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Selected upper tribunal decisions from April 2015 to March 2016

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Attendance allowance

CA/209/2015: Attention when mobilising out of doors

Upper Tribunal Judge: Mark

The claimant had significant back, leg and knee pain and shortness of breath with her GP describing her as having a degenerative disc lesion and muscle atrophy.

With a First Tier Tribunal upholding the decision not to award her Attendance Allowance she appealed to the Upper Tribunal.

In its statement of reasons, the tribunal said:

“It was accepted that [the claimant] had problems with mobility but [the claimant] must realise … that mobility outside the house is not a condition that allows entitlement to Attendance Allowance.”

In upholding the claimant’s appeal and remitting it for rehearing, Upper Tribunal Judge Mark holds that this statement fails to consider whether the claimant reasonably required attention in relation to the bodily function of walking either outside or inside her home. 
He highlights that it is well established that there is nothing in the requirements for attendance allowance which excludes from consideration attention reasonably required in relation to the bodily function of walking (Mallinson v Secretary of State [1994]; R(DLA) 4/01; CDLA/2333/2005; CDLA/3376/2005).

He says:

“This claimant clearly had major problems walking out of doors, to the extent that … the tribunal found that she had been using a wheelchair.  The tribunal was in serious and manifest error of law in excluding mobility outside the house from its consideration. 

It was also in error of law in failing to make findings as to the claimant’s reasonable needs in this respect indoors, whether in her own house or elsewhere.  This could include getting in and out of a car and using public transport, and having somebody help her to get out and use a walking frame or wheelchair or store them after use.”

Judge Mark then catalogues several ways in which the tribunal’s remaining findings as to care needs were also seriously inadequate. 

He concludes by stating:

“In general, as it was put by Judge Lane in Secretary of State v PV [2010] UKUT 33 (AAC) at paragraph 3:

“It was necessary not only to break down the activities for which the claimant claimed to need attention, but to

    • articulate the nature of the assistance needed, which could vary considerably depending upon the activity in question,
    • give an indication of the frequency with which he required attention with the differing types of assistance he might need, and
    • assess how far the assistance was reasonably required.”

The tribunal under appeal ought to have approached the matter in this way and, in all the circumstances, was in error of law in failing to do so.  The new tribunal will need to adopt this approach unless for some reason it is manifestly unnecessary to do so.”

Child Benefit

CF/5472/2014: Child benefit disqualification of home tutored disabled child breached claimant’s human rights

Upper Tribunal Judge: Levenson

The claimant’s son Andrew was diagnosed at the age of about 11 with high functioning autism/Asperger’s syndrome.

After attending a special school, when he turned 18 in September 2013 the local authority agreed to cover the cost of a home learning programme for Andrew to work towards a trade qualification in information technology.

In October 2013 HMRC decided that this was not approved education for the purposes of entitlement to child benefit and that as from September 2013 the claimant was no longer entitled to child benefit in respect of Andrew.

With a First Tier Tribunal upholding HMRC’s decision, the claimant appealed to the Upper Tribunal.

Regulation 3 of the Child Benefit (General) Regulations 2006 provides:

“3 (1) This regulation applies in the case of a person who has not attained the age of 20.

(2) The condition is that the person –

(a) is undertaking a course of full-time education, which is not advanced education and which is not provided by virtue of his employment or any office held by him –

(i) which is provided at a school or college; or

(ii) which is provided elsewhere but is approved by the Commissioners [of Revenue and Customs].

(3) A person is not a qualifying young person by virtue of paragraph 2(a)(ii) unless he was receiving the education referred to in that paragraph as a child.”

Andrew was undertaking the study at home, but did not begin that home study until he was 18. As it had not started while he was a child under 16 and therefore could not come within the provisions of regulation 3(2)(a)(ii) because of the exclusion specified in regulation 3(3).

In upholding the appeal, Upper Tribunal Judge Levenson says that the parties were effectively agreed that the application of regulation 3(3) to Andrew’s position amounted to discrimination against the claimant contrary to the Human Rights Act 1998 and article 1 protocol 1 read with article 14 of the European Convention on Human Rights (“the Convention”), in that there was a relevant difference in treatment that could not be justified and was not proportionate.

The main relevant sections of the Human Rights Act 1998 are:

3(1) So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights.

… 6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

The main relevant provisions of the Convention are as follows.

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

Article 1 of Protocol 1:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

In its written submissions HMRC said that there was no evidence that a disproportionate number of young people who are disabled and who receive home education only started to receive it after the age of 16. However, it agreed that discrimination between disabled people with different needs may engage article 14 just as much as discrimination between a disabled person and a person who is not disabled (Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47)

Judge Levenson summarises HMRC’s submission further:

"(h) Andrew is a young person whose special educational needs have developed in such a way that he required a home education programme commencing after his 16th birthday. Had his needs been different so that he had required such a programme to commence before his 16th birthday, or had not required such a programme at all, the claimant would have been entitled to child benefit for him

(i) it is the claimant’s status as the parent of a child with special educational needs whose needs require a home education programme commencing after the age of 16 that has resulted in the loss of entitlement to child benefit. Accordingly the relevant difference in treatment requires justification if it is not to be unlawful discrimination

(j) in effect, where there is a statement of special educational needs and a programme of education has been specifically assessed by the local authority as being suitable for the young person’s special needs, there is no difference between those on either side of the line drawn by regulation 3(3) and the difference in treatment in the present case cannot be justified

(k) therefore regulation 3(3) should be disapplied in the present case."

As a result, Judge Levenson upholds the claimant’s appeal, and substitutes his own decision that she is entitled to child benefit as from September 2013.

Disability living allowance

Mathieson v Secretary of State for Work and Pensions (Respondent) [2015] UKSC 47: Landmark Judgment: Supreme Court rules that suspending child's DLA after 84 days in hospital breached his human rights

The issue in this appeal was whether DLA could be paid to a child in hospital longer than 84 days.

Cameron Mathieson was born on 19 June 2007. At his birth, part of his bowel had to be removed. Shortly afterwards he was diagnosed with cystic fibrosis and, later, also with Duchenne muscular dystrophy. The muscular dystrophy precipitated severe developmental delay. One area of it was in Cameron’s ability to communicate; so his father learnt the signs and symbols of Makaton in order better to communicate with him. Other conditions, including a clotting disorder and deep vein thrombosis in his left leg, made his needs even more complex.

His parents also had to learn how to administer chest physiotherapy to him, entailing chest percussion and postural drainage, for 20 minutes twice a day. Thereafter they had to prepare and administer nebulised antibiotics to him through special equipment, as well as a host of other medications and supplements.

On 4 July 2010 Cameron, who was showing symptoms of chronic bowel obstruction, was admitted to the specialist respiratory unit at Alder Hey Hospital, Liverpool. He was to remain there until 4 August 2011. The doctors considered that he had needs for an even more complex package of care, including intravenous feeding, which could not easily be set up for delivery to him by his parents at home.

Cameron was later to pass away at home on 12 October 2012.

Cameron’s parents were in receipt on his behalf of the highest care rate and the highest mobility rate of DLA.

However, Regulations 8(1), 10, 12A and 12B of the Social Security (Disability Living Allowance) Regulations 1991 provide that, neither component of DLA can be payable to a child under 16 after they have been a hospital inpatient for 84 days.
As a result, a decision was issued to halt Cameron’s eligibility to be paid DLA from October 2010.

With a First Tier Tribunal an Upper Tribunal and then the Court of Appeal dismissing Cameron’s father’s appeal against the decision, his further appeal was heard by the Supreme Court.

Mr. Mathieson submitted that the rule suspending DLA payment after 84 days had breached his son’s rights under Article 14 of the European Convention on Human Rights (“the Convention”), entitled “Prohibition of discrimination”.
Article 14 provides that:

“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.”

In his invocation of article 14, Mr Mathieson needed to establish a link with one or more of the Convention’s other articles. The Secretary of State accepted that there was a link He alleges a link with Cameron’s rights to “the peaceful enjoyment of his possessions” under article 1 of Protocol 1 (A1P1).

The grounds of discrimination prohibited by article 14 Mr Mathieson relied were on the concluding reference to “other status”. The premise of his argument was that payment of the care component of DLA is expressly limited, and that the mobility component is in effect limited, to the “severely disabled”. Mr Mathieson argued that Cameron’s status was that of a severely disabled child who was in need of lengthy in-patient hospital treatment and that, in comparison with a severely disabled child who was not in need of lengthy in-patient hospital treatment, application to Cameron of the 84-day rule discriminated against him contrary to article 14.

The Secretary of State contended that purpose of suspending DLA after 84 days was to avoid “overlapping provision” to meet disability-related needs as the disability-related needs of children in hospital are met by the NHS.

However, substantial evidence was presented to the Court that this was not the situation in Cameron’s case.

For example, an advanced nurse specialist attached to the cystic fibrosis team at the unit later gave evidence of the important role played by Mr and Mrs Mathieson at Alder Hey during the 13 months of Cameron’s treatment there. She reported that:

  • Cameron’s care needs far exceeded those of any other child in the clinic;

  • the clinic relied heavily on Mr and Mrs Mathieson to undertake his daily care in the clinic;

  • one or other of Mr and Mrs Mathieson was resident in the hospital at all times;

  • “they remained his primary caregivers”;

  • the clinic relied on them to monitor his condition daily and on several occasions they were the first to notice deterioration in it;

  • they participated in all discussions and decisions about his care;

  • as they had done at home, they administered chest physiotherapy to Cameron at the clinic twice a day and thereafter the nebulised antibiotics;

  • they prepared and administered his feeding by nasogastric tube;

  • they administered warfarin to him in order to combat the clotting;

  • they changed his stoma bags up to eight times a day.

In a unanimous judgement upholding the appeal, the Supreme Court rule that there was an error of law in the tribunal’s analysis of Mr Mathieson’s case:

“First, it focussed upon the sort of attention which Cameron had received, or might have received, at Alder Hey in connection with bodily functions. His need for attention in connection with bodily functions had indeed been the threshold to his entitlement to the care component of DLA. But … there is no restriction on how DLA, once awarded, may, on his behalf and for his benefit, be deployed; and so it by no means followed that the inquiry into justification for the suspension should so narrowly be focussed.

The focus should be upon whether the disability related needs which Cameron exhibited at home continued to exist throughout his stay at Alder Hey and whether to a substantial extent Mr and Mrs Mathieson continued to attend to them there. In any event, however, the catalogue of care provided by them to Cameron at Alder Hey suggests that they there attended no less to his bodily functions than when he had been at home.

Second, it observed that the staff at Alder Hey would if necessary have provided for Cameron the care which Mr and Mrs Mathieson provided for him there. “As long”, said the tribunal, “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”. But what nursing staff need to do in the event that parents fail to perform the role expected of them is irrelevant.

The Supreme Court also rule that the volume of evidence submitted to it, that included two research reports by Contact a Family meant that tribunal the number of families which incurred additional costs as a result of their child’s admission to hospital was far from being a small minority.

As a result, the Supreme Court conclude that:

  • by his decision to suspend payment of DLA to Cameron, the Secretary of State violated his human rights under article 14 of the Convention when taken with A1P1;

  • in that the Secretary of State was not obliged by any provision of primary legislation to suspend the payment, he acted unlawfully in making the decision dated 3 November 2010: section 6(1) and (2) of the Human Rights Act 1998 (“the 1998 Act”);

  • accordingly the First-tier Tribunal should have allowed Cameron’s appeal against that decision; should have set it aside; and, should have substituted a decision that Cameron was entitled to continued payment of DLA with effect from October 2010 to the date from which payment of it was reinstated; and

  • the court should allow Cameron’s appeal and make the orders which the First-tier Tribunal should have made.

Mr Mathieson also asked the Court to discharge its interpretative obligation under section 3 of the Human Rights Act 1998 Act by somehow reading the provisions for suspension of payment of DLA in regulations 8(1) and 12A(1) of the 1991 Regulations so as not to apply to children.

However, the Court declined to do this holding that it may not always follow that the suspension of payment of a child’s DLA following his 84th day in hospital will violate his human rights.

“Decisions founded on human rights are essentially individual; and my judgment is an attempted analysis of Cameron’s rights, undertaken in the light, among other things, of the extent of the care given to him by Mr and Mrs Mathieson at Alder Hey. Although the court’s decision will no doubt enable many other disabled children to establish an equal entitlement, the Secretary of State must at any rate be afforded the opportunity to consider whether there are adjustments, otherwise than in the form of abrogation of the provisions for suspension, by which he can avoid violation of the rights of disabled children following their 84th day in hospital. “

Comment: This Supreme Court ruling could have a significant impact on the estimated 500 families with severely disabled children who spend extended time in hospital undergoing treatment. Research carried out by Contact a Family and The Children's Trust, who supported the Mathieson family, shows that of the families affected by the DLA suspension hospital rule 99% said they provide more or the same level of care when their child is in hospital compared to when at home.

However, it is incredibly disappointing that the Supreme Court did not also disapply the ‘84 day rule’. This means that parents of children in hospital affected by the rule will need to appeal against a decision suspending benefit to their child citing the Mathieson judgment as a precedent and detailing the level of care they continue to provide.

CDLA/2903/2014: Whether the mobility component of DLA is exportable to an EU state

Upper Tribunal Judge: Jacobs

The main issue in this case is whether the claimant was entitled to export her award of the mobility component of disability living allowance on her move to Spain.

The claimant was born on 17 September 1972 and moved to Spain on 5 January 2012. At that stage, she was in receipt of an award of a disability living allowance consisting of the mobility component at the higher rate and the care component at the highest rate on and from 5 July 2010.

As a result of the decision of the Court of Justice of the European Union in Commission v European Parliament and Council (Case C-299/05) [2007] ECR I-8695, the claimant was entitled to retain the care component of her award of disability living allowance on her move to Spain, as it is a sickness benefit. Her daughter was able to retain her carer’s allowance as this is also classified as a sickness benefit.

However, as a result of the decision of the Court of Justice of the European Union in Bartlett, Ramos and Taylor v Secretary of State for Work and Pensions (Case C-537/09) [2012] AACR 34, the mobility component of disability living allowance is not a sickness benefit. Relying on this decision, the Secretary of State removed entitlement to the care component with effect from 6 January 2012.

In considering the appeal, Upper Tribunal Judge Jacobs says that the relevant regulation in this case is not EU Regulation 1408/71but EU Regulation 883/2004. That is because the claimant did not move until after Regulation 883/2004 came into force.

He then explains that the mobility component of disability living allowance is a special non-contributory cash benefit for the purposes of Article 70 of and Annex X to the Regulation. As a result, Article 70(3) and (4) apply:

3. Article 7 and the other Chapters of this Title shall not apply to the benefits referred to in paragraph 2 of this Article.

4. The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence.

The effect of Article 70(3) is that it was permissible for the UK to withdraw the mobility component of disability living allowance when the claimant moved to another State. The effect of Article 70(4) was that the claimant is only entitled to benefits under the law of the State where she resides.

The claimant argued that she was entitled to retain her disability living allowance due to the transitional protection in Article 95b(8) of Regulation 1408/71:

Article 95b

Transitional provisions for application of Regulation (EEC) No 1247/92

8. The application of Article 1 of Regulation (EEC) No 1247/92 may not result in the withdrawal of benefits which are awarded before 1 June 1992 by the competent institutions of the Member State under Title III of Regulation (EEC) No 1408/71 to which Article 10 of the latter Regulation is applicable.”

Judge Jacobs agrees that the holds that the claimant is within the terms of these transitional provisions:

“The mobility component of disability living allowance was awarded before 1 June 1992. In 1990, the claimant was awarded a mobility allowance for the inclusive period from 16 May 1990 to 16 September 2052. In April 1992, mobility allowance was abolished and her awarded was transferred into an award of the mobility component at the higher rate of disability living allowance pursuant to regulations 7 and 8 of the Social Security (Introduction of Disability Living Allowance) Regulations 1991. So, the claimant is within the terms of the provision.”

However, he concludes by highlighting the flaw in the claimant’s argument:

“She did not move to Spain until 2012. By that time, Regulation 1408/71 had been abolished and replaced by Regulation 883/2004. There is no equivalent to Article 95b(8) in the new Regulation.

There is transitional provision in Article 87(8):

If, as a result of this Regulation, a person is subject to the legislation of a Member State other than that determined in accordance with Title II of Regulation (EEC) No 1408/71, that legislation shall continue to apply while the relevant situation remains unchanged and in any case for no longer than 10 years from the date of application of this Regulation unless the person concerned requests that he/she be subject to the legislation applicable under this Regulation.

The request shall be submitted within 3 months after the date of application of this Regulation to the competent institution of the Member State whose legislation is applicable under this Regulation if the person concerned is to be subject to the legislation of that Member State as of the date of application of this Regulation. If the request is made after the time limit indicated, the change of applicable legislation shall take place on the first day of the following month.

However as I explained in Secretary of State for Work and Pensions v PW [2013] UKUT 0296 (AAC), this only operates to preserve entitlement that has already been established. The claimant was in this country throughout the time that Regulation 1408/71 was in force. She had never relied on its provisions. Accordingly, when it was abolished with effect from 1 May 2010, any protection to which she might have been entitled under Article 95b ceased to be available to her. Thereafter, she had to rely exclusively on Regulation 883/2004. That was the tribunal’s reasoning and it was right in law.”

CDLA/3008/2014: Whether the ‘cooking test’ takes into account of community preferences

Upper Tribunal Judge: Mitchell

One of the grounds for claiming DLA that he was unable to cook for himself: “I must rely on take away foods to eat because I would be at high risk of injury if I attempted to [cook]”. 

A tribunal refused the claimant’s appeal against the decision that he was not entitled to any DLA award.

In relation to the cooking test, its reasons were as follows:

“Although the appellant mainly eats microwave meals obtained by a friend, upon questioning the appellant acknowledged that he could prepare a simple meal based on rice, although he could not cook traditional Nigerian food as this would take a long time to prepare. The tribunal considered that, with an aid like a perching stool, there was no reason why the appellant could not chop and peel vegetables and prepare a cooked meal for one”.

In appealing to the Upper tribunal the claimant submitted that the tribunal had wrongly failed to consider whether he was able to cook a main meal “which is reasonable for a member of his community”, which was the Nigerian community.

In considering the claimant’s appeal, Upper Tribunal Judge Mitchell explains that the leading case about the cooking test provisions is the House of Lords’ decision in Moyna v Secretary of State for Work & Pensions [2003] 1 WLR 1929, [2003] UKHL 44, R (DLA) 7/03.

In Moyna, Lord Hoffman, held that the cooking test’s purpose:

“… is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance. It is a notional test, a thought-experiment, to calibrate the severity of the disability. It does not matter whether the applicant actually needs to cook.

… Not for nothing is the notional meal contemplated by the cooking test described in the authorities as "traditional". It must be remembered that disability living allowance is a non-contributory, non-means tested benefit. A person who cannot cook for himself is entitled to the allowance…whether he solves the eating problem by obtaining help, having a wife, buying television dinners or dining at the Savoy.”

Judge Mitchell stresses that in relation to this case, the significant point is that the cooking test was held:

  • to be “a notional test, a thought-experiment, to calibrate the severity of the disability”;
  • that this involves the concept of a “notional meal”; and
  • that the notional meal is a “traditional” meal.

Judge Mitchell outlines that the claimant was seeking to rely on the decision in R(DLA)2/95. He says that in that decision the Commissioner began by stressing the objective nature of the test: “…the ‘cooking test’ is a hypothetical test to be determined objectively”.

However, Judge Mitchell says the Commissioner went on to suggest that the object of the test - a meal - may vary according to factors personal to a claimant:

“The nature of the ‘cooked main meal’ which the claimant ‘cannot prepare’ is crucial. In my view it is a labour intensive reasonable main daily meal freshly cooked on a traditional cooker. What is reasonable is a question of fact to be determined by reference to what is reasonable for a member of the community to which the claimant belongs, e.g. a vegetarian meal as opposed to one which is not.”

However, in dismissing the claimant’s appeal, Judge Mitchell holds that:

“If R(DLA) 2/95 envisages materially different meals for different communities (whatever a community is) it is incompatible with the ruling in Moyna that the cooking test is a notional test, designed to calibrate the severity of disability.

… Since the test simply calibrates disability, rather than aiming to secure access to a reasonable daily cooked meal, Parliament must have intended materially the same test for all. Parliament is to be presumed not to enact illogical legislation and it would be illogical for a test whose purpose is simply to calibrate disability to have different thresholds for different communities.”

He continues that:

“The present case illustrates how varying the main meal from community to community would create different disability thresholds for different communities. It is said that, within the Nigerian community, meals take significantly longer to prepare than meals associated with some other communities. If that is right, then the disability bar is lowered for that community. A meal that takes one hour to prepare is more demanding, so that fewer disabled people would be able to complete the task, than a meal that takes say half an hour to prepare.

This is not to say that individual culinary preferences must be ignored. By all means, decision makers and tribunals may ask claimants about the styles of cooking with which they are familiar. But it must always be borne in mind that the purpose of the exercise is to obtain evidence about ability to perform those tasks comprised in preparing the traditional cooked main meal referred to in Moyna.”

Judge Mitchell also dismisses the claimant’s submission that the tribunal’s approach breached his rights under article 14 of the European Court of Human Rights (enjoyment of rights and freedoms without discrimination).

In doing so, he cites the judgment of the Court’s Grand Chamber in Carson v United Kingdom (2010):

"In order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised."

In holding that there had been no breach of Article 14, Judge Mitchell holds that:

“If the cooking test is applied properly, in accordance with Moyna, no one is treated any differently to anyone else. There is no direct discrimination because the test is a uniform one. That is nearly the end of the matter in relation to Article 14. The only remaining issue is whether there is discrimination contrary to Article 14 due to a failure to treat differently persons whose situation is relevantly different. It seems to me that [the claimants] representative’s argument probably falls within this category given the contention that the test ought to accommodate particular religious or cultural dietary requirements,

He adds that the claimant’s argument rested on the flawed premise that the cooking test’s purpose is to ensure a disabled person has a reasonable diet:

“That is not its purpose, which is simply a means of calibrating disability. Since the cooking test is not an attempt by the state to ensure reasonable nutrition for disabled people, it cannot realistically be argued that it is indirectly discriminatory for the test to fail to take account of different cooking preferences across different communities.”

Comment: The DWP are likely to maintain that the findings of Judge Mitchell apply to the Preparing Food descriptor of PIP that concerns the ability to cook a simple meal (defined as “a cooked one-course meal for one using fresh ingredients”).

CDLA/5042/2014: Effect of criminal conviction on DLA overpayment appeal.

Upper tribunal Judge: Mark

This is an appeal by the claimant with the permission of an Upper Tribunal Judge from a decision of a First-tier Tribunal dismissing his appeal from decisions superseding an earlier award of the highest rate of the mobility component and the highest rate of the care component and finding that there has been an overpayment of £28581.25 recoverable from him.

The claimant had renal failure, high blood pressure, gout, diabetes, heart failure, and stomach problems. He was on dialysis three times a week. However he was found to have been playing golf regularly from 2007, walking around the course.
He accepted that this was an improvement in his condition compared with when he had been awarded higher rate mobility that he ought to have reported to the DLA unit.

After the supersession decision and in the course of this appeal, he pleaded guilty at the magistrates court to a charge that between 2007 and 2011 he dishonestly failed promptly to notify the DWP of a change of circumstances which he knew would affect his entitlement to DLA (that there had been a reduction in his mobility restrictions and care needs).

In introducing this case, Upper Tribunal Judge Mark outlines that the claimant was not in any way seeking to resile from his guilty plea in the criminal proceedings or that the assertion of those care needs in any way called into question the criminal conviction:

“The charge to which he pleaded guilty was a failure to disclose that there had been a reduction in his mobility and care needs. There had plainly been a reduction in his mobility needs and care needs but this does not stop him from asserting that his care needs were still such, taking into account what he has admitted, that he still qualified for benefit at some level or other.”

In considering the a question is whether the claimant had sufficient remaining needs to qualify for an award of either component at any rate during the period under appeal agrees that the tribunal addressed this question:

“It recognised that he required dialysis three evenings a week, a fact which does not seem to have been disputed by the Secretary of State, but considered that in all other respects the claimant could self-care.

It was in plain error of law in failing to consider the application of regulation 7 of the Social Security (Disability Living Allowance) Regulations 1991.

The claimant was admitted to have renal failure and would appear to fall within regulation 7(2)(i) in that he underwent renal dialysis two or more times a week. Given that he went to hospital for the dialysis, it would also appear to be likely that either the dialysis was of a type which normally required the attendance or supervision of another person during the period of the dialysis or that because of his particular circumstances he in fact required the attendance or supervision of another person in order to avoid substantial danger to himself.

What is less clear is whether during the dialysis no member of the staff of the hospital assisted with or supervised it so as to bring him within regulation 7(2)(b). Nor is it clear whether, if the dialysis did fall within regulation 7(2), whether any part of the dialysis was by night – that is after the family would normally have retired to bed.”

Finding that these were questions which the tribunal should have addressed and were in error of law in failing to address, Judge Mark upholds the claimant’s appeal and remits it for rehearing.

CDLA/5184/2014: Lower rate mobility criteria for a child

Upper Tribunal Judge: Gray

A tribunal had refused an award of the lower rate of the mobility component to the child claimant as it “did not accept that any 6 year old would be allowed to go on unfamiliar routes on their own and that all would require guidance or supervision outdoors.”

In considering the claimant’s appeal, Upper tribunal Judge Gray says that this argument asserts that no 6 year old should be left unsupervised on an unfamiliar route (or possibly at all) and so no 6 year old can qualify for that component of DLA.

However, she says that this approach ignores the fact that Parliament has legislated to the effect that the lower rate of the mobility component is available to children over 5 (Social Security Contributions and Benefits Act 1992 section 73).

