Wright concludes by directing that:

“… the Secretary of State to provide a further appeal response that details the specific work-related activity he contends this particular appellant was safety able to do in December 2011 taking account of her inability to go anywhere outside on her own and her inability to engage socially with people she was unfamiliar with for most of the time. 

 General evidence about what work-related activity may generally consist of … will not suffice: the evidence must be directed to this particular appellant’s situation and circumstances as at December 2011.”

CE/811/2013 [2013] UKUT 518 (AAC): Relevance of Equality Act 2010 in considering Regulation 29 (substantial risk to health)

Upper Tribunal Judge Mark
17 October 2013

The claimant suffered from epilepsy, asthma, generalised arthritis, vertigo and depression and was recovering from a stroke.  However, his appeal that he scored no work capability assessment descriptor points was upheld by a First Tier Tribunal.
The tribunal also considered and dismissed that the claimant could be treated as having limited capability for work under regulation 29 of the ESA Regulations 2008 (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).

In doing so it found that despite his disabilities he would be able to manage the demands of basic unskilled non-manual work and 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.”
Someone has a disability for the purposes of the Equality Act 2010 if they have 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 (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. 
In also dismissing the claimant’s appeal, Upper Tribunal Judge Mark disagrees with the claimant’s contention if he fell within section 6 and Schedule 1 of the Equality Act 2010 Act this was totally inconsistent with an award of no work capability assessment points. 

“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.”

In concluding comments, Judge Mark also says 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.
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.” 

CE/973/2013 [2013] UKUT 545 (AAC): Proper approach to Regulation 35 (substantial risk to health if found not to have a limited capability for work related activity)

Upper Tribunal Judge Gray
5/11/2013

The claimant had severe mental health difficulties.

The issue before Judge Gray was whether the First Tier Tribunal (FTT) had correctly determined that regulation 35 (2) of the Employment and Support Allowance Regulations did not apply to her.

Regulation 35 provides:

“35 (2)  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 reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person is the claimant were found not to have limited capability for work related activity.”

The FTT had found that:

"If the appellant were to be found not to have limited capability for work related activity, she may be required to attend for occasional interviews and comply with any reasonable requirement made of her in that context. Any requirements would be tailored to her individual needs with a view to helping her move closer to work, and the demands, which would be made on her, would neither be frequent nor onerous."

However, Judge Gray holds that in doing so the FTT had made certain assumptions as to what was to be expected of the claimant rather than properly conduct an assessment of the range or type of work-related activity on the basis of evidence.

She then cites with approval AH v Secretary of State for Work and Pensions [2013] UKUT 118 (AAC) in which Judge Jacobs discusses the applicability of the regulation 29 test of the Court of Appeal in Charlton (R(IB) 2/09) in relation to regulation 35.

Outlining that the Court in Charlton found that a decision-maker must assess the range or type of work which a claimant is capable of performing sufficiently to assess the risk to health either to himself or to others, Judge Jacobs said:

“Obviously, that is not directly applicable to regulation 35(2), which does not envisage the claimant working. However, the Court’s reasoning can be applied by analogy to the work-related activity. Translating the language of the judgment into terms of work-related activity comes to this:

The decision-maker must assess the range or type of work-related activity which a claimant is capable of performing and might be expected to undertake sufficiently to assess the risk to health either to himself or to others".”

Judge Gray adds that she is not sympathetic to the Secretary of State’s argument that the work-related activities the appellant might have been expected to engage in at the time of the decision under appeal cannot be stated:  

“An integral part of the decision under appeal is that the appellant does not come within the provisions of regulation 35 (2), not having limited capability for work-related activity. Put another way they are able to engage in work-related activity. In order to exercise his judgement and make that decision the Secretary of State must have had some work related activity in contemplation.”

She also disagrees with the finding of CE/3916/2012 that it was not inappropriate for the FTT to indicate some typical examples of work-related activity that were within their knowledge, and if they found that an appellant could safely undertake those activities then they would not fall within the provisions of regulation 35 (2). This approach she says:

“… seems to me to be looking at matters from the wrong end of the telescope.   Even if there are aspects of work-related activity at the lower end of the scale, for example a telephone interview, that an appellant would be likely to be able to engage in without there being any substantial risk to their health (or that of others) that is insufficient to conclude that regulation 35 (2) (b) is not satisfied because the actual work-related activities which an appellant will be required to engage in may be of a very different order.”

What is to be done if a FTT is faced with the problem of either no information or generalised information as to what work related activity will be expected of a claimant?

Judge Grey offers two options each resulting “in subtly different legal outcomes”:

“The FTT could make a decision that in the absence of specific evidence of what would be required of this particular appellant by way of engagement in work related activity the Secretary of State has not shown that, at the date of the decision and appeal, they did not have limited capability for work-related activities.  The provisions of regulation 35 (2) (b) then apply. 

The Secretary of State could supersede that decision under regulation 6 (2) of the Social Security and Child Support Decisions and Appeals Regulations 1999, the grounds being either a change of circumstances under 6 (2) (a) (i) or error of material fact, 6 (2) (c) (i), or, after a three-month period under regulation 34 (5) of the Employment and Support Allowance Regulations. Either decision would provoke an appeal, in which an issue will again be as to what work-related activities can be accomplished without substantial risk.  Under rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 the Secretary of State must in that appeal set out his opposition to the appellant's case, stating the grounds. (MN v Secretary of State for Work and Pensions [2013] UKUT 262 (AAC)

There are advantages in this approach for appellants over that of adjourning.  The current legal proceedings are concluded, generally of itself a relief. If the Secretary of State decides to supersede there is the protection of the appeals process, but he may not choose to supersede the tribunal decision; the way through to engagement in work related activities may be negotiated with the skills and good sense of an adviser without the element of compulsion that can cause considerable stress, particularly to those who must have significant functional impairment having been already found to have limited capability for work.”

Her second option deals with the problem which may arise from the approach set out in CE/3916/2012:

 “The tribunal could make a decision stating in terms what work-related activities would not result in a substantial risk to the health of the appellant, also stating that more onerous commitments would be likely to result in substantial risk to the health of the appellant, or where relevant, of any other person. That differs from the decision of the FTT in this case, where the basis of their finding was that the appellant would only be asked to perform non-onerous activities, and that she could do.  

Would that decision, with such ‘conditional’ findings, bind the Secretary of State? It would be tribunal decision that contained specific findings of fact which the Secretary of State would need to make a fresh decision to overcome. This would be a supersession decision as above, and would carry rights of appeal; once again there would be an onus on the Secretary of State to provide information as set out previously.   

For practical purposes following the appeal I would envisage a tribunal decision framed in those terms as carrying weight in the same way that, I understand, occurs where on appeal to a FTT the decision is that there is not limited capability for work, but some points are scored.  The findings of the FTT in relation to specific descriptors being applicable are taken into account by the job centre in the drafting of the job seeker's agreement and in relation to the expectation to apply for specific jobs.  It would seem reasonable for the findings of a tribunal as to which work-related activities or types of work-related activity an appellant could be expected to engage in without a substantial risk to their health or the health of others to be similarly acknowledged.”

Note: In this decision, Judge Gray stresses the importance of regulation 35 in providing protection to vulnerable claimants:

“Any claimant may, if they wish, engage in work related activities. In most cases it will be to the benefit of a claimant to discuss ways to improve their chances of ultimately obtaining employment and often participation in activities which reflect expectations at work will be helpful to establish the extent to which a person can cope with those expectations or where their limitations lie. These issues may then be addressed.   Difficulties may arise, however, where there is disagreement between the claimant and the adviser as to what activities they may safely be able to engage in, and at that stage there is no dispute resolution mechanism. The disagreement could end with a claimant being sanctioned. Only at that stage would there be the prospect of an appeal to establish whether there had been reasonable cause for any refusal to engage in work-related activities.

… Regulation 35 provides protection to an unusually vulnerable claimant against those circumstances occurring.  Within that protective cloak a claimant can agree to engage in certain activities but cannot be compelled to do so; conditionality does not apply. I would emphasise that this issue relates to a very small group of vulnerable people, essentially comprising those with significant mental health problems or learning difficulties. They are those who are the least likely to be able to challenge any sanctions.”