She continues:

“The legislation is not, however, a green light for parents to allow 5-year-olds to scamper around the countryside unsupervised, because the proper application of the provision includes, critically, an additional test which must be satisfied before an award of the lower rate of the mobility component can be made in respect of any period......That test prevents parents or carers of children being awarded benefit for simply doing what all parents or carers must do in respect of children.  An award can only be made where, due to disability, the supervision or guidance required is of a different order to that. There is a similar (but not identical) provision in relation to the care component.

So while guidance or supervision that all young children require out of doors because of traffic and other hazards such as getting lost will not attract an award where something further is required most of the time because of the child’s disability an award may be made.

A systematic analysis is needed to establish what supervision or guidance is established, and whether that guidance satisfies one of the subtly differing limbs under the test in paragraph 73 (4A) of the 1992 Act.

This provides that a child under 16 years old “requires substantially more guidance or supervision from another person or persons of his age in normal physical and mental health would require”, or “persons of his age in normal physical and mental health would not require such guidance or supervision.”

She then concludes by citing Upper Tribunal Judge Markus QC in the case of BM-v- SSWP (DLA) [2015] UK UT 18 (AAC) who held that:

“The starting point for the tribunal in the present case should have been to identify what relevant assistance the appellant required when walking out of doors. This may not be limited to guidance in crossing the road. Indeed, as the Secretary of State has pointed out, the claim form completed on behalf of the appellant identified a number of difficulties which might bring his case within section 73(1)(d).

The tribunal would then have to identify the nature and degree of any guidance or supervision that is required and whether it is substantially more than or different from that required by a 6 year old in normal physical and mental health. Even if the only assistance that he required was guidance in crossing the road, the fact that all 6 year olds need guidance in crossing the road does not dispose of the case. It all depends on whether he needs substantially more guidance or different guidance.”

CDLA/5300/2014: Tribunal wrong in not considering adjournment to allow claimant with agoraphobia to give evidence

Upper Tribunal Judge: Hemingway

The claimant was born in 1966 and her health difficulties which included agoraphobia, asthma, depression, hypertension, anxiety and angina.  She had been awarded the lower rate of the mobility component and the middle rate of the care component of disability living allowance from March 2012 to March 2014. 

While a decision was made to renew her DLA award it was on the basis that she was entitled to the lower rate of the mobility component only from 7 March 2014 to 6 March 2019.  The claimant sought to challenge the award but it was confirmed on mandatory reconsideration and she appealed to the First?tier Tribunal (FtT). 

While she indicated that she wanted her appeal to be decided “on the papers” in a letter she stated that she did not feel she could attend the hearing in person because she has panic attacks in such situations and does not like going to strange places.

A GP report of 26 November 2013 did contain the observation that her severe agoraphobia caused her great difficulty in attending appointments and did advise the DWP that “if you need to see her then a visit may be better”.

However, the FtT decided it would be appropriate to determine the appeal without a hearing as:

“The Appellant opted to have her appeal heard on the papers i.e. without an oral hearing; she indicated that she would be unable to attend an oral hearing. 

The Tribunal considered all the available evidence and decided that there was sufficient evidence to make a reasoned decision without the need for any adjournment and without the need for any further evidence, medical or otherwise. 

In deciding to proceed on the papers the Tribunal considered both the overriding objective in rule 2 and the provisions of rule 27(1) of the Tribunal Procedure Rules 2008.”

However, in considering the claimants appeal, Upper Tribunal Judge Hemingway finds that the tribunal made a number of errors in deciding to proceed without a hearing:

  • it did not factor into its considerations the appellant’s wish to participate in the proceedings but for her illness;

  • it did not take into account, in considering the reasonableness of its chosen course of action, the medical evidence that she suffered from severe agoraphobia or the GP’s view that, in relation to appointments, home visits would be better;

  • it did not appear to give any consideration to alternative ways of approaching matters such as, for example, a domiciliary hearing or a hearing at a location familiar to the appellant or an adjournment to facilitate the appellant’s participation by telephone;

  • it did not consider the possibility that the appellant might fall within the definition of a “sensitive witness” such that it would be appropriate to consider possibilities such as evidence being given by telephone or by video link or other alternative means.

Finally, and most importantly says Judge Hemingway:

“… it gave undue prominence to its view that it had sufficient evidence to make a reasoned decision.  That sort of formulation is often offered by tribunals by way of an explanation for proceeding without a hearing but it does, certainly if it appears to have been the sole or prominent consideration, suggest that other factors of relevance as contained in rule 2, such as the duty to ensure, so far as practicable that the parties are able to participate fully in the proceedings may have been lost sight of. 

In any event, the presence of sufficient evidence to enable a reasoned decision to be made does not mean, of itself, that proceeding on the papers is fair and just.  I conclude, therefore, that the FtT did err in law.”

Judge Hemingway holds that this error is material:

“This is because it seems to me that the FtT’s ability to properly assess the strength of the appellant’s case was significantly compromised by its inability, as a result of the stance it took, to take oral evidence from her.  In this context she had provided quite limited information, particularly with respect to her care needs, in her completed renewal claim pack. 

Nevertheless, there was medical evidence indicating she suffered from a range of different medical problems as outlined above.  It may be that the FtT would have been able to glean much relevant material from her had it had an opportunity to ask her questions and receive her answers.” 

As a result, Judge Hemingway sets aside the FtT’s decision remit the appeal to a new and differently constituted FtT. 

CDLA/5310/2014: Grounds for revision must be established before a DLA decision may be changed

Upper Tribunal Judge Poynter

The claimant is now 48 years old and suffered from Parkinson’s disease. In 2010, when he was 42, he claimed DLA and was made an indefinite award of the higher rate of the mobility component and the highest rate of the care component.

In April 2013, following a fraud investigation, a decision maker revised this original award so that the claimant was not entitled to any rate of either component of DLA.

A different decision maker then decided that, as a result of the entitlement decision, the claimant had been overpaid £15,421.90 as DLA for the period from 20 January 2010 to 12 June 2012 and that that overpayment was recoverable from him.

In considering the claimant’s appeal to him, Upper Tribunal Judge Poynter sets out and explains in detail the law as to how someone’s DLA entitlement can be correctly revised –

“The general rule is that a decision to award (or to refuse) a social security benefit is final (see section 17(1) of the Social Security Act 1998 ("the Act")). For present purposes, the exceptions to that rule are that a decision may be changed by revising it under section 9 of the Act, superseding it under section 10 or by an appeal to the FTT under section 12. As the Secretary of State’s case is that the claimant has never been entitled to DLA, we are concerned with revision, which, in general terms, is the procedure used to correct decisions that were wrong from the outset.… The Act confers no other power to revise a decision. So unless the revising decision is made within the prescribed period, or the case falls within the prescribed cases and circumstances, the decision cannot be revised. That is so even if a different decision maker, or the First-tier Tribunal, or the Upper Tribunal do not agree with the decision. It is inherent in a general rule that—with only limited exceptions—decisions are final, that some decisions cannot be changed even though they are wrong. The prescribed period, prescribed cases, and prescribed circumstances are established by regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.”

After examining the operation of Regulation 3 as it applies to this case, Judge Poynter says that:

“The consequence is that, before the Secretary of State could revise the original award he had to be satisfied not only that:

    • the original award “… was made in ignorance of, or was based upon a mistake as to, some material fact in relation to a disability determination”; and that

    • it was more advantageous to the claimant as a result; but also that

    • the claimant knew or could reasonably have been expected to know of the fact in question and that it was relevant to the decision.”

Judge Poynter goes on to set aside the First Tier Tribunal’s decision as its statement of reasons did not discuss any of these issues:

“The word “revision” is not used at all. Neither is there any attempt to identify a ground for revision, nor any exploration of whether the claimant knew, or could reasonably have been expected to know, the material facts on which the entitlement decision was based or that those facts were relevant to the decision.”

Judge Poynter ends by considering the issue of “misrepresentation” and “material facts”.

When considering whether the ground for revision in regulation 3(5)(c) has been established, he says that it is necessary to identify some specific, material, primary fact:

    • of which the decision maker was ignorant or as to which he was mistaken; and

    • which the claimant knew, or could reasonably have been expected to know; and

    • which the claimant also knew, or could reasonably have been expected to know, was relevant to the decision.

Similarly when considering whether an overpayment is recoverable, it is necessary to identify some specific, material, primary fact that the claimant has misrepresented or which he has failed to disclose.

Judge Poynter then concludes as follows:

“In finding that the Tribunal in this case held that the claimant had misrepresented his needs “in relation to the prospective test”. But, in my judgment, whether the claimant meets the prospective test is not a primary fact that is capable of being misrepresented. Rather it is a secondary fact: an inference of fact drawn from the other, primary, facts in the case. In other words, as the Secretary of State’s representative says, it is a matter of judgment for the decision maker to consider.

As importantly, even if the satisfaction of the prospective test is a matter of primary fact, the claimant in this appeal has not made any representations about it at all, let alone any misrepresentations.”

CDLA/688/2015: Relevance of lack of authorisation document for surveillance under Regulation of Investigatory Powers Act 2000  

Upper Tribunal Judge: Lane

The appellant had been awarded the middle rate of the care component of DLA and the higher rate of the mobility component on the basis that he was virtually unable to walk. 

His claim was then investigated by the Fraud Investigation Service which produced evidence that he had misrepresented his disabilities. The evidence showed that the appellant was an active, regular crown green bowls player. The evidence included information from the Bowling League, videos obtained through surveillance, and from an interview under caution.  

The DWP is a governmental body listed under Schedule 1 of Regulation of Investigatory Powers Act 2000 as having the power to authorise covert surveillance, in this case ‘directed surveillance’ as defined in section 26 of Regulation of Investigatory Powers Act 2000 (RIPA 2000). 

The appellant’s representative submitted that the First Tier Tribunal’s erred in dismissing his appeal as the absence of the document authorising the surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA 2000) made the surveillance unlawful. 

If the surveillance was unlawful, the representative raised further questions regarding the tribunal’s power to admit or exclude evidence, the extent, if any, to which unlawfulness might affect the weight of the evidence, whether unauthorised surveillance breached the appellant’s rights under Articles 6 and 8 of the European Convention on Human Rights as incorporated into UK law by the Human Rights Act 1998.  

While the representative and the tribunal had unsuccessfully asked that the Secretary of State supply evidence that the surveillance was authorised but with no success, a copy was supplied to Upper Tribunal Judge Lane.   

In considering the appeal Judge Lane emphasises that the representative's objection was to the lack of proper documentation regarding authorisation:

“He did not suggest that the surveillance carried out was unnecessary, unduly intrusive or disproportionate in any other way.  He did, however, rightly criticise the Secretary of State’s failure to cooperate with the First Tier Tribunal, and argued in his reply to the Secretary of State’s response that his failure to cooperate made the hearing unfair.” 

While the representative sought to compare this case to CIS/1481/2006

Judge Lane dismisses the comparison:

“In CIS/1481/2006 the DWP’s refusal to produce evidence regarding authorisation for the surveillance was the least of the problems, and one which attracted guidance (but no more than that) from Commissioner Williams.

… The gravamen of DWP’s behaviour was their refusal to allow the claimant and the Tribunal access to the video evidence obtained by the surveillance, transcripts of the interview under caution and notebooks containing evidence they were saving ‘for court’ (by which they seemed to mean a criminal court) on which they relied.  None of these manifest improprieties were addressed, let alone corrected, by the Tribunal.  It was content to make a decision based on a number of photographic stills selected by the Secretary of State.”

But Judge Lane highlights the question for the Upper Tribunal under sections 11 and 12 of the Tribunals Courts and Enforcement Act 2007 is not whether the Secretary of State has breached his duties under the Rules, but whether the Tribunal has erred in law. 

If unfairness or breach of natural justice is asserted, it must be shown that the Tribunal acted in breach of natural justice and/or in breach of the claimant’s right to a fair hearing under Article 6. 

In addition she says that it is not inevitable that unfairness, however minor, shown by a party will justify setting aside a decision.  The Upper Tribunal has discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 over whether or not a First Tier Tribunal’s decision is to be set aside. 

If the unfairness is trivial when looking at the proceedings or decision as a whole, the Upper Tribunal might consider it inappropriate or disproportionate to set the decision aside.  If the matter on which the unfairness arose could not have affected the outcome at all, it was immaterial and would not be considered an error at all. 

The representative's submission in this case was, in effect, that unless the authorisation (or a copy of it) was produced, the surveillance could not be shown to be lawful.  

However, Judge Lane holds that whether the authorisation had been obtained was a question of fact for the Tribunal, to be established on the balance of probability.

It follows that the Tribunal was obliged to decide the fact of authorisation as it would any other fact, that is to say on the evidence presented to it, its relevance and credibility. It follows that it was open to the tribunal to accept evidence from the presenting officer that authorisation had been obtained, subject to being satisfied that the evidence had a credible basis. 

Since the surveillance was found to be – and actually was, in fact - authorised, the appellant could not succeed unless he showed that there was some unfairness in the proceedings beyond the simple lack of the document. 

In this regard, Judge Lane says that she is unable to see that the absence of the authorisation document prejudiced the appellant or his representative in the preparation or presentation of their case:

“The circumstances are these:

(a)   The appellant knew from an early stage that the respondent was relying on surveillance evidence.  The only thing he did not see was the document itself.

(b)   Surveillance evidence was plainly reliable in what is showed viz. the appellant engaging in activities wholly inconsistent with his claim for benefit. 

(c)    That evidence was consistent with evidence from the Bowling Club regarding the matches and championship matches he appeared in over a period of time. 

(d)   The appellant’s interview under caution contained certain admissions against interest about his activities.

(e)   The parties all saw the videos (unlike CIS/1481/2006).

(f)     The appellant and his representative had a full opportunity to address that evidence and finally

(g)   The body with the statutory power to deal with challenges to the lawfulness of covert surveillance is the Investigatory Powers Tribunal.  There is nothing in the papers to suggest that the solicitors saw fit to make a complaint to that Tribunal. 

In all of these circumstances, it would have been perverse to have excluded evidence.”

Judge Lane concludes by holding that even if she is wrong and the tribunal did err in law by acting without the document, her finding is that its error would be immaterial as it could not have affected the outcome of the case:

“In terms of natural justice and fairness, the appellant had a full and fair opportunity to put his case, and did so with legal representation throughout.  He had the opportunity to deal with the video evidence.  His only complaint is that he would have liked to see the actual authorisation document.  But as I have explained, that was not a legal necessity.  I do not, therefore see any breach of Article 6 or of natural justice, insofar as there is any difference. 

As far as Article 8 is concerned, the appellant’s right to respect for his private life is a qualified right.  It may be found to give way where an interference by a public authority, such as surveillance in a benefit fraud investigation, is in accordance with the law and the interference is necessary in a democratic society in the interests, amongst other things, of the economic well-being of the country or the prevention of disorder or crime.”

Employment and support allowance

CE/1767/2013: Whether Regulation 35 (substantial risk to health) apply to someone not required to undertake work related activity

Upper Tribunal Judge: Ward

The claimant had a diagnosis of recurrent depression and personality disorder.  She appealed against the DWP’s decision that while she had limited capability for work she did not limited capability for work-related activity.

In dismissing her appeal, the tribunal determined that did not meet the requirements of regulation 35 of the Employment and Support Allowance Regulations 2008 which provided at the material time that:

          “(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.”

In considering the claimant’s appeal to him, Upper Tribunal Judge Ward explains that what makes this case “somewhat unusual in legal terms” is that the claimant has an underlying entitlement to carer’s allowance, that is to say, she would be paid it but for the operation of the regulations concerned with overlapping benefits. 

Regulation 3 of the Employment and Support Allowance (Work-Related Activity) Regulations 2011/1349 provided at the material time:

“(1) The Secretary of State may require a person who satisfies the   requirements in paragraph (2) to undertake work-related activity as a condition of continuing to be entitled to the full amount of employment and support allowance payable to that person.

(2) The requirements referred to in paragraph (1) are that the person—

(a) is required to take part in, or has taken part in, one or more work-focused interviews pursuant to regulation 54 of the ESA Regulations;

(b) is not a lone parent who is responsible for and a member of the same household as a child under the age of 5;

(c) is not entitled to a carer's allowance; and

(d) is not entitled to a carer premium under paragraph 8 of Schedule 4 to the ESA Regulations.

(3) A requirement to undertake work-related activity ceases to have effect if the person becomes a member of the support group.

(4) A requirement imposed under paragraph (1)—

(a) must be reasonable in the view of the Secretary of State, having  regard to the person's circumstances; and

(b) may not require the person to—

(i) apply for a job or undertake work, whether as an employee or otherwise; or

(ii) undergo medical treatment.

(5) A person who is a lone parent and in any week is responsible for and a member of the same household as a child under the age of 13, may only be required to undertake work-related activity under paragraph (1) during the child's normal school hours.”

Judge Ward says that this means that someone who is “entitled to a carer’s allowance” is excluded from the categories of people who can be legally required to undertake work-related activity in any event.

He holds that this results in the question: If they cannot be required to undertake work-related activity anyway, does that mean there would be no harm to them if they were not found to have limited capability for work-related activity?

He then cites the three Judge panel decision in IM as the relevant case law in determining the answer.

In IM the panel held that:

“Whether a claimant has limited capability for work-related activity is important not just in terms of the amount of employment and support allowance payable or the length of time for which a contributory allowance may be paid but also for the purpose of determining whether entitlement to employment and support allowance may be made conditional on the claimant taking part in assessments, interviews and work-related activity.” 

Judge Ward outlines that Regulation 35 is, in general, about the assessment of risk to an individual. For that reason, the decision required evidence to be provided of the sort of work-related activity that was available in a person’s area at the relevant time and in which it was thought s/he could engage without risk to health.

Regulation 35, though he says, is concerned with the calibration of a person’s disability for purposes such as those referred to in [10], by reference to the possible consequences if work-related activity were to be imposed. That that is the nature and purpose of reg 35 is implicit in the comments of the panel of IM that: 

“We agree with Judge Jacobs in NS v Secretary of State for Work and Pensions (ESA) [2014] UKUT 149 (AAC) and Upper Tribunal Judge Bano in CMcC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 176 (AAC) that, where there is no work-related activity in which the claimant could engage without a substantial risk to someone’s health, the fact that the Secretary of State could not reasonably require the claimant to engage in work-related activity under regulation 3 of the 2011 [Regulations] does not mean that the condition of regulation 35(2) is not met.  That would undermine the purpose of regulation 35(2).”

As a result, Judge Ward holds:

“… that it is clear that the legal impossibility of imposing work-related activity does not prevent consideration for the purposes of reg 35(2) of what risks would ensue if a requirement for work-related activity nonetheless hypothetically were to be imposed.  In the cases cited in IM, the legal impossibility arose because of regulation 3(4)(b)”. 

As a result he sees no reason to differentiate the situation of those on whom it is not possible to impose work-related activity because they are entitled to carer’s allowance, and adds:

“I see no reason to differentiate the situation of those on whom it is not possible to impose work-related activity because they are entitled to carer’s allowance, nor indeed because they fall within the categories in sub-paragraphs (b) or (d) of paragraph (2) of that regulation and, as noted, the Secretary of State has not attempted to persuade me that there is. 

It follows that while evidence in accordance with IM still needs to be provided, what is required of the tribunal to which this case is remitted is to conduct a thought experiment as to what the consequences for this claimant would be if such work-related activity were to be required of her (even though it legally cannot be).”

Conclusion: The importance of this decision is that it means it is worthwhile someone disputing a decision not to place them in the support group even though they will not required to undertake work related activity. They then can be paid the support component rather than the lower work related activity component,

CE/3453/2013: What evidence of work-related activity is needed when considering regulation 35(2)(b)(substantial risk to health)

Upper Tribunal Judges: Rowland, Warren and Charles         

The issue raised by regulation 35(2) of the Employment and Support Allowance Regulations 2008 is whether “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 common view of the three judge panel is that a “substantial risk” in this context means a risk “that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”.

They continue:

“ The harm is identified by regulation 35(2)(b) with the result that it applies only where, by reason of “some specific disease or bodily or mental disablement” from which the claimant is suffering, 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.

Regulation 35(2) also identifies the relevant cause of that harm and the trigger of the risk that having regard to its nature and gravity cannot sensibly be ignored. That trigger is that the person is found not to have limited capability for work-related activity. As we have mentioned earlier this finding gives rise to a progression of consequences and possible consequences starting with a work-focused interview, followed by its result, followed by possible sanctions.

As pointed out in AH, it is therefore clear that the application of regulation 35(2) involves a consideration of both its elements and thus whether that progression of possible consequences might by reason of the claimant’s disease or disablement result in that substantial risk.”

After an extensive discussion of the relevant legislation and conflicting case law, the three judges consider what information is actually needed by the First-tier Tribunal in order to make a decision under regulation 35(2).

The judges firstly hold that

“ ... what the Secretary of State can and should provide is evidence of the types of work-related activity available in each area and by reference thereto what the particular claimant may be required to undertake and those which he considers it would be reasonable for the provider to require the claimant to undertake”. As a result, the First-tier Tribunal would then be in a position to assess the relevant risks.”

The judges continue:

“ We understand that the types of work-related activity available may vary from provider to provider, but it should not be beyond the wit of the Department and providers to produce and maintain a list, perhaps for each of the regions into which the First-tier Tribunal is organised, of what is available in each area within the region. The relevant information could then be included in submissions in individual cases. The First-tier Tribunal would be able to assess the evidential force of such a submission.”

The three judges reject that it would be difficult or onerous to make a submission explaining the law and to provide information about types of work-related activity:

“ In practice, if the Secretary of State considers that a claimant does not have limited capability for work, he will also consider that the claimant does not have limited capability for work-related activity. In the submission it would generally be sufficient to refer only to Schedule 3 and regulation 35; it will not be necessary to explain why the Secretary of State does not consider those provisions to be satisfied because that will be implicit in his response to the main issue on the appeal

… Being unable to carry out an activity does not necessarily imply that there will be a substantial risk to anyone’s health if the claimant is required to engage in the activity. Nor does the risk of being sanctioned. Therefore, it may be fairly obvious in most cases that the claimant does not have any realistic argument under regulation 35 and indeed, if made aware of the issues, the claimant may often accept that that is so. But where there turns out to be a serious argument in relation to regulation 35, the provision of the basic information about the more demanding types of work-related activity would enable the First-tier Tribunal to make the necessary predictions by reference to possible outcomes for the particular claimant.”

The position may be slightly different say the judges, where the Secretary of State accepts that the claimant does have limited capability for work for two reasons:

“ First, the Secretary of State can be expected to make a more focused submission as to why regulation 35(2) does not apply given the accepted disablement of the claimant.

Secondly, in at least some of those cases a work-focused interview will have been carried out and the provider may have considered whether the claimant should be required to carry out work-related activity before the appeal is heard by the First-tier Tribunal.

Information about the outcome of such consideration of the claimant’s case is likely to be relevant to the First-tier Tribunal and reduce the element of prediction required and so ought to be provided to the first-tier tribunal where possible.”

On the main issue, the three judge panel therefore concludes:

“ A finding that there is some work-related activity in which a claimant could engage without a substantial risk to someone’s health is not by itself a sufficient ground for finding that there would not be risk to someone’s health if the claimant were found not to have limited capability for work-related activity. That is because it does not wholly answer the statutory question.

If the Secretary of State fails to provide the evidence we have said should be provided, the First-tier Tribunal is entitled to use its own knowledge, if it is confident that it is up-to-date and complete as to the more demanding types of work-related activity, or it may adjourn to obtain the necessary evidence or it may decide that it can properly determine the case one way or the other without the evidence. It depends on the circumstances and, in particular, on how vulnerable the claimant is.

Thus, to the extent that they differ, we broadly prefer the approach of Judge Gray in MT to that of Judge White in AK. However we do not agree with Judge Gray that the Secretary of State is obliged to provide evidence as to what the claimant would be required to do by way of engagement in work-related activity; our view is that he is merely required to provide evidence as to work-related activity that is available in the relevant area and therefore what the claimant might be required to do.”

Comment: This is a very useful decision and is now the leading authority on how a tribunal should determine the issue of 35(2)(b). It is likely that the decision will be of more benefit to those disabled people with a mental health condition (as most physical health conditions will not preclude as wide a range of work-related activity that a mental health condition might). However, the judges’ conclusions are such that unless a tribunal is able to rule out a substantial to health in every one of the work-related activities the Secretary of State puts forward then it should err on the side of caution and decide regulation 35(2) in the claimant’s favour. 

CE/4153/2013: Whether risk of claimant being required to engage in unsuitable work-related activity

Upper Tribunal Judge: Rowland 

A tribunal held that the claimant had a limited capability for work under regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008. However, the claimant appealed to the Upper Tribunal on the grounds that it should also have found that she did not have limited capability for work-related activity.

In relation to regulation 29(2)(b), the First Tier Tribunal said:

“The Tribunal has found that the appellant has a serious mental health condition and has difficulty engaging in social contact with people she is not familiar with.  While it was unable to award more than 6 points on the evidence, it was satisfied by the information from the GP that the Appellant would find it extremely stressful to attend the Job Centre and to carry out the requirements of a jobseeker’s agreement.  On this basis it found that she would be unlikely to cope if she was required to look for work and that there would be a substantial risk of her serious mental health problems becoming even worse.”

However, in relation to regulation 35(2), it said:

“The Tribunal found that the Respondent will act reasonably when requesting the Appellant to take part in work-related activity and will take into account the Appellant’s mental health when deciding what activity it is appropriate to require her to undertake.  Work-related activity is intended to support a person in becoming well enough to work and should be of benefit to them.”

In a short decision, Upper Tribunal Judge Rowland cites the three judge panel decision in IM:

“The difficulty highlighted in IM is that, because the results of work capability assessments are not routinely passed to providers who determine what work-related activity a claimant should be required to do, there may a risk of a provider requiring a person with, say, mental health problems to perform unsuitable work-related activity, due to the provider’s ignorance of the those problems or their extent.  This difficulty is liable to be exacerbated if, as in both IM and the present case, the claimant is, or is likely to be, unable to engage in social contact with the provider and so explain her difficulties herself.” 