CE/869/2013 [2013] UKUT 504 (AAC): Use of wheelchair to mobilise not just a functional test / whether panic attacks cause lost or altered consciousness

11 October 2013
Upper Tribunal Judge Mark

In this decision, Upper Tribunal Judge Mark considers the issue of what needs to be considered in deciding if a claimant can reasonably use a wheelchair to mobilise.
In doing so, he broadly agrees with Judge Gamble in CSE/151/2012.

Disagreeing with the position of Judge Williams in CE/3737/2012 that the test is a freestanding one independent of the question whether someone can in fact reasonably be expected to have access to a wheelchair on a daily basis, Judge Mark says:

“The context of the work capability for work test is an attempt to assess who is going to be able to undertake work of some sort.  For that being able to mobilise in fact rather than in theory is important.  It does not make sense to say that somebody has or does not have limited capacity for work based on a hypothetical ability to mobilise with an aid that he or she does not have and cannot for practical reasons obtain and use.”

Instead, Judge Mark says:

“The test in my judgment is whether the aid, the wheelchair, can reasonably be used by this claimant in his daily life.  The use includes not merely mobilising once for any particular distance, but being able repeatedly to mobilise and to do so not just on one day but over a period of time. 
A claimant cannot reasonably use a wheelchair without having access to one, and I do not see how his ability to store one and to get to and from it can be disregarded in determining whether he can reasonably be expected to use it, in the same way as his ability to get in and out of it unaided would be relevant.  It is even possible that inability to afford a wheelchair may be relevant, although it is would not normally be so given their relative cheapness and their availability from the NHS and charities where reasonably required."

In concluding remarks, Judge Mark adds that:

“… even if I am wrong as to this, in assessing the impact on the claimant for the purposes of regulation 29 of his being found not to have limited capacity for work, he must plainly be taken as he is, and not with some aid that in real life he does not have and cannot reasonably be expected to obtain. 
If, for example, a claimant lives alone at the bottom of a hill with no way of getting to the only bus stop, which is at the top of it, then that is something that the tribunal must take into account in determining the effect on him of not having limited capability for work.  The issue in that respect is not simply what work might he do, but what would happen to him in terms of seeking, obtaining and retaining jobseeker’s allowance, or not being able to do so, and taking the necessary steps to seek work. (IJ v SSWP, [2010] UKUT 408 (AAC); CF v SSWP, [2012] UKUT 29 (AAC).”

In relation to the claimant’s panic attacks, the tribunal recorded that these were claimed to result in the claimant becoming disorientated but continued:

“However, [the claimant] and his representative were unable to definitely state that he suffered lost or altered consciousness during an attack [and] there was no evidence that a problem of lost or altered consciousness had been investigated or treated medically.”

Judge Mark holds that this is not an appropriate way of dealing with the question of lost or altered consciousness:
“It was for the tribunal to make findings as to how frequently the claimant had panic attacks and as to how they affected him.  For this they needed to obtain details from the claimant.  He had stated that he became disorientated and was not aware of his surroundings.  He had not stated that he had lost consciousness. 
The tribunal needed to make further enquiries as to his disorientation and lack of awareness of his surroundings to an extent necessary to determine whether (a) they amounted to or involved altered consciousness and (b) this resulted in significantly disrupted awareness or concentration. 

On the face of it a serious panic attack could have that effect and could lead to the awarding of points.  There is nothing in the descriptor which prevents altered consciousness from being the result of a panic attack. As pointed out in the Training and Development ESA Handbook, the nature of the episodes and their effect on function must be explored to see if they fulfil the criterion of the descriptor. 
It is not for the claimant or his representative to state whether what the claimant experiences amounts to altered consciousness.  It is for the claimant to describe his experience and for the tribunal, after proper enquiry, to determine whether it amounts to altered consciousness and if so whether it results in significantly disrupted awareness or concentration, as explained by Judge Ward in BB v SSWP, [2012] AACR 2; [2011] UKUT 158 (AAC).”

 CE/1470/2013 [2013] UKUT 587 (AAC): Ability to mobilise repeatedly within a reasonable timescale must be seen in the context of the workplace

 Upper Tribunal Judge Wikeley
20 November 2013

The appeal in this case concerned the mobilising descriptor which is defined in terms of an inability to mobilise a certain distance “repeatedly … within a reasonable timescale because of significant discomfort or exhaustion”. The activity itself is defined as “mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used”

The claimant suffered from severe peripheral vascular disease, diabetes and problems with both elbows with his GP having signed him off sick as his “capacity to walk/stand is very limited”.

However, a First Tier Tribunal dismissed his appeal against a decision to refuse him ESA based on a ATOS medical examination by a nurse that descriptor 1(c) for mobilising applied which scores 9 points only (mobility limited to 100 metres).

In its statement of reasons, the tribunal made the following findings of fact:

“When Mr S commences walking, he is able to walk the first 20 yards normally. Thereafter he begins to experience progressively worsening symptoms in his legs and feet, causing him to experience increasing discomfort. The maximum distance that Mr S is able to walk before he is unable to walk any further due to severe discomfort is between 120 and 150 yards.

However, if Mr S walked a shorter distance such as 55 yards, he would, after half an hour, be able to walk 55 yards again.”

In considering his appeal to the Upper Tribunal, Judge Wikeley reasons that the work capability assessment descriptors “do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work”. He holds instead that:

“They have to be applied on their own terms, but understood against the backdrop of the modern workplace. In deciding whether a particular descriptor is met, decision makers and tribunals may therefore find it helpful to consider the claimant’s ability to undertake the activity in question in a range of different working contexts. However, claimants will not be awarded a defined descriptor simply because they can show that it would apply to them if they were employed to do a particular job in a specific type of working environment.

This is entirely consistent with the well-established principle that decision makers and tribunals must consider whether a claimant can perform a particular activity with a reasonable degree of repetition, sometimes referred to as “reasonable regularity” principle. This principle applies to the ESA scheme just as it did to the previous incapacity benefit regime.”

While it is not appropriate for the Upper Tribunal to seek to provide a precise definition of what is meant by “repeatedly” or “within a reasonable timescale” Judge Wikeley says that in this case the findings are outside the bounds envisaged by case law:

“The tribunal fell into error by not considering the question of what was a “reasonable timescale” against the background of a working environment. What might well be a reasonable timescale for the appellant at home would not necessarily be a reasonable timescale in the workplace.

The consequence of the tribunal’s approach was to rob the word “repeatedly” of any real meaning, as the tribunal’s findings would equally well meet a statutory test predicated on the activity in question being performed only “occasionally ... in the course of a day”. Whilst I am not prepared to draw a precise line, I am satisfied that on any reasonable analysis this tribunal’s conclusion was the wrong side of the line. The ability to perform a function in a working environment “repeatedly ... within a reasonable timescale” must be something more than “occasionally ... in the course of a day”.”

CE/1490/2013 [2013] UKUT 616 (AAC): Whether a tribunal should adjourn pending response from Atos to complaint about the medical examination

Upper Tribunal Judge Mark
4 December 2013

The claimant appealed against a decision of the First-tier Tribunal who had dismissed her appeal against the decision that her award of income support based on incapacity did not qualify for conversion into an award of ESA.  

Her grounds for appeal were that the tribunal had:

  • failed properly to deal with a request for the appeal to be postponed or adjourned pending the outcome of a formal complaint about the conduct and report of the approved disability analyst who examined the claimant and prepared the medical report in the file; and
  • gave full weight to the findings of the approved disability analyst without having regard to the criticisms of the claimant and her representative which were in the file before the tribunal.

The medical evidence submitted by the claimant indicated that she suffered from RyR1 disease and from non-specific polyarthralgia and widespread musculoskeletal pain.  The record of the medical examination showed that the disability analyst was a physiotherapist and that the examination took 22 minutes. 

The first part of her complaint to ATOS was that the examination in fact took only 10-15 minutes most of which time was spent by him googling RyR1 disease of which, perhaps unsurprisingly, he knew nothing.  It was also alleged that he had not read the documents or seen the ESA50 which had been completed by the claimant.

Secondly it was said that no medical examination of any kind took place and the entire assessment was conducted with the claimant seated.  There was also said to be further evidence which the claimant brought with her that was not read.

In setting aside the tribunal’s decision and remitting the appeal for rehearing, Upper Tribunal Judge Mark holds that:

“It was plainly the duty of the tribunal to consider whether to adjourn the hearing in those circumstances and to give reasons for its decision in that respect.  It failed to do so.  Further, once it did proceed, and given the weight which it placed on the report, it was obliged to consider the objections of the claimant and resolve any factual disputes with reasons or explain why they were not relevant.  It did deal with the alleged failure to read documents pointing out that the documents before the tribunal either took matters no further or had only come into existence after the date of the decision. 

It also dealt with the complaint that there was no physical inspection, stating that the nature of the examination “did not involve much physical contact with the individual, and much of the information is gathered from observation.”  This does not deal adequately with her point that the examination only took 10-15 minutes which she spent sitting in a chair, and that for most of the time the physiotherapist was googling RyR1 with which he was unfamiliar.”

In concluding remarks, Judge Mark says that while a tribunal does need to consider whether to adjourn because an ATOS report had not yet arrived, it does not follow that it has to decide to adjourn.

He then gives the following guidance:

“It needs to consider all the matters in issue in the complaint, the likelihood of their being resolved or at least further illuminated by the report, the relevance of the complaints to the matters before it and the likely relevance of any possible response by ATOS in addition to any other relevant matters.  Having considered all relevant matters it needs to decide whether it was better to proceed or to adjourn in order to deal with the case fairly and justly in accordance with the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 … It also needs to give reasons for its decision.”

If, for example, the only complaint is that the reasoning in the report is irrational, it seems to me that there would be no need for an adjournment.  The question of rationality could be considered by the tribunal without the views of ATOS on the question.  Other complaints, for example as to rudeness, may also have no impact on the matters that the tribunal needs to address.  

Complaints that relate to the accuracy of factual statements in the report, on the other hand, or as to the failure of the disability analyst to read what should have been read, may or may not result in relevant findings by ATOS.  For example, the analyst may be asked to comment and may concede certain issues or provide explanations as to disputed matters in the report.”   

CE/1652/2013 [2013] UKUT 635 (AAC): Whether claimant permanently unfit to work still cannot fall within regulation 35(2) (substantial risk to health if found not to have a limited capability for wok related activity).

Upper Tribunal Judge Mark
17 December 2013

The claimant was 61 years old and suffered from bronchiectasis, a chronic lung condition. His GP’s advice was that he had benefited from being away from work, and if he returned to work his condition could deteriorate.

A tribunal accepted that evidence and found that there would be a substantial risk to the claimant’s health if he were found capable of work (and should be treated as having limited capability for work under regulation 29(2)(b) of the Employment and Support Regulations 2008). 

Despite his poor health, the tribunal also held that he could not be deemed to have a limited capability for work related activity under regulation 35(2) of the 2008 Regulations, which provides:

“(2) 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 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 not to have limited capability for work-related activity.”

The tribunal concluded:

“There is an absence in the Regulations of a definition of a work related activity.  However, the Tribunal did not consider that there would be a substantial risk to the appellant’s health caused by work related activity because that is likely to be a matter of attending interviews to consider his situation and what work he might be able to do. 

Furthermore if the appellant at a particular time were asked to attend for work related activity whilst suffering from a chest infection would be able to rearrange such activity.  As a result the Tribunal did not consider that the appellant satisfied Regulation 35.”

In setting aside the tribunal’s decision Judge Mark finds that the initial work-focused interview cannot be a work-related activity, as work-related activities can only be required after that initial interview has occurred or been required. 

After considers in detail the legislation in relation to work related activity in force at the date of the appealed decsion, he then outlines that:

Work-related activities are now dealt with by the Employment and Support Allowance Regulations 2011 (the 2011 Regulations).  Under regulation 3, the Secretary of State may require certain persons to undertake work-related activity as a condition of continuing to be entitled to the full amount of ESA payable to him. 

In order for it to apply to the claimant in this case he must have been required to take part in, or have taken part in, one or more work-focused interviews pursuant to regulation 54 of the 2008 Regulations. 

Judge Jacobs then reasons that:

“There are therefore two preconditions before any work-related activity can be called for. 

First there must have been a requirement for the claimant to attend a work-focused interview.  The Secretary of State has a discretion as to whether to impose such a requirement. 

Secondly, following such a requirement being imposed the Secretary of State has a further discretion as to whether to require the claimant to undertake such activity.”

Judge Mark then substitute’s his own decision to the same effect as the tribunal on the grounds that regulation 35(2) cannot assist the claimant:

“On the basis of the tribunal’s finding as to his health problems, there would seem to be no real possibility of his resuming work and it is difficult to see how any interview could come within the definition of work-focused interview in section 12(7) of the 2007 Act since, due to his ill health, there would seem to be no prospect of his getting into work.  For the same reason, there would not seem to be any work-related activity that the claimant could be required to do, in that, because of his health problems, there would be no activity which would make it even arguably more likely that he would be able to obtain work.

It follows that, on the basis of the tribunal’s findings of fact, there are no work-focused interviews or work-related activities that the Secretary of State could lawfully require the claimant to attend or undertake and that, in the absence of any other issue, there is no risk to his health as a result of not being found to have limited capability for work-related activity.  Accordingly he does not fall within regulation 35(2).”

CE/2286/2013 [2014] UKUT 77 (AAC): Whether content and timing of a Med 3 may oblige a tribunal to consider regulation 29 (substantial risk to health if not found to have limited capability for work)

Judge Ward
14 February 2014

The claimant had appealed against a decision taken awarding nil points and concluding that the claimant did not qualify for ESA.  Just a few days later, the claimant’s GP provided a certificate in Med 3 (“fit note”) indicating that because of the conditions of “severe walking difficulties, depression and anxiety, shoulder pain, unable to use right hand, multiple joint pains”, the claimant was unfit for work. The certificate was given for 6 months. 

While there was no suggestion that the claimant’s condition had materially changed between the date of the decision and the date of certificate the First Tier Tribunal dismissed her appeal. However, Judge Ward sets aside the tribunal’s decision on the grounds that it had given no, or insufficient, consideration to regulation 29 even though the point had not been expressly raised by the claimant.

Regulation 29 of the Employment and Support Allowance Regulations 2008 applies if:

“… the claimant suffers 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 not to have limited capability for work.”

Judge Ward says that:

“In my judgment, if the claimant’s GP was advising his or her patient to refrain from work for 6 months by a Med 3 issued more or less contemporaneously with the decision under appeal, it was incumbent on the tribunal to consider the implications of that. 

The work capability assessment is an artificial construct, which looks at certain activities only, and there is no necessary correlation between a doctor’s views as to what the patient can manage and the outcome of the WCA applied to that person, or vice versa.  Regulation 29 has the function of a safety valve addressing that lack of correlation, protecting claimants (and others) from the effect of determinations which in the circumstances set out in that regulation would otherwise result in substantial risk to health.”

He continues:

“The tribunal only briefly addressed the fit note “which listed the appellant’s conditions, but did not refer in any detail to any functional restrictions caused by those conditions, except in headline form to walking difficulties and an inability to use her right hand.”

I can understand that the fit note may have been of little assistance in relation to the descriptors, but the tribunal in my view needed to consider what the very issue of the certificate implied about the impact of the conditions, taken as a whole, on the claimant’s ability to work.  The tribunal was required by Charlton to determine the range or type of work the claimant could do without the sort of risk which would be caught by regulation 29.  It did not do so and that was an error of law.”

CE/2293/2013 [2014] UKUT 72 (AAC): Mobility descriptor involves a double test: mobilising and mobilising repeatedly

Upper Tribunal Judge Williams
12 February 2014

The claimant’s appeal focussed on one point: whether her walking limitations (while fluctuating) meant that she was not able to mobilise to the extent that she met the test in Paragraph 1 of Schedule 3 to the Employment and Support Allowance Regulations 2008 that provides:

Activity

Descriptors

1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.

Cannot either:

(a)

mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or

(b)

repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.

In making his decision Upper Tribunal Judge Williams holds that the mobilising descriptor contains two tests, not one, and that the tribunal had not dealt with the double test accurately:

“I agree with the appellant’s representative that for the appellant to be found not to be in the support group, the First-tier Tribunal must decide both that she is able to mobilise 50 metres and that she can do so repeatedly within a reasonable time. Unless in the view of the tribunal the evidence shows that she can do both, then she should be in the support group.”