Judge Rowland then sets aside the tribunal’s decision and remits the claimant’s case for rehearing as:

“… in the present case, the First-tier Tribunal’s finding that “the Respondent will … take into account the Appellant’s mental health” appears unwarranted or, at best, not supported by adequate reasoning. 

If there was a significant risk of the claimant being required to engage in work-related activity that would be as stressful as being required “to attend a Job Centre and to carry out the requirements of a jobseeker’s agreement”, which the First-tier Tribunal had found would give rise to a substantial risk to her mental health, the First-tier Tribunal would have been required to find that regulation 35(2) was satisfied in the claimant’s case.”

Comment: This short decision is useful as it highlights an important ruling in IM. The DWP may submit to a tribunal that there is work related activities in the area that the claimant lives that they could reasonably undertake. However, particularly if the client will have difficulty communicating or engaging with a work programme provider it should be argued that this will not prevent them being required to undertake other work related activity that will be of substantial risk to their health.

CE/277/2014: No separate requirement to 'claim' income based ESA on conversion

Upper Tribunal Judge: Wright

The claimant had had an award of incapacity benefit that was converted to an award of contributory ESA from October 2011.  In October 2012 made a backdated “claim” for income-related ESA. While her date of claim was extended back to August 2012 on the basis that her telephone call of that date querying non-payment of premiums was an intention to claim income-related ESA.

By the time her appeal to the Upper Tribunal fell to be heard, the claimant had in fact been paid the missing amount of ESA due to her – the enhanced disability premium (EDP) from October 2011.

However, Upper Tribunal Judge Wright continues to issue a long and detailed decision as the failure to consider the EDP when someone meets the support group criteria is an issue that has caused some difficulty in the past.

Very briefly, Judge Wright holds out that there is no separate requirement for an incapacity benefit claimant to ‘claim’ income based ESA on conversion for the following reasons. He points to four factors:

“First, whether a person has limited capability for work-related activity is relevant to the amount of ESA payable, whether contributory or income related (see sections 2(1)(b) and 4(2)(b) of the Welfare Reform Act 2012 (WRA), once the basic condition of entitlement of the claimant having limited capability for work has been established.

ESA therefore does not constitute two benefits, nor does it call for two entitlement decisions to be made on a conversion ‘claim’: one on whether the person has limited capability for work and so is entitled to go into the “work-related activity group”; the other on whether the claimant has limited capability for work-related activity and so can go into the “support group”. 

Second, the effect of sections 1, 2 and 4 of the WRA … is that a decision that a person has limited capability for work is also an affirmative decision that he or she does not have limited capability for work related activity. This follows from the wording in sections 2(3)(b) and 4(5)(b) in the WRA which confer entitlement to the (amount of the) work-related activity component, respectively for the contributory and income-related allowances, if “the claimant does not have limited capability for work-related activity” (my underlining).   

Third, it is not disputed before me, and in any event is correct, that as a matter of law it is only if a claimant comes within the support group that they can qualify for the EDP in the prescribed amounts of income-related ESA. This is the effect of section 4(2)(a) of the WRA and regulation 67(1) and paragraph 7(1)(a) in Schedule 4 to the Employment and Support Allowance Regulations 2008.

It is also not disputed before me that - in a classic “better off” calculation - qualifying for the EDP may take the prescribed amount of a person’s income-related ESA above the level of contributory (support group) ESA.  … Fourth, and perhaps most importantly for the purposes of this appeal, I accept that the legal effect of regulation 8(1) of the [Employment and Support Allowance (Transitional Provisions) (Existing Awards) Regulations (2010)] is as contended for by the Secretary of State.

Given the unified nature of ESA … the determination by the Secretary of State of the amount of ESA to which a person would be entitled on conversion under regulation 8(1) in my judgment must encompass consideration of both the contributory amount and the income-related amount.

Judge Wright therefore concludes that:

“Accordingly, whether on the original conversion decision where the support group criteria are met, or revision of an original conversion decision so as to find the support group criteria are met, given the obviousness of the “better-off” calculation for a person if they are not otherwise disqualified from income-related ESA (e.g. by having too much capital), and ignoring claimant contribution to any error, in my judgment it will amount to an official error for the conversion decision maker or the revision decision maker not to have considered and investigated whether the claimant qualified for the EDP. 

To talk in terms of a claimant having to apply for or “claim” the EDP or income-related ESA is, at least in the conversion context, simply wrong and misplaced. The clear effect of regulation 8(1) of the Existing Awards Regulations is to impose a legal duty on the Secretary of State to ascertain and determine whether on conversion the claimant qualifies, inter alia, for the EDP regardless of whether the claimant has made a “claim” for income-related ESA or the EDP. “    

Comment: There are likely to be many claimants that have been converted from incapacity benefit to contribution based ESA without an investigation as to whether they are eligible for income based ESA.

If in fact they were eligible for income based ESA on conversion, by citing this decision, a request by them for a revision of the decision not to award them income based ESA on the grounds of official error should be successful.

CE/1609/2014: Whether a resident of a domestic violence refuge can be treated as having a limited capability for work

Upper Tribunal Judge: Mitchell

The claimant stated on her ESA50 that she had difficulties with initiating actions, coping with change, going out and coping with social situations. She wrote that her difficulties were due to stress. She also recorded that she was living in a women’s refuge “due to fleeing domestic violence”.

The tribunal’s record of proceedings recorded her giving the following evidence about her refuge:

  • it “was like a recovery centre – structured day with treatment programmes”;
  • “we had counselling sessions - they did courses but I found it difficult to motivate myself to attend”;
  • “there were support groups – we did all discuss our experiences”;
  • “there were classes such as stained glass making”;
  • at the refuge “there were 10 staff in total and one was a child support worker”; and
  • “they say you should have recovered after six months and try to get you into accommodation”.

She appealed to a First-tier Tribunal against the decision that she was not eligible for ESA on the grounds that she should be treated as having limited capability for work as she was residing in accommodation where Regulation 25 of the ESA Regulations 2008 applied.

Regulation 25 provides:

Hospital patients

(1) A claimant is to be treated as having limited capability for work on any day on which that claimant is undergoing medical or other treatment as a patient in a hospital or similar institution, or on any day which is a day of recovery from that treatment.

(2) The circumstances in which a claimant is to be regarded as undergoing treatment falling within paragraph (1) include where the claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction.

(3) For the purposes of this regulation, a claimant is to be regarded as undergoing treatment as a patient in a hospital or similar institution only if that claimant has been advised by a health care professional to stay in a hospital or similar institution for a period of 24 hours or longer.

(4) For the purposes of this regulation, “day or recovery” means a day on which a claimant is recovering from treatment as a patient in a hospital or similar institution and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work on that day.”

Regulation 25(1) is a deeming provision. It treats a person as having limited capability for work on any day on which the person is undergoing treatment with particular characteristics. Its elements are as follows:

(a) the claimant must be undergoing medical or other treatment; and

(b) the treatment must be as a patient; and

(c) the treatment must be in a hospital or similar institution; and

(d) the claimant must have been advised by a health care professional to stay in the hospital or other institution for a period of 24 hours or longer.

If any of those elements is absent, any claim based on regulation 25(1) must fail.

Note: Regulation 25(2) provides that if a claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction on any particular day, there can be no argument that regulation 25(1) applies. 

With the tribunal dismissing her appeal, the claimant appealed to the Upper Tribunal.

In considering her appeal, Upper tribunal Judge Mitchell holds that the Court of Appeal’s judgment in Slavin is binding authority that “medical or other treatment” is limited to the provision of medical treatment, dental treatment or nursing care.

Judge Mitchell does not accept that this limits the field to doctors, dentists and nurses and that other health care professionals may also count.

However, he holds that the claimant never claimed to be treated by any healthcare professionals who might count for the purposes of regulation 25. As a result, he says that the First-tier Tribunal correctly concluded that the claimant was not undergoing medical or other treatment at the refuge “and so regulation 25(1) cannot operate to deem her to have limited capability for work”.

Even if he was wrong about the binding effect of Slavin, Judge Mitchell says that he would not allow Miss J’s appeal, as:

“On her own evidence, she was not advised by a health care professional to stay in the refuge for a period of at least 24 hours. Miss J was advised to leave the area in which she had been living but was not advised to go to this or any other refuge. The condition in regulation 25(3) could not be met.”

Judge Mitchell stresses that his decision does not mean each and every establishment called a refuge falls outside regulation 25 of the ESA Regulations 2008.

However, he adds that:

“… labels tend to be applied because a thing has characteristics matching those embraced by the label. That is what labels are for. For that reason, I would not be surprised if most refuge placements have characteristics matching, in material respects, [the claimants] so that their residents fall outside regulation 25(1). That is the most I can give my way of general guidance.”

Comment: Although the claimant in this case lost her appeal Judge Mitchell does hold that this may not be the case in a case of a claimant residing in a refuge where “medical or other treatment” is provided and that such care need not be limited to the provision of medical treatment, dental treatment or nursing care.

CE/2178/2014:Whether tribunal conducted a prohibited physical examination

Upper Tribunal Judge: Hemingway

The claimant suffered from various health problems, including poor mobility which he said led him to often use a wheelchair.

Following a tribunal dismissing his appeal against the decision that he did not have a limited capability for work he appealed to the Upper Tribunal.

One of his grounds for doing so was that that the tribunal had erred in law by impermissibly conducting a “medical examination”. 

Section 20(3)(a) of the Social Security Act 1998 says that, at a hearing before it, the First-­tier Tribunal “may not carry out a physical examination” of an appellant unless an exception prescribed by the Tribunal Procedure Rules applies.  However, no such exception applied in this case.

In its reasons statement the tribunal explained what it did in this way:

“The Tribunal invited the appellant to lift his trousers up whilst seated in his wheelchair so that it could observe and assess for itself whether he had any muscle wasting in the limbs below the knees.  He lifted up his trouser legs himself up to his knees. 

The Tribunal’s medical member, who had an expertise working for the Medical Foundation for the Care of the Victims of Torture and was therefore well suited to comment on such an issue, noted that there was no muscle wasting and in fact observed that the appellant had good tone and muscle mass in the lower legs. 

…The Tribunal’s medical view was that the lack of muscle wasting indicated that he was using the lower limbs and doing so regularly.”

So, the tribunal had initiated the process and had done so for the purposes of ascertaining for itself, principally by the application of the medically qualified panel member’s expertise, whether there was evidence of muscle wasting or not.  The appellant had said, in his ESA50, that he had “some muscle wastage” in his legs and his GP… had also referred to the presence of muscle wasting. 

In considering if the tribunal had erred, Judge Hemingway cites with approval CDLA/433/1999 and R1/01(IB)(T)  and in finding that what occurred at the oral hearing did amount to a physical examination within the meaning of section 20(3), says:

“This is because the process was initiated by the First Tier Tribunal so that it was not simply relying on an observation it would have made anyway, it focused specifically and exclusively upon particular parts of the appellant’s body (his legs from below the knee),  the enquiry it was pursuing was one which required the adjustment of clothing which was prompted by the First Tier Tribunal’s request and because the enquiry it was pursuing was directed towards a question of a medical nature relating to a physical consideration being whether there was or was not evidence of muscle wasting in the appellant’s lower legs.” 

Judge Hemingway adds that in this case the input of the medically qualified panel member was particularly relevant in reaching conclusions as it is not apparent that the other tribunal member (the judge) would have been capable of identifying the presence or absence of muscle wasting.

CE/2966/2014: Interpretation and assessment of Activity 13: Initiating and completing personal action

Upper Tribunal Judge: Jacobs

In this decision, Upper Tribunal Judge Jacobs considers in detail the interpretation and assessment of Activity 13 in Schedule 2 to the Employment and Support Allowance Regulations 2008 that provides:

Activity 13: Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks).
Descriptors

(a) Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.

(b) Cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions for the majority of the time.

(c) Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions.

(d) None of the above apply.

In doing so, Judge Jacobs holds that in considering the nature of what is an action:

“The tribunal must apply common sense in deciding what constitutes an action. It is possible to render the legislation redundant by splitting an action into its component parts. The definition of Activity 13 recognises this by referring to ‘tasks’ as components of a single action.

I reject … that applying Activity 13 involves a discretion over which activities to take into account. That would abdicate the meaning of the Activity to the decision-maker or the tribunal, which would be contrary to section 8 of the Welfare Reform Act 2007.

That section, after setting out the statutory test of whether ‘it is not reasonable to require [the claimant] to work’, goes on to provide for further provision to be made by regulations. Nowhere does the legislation authorise the decision-maker to exercise any discretion over the meaning of those regulations.

I accept … that actions that are undertaken out of habit are not to be considered. Their performance does not demonstrate the claimant’s mental, cognitive or intellectual function. They merely show that the claimant has developed the habit of performing them."

Judge Jacobs also says that the action must be effective:

“Actions are not undertaken for their own sake. They are undertaken for a reason and a purpose. If that purpose cannot be achieved, the action is ineffective. The activity is defined as initiating and completing personal action. If the action never reaches the point of being effective, it is not complete.

The most obvious example is a person with obsessive compulsive disorder. A person with that disorder is able to perform particular actions and to do so regularly, reliably and repeatedly. Their difficulty is being unable to stop doing them. The result is that they are unable to continue with the rest of their life. For those without the disorder, the action would be part of their life and allows them to continue with the rest of their life. For those with the disorder, the actions becomes their life and prevents them continuing with the activities they would then wish to pursue.

In considering effectiveness, it is important to remember the purpose of the test, which is to decide whether it is reasonable to require the claimant to work”.

Judge Jacobs then continues:

“Activity 13 further defines initiating and completing person action as meaning ‘planning, organisation, problem solving, prioritising or switching tasks’. I accept … that, in descriptors (a), (b) and (c), ‘or’ must be read conjunctively, as meaning ‘and’. Ms Blackmore agreed with that argument, which reflects the description of the activity itself, which uses ‘and’.

The tribunal’s decision on Activity 13 must relate only to actions that involve all these tasks. This does not mean that the tribunal must find evidence of an action involving all those tasks that the claimant cannot complete. It may be that there will be evidence from, say, dressing that shows the claimant being unable to plan by selecting appropriate clothing to wear outdoors, which can be put together with evidence from, say, cooking, that shows the claimant being unable to prioritise tasks. This specific evidence may have to be supplemented by inferences drawn from the nature of the claimant’s condition or other factors."

He then holds that this does not mean that the action considered need necessarily be complicated, so long as the tribunal takes all potential tasks into account:

“Take dressing as an example. Most of the time dressing may simply be routine. It may even involve nothing more than putting on the clothing selected and laid out by the claimant’s partner. But it can require planning (deciding what to wear), organising (assembling the different items required), problem solving (finding an alternative item of clothing for something that is in the wash), prioritising (deciding whether it is more important to get dressed or to wash a particular item of clothing) or switching tasks (going to iron a shirt to wear).

To put it differently. The tribunal must always be sure that the evidence on which it relies actually demonstrates an ability to undertake all the tasks required by the activity.2

In addition, a claimant must not be prejudiced by living a limited life-style:

“It may be that someone whose daily life is limited to the basic actions of survival and watching the television would have difficulties if required to undertake any action that was more complicated. This is really an instance of the point I have just made about evidence and proof. It is also an instance of Ms Blackmore’s argument that actions must be effective to allow a person to function. That is what the activity tests: function, not survival.

I trust that it is now clear why, for a variety of reasons, tribunals have been wrong when they have treated cleaning teeth and washing as separate and sequential personal actions.”

In considering the relevance of a claimant’s medical condition, Judge Jacobs holds that there is no test of the severity of the condition:

“It is nowhere stated in the legislation and it is inconsistent with the provisions that the legislation does contain. The legislation is a test of capability and disability … To put it another way, severity is tested not by reference to the medical condition, but by reference to the manner and extent in which it restricts a claimant’s activities.

This is not to say that the nature of the claimant’s medical condition is irrelevant. That condition is relevant to the threshold requirement that the activities in Part 2 of Schedule 2 are only relevant if they arise from ‘a specific mental illness or disablement’ that affects the claimant’s ‘mental, cognitive and intellectual function’. The condition may also provide a basis for drawing an inference that the claimant is, or is not, likely to experience particular restrictions. And the nature of the condition provides a check when assessing the evidence on whether the difficulties that the claimant reports are likely to arise from the condition.”

He then concludes by rejecting that sequential means that the actions should bear close relation to each other so as to form a logical sequence.

“As with so many words, ‘sequential’ and ‘consecutive’ can be used interchangeably or they can convey different nuances of meanings. Both convey that the actions must occur separately rather than at the same time. If anything, the former conveys the notion captured by Ms Blackmore that the actions must occur in the same time frame. That is consistent with the actions having to be effective. The concept of effectiveness involves functioning, and being able to perform only a single personal action in a particular time frame is hardly consistent with functioning effectively. I see no reason, though, why the actions should be related one to another…”

CE/3070/2014: Whether the claimant was "recovering" from radiotherapy treatment

Upper Tribunal Judge: Markus 

In 1989 the claimant had radiotherapy treatment following surgery for breast cancer.  She made a complete recovery from the breast cancer. It was not until the summer of 1994 that she reported problems with her left hand and she subsequently developed her current condition, brachial plexus nerve injury.  In 1995 there was an attempted surgical correction which was unsuccessful. Since 1996 she had suffered complete paralysis in her left arm. 

With a tribunal upholding a decision that she could not be migrated from incapacity benefit to ESA the claimant appealed to the Upper Tribunal.

In doing so, she highlighted regulation 20(1) of the ESA Regulations 2008 that provides:

“A claimant is to be treated as having limited capability for work if –

(a)     …

(b)     the claimant is –

          (i)      receiving treatment for cancer by way of chemotherapy or radiotherapy; 
        

          (iii)     recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work;” 

The claimant submitted that a known effect of radiotherapy is brachial plexus nerve injury and that recovery from the effects of radiotherapy does not exclude long-term limitations.

However the Secretary of State submitted that the ordinary meaning of recovery is “to return to a normal state of health” or “to get better”.  He submitted that the normal recovery period following the immediate side effects of radiotherapy is up to six months and that the evidence in this case indicates that after six months the appellant had completed recovered from the short term effects of radiotherapy. Further, that where the long-term effects of radiotherapy are chronic it cannot be said that the appellant is recovering.  The treatment has caused a separate health condition from which she has not recovered.

In agreeing with the Secretary of State’s submissions, Upper Tribunal Judge Markus says that:

“The word ‘recovering’ is not defined in the legislation. It must bear its ordinary meaning in its context. See Secretary of State for Work and Pensions v Moyna [2003] 1 WLR 1929 (also reported as R (DLA) 7/03), at paragraphs 23 to 25.  I have no doubt that, when used in a health context, “recovering” refers to a process of getting better.  It may not result in a person’s condition reverting to the way it was before the treatment in question, but it denotes a process of some improvement or, at the very least, hoped-for improvement. 

Thus the Shorter Oxford English Dictionary defines the word, in so far as it relates to health, as “restoration or return to health from sickness”.   At some stage a person will cease to recover.  This may occur when they are completely better.  Or it may occur when they have reached a point when no further recovery will take place. In my judgment the above is the only sensible way in which “recovering” can be understood.” 

In addition, Judge Markus highlights that:

“The policy underlying the ESA Regulations was not to “automatically assume that because a person has a significant health condition or disability, they are incapable of work” (see the Explanatory Memorandum to the Regulations at paragraph 7.7). To accept the appellant’s approach to regulation 20(1)(b)(iii), so that a claimant could be assumed on a long term basis to have limited capability for work where they suffer from a chronic condition that has been caused by the treatment, regardless of their actual ability to work, would fly in the face of that objective and I should not adopt such a construction where the words of the regulation do not require it.” 

While maintaining that the mere fact that a person’s recovery takes longer than usual need not be conclusive against them, Judge Markus stills the claimant’s appeal as being “hopeless on the facts”:

“The evidence shows that she had fully recovered from both surgery and radiotherapy by late 1990. The problem with her arm did not first manifest until summer 1994.  She was not recovering from radiotherapy at that time or thereafter.  Moreover, the appellant could not be said to be recovering from radiotherapy treatment when that treatment had triggered a chronic condition which was not improving and would not do so. In short, in her case there was no prospect of recovery and so she was not recovering.”

CE/3086/2014: WCA Activity 7: a claimant needs to be impaired in understanding either spoken or written communication but not both

Upper Tribunal Judge: Markus

This appeal concerned the construction of activity 7 in both Schedule 2 and Schedule 3 of the Employment and Support Allowance Regulations 2008 as they were prior to the amendments which came into effect on 28 January 2013. 
However, the conclusions that Upper Tribunal Judge Markus reaches are also relevant to the construction of the activities in their present form.  

The issue is whether a claimant must be unable to understand or have difficulty in understanding communication by both verbal and non-verbal means in order to satisfy the relevant descriptors, or whether inability/difficulty by only one of those means is sufficient.

Activity 7 in Schedule 2 in its present form reads as follows:

(1) Activity

(2) Descriptors

(3) Points

7.Understanding communication by -
(i) verbal means (such as hearing or lip reading) alone,
(ii) non-verbal means (such as reading 16 point print or Braille) alone, or
(iii) a combination of (i) and (ii),
using any aid that is normally, or could reasonably be used, unaided by another person.

(a) Cannot understand a simple message, such as the location of a fire escape, due to sensory impairment.

15

(b)  Has significant difficulty understanding a simple message from a stranger due to sensory impairment.

15

(c)  Has some difficulty understanding a simple message from a stranger due to sensory impairment

6

(d)  None of the above applies.

0

Activity 7 in in its present form reads as follows:

Activity

Descriptors

7.  Understanding communication by
(i) verbal means (such as hearing or lip reading) alone,
(ii) non-verbal means (such as reading 16 point print or Braille) alone, or
(iii)  a combination of (i) and (ii),
using any aid that is normally, or could reasonably be, used, unaided by another person.

Cannot understand a simple message, such as the location of a fire escape, due to sensory impairment,

In a lengthy and detailed decision, Judge Markus considers the statutory history of Activity 7, explanatory notes to regulations, previous case law as well as advice given by the DWP’s Deputy Chief Medical Advisor.
He also cites the current edition of the Revised WCA Handbook for Healthcare Professionals which states at page 99:

“It should be noted that in this activity, a person must be able to understand communication through both the written and spoken word. A restriction of understanding in either of these communication modalities may result in a scoring descriptor.
For example this means a person with normal hearing ability who understands the spoken word without difficulty but has visual impairment to the extent they cannot read 16 point print nor read Braille in a reasonable, reliable or repeatable manner would meet Support Group criteria in this activity.”

After considering all this information, Judge Markus holds that:

“It is clear from all the materials that the legislative intention since ESA was introduced has been that in order to qualify under a relevant descriptor a claimant  need be impaired in either hearing or vision (but not both) or, as amended, in understanding either spoken or written communication (but not both).”

Judge Markus also finds that activity 7 in Schedule 3 was intended to correspond with the highest descriptor in activity 7 of Schedule 2: 

“In Version 2 the activities are not the same but the highest descriptor for activity 7 in Schedule 2 is the same as the descriptor in Schedule 3. The activities and descriptors in Version 3 are the same.  I am satisfied that the differences in the wording of the descriptors in Version 2 of the two Schedules is not intended to reflect a difference in substance.

… Accordingly, I conclude that activity 7 in Schedule 3 as in force at the date of the decisions in these appeals (Version 2) applied to a claimant who was unable to communicate by either verbal means or non-verbal means and it was not necessary for the claimant to be unable to communicate by both means.”

CE/3630/2014: Need to obtain evidence relating to award of the DLA higher rate mobility component in determining ESA appeal

Upper Tribunal Judge: Mark

In this case, one of the principal issues before the First Tier Tribunal related to the moving around descriptor. The tribunal had awarded the claimant only 9 points for this descriptor. 

However, in upholding the claimant’s appeal to him and remitting it for rehearing, Upper Tribunal Judge Mark highlights two problems with this.

Firstly, that the tribunal did not address in the statement of reasons the evidence of the claimant’s GP that stated that she could not walk more than 59 metres without having to stop. 

Secondly, it also dismissed the claimant’s reliance on her award of the higher rate of the mobility component of DLA stating simply that “while this was evidence to be taken into account and weighed in determining this appeal, DLA is a different benefit with different statutory criteria”.

Judge Mark highlights that it was clear that the claimant had been awarded the higher rate of the mobility component of DLA only a few months before the decision under appeal on the basis that the claimant was unable to walk or virtually unable to walk. 

So that while the tribunal were technically correct in stating that there are different statutory criteria for DLA, he holds that:

 “… a person’s ability or inability to walk 50 metres without severe discomfort is a practical yardstick for DLA purposes, and the requirement of severe is a more demanding test than that of significant discomfort used in the mobilising descriptor for ESA”.

Importantly, he also stresses that:

“The written evidence used by the decision maker in relation to the DLA claim was plainly relevant to the ESA claim as well and ought to have been disclosed pursuant to rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 (the 2008 Rules) when the papers were first sent to the tribunal for the appeal. 

For this purpose ~”decision maker” is defined in rule 1(3) as “the maker of a decision against which an appeal has been brought”, and the decisions to award or refuse benefit are made by the Secretary of State in relation to both benefits. 

The Secretary of State is therefore the decision maker and relevant documents to the appeal obtained in relation to other benefits are therefore to be included in the documents sent to the tribunal.  Insofar as it may be necessary to refer to the overriding objective, this construction also enables the appeal to be dealt with fairly and justly, and the 2008 Rules must be construed so as to give effect to that overriding objective (see rule 2(3)(b)).

Contrary to the submissions of the representative of the Secretary of State on this appeal, the consent of the claimant is not required for such disclosure even if the disclosure includes confidential medical records.”

Judge Marks therefore holds that the failure of the tribunal to require the Secretary of State to produce the documents which were potentially highly relevant and which should have been disclosed from the start, was a further error of law.