However, while in this case the tribunal had not considered the double test properly, Judge Williams nevertheless dismisses the claimant’s appeal:

“The grounds of appeal drew attention to the medical evidence and the date of decision. I have therefore read through the (extensive) medical evidence with those points and the full record of the decision of the tribunal (including the record of proceedings) in mind. It is clear that, following the adjournment by the first tribunal, the tribunal that decided the case had full medical records before it as well as the oral evidence of the appellant herself. In reality, it had as full a picture of the appellant’s problems as it was likely to get.

It is also clear that the tribunal had in mind the variability of the appellant’s conditions and the issue of flare-ups. And it expressly mentioned as a finding of fact that it had found that the appellant could repeatedly mobilise. While that finding might appear inconsistent with a statement later in the decision … about her mobility, I accept the submission for the Secretary of State that, reading the record as a whole, this does not evidence a material error of law affecting the outcome. The tribunal had evidence on which it could reach the decision it did. And it was aware of the full wording of the relevant descriptor. It expressly considered variability. And it made a finding of fact for which it had evidence.”

CE/2527/2013 [2013] UKUT 634 (AAC): Need to give reasons to prefer evidence of Health Care Professional over that of claimant’s psychiatrist / Regulation 35 (substantial risk)

Upper Tribunal Judge Gray
12/12/13

While the claimant suffered from mental health problems her work capability assessment examination had been carried out by a physiotherapist.

A First Tier Tribunal (FTT) confirmed a revised decision that she scored a total of 18 points and so had a limited capability for work. However, it also found that she could not be placed in the support group.  

In setting aside the FTT’s decision Upper Tribunal Judge Gray , holds that while the FTT had said that it followed the findings of the HCP but without giving any reasons for doing so:

“An explanation was required, particularly since the tribunal followed the revised decision of the decision maker in awarding18 points under the descriptors and this decision was in opposition to the HCP report which had only awarded 6 points.”

The tribunal was obliged to give reason for preferring the evidence of the HCP, who was a physiotherapist, to that provided by the claimant's psychiatrist she says -

“The FTT simply accepted the HCP's evidence over and above that of the psychiatrist without explanation.  This is despite their apparent rejection of that person's opinion on the extent of the functional disablement. Where evidence of opinion is put forward, key to the evidential value of that opinion is the source of it. The level and extent of the expertise must be of central relevance in relation to the evaluation of opinion evidence. 

To accept, for example, on a contested legal point, the opinion of a law student, rather than that of their professor in the absence of a compelling explanation would be irrational.  Here on a psychiatric issue the opinion of a registered physiotherapist was preferred to that of a psychiatrist. This situation may be more powerful than my example in that the physiotherapist is unlikely to have any experience at all in the field of psychiatry.  If, unusually, they had such experience then that should have been stated because it would have been of importance.”

Judge Grey also finds that the tribunal inadequately considered the issue of regulation 35(2) of the Employment and Support Allowance Regulations 2008 - substantial risk to heath if found not to have a limited capability for work related activities:

“There was no information in the decision as to what was meant by work-related activities; there had been none apparently before the Health Care Professional (HCP), and she mentioned none. There was none before the FTT. In those circumstances there is a question mark over the basis of the decisions taken in relation to regulation 35 (2).”

Judge Gray then refers to guidance she gave in MT-v-SSWP 2013 UKUT 545 AAC in relation to the context and the importance of regulation 35(2)(b) and the legal duty on the Secretary of State to provide some details as to what work related activities a given appellant might be called upon to engage in prior to a decision of the First-Tier Tribunal (FTT).

CE/2827/2013 [2014] UKUT 56 9AAC): Reg 35 (substantial risk) - need for Secretary of State to provide evidence of work related activity claimant is able to undertake

Judge Mark
4 February 2014

The claimant had serious problems with her legs including deep vein thromboses.  The First Tier Tribunal found that she needed to keep her legs elevated for a reasonable proportion of the day and this would not be possible if she were engaging in the process of job seeking, which would be the outcome if she were found not to have limited capability for work.

It did not, however, consider that she had limited capability for work-related activity because it considered that any activity she may be required to undertake would not occur regularly and would be tailored to her abilities.  It would not therefore pose a substantial risk to her health.

Permission to appeal to the Upper Tribunal was given on the basis that the tribunal arguably erred in law by coming to conclusions as to what would be required of the claimant in relation to the activities that might be required of her under regulation 35 of the Employment and Support Allowance Regulations 2008 (the 2008 Regulations) without any evidence from the Secretary of State on the issue and without indicating where their information/evidence came from.

Regulation 35(2) of the 2008 Regulations provides that a claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) (that is does not satisfy any of the descriptors in Schedule 3 to the 2008 Regulations) is to be treated as having limited capability for work-related activity if -

(a) s/he suffers from some specific disease or bodily or mental disablement; and

(b) 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 not to have limited capability for work-related activity.

In giving his decision, Upper Tribunal Judge Mark highlights that there was no evidence before the tribunal as to what work-related activities the claimant may be required to undertake and, “as usual”, the submissions of the decision maker failed adequately to address the question. 

He then stresses:

“While it is true that the decision maker cannot provide evidence as to what will be decided in the case of the claimant who is appealing, at least where there has initially been a finding that he or she does not have limited capability for work, I can see no reason why the decision maker cannot provide evidence as to what would have happened immediately following the date of the decision on the basis of the actual practice in that area at that time with claimants with similar problems. 

This is particularly needed with claimants with mental health problems when in many cases DWP staff are unlikely to have the expertise or time to assess such problems adequately. The appropriate time for providing such evidence may be after the tribunal has decided if the claimant has limited capacity for work, as that evidence can then be based on the facts found by the tribunal and the whole of the evidence before the tribunal.”

However, Judge Mark nevertheless holds that in the claimant’s case, the tribunal was right to look to assess the actual impact on the claimant of being found not to have limited capability for work-related activity: 

“In the absence of any proper submissions from the decision maker on the point, it seems to me that it could rely on its own knowledge, if adequate, provided that it told the claimant what that knowledge was and gave her an opportunity of commenting on it, possibly allowing her an adjournment to deal with it if it was not something that she could be expected to deal with immediately.  It is not clear from either the statement of reasons or the record of the proceedings that this was done.

However, it is also the case that the risk to the claimant’s health if found not to have limited capability for work arose because it found that if she sought a job she would compromise her ability to comply with medical advice to keep her legs elevated for a reasonable proportion of the day.  There was no evidence that the claimant would not be able to attend an interview and do at least some very limited activities, if required, and still keep her legs elevated for as long as needed.

For an adviser to require the claimant to disregard medical advice designed to protect her from further deep vein thromboses would be plainly and obviously wrong, and it appears to me that the tribunal in the present case was entitled to conclude that this would not happen.

I further take note that if I were to set aside this decision and look at the claimant’s own evidence of what did happen, that evidence was that the adviser took one look at her and decided that there were no work-related activities that she should be required to undertake and that she should have been placed in the support group.”

In dismissing the claimant’s appeal, Judge Mark concludes by saying:

“If a person does fall outside the scope of regulation 34 and Schedule 3, then if, on the evidence, in practice that person will not, or cannot, be required to do anything because it would be unreasonable to require him or her to do that thing, then it becomes very difficult to see how their physical health can be put at risk by being found not to have limited capability for work-related activity.  The claimant’s mental health is not in issue here.”

CE/2928/2013 [2014] UKUT 5 (AAC): Whether a tribunal can reconsider capability for work on appeal against refusal to include in support group

Upper Tribunal Judge Jacobs
9 January 2014

While the decision-maker did not accept the health care professional’s report, they instead decided that the claimant satisfied regulation 29(2)(b) of the Employment and Support Regualtions 2008 Regulations (substantial risk to health if found not to have a limited capbility for work).

Her incapacity benefit award was therefore converted to an award of employment and support allowance (ESA).

However, the decision-maker decided that the claimant did not have limited capability for work-related activity.

The claimant appealed to the First-tier Tribunal. She was represented by solicitors who argued that she had limited capability for work-related activity by virtue of satisfying any one of ten of the descriptors in Schedule 3 to the 2008 Regulations or should be treated as such under regulation 35(2) of the 2008 Regulations (severe risk to health if found not to have a limited capability for work).