CE/3689/2014: Whether a bucket is an aid or appliance for the purposes of the continence descriptor/ whether someone can score WCA continence points for mobility problems alone

Upper Tribunal Judge: Mitchell

In this decision, Upper Tribunal Judge Mitchell considers two issues relating to the interpretation of the WCA descriptor 9 which is:

“Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting), despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used.”

In doing so he holds that the First-tier Tribunal erred in law by holding that the claimant’s use of a bucket to avoid accidents meant he could not satisfy any activity 9 points-scoring descriptors, as:

“Firstly, a bucket cannot amount to an aid or adaptation for the purposes of the prescribed activity. That is because it cannot have any effect on whether or not control of bowel or bladder is lost. The only aids or adaptations contemplated by activity 9’s wording are those which prevent or minimise a loss of control.

Secondly, and more importantly, a bucket cannot amount to an “aid or appliance” for the purposes of descriptor 9(a) or 9(b). A bucket cannot reasonably be used in any workplace, apart from perhaps an incredibly unusual one like a one-person lighthouse, to deal with incontinence. That would run counter to, and undermine, the purpose of the continence activity and descriptors. It would be impossible to maintain dignity in those circumstances.

The range of permissible aids and appliances must be restricted to achieve that aim and discounted if use in the workplace would be likely to expose an individual to the indignity against which these descriptors are designed to protect. But this does not mean that a less intrusive receptacle than a bucket must be discounted, if it can be used by a person without that associated indignity. I have no idea whether such things exist.”

In addition, Judge Mitchell considers whether mobilising difficulties alone can justify awarding a continence descriptor.

The First-tier Tribunal had found that the claimant found that the claimant had no underlying bladder problem with his continence difficulties were simply due to him being unable to use the stairs at home to get to the toilet.

In considering this, Judge Mitchell outlines that Regulation 19(2) of the ESA Regulations 2008 provides:

“The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.”

In addition, he explains that Regulation 19(2) requires the presence of a disease or disablement. And incapability to perform an activity must be “by reason of” the disease or disablement.

In the light of activity 9’s purpose, Judge Mitchell continues, it could not legitimately be held that the claimant’s loss of control is “by reason of” his defective ankle.

“It is principally by reason of his living in a house without a downstairs toilet. While this would not matter if [he] had a normal ankle, my view is that, in relation to activity 9, the disablement or illness must affect the control mechanisms of the bowel or bladder. To hold otherwise would run counter to activity 9’s purpose as a means of protecting persons from the indignity of having incontinence exposed in the workplace. It would protect those who did not need to be protected.”

Despite this, Judge Mitchell upholds the claimant’s appeal on the grounds that the Tribunal’s that its findings were inconsistent:

“On the one hand, it found [the claimant] to be a “credible witness” but, on the other, it “considered it very unlikely that the appellant went out as little as he claimed”. Those are apparently inconsistent and no attempt was made at explanation. The Tribunal does not, for example, state that [he] is confused or forgetful and that explains why, despite him being credible, his evidence was not accepted.

This cannot be considered an immaterial error and so I set aside the Tribunal’s decision and remit Mr C’s appeal to a differently-constituted First-tier Tribunal for rehearing.”

CE/3928/2014: Mobility problems affecting ability to reach a toilet quickly

Upper Tribunal Judge: Grey 

In her ESA50 the claimant explained that she suffered from prolapsed discs in her lower back and from IBS (irritable bowel syndrome).  She wrote that she could not move 50 metres before she had to stop.  She was in constant pain and suffered spasms in her back.  She added: “Due to my IBS I can sometimes soil myself as I have no control over when it will happen and if unable to reach a Toilet in time.” (p26). 

Activity 9 of Schedule 2 of the ESA Regulations 2008 relates to the “Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the presence of any aids or adaptations normally used.” 

This requires an assessment of whether:

  • the claimant experienced, at least once a month, “a loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder” sufficient to require cleaning and a change in clothing [descriptor 9(a)(i), 15 points]; or
  • the claimant was at “risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly” [descriptor 9(b), 6 points].

Note: Activity 9 has since been modified to make explicit a requirement that the absence of control should be whilst conscious and that it should be “despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used”.  That modification, however, only applies from 28 January 2013 and so was not under consideration in this case, as the relevant decision was made on 8 January 2013.

In considering the claimant’s appeal, Upper Tribunal Judge Grey cites EM v Secretary of State for Work and Pensions [2014] UKUT 0034 (AAC) in which Judge Mark held that:

"In descriptor 9(a)(i) the only question is whether at least once a month the claimant experiences loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder sufficient to require cleaning and a change of clothes. 

The fact that this is because the claimant is unable to reach a toilet in time because of other physical problems is irrelevant, as one would expect bearing in mind that the purpose of the descriptor is to deal with questions of personal dignity and social acceptability. 

This is made even clearer, if that were possible, by the wording of descriptor 9(b) where the question is whether there is a risk of loss of control if not able to reach a toilet quickly.  Loss of control at least once a month because the claimant cannot reach a toilet quickly plainly qualifies for 15 points if the other requirements are met.”

Judge Grey then adds that:

“The effect of the “loss of control” set out in descriptor 9 must be assessed in the light of an individual’s personal circumstances.   If, as a result of limited mobility, he or she is more adversely affected than someone who has greater mobility and an associated ability to better manage the effects of any threatened loss of control, this should be taken into account by the decision-maker.

The alternative would be to divorce the assessment of this activity and the descriptors from the reality of an individual’s ability to cope with their condition and to replace an assessment which is claimant-centred with one based on (here) the ability of a ‘hypothetical’, reasonably mobile individual to reach toilets. 

The activity seeks to assess the likelihood of loss of personal dignity and shame in the workplace associated with significant ‘accidents’.   It should make no difference whether soiling may occur because an individual’s restricted mobility slows down the process of reaching a toilet, or because the loss of control is comparatively rapid.  The effect on the individual and their ability to work is the same.

I agree with Judge Mark that the correctness of this approach is confirmed by the express reference in 9(c)(b) to inability to reach a toilet quickly.  The reference confirms the practical focus of the descriptor, and its link to an ability to manage in a workplace.”

Judge Grey outlines that the Healthcare Professional (HCP) in this case had noted that the claimant had stated that she “loses control of bowels due to poor mobility and inability to reach the toilet in time when required.” 

However, Judge Grey highlights that the HCP’s assessment was that none of the descriptors for Activity 9 applied and that the HCP’s reasoning on Activity 9 is unclear:

“She appears to treat the fact that the loss of control of bowels was “due to poor mobility and inability to reach the toilet in time when required” as supporting the assessment that the descriptors under Activity 9 did not apply.  If that is correct, she fell into … legal error … by discounting difficulties because of their link to restricted mobility.  

If that was not what she meant by her reasoning, then she failed to elicit sufficient evidence to enable a proper evaluation of the extent of appellant’s difficulties.  There was no attempt to assess the severity of each episode, any need for a change of clothing, or the issue of whether assistance might “normally” have been derived from aids such as sanitary pads (see LB v Secretary of State, [2013] UKUT 352 (AAC)).”

In view of this, Judge Grey concludes that the claimant’s appeal should be allowed and her case remitted back for hearing in front of a differently-constituted First-tier Tribunal.

CE/3933/2014: Correct assessment of Activity 10: consciousness during waking moments

Upper Tribunal Judge: Rowley

The claimant had a number of health conditions, including anxiety, sciatica in his back, and arthritis in both knees.  With a tribunal upholding a decision that he did not have a limited capability for work he appealed to the Upper Tribunal. This was on the grounds that he satisfied Activity Descriptor 10 (consciousness).

Paragraph 10 of Schedule 2 of the Employment and Support Allowance Regulations 2008 provides:

Consciousness during waking moments.    

10.
(a) At least once a week, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration.     (15)
(b) At least once a month, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration.     (6)
(c) None of the above apply.          (0)”

In considering this case, Upper Tribunal Judge Rowley sets out step-by -step guidance on how Activity 10 should be considered:
“(a) Does the claimant have “lost or altered consciousness”?

  • “Lost consciousness” will, in most cases, be self explanatory.  As to “altered consciousness” I note what is said in the Training and Development WCA Handbook, which gives guidance to Healthcare Professionals on the scope of the descriptors.  Whilst it is not binding on decision makers or tribunals, I agree with and adopt the following proposition:

“’Altered consciousness’ implies that, although the person is not fully unconscious, there is a definite clouding of mental faculties resulting in loss of control of thoughts and actions.”
(b) Is the “lost or altered consciousness” experienced “during waking moments?”

(c) Does the lost or altered consciousness arise from a specific bodily disease or disablement?

  • An exact diagnosis is not necessarily required.  Rather, the focus should be on determining whether or not the claimant’s state of lost or altered consciousness arises from “a specific bodily disease or disablement” (my emphasis).  This is because activity 10 is in Part 1 of Schedule 2 (“physical disabilities”), and so falls squarely within the provisions of regulation 19(5)(a) which is set out above.  As a consequence, if a claimant’s condition which gives rise to episodes of lost or altered consciousness arises from a mental illness or disablement, that claimant will not fall within the ambit of activity 10.    

(d) Are the episodes of lost or altered consciousness “involuntary?”

  • The activity only covers “involuntary” loss or alteration of consciousness.  Thus, a tribunal must whether the episodes can properly be described as involuntary.  In other words, it must ask if voluntary control was lost.

(e) Do the episodes of lost or altered consciousness result in “significantly disrupted awareness or concentration?”

  • As Judge Ward recognised in BB v Secretary of State for Work and Pensions (ESA) [2-12] AACR 2; [2011] UKUT 158 (AAC), this issue provides the yardstick by which to judge whether an episode is sufficiently severe to qualify.  Only if there is “significantly” disrupted awareness or concentration will the claimant satisfy the statutory test.  A tribunal should, accordingly, give close attention to the effects of a claimant’s condition on his or her awareness or concentration, and determine, as a question of fact, whether any disrupted awareness or concentration could be appropriately categorised as significant.      

(f) How frequently do the episodes occur?

  • Points will be scored if the episodes are either at least once a month (6 points) or at least once a week (15 points).  Nothing less will do. “

In this case, the tribunal found that the claimant was having what he described as “blackouts” on average once a month:   
“What is occurring with [the claimant] is that he is fainting due to anxiety.  [The claimant] would be able to recover from a faint relatively quickly.  Therefore we do not consider them to amount to significant disruption of awareness or concentration and do not find him to meet any of the descriptors for staying conscious when awake.”
Judge Rowley agrees with the following two submissions put to him by the Secretary of State:

  • that it followed from the tribunal’s finding that the claimant was fainting due to anxiety, that any lost or altered consciousness arising from an episode did not arise from a “bodily disease or disablement,” and so, by virtue of regulation 19(5) of the 2008 Regulations, he did not fall within the ambit of activity 10; and
  • that the tribunal was entitled, on the facts before it, to find, as it did, that the episodes experienced by the claimant did not result in “significantly disrupted awareness or concentration”.

However, he disagrees with a third submission regarding whether or not the loss or altered consciousness of the claimant could be said to be “involuntary.” 

There was evidence that if the claimant had “a feeling that [came] over him” which could result in him “collapsing” he would manage it by leaving the room or building and going outside. This submission however says Judge Rowley:

“… flies in the face of the tribunal’s finding that the claimant did in fact faint on average once a month.  That finding suggests that on those occasions the claimant actually lost voluntary control, regardless of whether he could manage his condition on other occasions.”
While It is right to say that the tribunal did not specifically consider each of the specific components of activity 10 Judge Rowley holds that the facts of the case did not necessarily require it to do so:

“The finding that the claimant’s blackouts did not result in significantly disrupted awareness or concentration was one that it was open to the tribunal to make on the evidence before it.  That was sufficient to dispose of the appeal, irrespective of the other questions which may have been raised.  I conclude that tribunal’s findings and decision in relation to activity 10 did not involve the making of an error of law.”

Despite this, Judge Rowley holds that the tribunal erred in law, as nowhere in its statement of reasons did it make reference to the claimant’s previous award or work capability assessment report.  Nor, given the previous Healthcare Professional’s assessment, was it reasonably obvious from the tribunal’s findings why it considered that the claimant no longer satisfied as previously descriptor 15(getting about). He therefore sets aside the tribunal’s decision and remit the appeal to a new tribunal for re-hearing. 

Comment: This decision provides a useful guide as to how the “consciousness” descriptor should be considered and perhaps a template for submissions as to why a claimant should be awarded points under Activity 10.

CE/4876/2014: Assessment of the incontinence descriptor / mobilising “without significant discomfort”

Upper Tribunal Judge: Grey

Following a First Tier Tribunal upholding the decision that the claimant did not have a limited capability for work the claimant appealed to the Upper Tribunal.

This was on the basis that the tribunal had erred in its consideration of the incontinence and mobilising descriptors.

Incontinence
The incontinence descriptor at issue was descriptor 9(b) in Schedule 2 of the ESA Regulations 2008, which required an assessment of whether the claimant:

“The majority of the time is at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly.”

In its statement of reasons the First Tier Tribunal accepted that the claimant did have trouble keeping complete control of his bladder and bowels. But it then added:

“However, we find that he has learnt to manage his condition by regulating his food intake before going out and by knowing where the nearest toilet is. 

Although he does suffer some leakage on a fairly regular basis, it is not sufficient to cause him to wear pads.  We find that he is not for the majority of the time at risk of loss of control leading to an extensive evacuation of his bowels or bladder and that this descriptor does not apply.”

Upper Tribunal Judge Grey holds that the tribunal erred in law as it did not address the issue of ‘risk’.

In doing so he cites with approval Judge Lane’s decision in  CE/1172/210. In which she finds that the pertinent issue is what occurs if a person is unable to reach a toilet quickly and not on what happens because in practice a person has been able to reach toilets quickly.  She also holds that the three factors in the analysis of descriptor 9(b) are the risk of losing control; so that the claimant cannot control full voiding of the bladder; if not able to reach a toilet quickly.

Judge Grey adds that:

“A risk is a chance.  It may exist without it ever actually occurring.  The risk must be of losing control over those muscles involved in preventing the outflow of urine from the bladder.  ….  The facility which a claimant must be able to reach must be a toilet, not a roadside verge or other such makeshift.

While Judge Grey holds that the descriptor is about risk and not the materialisation of the risk, she says that it will often be relevant to find out whether the claimant has ever unexpectedly emptied his bladder fully:

“If he has not, it may be because he never goes far from a toilet.  On the other hand, if he has a normal lifestyle and still has never lost full control of his bladder, it may be that there is no real risk of it happening. 

If he has lost control fully but infrequently, it may be that the appellant has learned techniques to minimise the risk to the point where it is too trivial to be legally significant, or that the instances of loss of control did not materially involve the condition of which he complains.”

While agreeing with this, Judge Grey says that:

“… it seems to me that any coping technique that was based on the ability to reach a toilet quickly would need to be disregarded, because that is the effect of the test set out in descriptor 9(b); it focuses on what will be the result “if” the appellant is “not able to reach a toilet quickly”. This is presumably because immediate access to toilet facilities cannot be guaranteed in all situations or workplaces.”   

Mobilising

With respect to mobilising, the tribunal said that it had “no doubts” that the claimant’s ankle injury caused him “constant pain”. However, it found that he was able to walk more than 200 metres without stopping on most days as “he walks for 10 minutes to and from the swimming pool and that he also goes shopping about 3 times a week, which involves a similar amount of walking”.

Finding that the tribunal had erred, Upper Tribunal Judge Grey says that the difficulty with its finding is that:

“It leaves uncertain the relationship between “constant pain” (which the First Tier Tribunal accepted that the appellant suffered) and “significant discomfort” which is the test set out in the ESA Regulations, Schedule 2.   

On its face, and having regard to the ordinary meaning of the words, it might be thought that someone who was experiencing “constant pain” was also suffering from “significant discomfort”.  But that connection or conclusion is not made by the tribunal.” 

In addition, she says that if the tribunal did accept that the claimant suffered from “significant discomfort” when walking, but continued walking despite this, then this was an error of law as an activity must be completed reasonably:

“Although it would be a finding for the First-tier Tribunal to make on the basis of all the evidence before it, it could well be that the fact that a claimant did repeatedly mobilise over (say) 200 metres would be a reasonable indicator of the fact that he or she did not in fact suffer significant discomfort in doing so. 

However, if the “pain threshold” has been reached but is habitually ignored by a determined individual, that should not in my view imply that points cannot be awarded under Activity 1.”

CE/5661/2014: Activity 1 (Mobilising): No regard should be had to walking with significant discomfort or exhaustion

Upper Tribunal Judge: Markus 

In its statement of reasons the First-tier Tribunal recorded the claimant’s evidence as to the distances that he could walk and the pain or discomfort that he experienced. The thrust of his evidence was that he could walk distances of between 50 and 150 metres but in doing so experienced severe pain which sometimes caused him to be physically sick and sweat.  

However, in deciding that the claimant could repeatedly mobilise 100 metres the tribunal said:

“In considering the evidence with regard to his walking ability the first thing that should be said is that [the appellant] throughout his correspondence and indeed in evidence to the Tribunal was labouring under the impression that any walking undertaken with severe discomfort is to be disregarded. 

That certainly of course is the position with regard to Disability Living Allowance but in relation to descriptor 1 under the ESA Regulations a person will not be found to score points under the descriptors if he can repeat the activity with reasonable regularity even if in pain. …if [the appellant] can repeatedly walk 200 metres with or even in substantial pain or severe discomfort without stopping then he will not be entitled to score points under the descriptor.”

In setting aside the tribunal’s decision, Upper Tribunal Judge Markus holds that the First-tier Tribunal appears to have thought that the prescribed pain threshold was “substantial pain or severe discomfort” rather than “significant discomfort or exhaustion”. 

As a result, the tribunal did not make a finding of the degree of pain or discomfort suffered because of its conclusion that walking when in pain was to be disregarded. 

This was wrong she says as:

“Subparagraph (i) of each descriptor for Activity 1 requires an assessment of the distance for which a claimant can mobilise “without stopping in order to avoid significant discomfort or exhaustion. 

One construction of this provision is that, where a claimant continues to walk after the onset of significant discomfort or exhaustion, the descriptor applies because the claimant has not avoided significant discomfort or exhaustion. 

The question for a tribunal is whether the claimant needs to stop in order to avoid significant discomfort or exhaustion, rather than whether the claimant in fact stops.” 

Outlining that this interpretation is consistent with the previous incapacity for work regime and the original wording of the ESA Regulations she therefore concludes that a claimant’s ability to mobilise with significant discomfort or exhaustion should be disregarded for the purposes of Activity 1.

CE/534/2015: Home working and limited capability for work/work related activity

Upper tribunal Judge: Jacobs

The issue in this case concerns home working. Is it relevant to either or both the application of:

  • Regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 - substantial risk to any person’s mental or physical health if you were found not to have a limited capability for work; or

  • Regulation 35(2) - substantial risk to the mental or physical health of any person if you were found not to have a limited capability for work-related activity.

The claimant said she had problems with learning tasks, getting about, and coping with social situations. However, when she was seen by a health care professional they held that her only difficulty relevant to her capability for work was with getting about - descriptor (c):

  • Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person (6 points)

She appealed to a First Tier Tribunal who confirmed the score of six points for getting about, but allowed the appeal, finding that the claimant satisfied regulation 29 but not regulation 35.

The tribunal’s reasoned that in relation to Regulation 29 it should not be looking at someone’s ability to work from home as job searches, signing on, and most types of work require a person to leave the house.

However, it held that this is different to Regulation 35 where activities could be carried out from home particularly as any activity the claimant was required to undertake had to take into account her health problems and the functional difficulties this causes her:

“In our view she could undertake work related activity at home. There is no reason why the job centre cannot write to her at home or call her on the phone to inform her of what work related activity they would like her to undertake at home (such as online training, or discussing what equipment/help she would need to enable her to work or what treatment would help her).
Even if we are wrong about undertaking work related activities from home although we find she could not travel outside home unaccompanied she does have a friend who accompanies here to the town centre shops and supermarket. In our view there is no reason why this friend could not accompany her to her work related activity.”

The claimant’s appealed to the Upper Tribunal arguing that the tribunal had gone wrong in respect of home working and regulation 35, and by relying on the presence of her friend to accompany her.

While accepting that it was in principle possible to undertake work-related activity from home, she argued that the Secretary of State had not provided any evidence of what sort of activity might be availability or relevant to her. She also argued that it would be unreasonable to take account of any support a claimant might derive from being accompanied by a friend. He concluded by inviting the Upper Tribunal to re-make the decision rather than remit the case, as the claimant would be unable to attend a hearing before the First-tier Tribunal.

In considering his decision, Upper Tribunal Judge Jacobs cites the decision in SM v Secretary of State for Work and Pensions [2014] UKUT 0241 (AAC) in which Judge Wikeley held that while there are jobs which allow for some home-working this practice is still not the norm:

“Typically it is a matter which is entirely subject to the discretion (or whim) of the employer. The fact that the Court of Appeal in Charlton held that the statutory test has to be applied ‘in the context of the journey to or from work or in the workplace itself’ at paragraph 34 … is in itself instructive.

To say that a claimant cannot take advantage of regulation 29(2)(b) because they could always be able to do a job working from home would simply be to deprive the statutory provision of any real purpose for large numbers of claimants. Such an interpretation would defeat the statutory purpose of providing a degree of protection for exceptionally vulnerable individuals, especially for those suffering from mental health problems. The tribunal therefore went wrong in law by relying on the possible prospect of a job with home-working.”

While Judge Jacobs agrees with Judge Wikeley’s decision on the facts of SM he does not go so far as to decide that there is an absolute prohibition on considering home working under regulation 29.

In qualifying it “only slightly” Judge Jacobs says:

“As far as I recall, the issue of travel to work had never arisen as a separate issue in dispute before Charlton. I would not attribute to paragraph 34 in that case an absolute prohibition on taking home working into account. It is possible that the only type of work for which the claimant is suitable might be in an industry where home working is possible, even encouraged. That may be rare, but I do not read what the Court said as excluding that possibility. As I have said, home working was not an issue before the Court. What it said in paragraph 34 followed from the way that its decision on the issue in dispute would apply in the overwhelming majority of cases. But the Court was not called upon to be prescriptive that home working could not be considered if appropriate.”

In remitting the claimant’s appeal to be reheard, Judge Jacobs instead holds that the tribunal erred in law in this case by failing to approach the case in accordance with the decision of the three judge panel in IM v Secretary of State for Work and Pensions [2014] UKUT 0412 (AAC).

In IM the three judge panel concluded that the Secretary of State is required to provide evidence as to work-related activity that is available in the relevant area and therefore what the claimant might be required to do:

“... the First-tier Tribunal needs to know not only what the least demanding types of work-related activity are but also what the most demanding types are in the area where the claimant lives.  As Judge Jacobs pointed out in AH, that information can come only from the Secretary of State.

... what the Secretary of State can and should provide is evidence of the types of work-related activity available in each area and by reference thereto what the particular claimant may be required to undertake and those which he  considers it would be reasonable for the provider to require the claimant to undertake.  The First-tier Tribunal would then be in a position to assess the relevant risks.”

In the absence of such information the panel warned –

'... the First-tier Tribunal will be unable to make predictions with sufficient confidence to conclude that the regulation 35(2) risk does not exist and so will be entitled to decide that if the claimant engaging in any of the forms of work-related activity that might be imposed on a claimant in the relevant area would give rise to the regulation 35(2) risk the claimant must be treated as having limited capability for work-related activity.”

However, while Judge Jacobs holds that the tribunal’s analysis was flawed by not applying IM, he does hold that it general approach that home working could be relevant to the application of regulation 35 was correct.

“That provision has to be applied to the work-related activity that is appropriate for the claimant. The claimant’s ability to travel to unfamiliar places is a factor that may affect the activity that is identified as appropriate. And, in so far as that activity does not involve travel, any difficulties that might otherwise arise in the course of travel to and from her home do not arise. I accept the Secretary of State’s submission to that effect.”

CE/799/2015: Regulation 35 (substantial risk to health if found not to have a limited capability for work related activity) / relevance of claimant's existing course of education

Upper Tribunal Judge: Jacobs

The claimant was treated as having limited capability for work under regulation 33 of the ESA Regulations 2008 on the basis that she was receiving education and receiving DLA. The tribunal confirmed that decision, but decided that she did not qualify for the support component.

It dealt briefly with regulation 35, saying that as she was enrolled on a full-time course of study, she would be able to undertake work-related activity without substantial risk.

In his application for permission to appeal, the claimant’s representative submitted that the tribunal had failed to make enquiries into the claimant’s course and her attendance:

  • Did she need help to travel to the venue?
  • Would that help be available in respect of work-related activity?
  • How many hours and how many days was she required to    attend?
  • Did she attend regularly or was she frequently absent?

Also that the tribunal had “failed to establish whether she would be able to undertake Work Related Activity in addition to her course or, alternatively, whether it would be reasonable to require her to abandon her course in favour of attending Work Related Activity.”

Regulation 35(2) of the ESA Regulations provides:

“35   Certain claimants to be treated as having limited capability for work-related activity

(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.”

In setting aside the tribunal’s decision and remitting it for rehearing, Upper Tribunal Judge Jacobs holds that In applying regulation 35, the tribunal has to follow the approach set out by the three-judge panel in IM v Secretary of State for Work and Pensions [2014] UKUT 0412 (AAC):

“That decision requires a tribunal applying regulation 35 to have regard to the type of work-related activity that the claimant might be expected to undertake in her area.
As part of that exercise, the tribunal is required to consider whether the activity would ‘be reasonable ... having regard to the person’s circumstances’ under regulation 3(4)(a) of the Employment and Support Allowance (Work-Related Activity) Regulations 2011. The compatibility of the activity with her education course would be one of those circumstances.”

However, Judge Jacobs then adds that such factors are only relevant in so far as they relate to the existence of a substantial risk to health:

“The tribunal should ignore any factor that is not relevant to that. If the tribunal does not have, and is not to be treated as having, limited capability for work-related activity, any issues such as the reasonableness of the activity would arise subsequently. In particular, the issue might arise whether to give a direction on work-related activity or whether she had good cause for not undertaking it or whether to reduce her benefit for failing to comply with the direction.”

Finally, Judge Jacobs says that he does not find it helpful to label any particular stage in the complex decision-making that may arise in employment and support allowance as involving a hypothetical test – as that “merely introduces an additional and unnecessary complication”:

“The task for the tribunal rehearing this appeal is to apply the decision in IM. It involves a judgment of what the risks would be if identified activity were undertaken. There is no harm in describing that judgment as a hypothetical one, so long as it is understood in that way and as merely signifying that the tribunal has no power to impose any particular work-related activity on the claimant or to require her to adjust her other activities to fit in with it. But it does not seem to me to add anything to the analysis. To put it another way, it does not seem to help the tribunal in applying regulation 35.”

Comment: This decision usefully confirms a full time student claimant should be treated as having limited capability for work under regulation 33 of the ESA Regulations 2008 on the basis that they was receive DLA (or PIP). This means that the only question at issue should be whether they should be in the support group.

In addition, it highlights that if a full time student is seeking to be placed in the support group under Regulation 35 then they are likely to need to detail why the help available to allow them to study will either not be available or of no assistance in relation to work related activity.

However, the DWP should be required to specify what work related activity will be required of them if found not to have a limited capability for work related activity (as specified in IM).

CE/1637/2015: When should a tribunal address the matter of the range or type of work a claimant is able to perform?

Upper Tribunal Judge: Hemingway 

A tribunal dismissed the claimant’s appeal against the decision that he did not have a limited capability for work.

In its statement of reasons it said:

“The Tribunal agreed with the opinion of the Health Care Professional that there were no exceptional circumstances which meant that Regulation 29 of the Regulations should apply. 

We asked [the appellant] if there would be any risk to his or anyone else’s health if he had to go to work.  He could not point to any.  The ESA85 records that he stated at the medical examination that in his typical (sic) he can carry out most normal activities of daily life.  We found that to be consistent with his medical condition.  He is able to interact with his friends and to cope with the social situation of going to the shops. 

In the circumstances, we found there would be no substantial risk to his or anyone else’s health if he were found not to have limited capability for work.  Since he had not been awarded 15 points under the Schedule 2 descriptors, the appeal was dismissed.”

Regulation 29(b) of the ESA Regulations 2008 provides that someone should be treated as having a limited capability for work if they have some specific illness, disease or disablement, and because of that there would be a substantial risk to any person’s mental or physical health if they were found not to have a limited capability for work.

In considering the claimant’s further appeal, Upper Tribunal Judge Hemingway did err in law “in failing to undertake a sufficiently full and holistic consideration with respect to regulation 29(2)(b)”.

Judge Hemingway finds that that regulation 29 had been placed in issue and so was a matter for the tribunal to properly determine as:

“The appellant had suggested that his physical difficulties “limited my ability to work” when completing his ESA50 and his former representatives … had, albeit quite obliquely, raised the issue in saying that the appellant was “not able to take employment with his present medical condition”.  In any event, of course, the tribunal did consider the matter.”

However, he holds that part of its consideration had it been following the approach set out in Charlton in full would have contained an assessment as to the range or type of work which the appellant was capable of performing or which he might reasonably have been expected to undertake:

“It would then have considered the question of the risk envisaged by regulation 29(2)(b) in light of what conclusions it had reached as to that.  In other words, it would have asked itself, having decided the range (based on matters such as experience, training, aptitude, health etc), whether there was work the appellant could have done within that range without that risk arising.”

Judge Hemingway acknowledges that it is in general terms more likely that a full assessment will be needed where a person suffers from mental health difficulties rather than physical difficulties.

However, he says that is not to say that a full assessment will not be required where, as here, the difficulties relied upon by a claimant are predominantly physical in nature. In this case:

“The tribunal had seemed to accept that the appellant had properly been awarded 9 points with respect to mobilising so it had acknowledged there were physical difficulties of some substance.  If it was not accepting the correctness of the 9 points awarded by way of mandatory reconsideration it would surely have explained, in its statement of reasons, why not.  It did not enquire into the question of what type of work the appellant might be capable of performing or, at least, it did not make any findings at all about that.

However, it did have information before it, as contained in the healthcare professional’s report, to the effect that he had not worked for some five years, that his last occupation was a warehouse operative and that his main reason for leaving his previous employment had been his state of physical health. 

So, there were indications that he had, most recently, been performing physical work and that his physical condition might not have been sufficient to enable him to continue in that particular line of employment.  It did not have or appear to have sought any information regarding other work experience he might have had or any qualifications he might have possessed.

It did, though, have a clear indication that his skills in using the English language might have been limited because he had had the benefit of an interpreter at the hearing.  So there was some reason to think that the range or type of work he might reasonably have been expected to undertake would be somewhat limited.” 

In concluding remarks, Judge Hemingway advises as follows:

“It seems to me that a consideration of the type or range of work a claimant might reasonably be expected to undertake is something which is often (though by no means always) missed by a tribunal.  Often that will not be fatal.   Indeed, as was made clear in NS …it will sometimes not be fatal even if regulation 29 is not referred to at all. 

However, there will be cases, as here, and it seems to me they are not infrequent, where there are indications that the range might be limited for various reasons, perhaps a lack of experience of or aptitude for certain categories of work, perhaps a difficulty with written or spoken English, perhaps an established physical or mental disablement, perhaps something else, such that a proper consideration of this aspect is needed.  

Of course, the test does not require anything like the sort of detailed analysis which might be involved in, say, testing the degree of risk to health by reference to specific jobs or job descriptions.  A short assessment, perhaps only a couple of sentences or so, will often be enough.  A tribunal will often already have some background information in the documents before it and will be able to ask questions about the sorts of matters referred to above if an oral hearing is held.

Where competent representatives are involved it may well assist a tribunal if any written submission lodged in advance of a hearing can specify whether and on what basis regulation 29 is relied upon and can deal with, if thought to be relevant, the question of the range or type of work.”

CE/2276/2015: Whether the "carton full of liquid" in descriptors 4(a) and 4(b) is open or closed

Upper Tribunal Judge Wright 

The central issue of law with which this appeal is concerned is whether the ½ or one litre carton full of liquid to be picked up and moved under descriptors 4(a) and 4(b) in Schedule 2 the Employment and Support Allowance Regulations 2008 (the “ESA Regs”) is a closed or open carton.

This issue was important in this case because the appellant suffered from a medical condition termed ‘hyperkinetic syndrome’.  As described by his GP:

“This involves [the appellant] in having involuntary movements that are obviously out of his control.  The movements are unpredictable and he also suffers with anxiety associated with this. This means that clinically his upper limbs can often be out of control….”. 

So In the context of the appellant picking up and moving an open carton of full of liquid it was likely that some of the contents of the carton will be spilled and so the exercise of moving such a ½ or one litre carton full of liquid would arguably not be able to be completed successfully (as once placed back down it will no longer be a ½ or one litre carton full of liquid).

Activity 4 in Schedule 2 to the ESA Regs provides as follows.

Activity 4. Picking up and moving or transferring by the use of the upper body and arms. 

4(a) Cannot pick up and move a 0.5 litre carton full of liquid.

(Score 15)

4(b) Cannot pick up and move a one litre carton full of liquid. (Score 9)

4(c) Cannot transfer a light but bulky object such as an empty cardboard box. (Score 6)

4(d) None of the above apply. (Score 0)

In considering this appeal, Judge Wright first stresses that in construing the meaning of the words in descriptors 4(a) and 4(b) in regard must be had to the statutory context in which they appear:

“That context, relevantly, starts with section 8(2)(b) of the Welfare Reform Act 2007 and regulation 19(2) and (4) of the ESA Regs, all of which focus on assessing a claimant’s capability to perform the activities in Schedule 2. 

What has to be assessed therefore is the appellant’s ability in “picking up and moving or transferring by the use of the upper body and arms”.  It is thus the actions of the upper body and arms in picking up and moving or transferring that is the key consideration.  The manner in which the activity is completed is not, therefore, directly in issue, as long as it involves something that may be described as “picking up” and then “moving” (or “transferring”).  This focus in my judgment militates against consideration also being given to whether the task can be completed without shaking or with a lack of balance.”

In addition, in construing Schedule 2 to the ESA Regs as a whole, and in its different incarnations since 2008, he says that the concern with open objects holding liquid has at all times been located within the activity 5 - “manual dexterity” - an activity which is concerned with the ability to make coordinated hand and finger movements to grasp and manipulate objects. 

A second supporting feature he finds is that where the statutory scheme required an object to be “open” then that is (or was) stated in the statutory language:

“By way of contrast with the use of the word “open” in what was descriptor 6(i) in the pre 28 March 2011 version of Schedule 2 to the ESA Regs - “Cannot pour from an open 0.5 litre carton full of liquid” – the descriptors covering picking up and moving a ½ or 1 litre carton full of liquid do not use, and have never used (even at the time when they appeared in Schedule 2 with descriptor 6(i)), the word “open”.  From this it is to be inferred, in my judgment, as matter of statutory construction that the absence the word “open” in descriptors 4(a) and 4(b) is deliberate and shows that the carton is closed.”   

Finally, Judge Wright considers the issue of ordinary language usage:  

“Ordinarily I would suggest that a carton of liquid is a container for storing the liquid and therefore, as a general starting point, would not be open.  If it was an open container of liquid then a word such as “jug” or “cup” would be more appropriate.  It seems to me, therefore, that as a matter of the ordinary use of language (and there can be no sensible argument that the words “carton full of liquid” is being used in any technical, non-ordinary sense), a carton full of liquid would normally be understood as meaning an object which is closed. It is not, therefore, a word which in ordinary usage would need to be qualified by the use of the word ‘closed’.”

Judge Wright therefore holds that the tribunal did not err in law in discounting spilling when assessing the appellant’s ability to pick up and move the cartons full of liquid under activity 4.

CSE/236/2015: Getting Around: Activity 15 Descriptor 1 requires an investigation of whether a claimant can go to a place outside the immediate vicinity of their home and it is not necessary to establish that they cannot go beyond their front door

Upper Tribunal Judge: Bano

The claimant was awarded ESA from August 2014, but following a medical examination on at which the claimant was assessed as scoring no points in respect of either the physical or mental health descriptors a decision was made on 7 January 2015 superseding and removing his award.

In appealing, the claimant maintained that descriptor 15(a) applied, saying that: “I am unable to go out to familiar places on my own due to suffering severe anxiety.  I find this far too distressing.”

Descriptor 15(a) provides:

“Cannot get to any place outside of the claimant’s home with which the claimant is familiar. (Score 15)”

In dismissing his appeal the tribunal held that:

“The appellant’s evidence was that he would only ever go out accompanied – either by his girlfriend or family members, even whilst travelling in taxis.  The appellant’s evidence on this activity was not convincing as he was not fully able to explain what was stopping him from going out or why he needed to be accompanied whenever he was out other than to say that he was concerned that people would stare at his facial scars. 

Furthermore we noted that the appellant had told the HCP that he was able to go outside alone to have cigarettes and that he had injured his wrist whilst falling taking his rubbish bin outside, evidence that we accepted that he said and reflected the true picture.  Noting that he lived in an upstairs flat where he would need to travel some distance and presumably come into contact with unfamiliar people, this suggested that the appellant’s ability to go out was not as limited as he suggested."

In setting aside the tribunal’s decision, Upper Tribunal Judge Bano holds that its approach to Activity 15 was flawed: 

“Activity 15 is concerned with ‘getting about’, and descriptor 1 is satisfied if a claimant “cannot get to any place outside the claimant’s home with which the claimant is familiar”.  For my part, I do not consider that putting out the bins or going outside to have a cigarette amounts to ‘getting about’, even if there is a chance of meeting a neighbour or visitor to the building when doing so.   

In my judgment, descriptor 1 of Activity 15 requires an investigation of whether a claimant can go to a place outside the immediate vicinity of their home, and that in order to satisfy the descriptor it is not necessary for a claimant to establish that he or she cannot go beyond their front door."

He continues:

“If the tribunal accepted that the claimant did not in fact leave his home without being accompanied, they might have considered that this was out of choice, or they could have concluded that the claimant was prevented from doing so because of anxiety, which was the basis of his case.  On the issue of whether the claimant chose not to go out, or genuinely could not do so because of his mental state, the tribunal’s reasons are therefore so ambiguous as to be in error of law.

… Although the tribunal expressed their doubts about the claimant’s credibility, they did not make clear which aspects of the claimant’s evidence they rejected.  Although there is no universal obligation on tribunals to explain assessments of credibility in every instance - see CIS/4022/2007 -  a claimant is at the very least entitled to know which aspects of his or her evidence a tribunal does not believe.”

CSE/385/2015: Claimant has to demonstrate an arguable case that some form of risk exists before tribunal required consider Regulation 35

Upper Tribunal Judge Lunney

A decision maker had found the claimant entitled to ESA on the basis that she had limited capability for work; He awarded her 9 points for descriptor 1(c) (mobilising) and 6 points for descriptor 2(c) (standing and sitting). However he also held that the claimant did not have limited capability for work related activity.

The claimant appealed the decision to the tribunal which refused her appeal and upheld the decision maker’s decision. 

One ground of the claimant’s appeal to the Upper Tribunal was that the tribunal erred in law in its treatment of regulation 35(2)(b) in the light of the decision of a 3 judge panel in IM v Secretary of State for Work and Pensions (ESA) [2014] UKUT 0412 (AAC) 

She submitted that as the Secretary of State had not provided evidence of the type of work related activity that is available in her area, the tribunal could not properly determine whether there was, in terms of regulation 35(2)(b):

“… 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 contended that IM supported his argument that before any assessment of risk could be carried out the Secretary of State must first provide such evidence as it had held:

“What the Secretary of State can and should provide is evidence of the types of work related activity available in each area and by reference thereto what the particular claimant may be required to undertake and those which he considers that would be reasonable for the provider to require the claimant to undertake.  The First-tier Tribunal would then be in a position to assess the relevant risks.”

However, Upper Tribunal rejects this argument for the following reasons:

“The claimant’s letter of appeal … asked that she be put in the support group on the basis that she could not envisage working again.  The terms of the appeal were such that the Secretary of State could not be said to have been put on notice that regulation 35(2)(b) was directly raised on appeal.  Therefore, the Secretary of State was not obliged by application of rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 to provide a response relevant to regulation 35, see the comments of Upper Tribunal Judge Wright in MN v Secretary of State for Work and Pensions (ESA) [2013] UKUT 262 (AAC).”

Judge Lunney also says that it is important to have regard what the Judges in IM ruled in relation to the issue of substantial risk:

“As is pointed out in R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd  [1993 1 WLR23, “substantial” is a word that means different things in different contexts.  However, it was our view correctly common ground before us that a “substantial risk” in this context means a risk:

“… that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”

He then outlines that in the tribunal’s Statement of Reasons where it made the following findings of fact:

“Appellant was affected by underactive thyroid, kidney problem, hypertension, generalised arthritis and a hearing problem.  The condition that was mainly relevant for the purposes of this appeal was her condition of generalised arthritis.”

Judge Lunney also reports that further findings in fact were made that the claimant neither claimed to suffer nor did suffer either from any adverse mental health condition or any cognitive impairment or mental disorder. 

He continues:

“What was not demonstrated by the claimant was that substantial risk as defined in IM, existed as a consequence of her condition of generalised arthritis. 

… Having regard to the unchallenged findings in fact made by the tribunal to which I refer above I consider that this appeal falls squarely into that class described in IM as one where “the claimant does not have any realistic argument under regulation 35”.  Neither the claimant’s evidence nor the nature of her main disabling condition established risk that would have necessitated consideration of the effects of undertaking work related activity.  The tribunal therefore was entitled to decide the regulation 35 issue on that basis”.

Judge Lunney therefore concludes by dismissing the claimant’s appeal on the grounds that the tribunal did not need to consider the question of risk in the context of work related activities as the claimant had not established that any risk arose as a consequence of her debilitating condition.  As a result, the claimant had no realistic argument under regulation 35 as IM held that it is only where it turns out that there is a serious argument in relation to regulation 35 that the provision of information from the Secretary of State need be considered.

Comment: This decision highlights that if possible an argument that someone meets the condition for being placed in the support group under Regulation 35 should be made at the tribunal hearing. If not, except in ‘obvious’ cases it is difficult to dispute that a tribunal will have made an error of law.

CSE/493/2014: Claimant must be found to have limited capability for work before consideration given to whether they have limited capability for work-related activity

Upper Tribunal Judge: May

The Secretary of State had appealed against the decision of the tribunal which allowed the claimant’s appeal and found she was entitled to ESA with the support component. 

In making that decision the tribunal awarded the claimant 6 points from the work capability assessment from the activities and descriptors in schedule 2 of the Employment and Support Allowance Regulations but held that regulation 35 of the Employment and Support Regulations 2008 applied. It said:

“[The claimant’s] evidence was important in the Tribunal reaching its conclusion.  In this unusual circumstance it felt that [the claimant] was at risk of substantial self-harm and on that basis Regulation 35 of the ESA Regulations should be applied.

It was acknowledged that Regulation 29(2)b of the same Regulations did not apply.  On that basis the appeal was allowed and [the claimant] was found to fall within Regulation 35.”

In brief, regulation 29 allows you to be treated as not having a limited capability for work if have a specific disease or bodily or mental disablement and consequently there would be a substantial risk to the mental or physical health of any person if you were found not to have a limited capability for work.

Similarly, regulation 35 allows you to be treated as having a limited capability for work-related activity if you have a specific disease or bodily or mental disablement and consequently there would be a substantial risk to the mental or physical health of any person if you were found not to have a limited capability for work-related activity.

The Secretary of State’s grounds of appeal was that a claimant has to have been found to have LCW, a basis condition of entitlement to ESA, before a finding of LCWRA can be considered. This was as the latter is relevant only to the amount of benefit paid and to what extent, if any, the claimant has to attend work-focused interviews and work-related activity.

In upholding the Secretary of State’s appeal, Upper Tribunal Judge May cites CE 2207 2012 in which Judge Jacobs outlined that: 

“A claimant who has limited capability for work may qualify for a higher payment and be exempt from undertaking work-related activity by coming within the support group.

This can be shown in two ways.  The first way is on account of the nature and extent of the claimant’s disabilities, demonstrated by satisfying at least one of the activities in Schedule 3 to the Regulations (regulation 34).  Most of these are the highest scoring descriptors from Schedule 2.  The second is on account of the risk that would be posed if the claimant were to undertake work-related activity.  This is regulation 35 …” 

In agreeing with this analysis, Judge May says that the application of schedule 3 and the descriptors therein and regulation 35 is dependent upon a claimant having limited capability for work.

However, in he adds:

“In this case such limited capability for work was not established.  It does not seem to me that on the Upper Tribunal Judge’s narration of the statutory scheme that schedule 3 descriptors and regulation 35 can be free-standing and can give rise to an entitlement to benefit on their own without limited capability of work having been established.  That is where the tribunal’s decision … demonstrated an error in law on their part in making the [support component award] …”

In reaching this conclusion, Judge May disagrees with the decision of in CSE/490/2013 which the claimant sought to rely on. In making that decision, Judge Gamble sought to rely on paragraph 14 of CE/2207/ 2012 when he said:

“Thus the tribunal were not precluded from considering the application to the claimant of regulation 35(2) although they had held that she neither satisfied the limited capability for work assessment nor fell to be treated as having satisfied it.”

In CE/2207/2012 when considering regulations 29 and 35 Upper Tribunal Judge Jacobs said:

“There is no reason why the former should be determinative of the latter”

Judge May concludes that Judge Gamble gave wider effect there to what was said by Upper Tribunal Judge Jacobs than was intended:

“I am satisfied that what Upper Tribunal Judge Jacobs was saying was that satisfaction of regulation 29 did not mean that a claimant automatically satisfied regulation 35.  However in this case regulation 29 or sufficient schedule 2 descriptors were not satisfied and thus in turn regulation 35 could not be satisfied.”

Comment: This decision highlights that in making out a case for someone to be placed in the support group under regulation 35, it is essential a case is also made that they also have a limited capability for work. This could be by making a case that the person should score 15 or more descriptor points and/or should be treated as having a limited capability for work under regulation 29

Housing benefit

CH/3570/2014: Whether “official error” where HB overpayment arises following a successful ESA appeal

Upper Tribunal Judge: Markus

Up to November 2011 housing benefit had been paid to the claimant on the basis that he received incapacity benefit. In March 2012 his landlord notified the local authority that the incapacity benefit had ended on 2 November 2011 and that the claimant was in receipt of ESA from November 2011 (this being much less than his previous incapacity benefit). 

As a result the respondent recalculated the claimant’s housing benefit with effect from November 2011.  As his income had decreased, the housing benefit increased. There was an underpayment from November 2011 which was paid to his landlord.

In the meantime the claimant had appealed against the ESA decision.  A tribunal (Tribunal 1) allowed his appeal in August 2012 which meant that the appellant was entitled to a larger award of ESA from November 2011.

Although the local authority was aware that the appellant was appealing the ESA decision it did not become aware of the outcome of that appeal nor the revised award of ESA until a CIS check in March 2013.

As a result, the local authority recalculated the claimant’s housing benefit entitlement to from November 2011 to November 2012 taking into account the arrears which he had been paid and the increase in his ESA entitlement.  In March 2013 it decided that the claimant had been overpaid housing benefit of £343.12 and that the overpayment was recoverable from him.

A tribunal (Tribunal 2) dismissed the claimant’s appeal against this decision holding that:

“The overpayment was caused because [the appellant] successfully appealed a DWP decision about his claim to ESA and received an increased award back dated to 03.11.11.

[The appellant] did not inform the local authority that his appeal had been allowed.

The overpayment was not caused as a result of official error and the overpayment is, therefore, recoverable from him.”

In considering the claimant’s appeal to him, Upper Tribunal Judge Markus finds that there was no doubt that the appellant was overpaid housing benefit.

However, he holds that the tribunal had erred in deciding that the whole of the overpayment was recoverable.

This was in three principle ways:

“First, the tribunal did not have regard to the fact that a substantial portion of the total overpayment related to a period prior to the decision of Tribunal 1 and it made no finding as to what caused that part of the overpayment. 

Second, having found that the appellant’s duty was to notify the outcome of his appeal when he became aware of it, the tribunal failed to make a finding of when that was. 

… Third, had the tribunal approached the above two matters correctly, it would have had to go on to identify the cause of the overpayment in respect of both the period prior to the decision of Tribunal 1 and, if relevant, during any period after that decision when the appellant was not aware of it. It would have been bound to conclude that the overpayment arose because the appellant’s ESA was recalculated following the decision of Tribunal 1.” 

With respect to the last issue, Judge Markus considers whether the overpayment arose in consequence of official error. In doing so he disapproves of the approach taken in CH/38/2008 and instead prefers that taken in CH/943/2003.

Reasoning that the decision of Tribunal 1 was that the Secretary of State had made a mistake in his determination of the appellant’s entitlement to ESA, Judge Markus finds that it was that determination which led to the claimant being overpaid housing benefit: 

“Had the tribunal addressed this issue correctly, it would have had to consider whether the appellant caused or materially contributed to the Secretary of State’s error and whether, at the time that he received the overpayments or notice relating to them, he could reasonably have been expected to realise that they were overpayments …

In addition Tribunal 2 found … that the appellant could reasonably have been expected to realise that he was being overpaid.  On the tribunal’s own reasoning this was irrelevant, because having found that there was no official error the question of what the appellant could be expected to have realised did not arise under regulation 100(2). 

In any event, the tribunal failed to address whether the appellant could reasonably have been expected to realise it was an overpayment at the relevant time.  Plainly he could not during the period prior to Tribunal 1’s  decision and, thereafter, whether he could have done so would depend on a variety of potentially relevant factors, taking a subjective approach, including what the appellant knew and what he could reasonably have found out.”

In the light of Tribunal 2’s errors of law, Judge Markus sets aside its decision and holds that the whole of the overpayment arose in consequence of official error and was not recoverable. 

CH/4490/2014: Calculation of HB overpayment – potential entitlement of claimant’s partner who remained in residence must be offset

Upper Tribunal Judge Knowles

The issue in this appeal concerned the calculation of a recoverable overpayment of housing and council tax benefit from the claimant.

The local authority held that the amount of a recoverable overpayment could not be reduced by offsetting any entitlement of the claimant’s wife to benefit in respect of the whole or part of the overpayment period. The First-tier Tribunal accepted this argument and dismissed the claimant’s appeal.

The claimant was in receipt of housing and council tax benefit for a property in which he resided with his wife and four children. Both his claim and the award for housing and council tax benefit were in his name alone. He was in receipt of ESA which passported him both HB and CTB.

The DWP had notified the local authority that it had ended the claimant’s ESA as he had went abroad for longer than 4 weeks.
The local authority subsequently made a decision that he was not entitled to HB/CTB as his absence had exceeded 13 weeks and as a result, HB of £4,790.50 and CTB of £264.22 had been overpaid was recoverable from him.

A tribunal upheld the decision because he was absent for longer than the 13 week permitted period and while his wife might have been entitled to claim these benefits she had not submitted a valid claim.

It found that, while the claimant’s wife may have had her own potential entitlement to HB/CTB this was not part of his claim when it ceased to be valid. It agreed with the local authority’s submission that unlike, for example, claims for Jobseeker’s Allowance, housing benefit claims were made in the name of and in respect of one person alone.

In upholding the claimant’s appeal, Upper Tribunals Judge Knowles considers Regulation 104 of the HB Regulations entitled “Sums to be deducted in calculating recoverable overpayments”.