The tribunal dismissed her appeal, but altered the basis of the decision and decided that the claimant scored 21 points under Schedule 2 to the 2008 Regulations (physical health descriptors).

In considering the claimant’s further appeal, Upper Tribunal Judge Jacobs holds that the decision under appeal was the whole of the ESA conversion decision, not just the part that related to work-related activity as:

“Employment and support allowance is a single benefit and the decision-makers deal with all aspects of entitlement in a single decision. They do not give separate decisions on a claimant’s capability for work and for work-related activity.”

He then explains why the tribunal was obliged to deal with the claimant’s capability for work under Schedule 2 and could not properly exercise its discretion not to deal with it.

“Remember that the Secretary of State decided that the claimant satisfied regulation 29(2)(b). It was inherent in that decision that she did not satisfy the assessment under Schedule 2. Given the close relationship between the Schedules, it followed that she could not satisfy Schedule 3.

The argument put to the First-tier Tribunal by the claimant’s solicitors was that the claimant satisfied the requirements for ten of the activities in that Schedule or, in the alternative, satisfied regulation 35(2). The claimant could only succeed under Schedule 3 if she also satisfied the work capability assessment under Schedule 2. And the tribunal could not apply regulation 35(2) unless and until it decided that the claimant did not satisfy Schedule 3.

The tribunal could not sensibly have left the decision on regulation 29 in place, but nonetheless found that the claimant satisfied Schedule 3. By finding that Schedule 3 was satisfied, the tribunal would have removed the necessary condition for the use of regulation 29, since the claimant would then have satisfied the Schedule 2 assessment.

And that would create an internally contradictory decision, which said in effect that the claimant both satisfied and did not satisfy Schedule 2. It was essential, in order to deal with the grounds of appeal, that the tribunal reconsider Schedule 2. That was the logic of the grounds of appeal and of the structure and content of the legislation. The tribunal did not explain why it took that approach, but it seems to have understood practically and intuitively that this was necessary.”

However, the Judge Jacobs adds that while the tribunal had to deal with Schedule 2:

“The position would be different if the claimant had conceded that Schedule 3 was not satisfied and had relied exclusively on regulation 35(2). The tribunal would then not have been forced by the structure of the legislation to consider Schedule 2. Nonetheless, the claimant’s capability for work would have remained part of the decision under appeal and within the tribunal’s discretion to consider.”

CE/3043/2013 [2014] UKUT 1 (AAC): Need to give reasons for not awarding descriptors / need to apply regulation 29 (substantial risk)

Upper Tribunal Judge Gray
2/1/2014

On a First Tier Tribunal (FTT) upholding a decision that he did not have a limited capability for work the claimant appealed to the Upper Tribunal.

In upholding his appeal and remitting it for rehearing, Upper Tribunal Judge Gray finds that the FTT’s statement of reasons failed to indicate upon what factual basis it had found that the appellant merited no points, and did not have limited capability for work:

“The statement of reasons in this case is generalised, stating what evidence was before the tribunal and that the tribunal considered all the information in the bundle and all the descriptors as well as regulation 29. It then recites some of the evidence put forward by the appellant and concludes that the tribunal found as a fact that he did not satisfy any of the descriptors or regulation 29. That is not a fact but a conclusion.  The conclusion must be based upon facts but no facts were found.

Despite the comment that the evidence in support of the conclusion came from the healthcare professional’s report, which the panel found to be thorough, the tribunal has failed to deal with the essential conflict in the case by simply setting out some of the appellant’s evidence and stating that they prefer that of the healthcare professional.

The full statement would suggest that the FTT has ignored the whole of the appellant's case; a simple adoption of the findings in the report did not tell him why his contentions that his functional ability was impaired were rejected and, importantly, what activities the tribunal found that he could or could not accomplish bearing in mind the issues that he raised both in his form ESA 50 and in his evidence at the hearing.”

In relation to the issue of Regulation 29 of the ESA Regulations 2008 (substantial risk if found not to have a limited capability for work) Judge Gray holds that it is not necessary for a FTT to this as a matter of routine:

“It is not always disclosed upon the papers or by the oral evidence as being of potential applicability, but where the FTT considers it, and the judge says that they did in this case, it must be properly dealt with bearing in mind the criteria set out in the case of Charlton-v- SSWP [2009]EWCA Civ 42 which are essentially that the tribunal must establish what sort of work the appellant would be expected to do, and assess the level of risk in relation to the likely workplace and the journey to and from work.

Where regulation 29 is a clear issue on the papers but the FTT does not consider it that may amount to an error of law, but there will be many cases where it simply does not arise, and the tribunal need not consider it.”

In this case, Judge Gray points out that the claimant and the healthcare professional had stated that he has been diagnosed with chronic fatigue syndrome and that:

“Although it will be a matter for the tribunal hearing the case this is the type of case where regulation 29 may be raised on the papers, although that will not always be so, and of course to say that it is raised is very far from saying that it will be satisfied.”

CE/3100/2013 [2013] UKUT 630 (AAC): Sufficiency of findings of fact where differing from previous decision / application of Regulation 29 (substantial risk to health) and the effect of Equality Act 2010

Upper Tribunal Judge Gray
13 December 2013

In August 2011 the decision to place the claimant in the work related activity group was revised. This was on the grounds that her mental health and alcohol difficulties were such that she should originally have been placed in the support group.

However, following a work capability assessment examination, a decision was made in August 2012 that she no longer had a limited capability for work.

On a First Tier Tribunal upholding the decision, the claimant appealed to the Upper Tribunal.

Upper Tribunal Judge Gray outlines that the tribunal that the claimant did not have a medical problem with respect to alcohol misuse, but was making a lifestyle choice to drink to excess which she could choose to change.

However, Judge Gray holds that the tribunal’s consideration of this issue was inadequate as:

“Fact-finding requires an analysis of the evidence, which here included the evidence that the appellant's problems in 2011 were so significant that she was placed in the Support Group. 

In the face of that background some explanation was required to rationalise the conclusion that this behaviour was simply choice on the part of the appellant.”

In addition, Judge Gray holds that the tribunal' erred in its consideration of regulation 29 of the ESA Regulations 2008 (substantial risk to health if found not to have a limited capability for work) and the Equality Act 2010:

At paragraph 19 of the statement of reasons it is explained that FTT had regard to the type of employment which the appellant may be capable of undertaking. There is then something of a quantum leap from that comment into a generalised assertion that the Equality Act 2010, including as it does provisions concerning "disability discrimination" in the workplace, can be relied upon to prevent the risk to health envisaged by regulation 29.

With respect, if that might be the position in relation to physical disablement, and I do not decide that important point upon which I have not had argument, to assume that because there is a duty on an employer to make reasonable adjustments there cannot be a substantial risk to health due to stress related matters for somebody with significant addiction or mental health problems, is to misunderstand the provisions of both sets of legislation.” 

Judge Gray continues:

“Also stated in the paragraph which dealt with relation 29, is the assertion that there were a number of manual jobs which the appellant could do under supervision, including a job at a call centre.

From decisions I have seen there appears to be a common misconception that working in a call centre is a benign, stress-free occupation. On the contrary such work is generally highly target driven, and whilst it may be suitable for those with physical health problems for whom being settled in one place is an advantage over more peripatetic occupations it cannot be seen as invariably suitable for all those with disabilities.”

 CE/3190/2013 [2014] UKUT 45 AAC: Illness behaviour: whether level of claimed disabilities credible given the lack of specialist involvement

Upper Tribunal Judge Wikeley

29 January 2014

The claimant had been attacked by a pit-bull type dog some years before and suffered injuries to her left arm and leg.  She has also developed quite serious mental health problems.

However, following an ATOS medical the Secretary of State decided that the Appellant scored zero points and so did not qualify for ESA which requires 15 points.

With a First Tier Tribunal (FTT) having upheld this decision, she appealed to the Upper Tribunal.

Judge Wikeley sets aside the FTT decision (and ordering a rehearing of the appeal) on the grounds that the tribunal should have considered adjourning for sight of an examining medical practitioner (EMP)’s report which had been prepared for the purposes of the Appellant’s renewal claim to DLA. The claimant had been examined for this purpose three months after the ESA decision, and the report had led to the renewal of her award of the lower rate mobility component of DLA.