Regulation 104(1) provides that:

“Subject to paragraph (2), in calculating the amount of a recoverable overpayment, the relevant authority shall deduct any amount of housing benefit which should have been determined to be payable [to the person from whom the overpayment is recoverable or their partner] in respect of the whole or part of the overpayment period –
(a) on the basis of the claim as presented to the local authority;
b) on the basis of the claim as it would have appeared had any misrepresentation or non-disclosure been remedied before the decision; or
(c) on the basis of the claim as it would have appeared if any change of circumstances [except a change of the dwelling which the claimant occupies as his home] had been notified at the time that change occurred”.

He says that the purpose of this provision is to ensure that a recoverable overpayment is calculated with reference to the claimant’s correct circumstances and that any underlying entitlement of either the claimant or his/her partner is deducted from the sum owed.

Judge Knowles then finds that:

“The underlying entitlement of a partner as provided for in regulation 104(1) only affects the amount of the recoverable overpayment. It does not entitle the partner to the payment of benefit – the only way that could happen in these circumstances would be for the partner to make their own claim for benefit.

The wording of regulation 104(1) he continues is plain:

“Housing benefit to which either the claimant or his partner would have been entitled in respect of the whole or part of the overpayment period [my emphasis] shall be deducted from the amount of the recoverable overpayment.

Application of regulation 104(1) requires a two stage process: first of all to look into the past to see what the true circumstances of a claim were had the claimant submitted a valid claim for benefit and to calculate benefit due to either the claimant or his partner on that basis.

Having calculated the amount of benefit due, regulation 104(1) then requires the local authority to deduct that amount from the overpayment recoverable from the claimant. This two stage process is consistent with the comments made by the Court of Appeal in R(H) 5/04.

In explaining why the tribunal had erred in law, Judge Knowles holds that:

“The tribunal found that the Appellant’s claim ended when his entitlement ended in accordance with regulations 7 and 8 of the HB Regulations and the relevant council tax regulations. He had no underlying entitlement and thus the amount of the recoverable overpayment had been correctly calculated. The tribunal said it had no jurisdiction over any matters pertaining to the “separate claim and entitlement” of the Appellant’s wife to either housing or council tax benefit.

What the tribunal failed to exercise was its jurisdiction to determine the amount of the recoverable overpayment from the Appellant by applying regulation 104(1) correctly. The exercise of that jurisdiction required it to go through the steps I have outlined in paragraph 33 above and its failure to do so constituted a material error of law.”

As a result, Judge Knowles concludes that the amount of the recoverable overpayment of both HB/CTB as calculated by the local authority was incorrect as it had not deducted the entitlement of the claimant’s wife to HB/CTB during the period of the overpayment.  

CH/5286/2014: Official error: whether claimant could reasonably expected they were being overpaid before decision notice received

Upper Tribunal Judge: Wright 

In a short decision, Upper Tribunal Judge Wright begins by explaining why he had given the claimant permission to appeal:

“I give permission to appeal … because it seems to me very well arguable that the tribunal erred in law in concluding that the “official error” overpayment was recoverable even for the period before [the appellant] received the 27 January 2014 notice. Given the finding of the First-tier Tribunal that [the appellant] (could only have) realised he was being overpaid once he had read the 27 January 2014 notice, surely the overpayment can only be recoverable from that date and not 18 January 2014.

In the circumstances it seem to me that the correct decision ought to have been that the overpayment is only recoverable from either 27 January 2014 or, more arguably, the date [the appellant] received this notice (say, 30 January 2014) and that, if it is agreed the First-tier Tribunal erred in deciding the overpayment was recoverable from 18 January 2014, its decision ought to be set aside and I make the decision it ought to have made.”             

Judge Wright adds that error in this case It is a not infrequent error made by local authorities and First-tier Tribunals:

“If in an “official error” case, as here, the sole basis for the claimant being reasonably expected to realise he is being overpaid is the decision notice, axiomatically that expectation cannot arise before he or she has received the notice and read it.

He concludes by ruling that:

“The substituted decision of the Upper Tribunal is to set aside the City and Council of Swansea’s decision of 11 June 2014 and replace it with a decision that Mr Rowles has been  overpaid housing  benefit from 18 January 2014 to 15 June 2014 but only the overpayment of housing benefit for the period from 30 January 2014 to 15 June 2014 is recoverable from him because the overpayment for the period 18 January 2014 to 30 January 2014 was caused by official error and Mr Rowles could not reasonably have been expected to realise he was being overpaid for this period.”

CSH/734/2014: Bedroom tax: re-designation of room as living room on professional advice

Upper Tribunal Judge: Agnew 

A tribunal allowed the claimant’s appeal on the grounds that one downstairs bedroom was no longer a bedroom because it had been converted to a living room for the disabled claimant.

The Secretary of State appealed on the ground that having regard to the three judge decision in SSWP v Nelson and Fife Council [2014] UKUT 0525 (AAC) (the “Nelson decision”) the correct legal test is not what use is made of the room, but whether the room could be used as a bedroom looking at the property as if it was vacant.

However, the claimant’s representative submitted that this proposition meant that if the landlord classified a room as a bedroom then that is and end of the matter and that the Nelson decision properly read clearly allows that there is room for a re designation:

“The relevant facts in this case point to a reasonable medical basis for re designation. The likelihood that the new use will be permanent or long term.

The examples given of re designations that are given only related to examples involving physical alterations to the property for persons with physical disabilities. If this is taken to be the only type of case where re designation is possible then I would regard that as unreasonable as it would discriminate with no rational basis between those with mental health problems or learning disabilities and those with physical disabilities.

If Nelson is taken to have excluded any re designation in a case such as my clients then I would regard it as incorrectly decided”

In considering his decision, Upper Tribunal Judge Agnew says that The Nelson decision makes clear that generally the test is whether the room could be used as a bedroom and regard is also had to the landlord’s designation.

But he then highlights that at paragraph 29 the Nelson decision states:

“However, this does not mean that issues concerning the designation of rooms as between living room(s), kitchen, bathroom, lavatory, storeroom and bedroom do not arise.  For example, issues could arise (a) as to what should be designated as the living/dining areas of a property, and (b) the impact of a conversion of room to a bathroom or wet room (which could normally only be done lawfully with the consent of the landlord).”

Therefore, Judge Agnew says:

“Paragraph 29 recognised that issues of designation of a room can arise and that there can be an impact from the conversion of a room, for example into a bathroom or wet room, in deciding whether or not a room is a bedroom.”

He then holds that it was clear that the tribunal had in fact decided that the claimant has reasonably designated this room as a living room.

For example the tribunal found as follows:

“The appellant is a single woman.  She is 54 years old when the decision under appeal was made. She has severe learning disability and autistic traits. She is unable to live on her own. …

… Shortly after returning to the property in 2009, the downstairs bedroom was converted into a living room for the appellant’s use.  Mr and Mrs (X) use the original living room.  Both parties require some privacy.  In particular, the appellant can get unsettled and agitated and wants her own space to watch television programmes she likes and listen to music. She has a television in her bedroom but does not use it.  She has carers who call twice a week to take her out and spends some time in her living room with them.

…  I concluded that whether or not a room is a bedroom is a question of fact to be decided in light of the circumstances pertaining to the case at issue. I found it credible and reasonable that the appellant required her own living space because of her disability and was satisfied that due its long established use as a living room, the room in question had ceased to be a bedroom.”

These findings were supported a letter from the Glasgow City Council Social Work Services that stated felt that both the claimant and her carers would benefit if she had a separate lounge to use for the above therapeutic purpose and carer support and privacy.”

In therefore dismissing the Secretary of State’s appeal, Judge Agnew says:

“I am of the opinion that the Nelson decision goes no further than saying that normally the family designation and choice is not a relevant factor, but leaves open the question of whether or not there might be exceptional circumstances when re-designation might be appropriate.

The Nelson decision does recognised at paragraph 29 that issues as to the designation of rooms can arise and specifically refer to the conversion of a room to a bathroom or wet room which could normally only be done with the consent of the landlord.

I therefore see no reason why designation on professional advice for a mental health or mental disability condition could not also be one of those circumstances that a tribunal can take into account in determining whether or not a room is available to “be used as a bedroom” – paragraph 28(ii).  

If re-designation is limited to physical conversion only for a physically disabled person, but that this re-designation is not available to a mentally disabled person when required on profession advice, then I consider that would amount to discrimination for no rational reason.”

Comment: This is a useful decision although it will only benefit a limited number of disabled people affected by the bedroom tax. Generally speaking a landlord’s designation of a room as a bedroom will prevail. A “family choice” to use a bedroom say as a living room does not count. But “exceptional circumstances” will this not be the case - where someone has been advised by a doctor – in the case of a physical disability e.g. to use a room as a wet room -  or been advised by social services – in the case of a mental health disability (as in this case to use a bedroom as a living room).

CSH/776/2014: Meaning of ‘on’ income based ESA for the purposes of assessing housing benefit

Upper Tribunal Judge: Mesher

The claimant had appealed against a decision that he had been overpaid housing benefit

His wife had for a time been mistakenly paid income based ESA and not contribution based ESA (although the DWP had decided not to recover any overpaid ESA). A decision was made that the claimant had been overpaid hosing benefit for that period due to the level of his other income.

However, the claimant maintained that while income based ESA had been in payment then he had not been overpaid HB as this meant he was eligible for a full rebate.

In considering the appeal, Upper Tribunal Judge Mesher considers the meaning of paragraph 4 of Schedule 5 to the Housing Benefit Regulations 2006 (as amended with effect from 28 October 2013 to accommodate universal credit), which lists cases where income other than earnings is to be disregarded:

“4. Where a claimant is on universal credit, income support, an income-based jobseeker’s allowance or an income-related employment and support allowance the whole of his income.”

Regulation 25(1) provides that the income and capital of a claimant’s partner are to be treated as the income and capital of the claimant and that references in the Regulations to “the claimant” include the claimant’s partner. 

Judge Mesher reasons that a person is for housing benefit and council tax benefit purposes to be treated as having no income, regardless of what income is actually being received, for any day in respect of which income-related ESA is “payable”:

“The test is not whether the income-related ESA was actually paid for the day in question, but whether it was “payable”. Upper Tribunal Judge Wikeley has helpfully explored the distinction between those tests in decision JF v Secretary of State for Work and Pensions and DB (CSM) [2014] AACR 3.

That decision was about a provision in the child support legislation, but the general principles can apply to benefits legislation, subject always to the overriding necessity to look at the particular context of the use of the word “payable”.

Although sometimes “payable” can mean paid or payable under an award of benefit, whether right or wrong, Judge Wikeley’s view was that the ordinary meaning of the word suggests that there must be some underlying entitlement. Thus, often “payable” will mean “properly or lawfully payable”, as he held that it meant in the child support legislation he was considering.

… In my judgment, in view of the choice of the word “payable”, rather than “paid” in the definition of “on income-related employment and support allowance” in regulation 2(3A) of the Housing Benefit Regulations 2006 and in the light of the overall context of the housing benefit and council tax benefit/council tax reduction legislation (and in particular the mechanisms for the retrospective supersession of decisions where decisions on entitlements to other benefits have changed), “payable” there does not mean “actually paid” or “actually paid under an award whether right or wrong”. It means “properly or lawfully paid” or something akin to that.“

Comment: This decision does usefully clarify what is mean by the term “payable” although not to the advantage of claimants i.e that “payable” does not mean “actually paid” but means “properly or lawfully paid”

Industrial injuries benefits

CI/5246/2014: Whether medical examination necessary / good cause for not attending a medical examination

Upper Tribunal Judge Rowland

The claimant appealed against a decision that she was not entitled to disablement benefit from July 2013 because she had failed to attend a medical examination in September 2013 for the reassessment of her disablement in respect of Prescribed Disease A8 (tenosynovitis). 

Atos Healthcare had asked her to attend an examination in May 2013 but the appointment was cancelled when the claimant’s husband telephoned asking why the claimant had to be examined.  Another appointment was made but the claimant’s husband wrote a letter, countersigned by the claimant herself and dated 27 August 2013, in which he said that she was “not well enough to attend due to her mental health condition”. 

Following the second failure to attend, the Secretary of State made the decision against which the claimant appealed, which was that disablement benefit was not payable to her from July 2013 because she had failed to attend the medical examination. 

That decision was made under section 19(3) of the Social Security Act 1998, which provides:

“19 (1) Before making a decision on a claim for a relevant benefit, or as to a person’s entitlement to such a benefit, the Secretary of State may refer the person—
(a)   in respect of whom the claim is made; or
(b)   whose entitlement is at issue,
to a health care professional approved by the Secretary of State for such examination and report as appears to the Secretary of State to be necessary for the purpose of providing him with information for use in making the decision.
(2) Subsection (3) below applies where—
(a)   the Secretary of State has exercised the power conferred on him by subsection (1) above; and
(b)   the healthcare professional approved by the Secretary of State requests the person referred to him to attend for or submit himself to medical examination.
(3) If the person fails without good cause to comply with the request, the Secretary of State shall make the decision against him.”

The claimant appealed on the ground that she had “good cause” for not attending the examination. Her grounds of appeal raised two issues. 

The first was expressed by her husband as follows:

“Caroline is suffering from severe mental health problems and this is the reason she cannot attend or comply with the request to endure yet another round of Atos medical assessments that she fears will create further harm if wrong, as they have done previously.”

The second was essentially that a further examination was unnecessary and pointless.  The Secretary of State had already accepted that she had an industrial injury and the evidence, it was submitted, showed that the condition was permanent. 

However, a First-tier Tribunal dismissed the claimant’s appeal and found that she did not have good cause for failing to attend the appointment for the medical examination in the light of evidence that she attended other medical appointments.

In her grounds of appeal to the Upper Tribunal, the claimant, through her husband, emphasised that she considered that the process of claiming benefits – or, more precisely, the experience of unfavourable medical examinations against which she had had to appeal to gain the benefits – had contributed to her mental health problems. 

She provided further documents relating to a similar employment and support allowance case that related to her not attending a work capability assessment that had been determined in CE/2179/2012 where Upper Tribunal Judge Ward said –

“I have set the tribunal’s decision aside, because in my judgment that tribunal erred by failing to address (or at least to explain how it had addressed) the impact on the claimant (a person who was at the material time mentally ill) of the perceptions apparently held (whether rightly or not) of the medical examination process based on her previous experiences. 

The fact that there may have been therapeutic interventions or other appointments in her own interests which she had been able to attend, which the tribunal relied on, does not necessarily provide an answer to why she had not attended the medical examination, as preserving her award of benefit would also have been in her interests.  Nor does it address the misgivings which the Secretary of State’s representative acknowledges it may be reasonable for people to have in view of the adverse publicity which has attached to medical examinations in recent years.”

In determining the present appeal, Upper Tribunal Judge Rowland holds that the tribunal in this case similarly failed to apply the above approach taken by Judge Ward:

“In other words, it failed to consider whether the claimant’s refusal to attend the examination was a consequence of perceptions about that particular type of examination held by her at least partly as a result of her mental illness.”

The Secretary of State submitted to Judge Rowland that he should direct a domiciliary visit and should remit the case to the First-tier Tribunal. In arguing that assessing disablement on the papers is not an option, the Secretary of State said:

“In any disability assessment the objective is to medically assess the functional effects of a person’s condition in terms of what the person can or cannot do compared to a non-disabled person.  In my submission the medical advisors are contracted by the Department to provide medical advice to the Secretary of State and are therefore trained to assess the functional effects in the context of the benefit claim.  I submit that any evidence provided by the claimant’s GP, for instance, will be of limited probative worth because it does not give such advice and instead just generally advises as to the medical conditions and subsequent treatment.”

While agreeing with the first two of these sentences, Judge Rowland says that he would agree with the third if it suggested that evidence of a claimant’s general practitioner “may be”, instead of “will be”, of limited probative worth:

“Of course many cases cannot be satisfactorily determined without a medical examination but it seems to me to be equally obvious that there must be some cases where written evidence is available and either does adequately address the issues arising under the relevant legislation or enables a trained advisor to do so.” 

He continues by finding that he can see nothing in the legislation relating to disablement benefit that has the effect that an assessment of disablement cannot be made without the claimant being examined:

“Indeed, even in the days when the “disablement” questions had to be referred to adjudicating medical authorities for determination, which in practice involved an examination, the legislation allowed the adjudicating medical authority, if appropriate, to determine the case in the claimant’s absence – and therefore without an examination being carried out – provided that the claimant consented (see regulation 29(8) of the Social Security (Adjudication) Regulations 1986 (SI 1986/2218)).  Section 19(1) of the 1998 Act is in permissive terms so that it is clearly not a legal requirement that a claimant of disablement benefit be referred to a medical advisor (i.e., a health care professional) for examination and report at all.”

While agreeing that the practice of making such a reference where an assessment of disablement is often desirable, he adds that:

“… where a claimant would, or might, have a good cause for not attending an examination based on a condition likely to last some time, it must follow from the lack of any statutory requirement that there be an examination that the Secretary of State is entitled to, and should, consider whether an examination is really necessary in that particular case. 

There is nothing to prevent him seeking advice from a health care professional on that question or seeking advice from a health care professional as to the assessment of disablement without the claimant being examined.  As I said when granting permission to appeal, if the Secretary of State is satisfied that a claimant cannot reasonably be expected to attend for an examination but also considers that there is insufficient evidence upon which to make a decision awarding benefit, it may be appropriate for him to make a decision not to award the benefit.  However, such a case is likely to be extremely rare.”  

In the present case, Judge Rowland concludes as follows:

“In the present case, however, I do not accept the submissions of either party as to the decision to be made on this appeal.  Because I accept that a decision could be made without any examination in this case, I consider it inappropriate to direct that there be a domiciliary visit as the Secretary of State has suggested. 

Furthermore, I am not sure that the claimant would agree to a domiciliary visit.  Because, quite reasonably, the Secretary of State has not made submissions either as to whether a decision should be made without an examination in this particular case or as to the assessment of disablement, neither I nor the First-tier Tribunal could properly make an assessment of disablement without giving the Secretary of State an opportunity to make such submissions. 

In the event of a dispute, it would be more appropriate for the First-tier Tribunal, which would include a doctor among its members, to determine the case than for the Upper Tribunal to do so.  In all these circumstances, it makes more sense for the Upper Tribunal to leave the Secretary of State to make a decision against which the claimant can appeal to the First-tier Tribunal if necessary, than for it either to remit the case to the First-tier Tribunal or to adjourn until further submissions have been received. 

Accordingly, I accept the Secretary of State’s concession that the claimant had good cause for not attending the examination on 3 September 2013 but I leave other matters to be determined by the Secretary of State in the light of this decision.”

Comment: This is a significant decision in that it holds that it is possible for someone to have good cause not to attend a medical examination on the grounds that such an examination is not necessary to determine the benefit issue in question. While the benefit in this case was industrial injures benefit, its reasoning could equally apply to ESA or PIP.

Jobseeker's allowance

CJSA/4451/2014: Whether appointment letter to claimant received / received in time

Upper Tribunal Judge: Mark

The claimant was in receipt of jobseeker’s allowance and was required by letter dated 9 January 2014 to take part in a work programme on 15 January 2014. However, she had not attended and the decision maker had determined that her non-attendance was a failure to participate without good excuse.  A tribunal, at a paper hearing, agreed upheld this decision and rejected the claimant’s contention that she had not received the letter.

In upholding the claimant’s appeal, Upper Tribunal Judge Mark says that had the letter been correctly addressed he would have had no difficulty in dismissing this appeal. 

However, he highlights that the tribunal failed to notice that it was not correctly addressed and in failing to deal with this point it was in error of law:

“Although the letter included in the address the correct first line and post code, instead of being address to the claimant at that address simply in Wigan, or in the district in Wigan where she lived, it was addressed to her at Hindley Green, some 6 miles from where she in fact lived.  This appears to have been a straightforward unexplained error by either the DWP or Seetec, which was the company running the work programme. 

Other correspondence to the claimant had been properly addressed and the evidence suggests that it had often been returned with abusive messages by the claimant, but there is no suggestion that this letter was returned and the claimant appears to have stated in response to an enquiry on 15 January that she had not received the letter.

In addition, Judge Mark explains that the letter is stated to have been issued on Thursday 9 January 2014 but may not have been posted Friday 10 January 2014. As a result he says:

“Even then, had it been correctly addressed, it would have been expected to arrive by the following Monday or Tuesday, 13 or 14 January, and regulation 2(2) of the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 provides that for the purpose of those Regulations where a written notice is given by sending it by post it is taken to have been received on the second working day after posting.  That must pre-suppose, however, that it was correctly addressed.

I accept the submission of the representative of the Secretary of State on this appeal that even with the incorrect address Royal Mail would have had little difficulty in working out the correct address and delivering the letter.  The question is how long that would have taken.  Depending on the procedures adopted at Royal Mail and the speed with which they were adopted, it could have been virtually instantaneous but it could also have taken several days.”

Judge Mark therefore concludes that on the balance of probabilities, this letter did not reach the claimant by 15 January 2014 in time for her to know that she was required to attend the work programme and when and where she was to go to do so. 

He is also satisfied that even if the letter had arrived in the ordinary course of the post on 15 January, whenever that may have been, it would have done so in sufficient time to enable her to keep that appointment.  

CJSA/4684/2014: Deaf claimant wrongly had 4 weeks sanction imposed after mistakenly being 10 minutes late for training course

Upper Tribunal Judge: Knowles

The claimant was a 53 year old man who had difficulty hearing and so wore a hearing aid in his right ear.

In 2013 he was told that he was required to attend and complete a CV writing course on 30 October 2013 from 11.15 am to 12.15 pm. He was given a “Jobseeker’s Direction” letter to confirm the time and date of the course.

However, he arrived at the course ten minutes late and was told that he was deemed to have missed his appointment. A decision was made that he did not have good reason for failing to carry out his Jobseeker’s Direction and a four weeks sanction was imposed.

In his notice of appeal the claimant stated that he had misheard the date of the appointment as 11.50 am as this was the time he usually signed on.

He was not wearing his hearing aid as it was faulty. He said he did not think to check the time of his appointment by looking at the letter he had been given as he honestly thought it was the same time as the previous two appointments he had been given. He had reported his error straight away and rebooked and completed the course the very next day.

In deciding whether the claimant had good reason for his failure to attend his course on time, the tribunal took into account that:

  • he had not asked the employment officer to repeat the time of the appointment even though he claimed he had a hearing problem; and
  • he had not checked the time of his appointment by reading the written notification he had been given.

Section 19A(2)(c) of the Jobseeker’s Act 1995 provides that a claimant will be subject to sanction if they:

“without good reason refuses or fails to carry out a Jobseeker’s Direction which was reasonable having regard to his circumstances”.

A Jobseeker’s Direction is defined in section 19A(11) of the Jobseeker’s Act 1995 as being:

“a direction given by an employment officer with a view to achieving one or both of the following (i) assisting the claimant to find employment or (ii) improving the claimant’s prospects of being employed”.

A first sanction for failure to comply with a Jobseeker’s Direction has the effect of reducing a claimant’s benefit for a period of four weeks [Regulation 69A(1)(a) of the Jobseeker’s Allowance Regulations 1996]. The amount of the sanction is 100% of the allowance payable to the claimant [Regulation 70(1)(a) of the Jobseeker’s Allowance Regulations 1996]. There is no discretion in the legislation as to the length or amount of a first sanction.

In upholding the claimant’s appeal, Upper Tribunal Judge Knowles holds that the tribunal failed to consider whether what occurred amounted to a failure or refusal to carry out the Jobseeker’s Direction:

“Nowhere did the tribunal consider whether what occurred in this case amounted to a failure or refusal by the Appellant to carry out the Jobseeker’s Direction and I thus conclude that it thereby materially erred in law. This error alone is sufficient in my view for this appeal to be allowed and for me to set aside the tribunal’s decision and to remake it myself.”

Judge Knowles also finds that the tribunal in any case erred in considering if the claimant had good reason for any failure or refusal to carry out a Jobseeker’s Direction:

“The tribunal found that the claimant could have checked the time of his appointment by reading the letter. There is no dispute that he could read English. It seems to me that this is a finding properly made by the tribunal which is not in error of law.

However the tribunal also found that, if he had a hearing problem, the Appellant should have asked the employment officer to repeat the time of the appointment to make sure that what he had heard was correct.

This reasoning strikes me as being flawed. If the Appellant – or indeed any person hard of hearing - believed he had heard what the employment officer said correctly, it is unreasonable to expect him to ask that person to repeat everything said just in case he had not heard it properly. By relying on that factor in reaching its conclusion that good reason had not been shown, I find that the tribunal materially erred in law.”

Judge Knowles concludes by substituting her own decision that there was no refusal or failure by the Appellant to carry out the Jobseeker’s Direction given to him:

“Having regard to all the circumstances, did the Appellant’s late arrival at his CV writing course amount to a failure or a refusal to carry out his Jobseeker’s Direction?  First, the Appellant did not refuse to carry out his Jobseeker’s Direction: he was merely 10 minutes late in attending the course. As the Respondent submits, it was inherently improbable that this Appellant would have deliberately attended late given his past record of compliance.

Second, the Appellant’s late arrival was accepted by both the Respondent and the tribunal to have been a genuine error. Third, the Appellant reported his late arrival to the Job Centre that same day and rebooked the CV writing course which he subsequently completed.

Set against these matters is the Appellant’s late arrival contrary to the terms of his Jobseeker’s Direction. However I find that it would be disproportionate to conclude that this factor in isolation was sufficient to amount to a failure by the Appellant to carry out his Jobseeker’s Direction.”

Personal independence payment

UK/4056/2014: Walking stick or stool can be an "aid" to cooking / tribunal should put a claimant on notice if considering taking away points

Upper tribunal Judge: Wright

In this decision, Upper Tribunal Judge Wright considers whether a walking stick or perching stool can amount to an “aid or appliance” for the purposes of Preparing Food descriptor 1b in Part 2 of Schedule 1 to the Social Security (Personal Independence Payments) Regulations 2013.

In reasoning that both can be such an “aid” needed “to either prepare or cook a simple meal”, Judge Wright holds that:

“The tribunal erred in law in not explaining adequately why the stool was not needed in order for the appellant to be able to either prepare or cook a simple meal.

Standing to wash up, which the tribunal did address, is not an automatic read across for a person being able to stand to prepare or, more likely, cook a simple main meal (the latter having to be done at waist height – see definition of “cook” as “heat food at or above waist height” in Part 1 of Schedule 1 to the PIP Regs). 

I accept the Secretary of State’s argument that the tribunal failed to explore or explain how standing to wash up compared, in terms of duration, to the time taken to stand to cook a simple meal.

Nor did it explain what it made of the appellant’s evidence, which it did not reject, that “her son frequently took over [the washing up] from her because he thought she took too long as she kept stopping because of her back”.  This stopping may have been because of unsteadiness in standing which would then have been relevant to the appellant’s ability to stand unaided to cook.”  

Judge Wright also finds that the tribunal also failed to address whether without any aid the appellant would be able to cook a simple meal safely. Regulation 4(2A)(a) of the PIP Regs provides that a person is to be assessed as satisfying a descriptor only if they can do so safely: 

“In this context, and bearing in mind “cook” means to heat food and the tribunal’s acceptance that the appellant had some right-sided weakness and used a walking stick in her right hand, it was in my judgment material to the assessment of whether the appellant could cook a simple meal unaided to consider whether she could do so safely, and that needed to be addressed directly by the tribunal on that particular activity rather than by way of general introductory remarks.”    

Lastly, Judge Wright highlights the tribunal’s reliance on the claimant’s occupational therapist not having recommended any necessary aids for the kitchen:

“The error it seems to me the tribunal made here was to impose too high a test for “aid”, given the tribunal’s focus on what may be termed specialist aids recommended by an occupational therapist and its apparent rejection of a stool (or walking stick) counting as such an aid. 

However, the definition for “aid” is very broad, meaning “any device which improves, provides, or replaces [a claimant’s] impaired [physical or mental; function”. It is not a specialist device (contrast definition of “orientation aid” as a “specialist aid designed to assist people to follow a route safely” in Part 1 of Schedule 1 to the PIP Regs).  On this definition it seems to me that a stool (or walking stick) is a device which improves (walking stick) or replaces (stool) the appellant’s impaired function of standing.”  

Judge Wright also holds that the tribunal erred in holding that it:

  • had to consider all the activities which had been put in issue by [the appellant] including those for which points had been award; and
  • taking as an issue arising on the appeal whether descriptor 1b was met when neither the appellant nor the Secretary of State had placed that descriptor in issue on the appeal.

Instead, he holds that whether descriptors that have not been challenged expressly on the appeal come into issue on the appeal will depend on the facts of each case.

He then considers the separate issue of whether the tribunal erred in law in “taking way” the 2 points the Secretary of State awarded for descriptor 1b.

In doing so he cites that Judges Lane’s finding in CE/3117/2011

that removing points may give rise to issues of natural justice and an appellant’s right to a fair hearing:

“It is a common misconception that the points they have been awarded by the decision maker are ‘in the bag’.  They may not, therefore, come prepared to argue about points which they believe to be safe.  Unless, therefore, the Tribunal explains its powers to change the decision for the better or the worse, including the power to add to, vary, reduce or remove the descriptors and points awarded for them, an appellant may be seriously prejudiced.” 

Judge Wright concludes by highlighting that he I could find nothing in the record of proceedings showing the tribunal advised the appellant that it had concerns about the descriptor 1b award and so put her on notice that she might need to address this issue specifically. 

UK/5338/2014: Assessment of the dressing and undressing PIP descriptor

Upper Tribunal Judge: Jacobs

This case raises an issue of the interpretation and application of the PIP dressing and undressing descriptor (Activity 6): to what extent is this dependent on the clothes that the claimant chooses or is obliged to wear in view of her disability?

A tribunal had identified descriptors scoring the claimant 7 points for the daily living component. However, this was not sufficient for an award.

In its reasons statement the tribunal explained that the claimants claim pack set out that she needed help from another person to dress and undress. This was she had problems with her lower garments due to pain and discomfort in her joints and dizziness when she bent down.

However, it added that:

“In evidence she did not mention this pain as impacting on her ability to dress and undress and told us that she wore ‘easy to wear’ clothes whether was going out or staying in. At the hearing we observed that she took off her cardigan slowly but unaided.

We did not accept that [she] needed help to dress or undress or that she needed an aid or appliance to do so as there was no evidence to support either proposition.”

In giving the claimant permission to appeal, Upper Tribunal Judge Jacobs holds that there is an issue of how Activity 6 applies:

“Is it to be tested by reference to the clothes the claimant actually wears or is it a more abstract test? If the former, the test seems to be self-fulfilling. The claimant may have chosen to wear those clothes in order to allow her to cope with her disability, which is what her representative argues. In a different case, the claimant might choose to wear clothes that are difficult to put on in order to satisfy the test.”

Citing section 78(1)(a) and (2)(a) of the Welfare Reform Act 2012 Judge Jacobs outlines how Activity 6 should operate:

“A personal independence payment is based on a functional assessment. That means that it depends on an assessment of the claimant’s ability to carry out daily living activities. The extent to which that ability is limited determines both entitlement and the rate of entitlement.

The only limitations on the claimant’s ability that are relevant are those that arise from a physical or mental condition … It follows that a claimant’s choice of clothing is irrelevant, unless it is dictated by their physical or mental condition.”

He stresses that a claimant’s limitations cannot be used to raise the standard by which their ability is judged:

“For example: a claimant who has difficulty with handling small objects cannot rely on problems in fastening a particular dress that has numerous small buttons. That would allow a claimant to generate entitlement.

On the other hand, the limitations on what clothing a claimant can cope with cannot be used to lower that standard. For example: a claimant who cannot manage buttons or laces cannot be tested by reference to their ability to dress in clothes fastened by Velcro. That would mean that the more disabled the claimant is in respect of an activity, the more difficult it would be to satisfy the descriptors.”

Judge Jacobs therefore holds that there must be a balance struck that prevents claimants generating their own entitlement while at the same time not allowing their own disability to be used against them:

“The solution lies in concentrating on the functions that are involved in dressing and undressing and on the claimant’s condition that is said to limit their ability to perform those functions.

The limiting condition may be physical. The precise limitations that the tribunal has to investigate will be dictated by the nature of the condition and its treatment. Without intending to be comprehensive, dressing and undressing may involve stretching, reaching, bending, and gripping. Some claimants will have problems with just one of these functions, others with more.

Alternatively, the limiting condition may be mental. Again, the precise limitations that the tribunal has to investigate will be dictated by the nature of the condition and its treatment. A claimant who is severely depressed may lack the will to get dressed, possibly even with prompting, whilst a claimant with dementia may be able to put on clothing but not in an appropriate way.

In considering the sort clothing to which the claimant’s limitations must be applied, Judge Jacobs says that:

“This will only arise if the claimant is able to cope with some sorts of clothing but not others. The tribunal must always consider socks and shoes, because this is what paragraph 1 of Part 1 of Schedule 1 requires. Beyond that, tribunals must apply a uniform standard for all claimants.

He concludes by setting out detailed guidance on how a tribunal should make its assessment:

“The test is the general one whether the claimant can dress - I focus on this for convenience and because it will usually present more difficulty than undressing - not whether they can dress in any particular types of clothing.

But dressing is not an abstract activity. We dress for a particular purpose or occasion. The clothing we wear depends on whether we are going to be inside or out as it will on the temperature and weather. The tribunal should not limit itself to the minimum clothing necessary for warmth and decency.

This does not mean that the claimant is entitled to specify the type of clothing by way of preference or requirement, for example, in a particular job. That would defeat the uniform nature of the test.

The tribunal must not identify the clothing to which the test is applied in a way that the defeats the purpose of the test by defining away the limiting effects of the claimant’s disability.

But the tribunal is entitled to consider reasonable and practical alternatives. For example: claimants who cannot raise their arms to put on a pullover, may be able to put on a cardigan.

The balance between not defining away the claimant’s disability and taking account of alternatives can be struck by concentrating on the functions that underlie the activity.

He finishes by summarising that:

“The legislation imposes a test of the claimant’s ability to perform the functions involved in the activity. It may be appropriate in an overall assessment of the claimant’s ability to dress to disregard a limitation with a particular function. But it would not be appropriate to disregard a limitation with so many functions that the claimant could only wear loose, elasticated clothes with no fastenings. The test would then no longer be a test of the activity, but of only a limited part of the activity.”

In this case, Judge Jacobs says, the tribunal erred as it failed to show that it avoided the danger of identifying the clothing in a way that defined away the effects of the claimant’s disability.

UK/5459/2014: Decisions not to award PIP indefinitely or for a longer period can be appealed

In this decision Upper Tribunal Judge Mitchell holds that the Welfare Reform Act 2012 provides a qualified requirement that PIP awards are to be for a fixed term.

The statutory qualification to the requirement for fixed term awards is that a fixed term award would be “inappropriate”.

In deciding whether a fixed term would be inappropriate, a key consideration is the likely persistence of an individual’s limiting conditions.

A factor in favour of concluding a fixed term award would be inappropriate is the relative ease with which the DWP may re-open the question of a PIP recipient’s entitlement even if s/he has an indefinite award.

Judge Mitchell further holds that:

  • if a fixed term award would be inappropriate, an indefinite award is to be made;
  • a First-tier Tribunal has jurisdiction to hear an appeal against a decision not to make an indefinite award; and
  • if the Secretary of State issues guidance about deciding whether a fixed term award would be inappropriate, while a First-tier Tribunal is required to have regard to the guidance it must not be treated as if it were a rule.

In fixing the duration of a fixed term award, relevant considerations will include the likely persistence of an individual’s limiting conditions and the relative ease with which PIP entitlement may be re-opened before the end of the fixed term. Generally, the likely persistence of limiting conditions and duration of a fixed term award are positively related.

In addition, Judge Mitchell finds that:

  • rigid categories for the duration of fixed term awards are not compatible with the purpose of the 2012 Act; and
  • a First-tier Tribunal has jurisdiction to hear an appeal against a decision as to the duration of a fixed term award.

This decision also clarifies that DLA to PIP transfer awards have effect from a date determined by reference to the Secretary of State’s entitlement decision, not the date of the transfer claim.

Comment: The judgment can be used by those disabled people who feel that they should be made an indefinite award of PIP as their daily living and/or mobility problems are unlikely to diminish.

It can also be used by those disabled people who feel that they should have been made a longer fixed term PIP award again because their daily living and/or mobility problems are likely be more long standing.

 UK/5567/2014: Planning and following journeys: whether an eye patch an "aid" and/or "orientation aid

Upper Tribunal Judge: Wikeley 

In this decision Judge Wikeley considers the question of whether an eye patch is an “aid” and/or an “orientation aid”.

He first explains that:

“Regulation 2 [of Social Security (Personal Independence Payment) Regulations 2013] defines an “aid or appliance” as “any device which improves, provides or replaces C’s impaired physical or mental function” and includes a prosthesis. This is, obviously, a very broad definition.

On that basis an eye patch might surely be an ‘aid’. If a person simply has blurred vision in one eye, then an eye patch over that eye may improve their impaired physical function overall. Whether it is reasonable to expect a person to wear a patch is another matter, and will depend in part on the medical advice for the condition and patient in question.”

In addition, Judge Wikeley says that:

"An “orientation aid” is defined (rather loosely and not entirely helpfully) as “a specialist aid designed to assist disabled people to follow a route safely” (Schedule 1, Part 1, paragraph 1). There is no further statutory definition of what is meant by a “specialist aid”. Presumably the expression is meant to include a long cane.

That would certainly be consistent with the stated policy intention (see DWP, The Government’s response to the consultation on the Personal Independence Payment assessment criteria and regulations (December 2012).

It is unclear whether “orientation aid” covers a more technologically sophisticated but readily available device (e.g. a satnav or a mobile phone app). Be that as it may, if a long cane is an orientation aid then it must surely be at least arguable that an eye patch is as well.”

While making these observations however, Judge Wikeley concludes by stressing that:

 “I have had no detailed submissions on this lurking issue and so do not express a decided view, as the point is not material to the outcome of this appeal.”

UK/5205/2014: PIP Daily Living Activity 9d: meaning of "engage with other people"

Upper Tribunal Judge: Mark

The claimant had Asperger’s Syndrome and obsessive compulsive disorder. 

The decision maker found that he could not follow the route of an unfamiliar journey without another person, assistance dog or orientation aid and awarded him to the standard rate of the mobility component. 

However, on appeal a tribunal considered that in addition he could not engage with other people due to such engagement causing either:

(i) overwhelming psychological distress to himself; or

(ii) him to exhibit behaviour which would result in a substantial risk of harm to him or another person.

As a result, the tribunal awarded him 8 points under the Daily Living Activity ‘Engaging with people face to face’.

The Secretary of State appealed to the Upper Tribunal partly on the grounds that on the facts found by the tribunal the claimant should have been awarded no points in relation to engaging with other people face to face.

In considering the appeal, Upper Tribunal Judge Mark notes that in assessing a claimant’s ability to carry out an activity, regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013 provides as follows:

“(2A) Where C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so –

(a) safely;

(b) to an acceptable standard;

(c) repeatedly; and

(d) within a reasonable time period;

 (4) In this regulation –

(a) “safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;

(b) “repeatedly” means as often as the activity being assessed is reasonably required to be completed; and

(c) “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”

He adds that Regulation 7(1)(a) goes on to provide that “The descriptor which applies to C in relation to each activity in the tables referred to in regulations 5 and 6 [respectively the scoring provisions for daily living activities and mobility activities] is:

(a) where one descriptor is satisfied on over 50% of the days of the required period, that descriptor;

(b) where two or more descriptors are each satisfied on over 50% of the days of the required period, the descriptor which scores the higher or highest number of points”.

Judge Mark then says that while there is no definition of “engage” in part 1 of Schedule 1 of the Regulations, there is a definition of “engage socially”, an expression which is defined for the purposes of the Schedule but which appears nowhere else in the Schedule. 

“Engage socially” is stated to mean:

(a) interact with others in a contextually and socially appropriate manner;

(b) understand body language; and

(c) establish relationships”. 

Judge Mark continues that:

“The combination of regulations 4 and 7 as quoted above mean that the claimant was entitled to score points under [descriptor 9d] if he could not so engage with other people safely and to an acceptable standard for at least 50% of the time during the relevant period as often as that activity was reasonably required to be completed and taking no longer than twice as long as the maximum time which a person without a relevant physical or mental disability would take.  

I would observe that in determining whether a claimant can engage with other people to an acceptable standard, the factors set out in the surplus definition of “engage socially” are relevant considerations even if the definition itself lacks meaning because the expression “engage socially” is to be found nowhere else in the Schedule.”

However, Judge Mark highlights that:

“The difficulty with this is that if the engagement is to be safe and to an acceptable standard, it is difficult to see how it would result in a substantial risk of harm to the claimant or another person.  It is also difficult to see how it could apply to somebody who is unable to engage to an acceptable standard at all.  There is no descriptor which awards points for such a total inability to engage as qualified by regulations 4 and 7.” 

He then reasons that:

“Even if the claimant in such a case suffered overwhelming psychological distress in attempting to engage to the extent to which he or she was capable of doing so, if the engagement of which that person was capable was not to an acceptable standard, they could never score points under this descriptor.”

Judge Mark therefore holds that:

“On balance it appears to me that it is necessary to construe descriptor 9d as referring to such engagement as he may be capable of but for such overwhelming distress or the relevant risks from such behaviour.”

In then dismissing the Secretary’s of State’s appeal, Judge Mark says that:

“It appears to me that, in relation to the question whether the claimant could engage with other people at least 50% of the days, as often as that activity was reasonably required and to an acceptable standard, there was abundant evidence which was accepted by the tribunal and which entitled the tribunal to conclude that he could not do so. 

Being able to put on an act on special occasions, even a few times a week when going to the drama group, after lengthy preparation does not fulfil the criteria of the descriptor and the tribunal has made more than adequate findings as to why in other respects he was in general not able to engage with other people to an acceptable standard.  Being able to do so by way of an act in very limited circumstances is not as often as reasonably required even on those days when he can do so.” 

He adds that:

“There was also evidence which the tribunal accepted that when living at home in 2013, and having to mix with family members, he was so verbally aggressive to family members that his mother asked for him to move to supported accommodation. There he had much less contact with the other residents. 

It seems clear that the tribunal concluded that with more engagement with other people face to face than the relatively minimal engagement he in fact undertook, he would be liable again to be verbally aggressive, with a substantial risk to his own safety.  While this conclusion may have better been expressed less elliptically, I consider that it is sufficiently clear that that was the conclusion reached by the tribunal.

It was therefore unnecessary for the tribunal to consider whether engagement with other people to an acceptable standard and as often as reasonably required most days would cause him overwhelming psychological distress.”   

Comment: This decision provides a ruling on how Daily Living Activity 9d should be construed:

  • in reference to such engagement as a disabled person may be capable of but for such overwhelming distress or the relevant risks from such behaviour; and
  • in relation to safety, to an acceptable standard, repeatedly, and with respect to variability and fluctuation.  Variable and fluctuating (PIP regulations 4 and 7).
UK/202/2015: Tribunal must resolve conflict in evidence HCP report revised following desk-based assessment by a second HCP

Upper Tribunal Judge: Wikeley

The appellant has a number of conditions, including bi-polar disorder, hypermobility syndrome and low back and hip pain.

She made a claim PIP which was refused by the Secretary of State who decided that she scored just 3 points for daily living and 0 points for mobility. That decision was confirmed by a First-Tier Tribunal (FTT) which dismissed her appeal.

The FTT’s statement of reasons made clear that it did not accept that the Appellant was as disabled as she claimed to be.

In considering this case, Upper Tribunal Judge Wikeley agrees that credibility is a matter for the FTT. However, he stresses that there have to be adequate reasons.

Judge Wikeley comments on two problems with the FTT’s statement of reasons:

“First, it is simply inaccurate as a matter of fact. It refers to the medical evidence as including the output of “2 medical examinations”, by which presumably the FTT meant the reports from two medical examinations on behalf of the DWP, e.g. by ATOS.

I have looked through the appeal file but can only find the report of one such medical examination, being that conducted by Mrs McCaffrey. I can see no report of any second examination.

Second, it is wrong in a more fundamental way. Mrs McCaffrey’s report, if accepted on its own terms, would have resulted in a total of 9 points for daily living activities 1b, 3b, 4b, 5b and 10b. That would be enough to qualify for the standard rate of the daily living component of PIP.

However, there was then a “supplementary advice note” by a Ms Pendrill of ATOS, also a nurse. She says “thank you for your query” (that query itself does not appear to be on file). She completed a new form and changed the previous advice, changing descriptors 1b, 4b and 5b to 1a, 4a and 5a, each of which scored 0 points. There is no suggestion Ms Pendrill interviewed the Appellant, let alone examined her. She did, however, spend 30 minutes “consideration/writing up time”.

So Mrs McCaffrey who saw the Appellant in a face-to-face assessment (consideration/writing up time 120 minutes) would have scored the Appellant at 9 points. Ms Pendrill, who did not see her, would have scored her at 3 points.”

In upholding the appeal and remitting it for rehearing, Judge Wikeley says:

“None of this is obvious from the FTT’s statement of reasons. Anyone who read that statement of reasons would assume that Mrs McCaffrey’s report did not support any award of PIP. The outstanding disagreements over the first report do not seem to be resolved, insofar as they may have been relevant. So the FTT’s decision would appear to be flawed as regards adequacy of reasons.”

He continues:

“The Tribunal simply failed to engage with that disagreement between the two HCPs. Given that Mrs McCaffrey’s report would have resulted in the award of 9 points, the Tribunal needed to recognise that conflict and explain why it was departing from that assessment. It could not simply brush it aside. Its failure to recognise and satisfactorily resolve that conflict on the Secretary of State’s own evidence amounted to an error of law by the Tribunal.”

UK/313/2015: Following the route of a journey only concerns the ability to navigate and not problems caused by anxiety

Upper Tribunal Judge Ward

This appeal is something of a ‘test case’ that examines mobility activity 1 “Planning and following journeys” following a number of cases being stayed behind it.

Mobility activity 1 is set out in Part 3 of the Schedule to the Social Security (Personal Independence Payment) Regulations 2013/377 as follows:

Column 1

Activity

Column 2

Descriptors

Column 3

Points

1. Planning and following journeys.

a. Can plan and follow the route of a journey unaided.

0

 

b. Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant.

4

 

c. Cannot plan the route of a journey.

8

 

d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.

10

 

e. Cannot undertake any journey because it would cause overwhelming psychological distress to the claimant.

10

 

f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid.

12

In this case the tribunal had found that the claimant suffered from anxiety and depression. She relied on friends and family to get about as she became nervous and anxious. However, she was not hampered by any inability to navigate: it was being out on her own which caused her anxiety.

The tribunal rejected that the claimant was unable to follow the route of an unfamiliar journey on her own and so should be awarded 10 points under descriptor 1d saying she:

“… was clearly capable of navigation.  Her real concern was being out and about on her own.  This was not a limitation falling within the limits covered by [the relevant] descriptor, because it is the inability to orientate oneself without support which is at issue in that particular descriptor.”

On granting permission, the judge observed:

“There may be claimants who are so severely impaired due to depression and/or psychological distress that they cannot follow a route. The distress is such that they are not cognitively able to follow the route.  Can depression and/or psychological distress amount to cognitive impairment if in fact any such impairment is required for this       descriptor to be met?”

In considering this appeal, Upper Tribunal Judge Ward considers conflicting decisions that have been made in relation to this descriptor.

In DA v SSWP [2015] UKUT 0344 (AAC) Judge Jacobs accepted the Secretary of State’s submission that descriptor 1d ”deals with navigation and excludes dealing with other difficulties that may be encountered along the way”.  On the natural meaning of the words, the relevant descriptors dealt with “following” the route, a route which had been planned.  Difficulties such as getting lost and asking for directions or encountering crowds which arose on the way were not difficulties with “following” the route:

“This reading is consistent with and reinforced by the contrasts within the descriptors for Activity 1. The descriptors contrast the route of a       journey (descriptors 1a, 1c, 1d and 1f) with the journey itself        (descriptors 1b and 1e). And following the route of the journey (descriptors 1a, 1d and 1f) with undertaking the journey (descriptors 1b and 1e). The latter is used when the claimant could not embark on or complete a journey either without prompting or at all. The impediment in either case must be overwhelming psychological distress. That could be distress from going on a journey (such as might occur if a claimant has agoraphobia) or from contemplating or coping with difficulties that might arise on the route (such as might occur if a claimant has a fear of crowds).

In contrast, the other descriptors are limited to one aspect of the journey, following its route. It would be inappropriate to interpret this more widely than its natural meaning. Doing so, would disrupt the structure of the Activity by incorporating issues that are properly covered, if at all, by other descriptors.”

However, in RC v SSWP [2015] UKUT 0386 (AAC) Upper Tribunal Judge Sir Crispin Agnew of Lochnaw QC outlined that there was no evidence of cognitive impairment which would render the appellant in that case unable to navigate a route although there was evidence that  RC never went out alone due to anxiety.

Judge Agnew holds that “cannot follow” does not have the restricted navigation meaning put forward to him by the Secretary of State:

“It is the “cannot” that is the significant word and “cannot” is not qualified by any reason. I consider that is covers the situation where a claimant “cannot follow” the route because they cannot navigate the route or because they cannot follow it because of some psychological factor, such as anxiety, even if they have the intellectual capacity to follow the route in theory. Even if a claimant can in theory navigate a route, if the claimant cannot in fact go out and follow it without the assistance of another person, dog or other aid, whatever that reason, I consider it brings the claimant within the Activity.

There is, with the exception of Mobility Activity 1.e (as noted above) a logical progression in the Activities. If a claimant can “plan         and follow” a route there are no points; if the claimant can plan and     follow the route, but needs prompting to go out and follow it, then it is 4 points. The next stage requires someone else to plan the route for the claimant, who must then be able to follow that plan alone and hence gets 8 points. The next stage is the person who cannot follow an unfamiliar route without another person etc, so the activity gets to the stage where outside assistance is needed in order to be able to follow the route and thus qualifies for 10 points.”

Judge Agnew therefore concludes that there was no limitation on the reason why the “person” was required and thus, if the argument was indeed the same, that the mention of the “person, assistance dog or orientation aid” did not limit the scope of the descriptor.

In supporting Judge Jacob’s view and so rejecting Judge Agnew’s findings, Upper Tribunal Judge Ward observes that:

“The purpose of the descriptors is to set out a number of limitations by a person’s physical or mental condition on, in this case, the ability to carry out the “mobility activity” of “planning and following journeys”.  Different descriptors which are met may then attract differing numbers of points.

He then states that:

“Against that background, I consider that the situation of a person who is limited in the activity of “planning and following journeys” by the fact that they cannot do it without overwhelming psychological distress  either by undertaking any journey at all (descriptor 1e) or without prompting (descriptor 1b) is addressed by those descriptors. Those descriptors deal with that sort of limitation on the mobility activity.  Other descriptors deal with other sorts of limitation on that activity.  It respectfully seems to me that Judge Jacobs’ analysis of the linguistic structure of the various descriptors of activity 1 at para 14 of his decision is entirely accurate. 

Judge Ward then continues:

“Once it is appreciated that the descriptors address a number of different types of limitation on the activity of “planning and following journeys”, it can, I would respectfully suggest, be seen that the emphasis placed in RC on the word “cannot” (and relied upon by the claimant in the present case) is misplaced.  Even if as a matter of general language, it may perhaps be argued to be possible – at a stretch - to say that a person who cannot get out of the door because of anxiety “cannot” “follow the route”, that would be to approach the descriptor in a vacuum.  The case does not in my view turn on the word “cannot” (or on whether or not it is defined) but on the distinctions contained within the wording of the descriptors, as identified by Judge Jacobs, which then bear on the type of limitation on the activity of planning and following journeys that a person has.