The other ground to the cliamant’s appeal related to the FTT’s express finding that the she:

 “…exhibited illness behaviour. We found the level of her claimed physical disabilities are not credible given the lack of specialist involvement. We found that the physical consequences of the 2001 event would be expected to improve with time and adaptation, rather than deteriorate as the appellant would have us believe.”

The claimant’s representative submitted that even if the tribunal’s finding was justified, “illness behaviour” is a recognised psychological condition and under the law then in force this did not preclude physical descriptors applying.  

Judge Wikeley agrees as the decision under appeal in this case (taken on 5 September 2012) pre-dated the change in the legislation effected by regulation 3(2) of the Employment and Support Allowance (Amendment) Regulations 2012 (SI 2012/3096):

“These Regulations amended regulation 19 of the main Employment and Support Allowance Regulations 2008 (SI 2008/794) as from 28 January 2013 so as to confine physical descriptors in Schedule 2 to “a specific bodily disease or disablement” and mental health descriptors to “a specific mental illness or disablement”. So, under the rules then in force, the Appellant may score physical descriptor points for problems which have an underlying psychological cause.”

In terms of the nature of illness behaviour itself, Judge Wikeley says that a new tribunal should take into account CSI/1180/2001, an industrial injuries appeal, where Commissioner Parker observed:

“The new tribunal, if it considers that there is an insufficient organic basis for all of the claimant’s problems, must decide if he is consciously exaggerating or if he is genuine and his complaints form part of an abnormal illness behaviour linked to his accident. In the latter situation, it can form part of the relevant loss of faculty. The courts have long recognised there can be compensation for an unconscious reaction to physical injury sustained, provided the latter remains a material cause of the former.”

CSE/22/2013 [2013] UKUT 152 (AAC): Meaning and assessment of whether “engagement in social contact is always precluded” / substantial risk to physical or mental health

Upper Tribunal Judge Parker
26 February 2013

In this decision, Upper Tribunal Judge Parker considers the meaning and assessment of Activity 13 and its descriptor in Schedule 3 [support group] of the ESA Regulations 2008 that provides:

“Activity

13. Coping with social

engagement due to

cognitive impairment 

or mental disorder.

Descriptor

Engagement in social contact is always precluded due

to difficulty relating to others or significant distress

experienced by the individual.”

Judge Parker rejects the Secretary of State’s submission that the words “is always precluded” mean that it is not possible to consider whether or not the descriptor applies to the claimant for the majority of the time and that it is “an all or nothing test”.

In doing so she highlights that:

“In the Concise Oxford Dictionary, “always” is defined thus:

1 at all times; on all occasions (they are always late).

2 whatever the circumstances (I can always sleep on the floor).

3 repeatedly; often (they are always complaining).”

Reference to other dictionaries reveals a similar pattern; there is a primary meaning of “every time” and a more limited, secondary meaning of “repeatedly, persistent”.

Therefore, Judge Parker says:

“I conclude that “always precluded”, as used in activity 13 of Schedule 3, and likewise as used in activity 16 of Schedule 2, is not an all or nothing test; rather, it means “repeatedly” or “persistent” or “often”.

A “majority” may be constituted by events which happen only on 50.1% of the possible occasions, but a greater frequency is required by the use of the word “always”.

It is a question of degree, but a fact finding tribunal is eminently suited to applying these subtle nuances of difference in a common sense way. It suffices to say in the present case, that because a claimant attends one tribunal hearing and his GP accepts that he comes to the surgery very occasionally, does not necessarily entail the conclusion, as the tribunal clearly considered that it did, that it “cannot be said that engagement in social contact is always precluded”.”

On the nature of “social engagement” itself, Judge Parker does prefer the submission of the Secretary of State that the ability to undertake social contact with doctors and lawyers in situations which are acknowledged to have the potential to be stressful is properly to be taken into account when judging descriptor 13.

She reasons as follows:

“ “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”.”

Therefore, she says that what conduct amounts to the necessary “contact” or “engagement” is also a matter of fact and degree 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, without 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”.”

Judge Parker concludes by considering the issue of regulation 35(2) of the ESA Regulations 2008 that provides membership of the support group if there is “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”.

She holds that, under regulation 35(2), making an evaluation of substantial risk is not just an exercise limited to the ability to cope with the work related interview at the Job Centre, but also “in the context of the journey to or from” such an interview.

She adds that:

“This point has particular relevance to a claimant arguing under activity 13 of Schedule 3. The tribunal therefore went wrong in applying too narrow a statutory test, saying only “he should be able to cope with a work related interview at the Jobcentre”. 

CSE/151/2012 [2012] UKUT 376 (AAC): Whether someone can reasonably use a wheelchair to mobilise

Upper Tribunal Judge Gamble
1 June 2012

The claimant had a left foot and ankle problem following on an injury which she sustained when she fell approximately fifteen feet. 

With a First Tier Tribunal dismissing her appeal against the decision that she did not have a limited capability for work she appealed to the Upper Tribunal.

The First Tier Tribunal had considered activity 1 of schedule 2 to the Employment and Support Allowance Regulations 2008 (“mobilising”) and found as follows:

“In relation to mobilising, the test is whether the appellant could mobilise unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used. 

The medical examination shows no problems with the appellant’s upper body and limbs.  The letter from NHS Greater Glasgow and Clyde did not suggest any problem with the appellant’s upper body and limbs.  The tribunal found that in the event that the appellant could not walk that she would be able to mobilise using a wheelchair and that the use of such a wheelchair would be reasonable. 

The appellant stated that she did not have the upper body strength to propel a manual wheelchair but the tribunal did not accept her evidence regarding this.  There is no evidence to support this claim that she has any problems with her upper body.  The appellant therefore would be able to mobilise. 

The appellant does have an impairment in the left ankle, this is confirmed on the medical examination and also in the letter from the NHS.  She was able to walk 20 metres using 2 crutches, this was normally to the examination room, it may well be that the appellant could not using crutches, walk the distances contained within the descriptor but the test is not whether she can walk that distance but whether she can mobilise and she could do so reasonably using a wheelchair.  She is therefore not entitled to any

points under descriptor 1.”

The claimant’s representative submitted that the First Tier Tribunal had erred in law by not making findings of fact in relation to the following three questions:

“1. Whether it has been suggested to the appellant by medical personnel that it would have been suitable/reasonable for her to use a wheelchair given her condition/rehabilitation needs at that point in time (i.e. whether it was medically suitable for her to use a wheelchair with respect to her ongoing recovery).  The use of crutches may have been a necessary part of the appellant’s rehabilitation programme and undermined by wheelchair use.  No questions appear to have been asked of the appellant about whether it had been suggested she could use a wheelchair instead of crutches by medical personnel and whether this was medically suitable.

2. Whether the appellant would, in reality, have access to a wheelchair given the nature of her condition and availability of wheelchairs by local providers.  That is, would a wheelchair, in reality, be available to her?

3. The appellant lives in an upstairs tenement flat.  No questions were asked as to whether a wheelchair would be practical/suitable for her from the point of view of her living arrangements.”

Significantly, the claimant’s appeal was “entirely supported” by the Secretary of State.

In upholding the claimant’s appeal and remitting it for rehearing Judge Gamble holds as follows:

“The proper approach of a tribunal applying the statutory text of activity 1 … is to treat the matter of reasonableness as one requiring a broad exercise of their independent judgement to all the factors which are relevant in each individual case.  Those factors should not be restricted to a consideration of a claimant’s physical ability to use a manual wheelchair.  They should have explicitly considered at least the three issues expressly raised by the claimant’s representative … as well as the physical ability of the claimant.  All of those three matters were, in my judgement, highly relevant to the application of activity 1 in the claimant’s situation. Indeed, in almost every case where the question of whether it is reasonable for a claimant to use a manual wheelchair arises those issues (or similar ones) should be considered.”

CSE/286/2013 [2013] UKUT 458 (AAC): Whether tribunal must be provided with copies of PCA medical reports

In this decision, Upper Tribunal Judge May holds there is no binding obligation on the Secretary of State to provide the First-tier Tribunal hearing a ESA conversion appeal with previous personal capability assessment (PCA) ESA 85 medical reports.
A First Tier Tribunal had dismissed the claimant’s appeal that he did not have a limited capability for work for the purposes of the conversion of his incapacity benefit award to ESA.

In giving his decision, Upper tribunal Judge May rejects the conclusion of the Judge in CE/286/2012 who said:

“Where, as here, it is plain from what is being said by or on behalf of the claimant that she is no better (and maybe even worse) since she was last awarded ESA or was last subject to a limited capability for work assessment, and where (as here) there has been no relevant supervening event such as a change in the law or a successful medical operation, I cannot see any lawful basis for the Secretary of State or his decision makers denying to the First-tier Tribunal the previous ESA85 medical reports concerning the appellant (or at least the knowledge that such existed, and the ESA decision(s) made subsequent to them, if they are lost and no longer in his possession).”

However, Judge May says that:

“The absence of previous reports both for the purposes of employment and support allowance and incapacity benefit in my view only becomes an issue if it is asserted by either of the parties or is considered by the tribunal that the content thereof is material to the decision that requires to be made. 

Absence, and indeed the reasons for their absence, is something that requires to be considered by the tribunal when determining how to proceed.  If such reports are before the tribunal then whether they would impede the tribunal as suggested by the Upper Tribunal Judge in CE/2796/2012 in paragraph 10 would be a matter for the tribunal to determine. 

In the instant case the tribunal considered that there was sufficient evidence to determine the appeal without such reports.  That was a matter which was within its province and I can find no error in law on its part for determining the appeal on the evidence which was available to it.”

CSE/496/2012 [2013] UKUT 37 (AAC): Alcohol dependence/ whether points under Part 1 and Part 2 of Schedule 2 to ESA Regs restricted to physical and mental causes respectively/ meaning of “specific…disablement”

Three-Judge Panel
14 January 2003

In a lengthy and detailed decision, a three judge panel of Upper Tribunal Judges consider conflicting decisions of Upper Tribunal Judges concerning:

(i) whether the Tribunal of Commissioner’s decision in R(DLA)6/06 concerning a  person with alcohol dependence could be applied to ESA adjudication;

(ii) whether points could only be awarded under Part 1 (Physical Disabilities) of Schedule 2 to the Employment and Support Allowance Regulations 2008 (the “ESA Regs”) because of physical disablement (and similarly for part 2 and mental disablement);

(iii) what is meant by “specific bodily disease or disablement” and “specific mental illness or disablement”.

The three judges first consider Sections 1(4), 8(1) and (2) of the Welfare Reform Act 2007 and outline that they provide that:

“… whether a person’s capability to work is limited by his physical or mental condition has under the 2007 Act to be determined by way of an assessment which itself is limited to looking at a person who has a specific disease or bodily or mental disablement and the extent to which he or she is capable of performing prescribed activities. As appears later, the relevant regulations set out the way in which this is to be done by the decision maker. In other words, if a person does not have some specific disease or bodily or mental disablement then his or her physical or mental condition is not one that can in law limit his capability for work such as to give rise to entitlement to ESA. “

They then analyse the issue of whether alcohol (or drug) dependence is capable of falling within the definition of “specific disease or bodily or mental disablement” and so may act to found a claim for ESA.

The judges highlight that section 15A of the 2007 Act, which introduces Schedule 1A to the same Act and sets out that that schedule makes “provision for or in connection with imposing requirements on persons in cases where – (a) they are dependent on, or have a propensity to misuse, any drug, and (b) any such dependency or propensity is a factor affecting their prospects of obtaining or remaining in work”. Section 15A(2) of the 2007 Act sets out that Schedule 1A “also contains a power for its provisions to apply in relation to alcohol” with that power is found in paragraph 10 of Schedule 1A.  This sets out regulation making powers allowing requirements (such as attending a mandatory drug or alcohol rehabilitation plan) to be imposed as a continuing condition of entitlement to ESA. As a result, the judges say that:

“In our view, s. 15A provides compelling support for the conclusion we have reached that reading the 2007 Act as a whole shows that Parliament intended to provide and did provide that alcohol dependency falls within the phrase “specific disease or bodily or mental disablement” in section 8(2)(b) of the 2007 Act and the phrase “physical or mental condition” in section 1(4) of the 2007 Act .  Were it otherwise then the machinery under section 15A and Schedule 1A would have nothing to bite on. “

The judges next contrast the incapacity benefit scheme with the ESA scheme:

“”The immediate predecessor to the employment and support allowance scheme was the incapacity for work scheme.  Regulation 25 of the Social Security (Incapacity for Work) (General) Regulations 1995 (the “IFW Regs”) was very similar to the terms of regulation 19 of the ESA Regs, and the Schedule to the IFW Regs was, similarly, in two parts: Part I Physical Disabilities and Part II Mental Disabilities. However, regulation 25(3) of the IFW Regs set out that “in determining the extent of a person’s incapacity to perform any activity listed in Part I or Part II, it shall be a condition that the person’s incapacity arises - (a) in respect of a disability listed in Part I, from a specific bodily disease or disablement; or (b) in respect of a disability listed in Part II, from some specific mental illness or disablement”.

However, the judges highlight that:

“The wording of the regulation 19(5) of the ESA Regulations is different. It sets out, as we have seen above, simply that in the assessment of any activity listed in Schedule 2 the incapability to perform that activity arises from either a specific bodily disease or disablement or a specific mental illness or disablement.  Does this different wording lead to a different result? In our view it plainly does. The contrast with the more restricted and focused wording in regulation 25 of the IFW Regs is clear and we can only conclude was deliberate. On the face of regulation 19(5) of the ESA Regulations the assessment of whether a person can score points under Part I of Schedule 2 is not restricted to where the incapability to perform the activity arises from a specific bodily disease or disablement, and so it may arise from a mental illness or disablement (and vice versa).

With respect to the meaning of ‘specific disease or disablement’ and ‘specific mental illness or disablement’ in regulation 19(5), the Judges find that the word ‘illness’ does not change the statutory test set out in section 8(2) of the Act (‘specific disease or bodily or mental disablement’). While the term ‘specific’ refers to a recognised condition, the judges believe the breadth of the wording of regulation 19(5) means it would be rare for there to be a dispute as to whether a person has a specific disease or disablement. Tribunals should instead focus on the wording of the descriptors."

Finally, the judges hold that the expert medical evidence set out on alcohol dependence in the Tribunal of Commissioner’s decision in R(DLA) 6/06 remains valid i.e. that alcohol dependence is a discrete illness, well recognised by the medical professions and manuals of diagnostic criteria:

“In our view, unless contrary evidence is advanced that merits consideration, the summary of the expert evidence in R(DLA) 6/06 can and should be adopted by decision makers and tribunals in ESA cases as representing the currently accepted and mainstream medical view in respect of alcohol dependence.  This was the course adopted before us and by us in this appeal.”

As a result, the judges hold that the correct approach was taken by Upper Tribunal Judge Mark in CE/1293/2011 where he said that:

“it is irrelevant whether the claimant’s alcoholism is to be treated as a physical or mental disablement, or a combination of the two, or a disease.  The question is the extent to which, by reason of that or any other disablement or disease at the relevant time in 2010 he could score any points on any of the descriptors”

This is because, on the medical approach summarised in R(DLA) 6/06, whether it was categorised as a mental illness or mental disablement or neither, a diagnosis of alcohol dependence or alcohol dependency syndrome (which the appellant had in this case) plainly brings the condition within regulation 19(5) of the ESA Regulations. 

Note: in force from 28 January 2013, the Employment and Support Allowance (Amendment) Regulations 2012 amend regulation 19 so that, when being considered in relation to a descriptor under Part 1 of Schedule 2 (physical disabilities), any limitation on a claimant’s capability for work must stem from a specific bodily disease or disablement or as a direct result of treatment for that disease or disablement by a registered medical practitioner - similar amendments are also made in relation to Part 2 of Schedule 2 (mental, cognitive and intellectual functional ability).

While this does not mean that the all the finding of the three judges that alcohol dependency can fall within the definition of a “specific disease or bodily or mental disablement” it does mean that a tribunal will need to consider if it has a physical or mental causation.

Housing benefit

CH/140/2013 [2014] UKUT 48 (AAC): Bedroom Tax: whether additional room for a non-resident carer was a bedroom / definition of a bedroom

Upper Tribunal Judge West
15 January 2014

The claimant, who received the middle care component of DLA, had chronic obstructive pulmonary disease (COPD). While he and his wife had previously slept together in the same bed on his discharge from hospital he was advised to sleep in the raised bed in their second bedroom. 

His adult daughter was his carer and came daily to look after him, staying over three or four nights a week. She helped him at night to get to the bathroom and with his nebuliser when he needed it. As her father’s medical condition required him using the second bedroom she slept on a portable bed in the living room.

However, the local authority made a decision on that the claimant should be awarded housing benefit based on the one bedroom rate of local housing allowance because the criteria for the additional room rate was not met as there is no additional bedroom available for the use of his carer.

A tribunal upheld the claimant’s appeal against the decision finding that:

“.. there is a genuine need for a second bedroom, for occupation by the Appellant’s carer, and the effect of the council’s decision is to deny the two bedroom rate for Local Housing Allowance to the Appellant. The purpose of the Regulation is to provide that rate where it is genuinely required, and the Tribunal find[s] that it is genuinely required. The temporary use of the second bedroom by the Appellant at the time of his greatest need should not be used by the Council to deny the Allowance to the Appellant.”    

In its appeal to the Upper Tribunal the local authority disputed that the claimant could be allowed more than one bedroom for the purposes of calculating his housing benefit entitlement. This was on the grounds that the regulation 2(1) of the Housing Benefit Regulations 2006 definition of “a person in overnight care” required not just that they be in receipt of the middle or higher care rate of DLA but that any non-resident carer was “provided with the use of a bedroom”. As the claimant’s daughter did not occupy a bedroom but the living room in which she slept that was not sufficient.

In dismissing the local authority’s appeal, Upper Tribunal Judge West says that:

“It would be curious if that were the effect of the relevant provisions. If, by contrast, the claimant had been disabled and entitled to the highest or middle rate of the care component of DLA, but his condition was not sufficiently serious that he needed to sleep in a separate bed, yet he still needed overnight care from his daughter, who occupied the second bedroom, she would have been provided with a bedroom additional to that used by the occupiers of the dwelling within … the definitional regulation.

… If, however, the claimant’s medical needs are sufficiently serious that he is advised to sleep in a separate bedroom in a special bed away from his wife, with the result that his daughter has to sleep elsewhere, on the Council’s argument he is in fact penalised by virtue of his additional needs because he is then entitled only to the one bedroom rate of local housing allowance.”

Judge West instead holds that:

“In my judgment, on the facts of this case the claimant’s daughter was provided with the use of a bedroom additional to those used by the persons who occupy the dwelling as their home. The fact that the room which she used was also the lounge of the house does not preclude it from being a bedroom. It was the room in which she had a portable bed and the room in which she slept when she was caring for her father, staying over, as the appeal tribunal found, three or four nights a week and helping him at night to get to the bathroom and with his nebuliser when he needed it.

The legislation does not require that the “bedroom” must be a room primarily intended for sleeping in, such that a lounge or other living room is necessarily precluded from being a bedroom because it can be used for another purpose when it is not being used to be slept in.”

He continues that the word “bedroom” is not defined in the legislation but is an ordinary English word and should be construed as such. Citing dictionary definitions he reasons that:

“On any of those definitions it seems to me that the claimant’s daughter had the use of a bedroom; the fact that the bed may have been folded up or put away in the course of the day when the room was being used as a lounge or living room does not mean that it was not a bedroom within the meaning of the regulations when she slept in it at night. It is sufficient if the room in question, of which the overnight carer has use, is furnished with a bed or is used for sleeping in. It would therefore make no difference if the claimant’s daughter had, for example, slept on the sofa, or in a sleeping bag on cushions on the floor, as opposed to sleeping on a portable bed.“

Judge West concludes by explaining that given his reasoning he does not need to consider the additional argument made by the claimant to the effect that the effect of the regulations is such that they is unlawfully discriminate against him in the same way as the appellant in Burnip.

In addition, he explains the effect of the amendments introduced into regulation 13D of the Housing Benefit Regulations was in fact to deal with the Burnip point.

However, given the local authority’s expressed concern about the implications of this case, Judge West reiterates the cautionary words of Henderson J in paragraph 64 of Burnip:

“… there is no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception is sought for only a very limited category of claimants, namely those whose disability is so severe that an extra bedroom is needed for a carer to sleep in.” 

Note: While this positive judgment is to be welcomed it does not necessarily follow that it will be possible to successfully argue the findings made by Judge West in reverse .i.e. that if someone does not use a bedroom as a bedroom that it cannot be classed as a bedroom irrespective of what a landlord maintains. For a discussion of this issue see http://nearlylegal.co.uk/blog/2014/01/upper-tribunal-on-bedrooms/

In addition, the ruling in this case will not assist those couples who sleep separately due to disability related reasons but who have no overnight non-resident carer.

Incapacity benefit

CIB/1057/2012 [2012] UKUT 430 (AAC): Whether a tribunal has a duty to consider regulation 27(b) (“substantial risk”)

Upper Tribunal Judge Ovey
31 October 2012

Prior to his incapacity benefit claim the claimant had been working as a bricklayer but following him losing his job he slipped and injured his head. This led him to experience a wide range of physical and mental problems including episodes of lost consciousness

Following a personal capability assessment examination he was awarded only 12 points on the ground that he had had an involuntary episode of lost or altered consciousness at least twice in the last six months.

With a First-Tier Tribunal (FTT) tribunal confirming this point score and dismissing his appeal the claimant appealed to the Upper Tribunal.

This was on the grounds that the FTT had given no consideration to regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995. This provides that someone who is not incapable of work in accordance with the personal capability assessment is nevertheless to be treated as incapable of work if:

“… he suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work.”

In upholding the claimant’s appeal, Upper Tribunal Judge Ovey highlight’s the judge’s decision in CIB/718/2011. This simply stated that it was an error of law for the tribunal not to have considered regulation 27(b).  However, Judge Ovey says:

“It is not clear whether that was intended to be a purely general proposition or one limited to the facts of the case, especially as the decision is short and the judge had already found another error of law.  Further, paragraph 4 of the decision implies, although it does not expressly state, that the claimant in that case was unrepresented before the tribunal.”

Judge Ovey then continues that in his view tribunals are not under an obligation in all cases in which the claimant fails the personal capability assessment to consider whether regulation 27(b) applies:

“To take a common type of example, the outcome of the assessment may revolve round whether the claimant can walk for more or less than 200 metres without stopping or severe discomfort, can sit comfortably for more or less than 30 minutes without having to move because of discomfort and can never rise from sitting to standing without holding on or can sometimes do so. 

In the absence of something further, it is difficult to see that regulation 27(b) could possibly have any application and if a represented claimant does not put it in issue it is difficult to conceive of circumstances in which a tribunal would make an error of law by not expressly dealing with it in the statement of reasons.” 

However, he then stresses:

“By contrast, if there is undisputed evidence of a serious condition which falls only slightly short of entitling the claimant to incapacity benefit and the condition is inherently one which is capable of giving rise to risk of injury in a work environment there is likely to be an error of law if the tribunal does not consider regulation 27(b). 

That is particularly the case when the claimant is unrepresented, when there is obviously a much greater risk that a good point will go by default. 

… The tribunal, exercising its inquisitorial function if necessary, should deal expressly with reg. 27(b) in any case in which by failing to deal with it the tribunal might be failing to deal with a point which is arguably open to the claimant on the evidence and which is capable of making a material difference to the outcome of the proceedings.”

In this case the claimant’s previous work had been as a bricklayer foreman and he now suffered from episodes of unconsciousness there could be a risk of injury if he returned to employment on a construction site. In addition, the claimant was unrepresented at the FTT and may have been wholly unaware of the existence of regulation 27(b) and so unable to put it in issue. 

Given the above, Judge Ovey holds that the FTT had an obligation to consider the applicability of regulation 27(b). As it did not, it therefore erred in law and so he sets aside its decision and directs that the claimant’s appeal be reheard.  

Note: the conclusions in this case can be applied to ESA where regulation 29(b) and 35(2) of the Employment and Support Regulations (that also consider “substantial risk”) are at issue.

Ken Butler - 28 March 2014