… I agree with the Secretary of State that the words “follow the route” must be taken to have been adopted advisedly; that “route” refers to (in the broad sense) the pathway to somewhere and that to follow has connotations of keeping to such a pathway.  I accept the submission that “the deliberate use of the words “follow” and “route” focuses us upon the claimant’s ability to navigate along pathways and is not concerned with other possible problems that a claimant may have when being in the natural environment.”

Given the view I take of the structure of the descriptors and the meaning to be attributed to “follow a route” it follows that I also respectfully agree with Judge Jacobs’ views … as to the “person, assistance dog or orientation aid” point.”

Judge Ward adds that

“In DA Judge Jacobs was concerned with the ability to ask others for help.  For my part and without disagreeing with the examples he gave of asking for directions or encountering crowds, which he considered were not difficulties of following a route,

I can conceive, particularly when reg 4(2A) is borne in mind, of types of difficulty occurring on the way – such as the need to navigate round road works or the effects of an accident – which might properly fall within the scope of the descriptor.” 

Comment: This is an extremely disappointing decision. Its effect will mean that those disabled people who need are accompanied out of doors due to mental health issues such as anxiety or panic attacks will be denied any rate of PIP to compensate them for the extra costs this may bring.

UK/622/2015: Following a route does not include coping with difficulties that arise along the way

Upper Tribunal Judge: Jacobs

This case raised just one issue. For the purposes of personal independence payment Mobilising Activity 1, does the test of following the route of a journey include dealing with any personal interactions that occur along the route?

The claimant had PTSD, depression and anxiety. In her PIP claim pack she explained:

“I stay indoors as much as possible. The PTSD makes me feel I am in danger when I am not – causes extreme stress. Just walking on my own, I feel I am going to bump into people, I feel trees branches are going to fall on me. I walk pretending I am in a bubble. I panic when people come close to me. I feel more comfortable with a friend or family member.”

With a First Tier Tribunal upholding the decision not to award her PIP she appealed to the Upper Tribunal.

While her CAB representative accepted that the claimant could and did go out to places she knew, it argued that:

“She cannot go to unfamiliar places on her own, due to her mental condition and her difficulty to speak or mix with other people. She may find herself lost in a new place and will be unable to approach someone to help.”

In addition submitted that problems could arise even on familiar journey. There might be a diversion, for example, on account of an accident or road works, as a result of which the claimant might have to leave the usual route and could become lost having done so.

Part 3 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377) and, in particular, Activity 1 is headed Planning and following journeys with descriptor 1(d) providing:

“Cannot follow the route of an unfamiliar journey without another person, an assistance dog or an orientation aid.”  (10 points)

Part 1 of the Schedule sets out the following definitions:

  • ‘assistance dog’ means a dog trained to guide or assist a person with a sensory impairment;
  • ‘orientation aid’ means a specialist aid designed to assist disabled people to follow a route safely.

The Secretary of State’s submitted that the tribunal did not go wrong in law. This was because that descriptor 1d assesses the claimant’s ability to navigate a route and not whether they need help to deal with problems that they may encounter in the external environment while doing so. It does not assess whether the claimant needs assistance for incidents that may occur while following the route.

In dismissing the appeal, Upper tribunal Judge Jacobs accepts the Secretary of State’s argument:

“The natural meaning of ‘follow the route of an unfamiliar journey’ is that it is concerned with navigation rather than coping with obstacles of whatever sort that may be encountered on the route.

Activity 1 covers both planning and following a journey. Descriptor 1d, like descriptors 1a and 1f, deals with following the route of the journey. That assumes that the journey involves a route that has been planned. Difficulties that may arise during the journey, such as getting lost and asking directions or encountering crowds, are not difficulties with following the route. They may prevent the claimant getting back onto the route if lost or finding an alternative route to avoid some obstacle, but those are different matters. “

He adds that this reading is consistent with and reinforced by the contrasts within the descriptors for Activity 1:

“The descriptors contrast the route of a journey (descriptors 1a, 1c, 1d and 1f) with the journey itself (descriptors 1b and 1e). And following the route of the journey (descriptors 1a, 1d and 1f) with undertaking the journey (descriptors 1b and 1e).

The latter is used when the claimant could not embark on or complete a journey either without prompting or at all. The impediment in either case must be overwhelming psychological distress. That could be distress from going on a journey (such as might occur if a claimant has agoraphobia) or from contemplating or coping with difficulties that might arise on the route (such as might occur if a claimant has a fear of crowds).

In contrast, the other descriptors are limited to one aspect of the journey, following its route. It would be inappropriate to interpret this more widely than its natural meaning. Doing so, would disrupt the structure of the Activity by incorporating issues that are properly covered, if at all, by other descriptors.”

UK/694/2015: Can a claimant who cannot walk more than 50 metres unaided but can do so aided satisfy descriptor 2(c) under the activity of moving around

Upper Tribunal Judge: Hemingway 

The suffered from health problems that included cervical spondylosis, joint pain and asthma. With a tribunal upholding the decision that he was not entitled to any component of personal independence payment he appealed to the Upper Tribunal.

One issue considered by Upper Tribunal Judge Hemingway relates to the tribunal’s consideration of the moving around descriptor activities.

The claimant would sometimes walk without his homemade stick but would sometimes walk with it. The tribunal found that the appellant was capable of standing and moving more than 200 metres such that he, in its view, did not score any points under the moving around descriptors. It did not distinguish between walking undertaken by him which was aided and walking which was unaided.

The relevant activity and descriptors are as follows:

a   Can stand and then move more than 200 metres, either aided or unaided. Score 0

b   Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided. Score 4

c   Can stand and then move unaided more than 20 metres but no more than 50 metres. Score 8

d   Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres. Score 10

e   Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided. Score 12

f    Cannot, either aided or unaided, (i) stand; or (ii) move more than 1 metre. Score 12

This activity and those descriptors are contained within Part 3 of Schedule 1 of the PIP Regulations 2013.

Part 1 of Schedule 1 contains these definitions;

“aided” means with –                           

a) the use of an aid or an appliance; or

b) supervision, prompting or assistance;

“unaided” means without –

a) the use of an aid or appliance; or

b) supervision, prompting or assistance.

In regulation 2 there is this definition –

“aid or appliance” –

a) means any device which improves, provides or replaces C’s impaired physical or mental function; and

b) includes a prosthesis.

C is an abbreviation for the word “claimant”.

The issue considered by Judge Hemingway relates to the possible applicability and the interpretation of descriptor 2(c) under the activity of moving around. This is the only one of that set of descriptors which enables the scoring of points and which does not contemplate the possibility of a claimant being aided in some way. 

Judge Hemingway reasons that:

“In looking at the wording of that descriptor, in isolation, it would appear that if a claimant is capable of standing and moving unaided for more than 20 metres but no more than 50 metres he will score 8 points, thereby establishing entitlement to the standard rate of the mobility component, no matter how far he is subsequently able to move using an aid such as, for example, a stick.  

If that is how the descriptor is to be read then it would follow that a tribunal dealing with a claimant who had some ability to walk unaided but could also use an aid to walk further, would have to specifically address and decide how far that claimant could walk unaided rather than simply reaching a view as to the overall distance he could manage by, in part, moving without an aid and in part moving with one.  This tribunal did not do that.”           

However, such an interpretation would seem to lead to an anomaly as:

“… if a claimant can walk unaided for, to take the example he gives, 1000 metres, then he or she would not satisfy a scoring descriptor. If the claimant could walk aided all the way for 1000 metres, then, similarly, no scoring descriptor would be satisfied.  

However, if the claimant could walk 50 metres but no more, unaided, and could then manage a further 950 metres aided then that claimant would satisfy 2(c) under moving around and would establish entitlement.  

That would be despite the fact that an arguably worse off claimant who needs to be aided in order to move, all the time, would score no points at all.  It would … create a special category of claimant – the person who can manage unaided for some of the journey and aided for the rest – who receives unusually generous treatment in the context of the descriptors”.

But says Judge Hemmingway, if descriptor 2(c) is not looked at in isolation matters appear somewhat different:

“All of the descriptors set distance boundaries.  2(a) is more than 200 metres, 2(b) is more than 50 metres but no more than 200 metres, 2(c) and 2(d) are more than 20 metres but no more than 50 metres, 2(e) is more than 1 metre but no more than 20 metres and 2(f) is no more than 1 metre.  

So, if 2(c) were to be capable of being satisfied by the claimant able to achieve a distance of more than 200 metres albeit not able to achieve a distance of more than 50 metres unaided, then that descriptor would be operating in a different way to all of the others with respect to the distance boundary set.  

Further, it does appear that the intention of 12(c) and 12(d) was to capture claimants who are limited to walking more than 20 but no more than 50 metres and giving differing points based on the way they cover that distance, that is to say, either with an aid or appliance or without one. 

Specifically it would seem 2(c) was intended to capture claimants who are limited to walking more than 20 but no further than 50 metres and no further even if they have an aid.  That might, for example, apply to a claimant who suffers from severe breathlessness or excessive fatigue.

Thus, and logically, the arguably worse off claimant who needs an aid or appliance to achieve a distance of more than 20 but no more than 50 metres scores 2 more points than the one who can do so completely unaided.  That represents a way of understanding and rationalising the descriptors which does not require the interpretation which would create the above anomaly.”

Judge Hemingway does however set aside the tribunals’ decision on the grounds that it is not clear that it focussed on the claimant’s situation at the date of the PIP decision but rather than at the date of claim.

CPIP/1059/2015: Need for encouragement to eat to an acceptable standard

Upper Tribunal Judge: Mark 

This appeal was limited to the correctness in law of the tribunal’s finding and reasoning in relation to the taking nutrition. 

In dismissing the claimant’s appeal, the tribunal stated in the statement of reasons:

“Activity 2: Taking nutrition: [the claimant] stated that her daughter had to encourage her to eat as she had lost her appetite… This descriptor is about the taking of nutrition which is defined as “cut food into pieces, convey food and drink to one’s moth [sic] and chew and swallow food and drink or take nutrition using a therapeutic sources [sic]”. 

It was clear that [the claimant’s] problems related to the motivation to prepare suitable food for herself and that when food had been prepared by others she was able to eat and drink.  0 points awarded.”

The tribunal’s findings of fact include that she lived alone, that she was not motivated to eat alone and that she had severe appetite loss and lived on soup and coffee, although her daughter was said to cook for her 4 days a week. 

In considering the appeal, Upper Tribunal Judge Mark first outlines the legislation relevant it.

In assessing a claimant’s ability to carry out an activity, regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013 provides as follows

“(2A) Where C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so –

(a)  safely;

(b)  to an acceptable standard;

(c)  repeatedly; and

(d)  within a reasonable time period;

 (4) In this regulation –

(a) “safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;

(b) “repeatedly” means as often as the activity being assessed is reasonably required to be completed; and

(c) “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”

Regulation 7(1)(a) goes on to provide that “The descriptor which applies to C in relation to each activity in the tables referred to in regulations 5 and 6 [respectively the scoring provisions for daily living activities and mobility activities] is –

(a) where one descriptor is satisfied on over 50% of the days of the required period, that descriptor;

(b) where two or more descriptors are each satisfied on over 50% of the days of the required period, the descriptor which scores the higher or highest number of points”.

Schedule 1 begins with definitions of some of the terms used in that Schedule.  “Prompting” means reminding, encouraging or explaining by another person”.  “Supervision” means the continuous presence of another person for the purpose of ensuring C’s safety”.  “Assistance means physical intervention by another person and does not include speech”. 

Judge Mark then holds that the combination of regulations 4 and 7 mean that the claimant was entitled to score points under the nutrition heading:

  • if he could not take nutrition without prompting to an acceptable standard for at least 50% of the time during the relevant period as often as that activity was reasonably required to be completed; and
  • taking no longer than twice as long as the maximum time which a person without a relevant physical or mental disability would take.   

He then outlines that:

“Her own evidence, which appears to have been accepted is that her lack of energy prevents her cooking, that she stays with her daughter 4 days a week when the daughter would cook and that her daughter encouraged her to eat as she had severe appetite loss and would happily live on soup and coffee.  The ATOS healthcare report states that the claimant would get a sandwich at lunchtime.  She was not cooking much and would not cook on her own, and that she had low motivation and appetite. The opinion of the healthcare professional was that she needed prompting to be able to take nutrition.”

In upholding the claimant’s appeal, Judge Mark then holds that:

“The finding of the tribunal was that she lived on soup and coffee and had severe appetite loss.  The tribunal, in its findings, appears to have confused the claimant’s lack of motivation to cook with her loss of appetite and lack of motivation to eat.  There was no evidence to suggest that if her daughter prepared nutritious food for her she would take it without prompting, and the tribunal’s own findings of fact indicated the contrary.

Living on soup and coffee, even with the occasional sandwich, cannot be seen as taking nutrition to an acceptable standard, and it is plain on the tribunal’s own findings of fact that the claimant had no appetite for anything more and had to be encouraged to eat.  There is nothing in those findings to suggest that her appetite returned if somebody else did the cooking.  Rather it indicated that she would still need encouragement to eat properly even if somebody else had done the cooking.”

CPIP/1206/2015: An asthma inhaler is not an “aid” for the purposes of the moving around descriptor

Upper Tribunal Judge: Rowley 

The claimant had been prescribed a ventolin inhaler (to be used as needed) and a preventer (which he took daily).  The Health Professional had noted that the claimant had an audible wheeze and that a cough was present during the assessment.  He was observed to have a poor peak flow.

The claimant’s evidence was that he needed to “take a puff on his inhaler” before walking a distance, and indeed had used his asthma spray before the walking observed by the Health Professional. 

In contrast to descriptors 2(a), (b), (e) and (f), which apply whether the claimant can satisfy the criteria either aided or unaided, descriptor 2(c) only applies if the claimant can stand and then move more than 20 metres but no more than 50 metres unaided.” 

A claimant who satisfies this descriptor will attain the requisite 8 point threshold for the standard rate of the mobility component.   (Descriptor 2(d) is the appropriate one where the claimant can move that distance “using an aid”).

Part 1 of Schedule 1 to the 2013 Regulations defines “unaided”:

“Unaided” means without –

(a)  the use of an aid or appliance; or

(b)  supervision, prompting or assistance.”

By regulation 2

“’aid or appliance’

(a)   means any device which improves, provides or replaces C’s impaired physical or mental function; and

(b) includes a prosthesis.”

The Secretary of State submitted that an asthma inhaler does not fall within the broad definition of an aid. This was on the grounds that the prescription medicine may improve the claimant’s impaired physical function of breathing, but is not an “aid” as it is not a “device.”  And although the inhaler could be described as a “device,” it simply delivers the medication into the body and so does not, in itself, improve, provide or replace a claimant’s impaired physical function. 

The claimant’s representative argued that one should not artificially split the inhaler and medication into two parts.  Instead, the matter should be considered holistically.  He compared and contrasted the situation to a teaspoon holding medicine.  That, he acknowledges, is not an aid, as the teaspoon can be separated from the medication.  But in the case of an asthma inhaler, he submits that the medication is part of the device, and the overall device improves the claimant’s impaired physical function.

However, Upper Tribunal Judge disagrees with the claimant’s representative:

“To construe the legislation in the manner he contends for would be to distort its natural meaning.  In my judgment an asthma inhaler does not constitute an “aid” for the purposes of the moving around descriptor.  It has long been accepted in other areas of disability benefits that a claimant’s ability should be assessed taking into account the beneficial effects of medication which it would be reasonable to expect the claimant to take (see, for example, R(IB) 1/08). 

I can so no reason why this should not also apply to PIP.  It is, in my view, the medication which improves the claimant’s physical function of breathing.  The fact that that medication is administered using a device is irrelevant.” 

CPIP/1695/2015: Lever taps are an aid to preparing a simple meal

Upper Tribunal Judge: Wright 

The First Tier Tribunal had found that descriptor 1b was not met because lever taps the claimant had had fitted in his kitchen because he could not use normal taps “cannot be described as an aid or appliance for cooking”.

Upper Tribunal Judge Wright says that as the tribunal gave no reasons for having reached this conclusion that alone might amount to an error of law on the part of the tribunal.

However, he holds that the tribunal erred in law more fundamentally as lever taps can amount to an aid or appliance:

“The relevant statutory test in descriptor 1b is “Needs to use an aid or appliance to either prepare or cook a simple meal”. This falls under the activity of “Preparing food”. The word ‘cook’ is defined in part 1 of Schedule 1 to the PIP Regs as meaning to “heat food at or above waist height”. This is a restrictive definition removing the need to consider whether a claimant can bend to reach a conventional floor-standing oven: RH –v- SSWP (CSPIP) [2015] UKUT 281 (AAC)

If the only task identified in descriptor 1b was to ‘cook’ a simple meal and that is limited to meaning the heating of food on a hob then it may be arguable that lever taps do not need to be used to achieve that particular task. However as noted above the activity in question is one of preparing food and descriptor 1b also includes consideration of whether a claimant needs to use an aid or appliance to be able to prepare a simple meal."

Judge Wright continues:

“On the face of the wording of the statutory scheme as it relates to descriptor 1b the ‘or’ between the words ‘prepare’ and ‘cook’ is to be read disjunctively. The preparation of the simple meal therefore does not need to be linked to the act of cooking and can stand alone, for example in the sense of preparing a cold simple meal such as a salad. 

This is supported by the structure of activity 1, in my judgment, where a maximum of eight points is awarded if a claimant “Cannot prepare and cook food” (my underlining added for emphasis). In that context it makes sense for the lesser award of two points to apply in respect of the situation where (per descriptor 1b) the claimant needs to use an aid or appliance to prepare a simple meal even though they can cook that meal unaided.

This reading of descriptor 1b is also lent support by the definition of the word ‘prepare’. It is defined in Part 1 of Schedule 1 to the PIP Regs as meaning, in the context of food ‘make food ready for cooking or eating’ (again my underlining).  

… Once the focus however is on the act of preparing a simple meal, either to eat or cook, then in my judgment lever taps can plainly be an aid or appliance for the act of preparing a simple meal as they may be needed for tasks such as the washing and cleaning of food as well as plates, chopping boards and other such utensils. The ability to carry out the activity of preparing food for eating or cooking is to be assessed, inter alia, on whether it can be done safely and to an acceptable standard (per regulation 4(2A) of the PIP Regs), and not washing food or utensils before using them very arguably would meet neither of these conditions."

Judge Wight therefore concludes that:

“The phrase ‘aid or appliance’ is defined compendiously in regulation 2 of the PIP Regs as meaning ‘any device which improves, provides or replaces [a claimant’s] impaired physical or mental function’.

The tribunal appears to have accepted (and it certainly didn’t reject) that the appellant had arthritis in his hands and because of that condition had had lever taps fitted in his kitchen after an occupational therapy assessment. 

This evidence alone on its face in my judgment supports both that the appellant needed to use the lever taps to be able to prepare food and that they are an aid in the statutory sense as they improved the appellant’s impaired physical function of the lack of necessary grip in his hands (due to the arthritis) to turn non-lever taps.”

CPIP 1671 2015 : A risk that gives rise to a need for supervision need not be a risk that is unique to particular activity - a general risk is sufficient (provided that the requirement of a particular descriptor are satisfied)

Upper Tribunal Judge: Jacobs

The main issues on the appeal concern the First-tier Tribunal’s application and interpretation of Activity 3 in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377):

Managing therapy or monitoring a health condition Activity 3

a       Either

          (i) does not receive medication or therapy or need to monitor a health condition; or

          (ii) can manage medication or therapy or monitor a health condition unaided.          Score 0

b       Needs either

          (i) to use an aid or appliance to be able to manage medication; or

          (ii) supervision, prompting or assistance to be able to manage medication or monitor a health condition.   Score 1

c        Needs supervision, prompting or assistance to be able to manage therapy that takes no more than 3.5 hours a week.     Score 2

d       Needs supervision, prompting or assistance to be able to manage therapy that takes more than 3.5 but no more than 7 hours a week.

Score 4

e       Needs supervision, prompting or assistance to be able to manage therapy that takes more than 7 but no more than 14 hours a week.

Score 6

f        Needs supervision, prompting or assistance to be able to manage therapy that takes more than 14 hours a week.  Score 8

The tribunal had found that Activity 3 descriptor f applied, and stated that:

“The Health Care Professional has completely failed to understand the condition, angioedema, from which the [the claimant] suffers, the life-threatening risk to which that condition gives rise and the level of supervision reasonably required to keep [him] alive.”

Based on the claimant’s evidence, supported by hospital evidence, the tribunal found that the claimant had been admitted to hospital about 150 times in 2012 and about 100 times in 2013. By the hearing on 22 May 2014, he had been admitted 47 that year.

The tribunal explained the claimant’s condition and its effects:

“Angioedema is a swelling of the deeper layers of the skin. In [the claimant’s] case it is associated with laryngeal spasm. What happens is that the tissues of [his] throat swell up and cut off the air supply to his lungs causing him to pass out. When he gets a warning that this is going to happen, he can use his epipen to administer adrenaline which helps but he also needs medical assistance. Often he gets no warning and simply passes out, in which case it is obviously not possible for him to administer his own medicine.”

In support of its conclusion on Activity 3, the tribunal wrote:

“There being no doubt that it has been recommended by a registered doctor, we consider that the administration of adrenaline on an emergency basis by another person amounts to ‘therapy’ as so defined. It follows from our approach that [the claimant] needs supervision … to manage that therapy. As such supervision takes more than 14 hours a week (because it is reasonably required the whole time), [he] scores 8 points for Descriptor 3f.”

The Secretary of State submitted that the tribunal had made an error of law in it had taken account of time devoted to supervision in order to deal with the risk of the claimant’s condition. That was wrong, because descriptors c to f only applied to managing therapy. The claimant needed assistance to manage his therapy, but not supervision to do so ‘the whole time’.

The Secretary of State also submitted that only therapy undertaken at home could be counted, not therapy administered by medical professionals during hospital admissions.

In addressing these submissions, Upper Tribunal Judge Jacobs highlights that he dealt with dealt with the first issue in CPIP/1882/2015 and held that the time periods in descriptors c to f qualify ‘supervision, prompting or assistance’, not ‘therapy’:

“The whole structure of the activities and their individual descriptors is based on the nature and extent of the help that the claimant needs. In that context, it is more rational if the number of points is determined by reference to the help needed rather than the therapy for which the help is given.”

In addition, following his approach in CPIP/1882/2015, Judge Jacobs holds that supervision monitoring the claimant’s condition in case of an attack and before any therapy is administered is not within descriptors c to f at all. It can only score points under descriptor b:

Judge Jacobs then goes on to consider of whether the risk that can be taken into account for preparing food or planning and following a journey must be a risk specifically related to that activity.

He is clear that the answer is no:

“A risk that gives rise to a need for supervision need not be a risk that is unique to a particular activity or to the activities in Schedule 1 generally. It is sufficient if it is a general risk, even one that applies when the claimant is doing nothing, provided that the requirements of a particular descriptor are satisfied.

In using the example of preparing food, Judge Jacobs outlines that:

“The issue for the tribunal was whether the claimant had a need for supervision when cooking. If he did, it did not matter whether that need was specifically related to that activity or was a general one that would affect other activities and even exist when the claimant was doing nothing at all. The descriptor was satisfied. This is so whether the other activities affected are within the scope of personal independence payment or not. Many conditions have an effect beyond the particular activities in Schedule 1 and, perhaps, generally. It would be anomalous to exclude them from the scope of personal independence payment”

Judge Jacobs finds that the same applies for all activities, including planning and following journeys.

CPIP/1739/2015: Can difficulties with dressing/undressing be taken into account when considering descriptor relating to toilet needs and incontinence?

Upper Tribunal Judge: Hemingway

The claimant suffered from multiple health problems including difficulty in using his hands which was largely the result of his having carpal tunnel syndrome.

With a tribunal having dismissed his appeal that he did not qualify for any rate of PIP he appealed to the Upper Tribunal.

In considering his difficulties with toileting and incontinence the First Tier Tribunal had found that:

“14. [the claimant] submits that he should have awarded (sic) points under the heading relating to toilet needs as it has been agreed that he needs an aid to dress. Managing toilet needs includes getting on and off an adapted toilet, evacuating the bowel or bladder and cleaning oneself afterwards. It does not include the act of dressing or undressing. We do not consider that he qualifies for points under this heading.”

The claimant’s contended was that difficulties with respect to dressing and undressing should be considered not only in relation to the descriptors linked to that activity but also in relation to question of toileting and incontinence.

Activity 5 of Part 2 to Schedule 1 to the Social Security (Personal Independence Payments) 2013 provides: 

Managing toilet needs or incontinence           

a Can manage toilet needs or incontinence unaided. Score 0

b Needs to use an aid or appliance to be able to manage toilet needs or incontinence. Score 2

c    Needs supervision or prompting to be able to manage toilet needs. Score 2

d Needs assistance to be able to manage toilet needs. Score 4

e Needs assistance to be able to manage incontinence of either bladder or bowel. Score 6

f Needs assistance to be able to manage incontinence of both bladder and bowel. Score 8

Paragraph 1 of Part 1 of Schedule 1 to the 2013 Regulations provides a definition of “managing incontinence” as follows:

“1. In this Schedule –

“manage incontinence” means manage involuntary evacuation of the bowel or bladder, including use a collecting or self-catheterisation, and clean oneself afterwards; …

The Schedule provides a definition of “toilet needs” as follows;

“toilet needs” means –

a) getting on and off an unadapted toilet;

b) evacuating the bladder and bowel;

c) cleaning oneself afterwards;…

In considering the claimant’s appeal, Upper Tribunal Judge Hemingway explains that Activity 5 and its linked descriptors address both managing toilet needs and managing incontinence.

However, he then highlights that -

“The two are different. Both, though, are defined. The definition of managing toilet needs … encompasses three specific functions.

The use of the word “means” within the definition, indicates that that small list of three factors is, in fact, an exhaustive list. The position would have been different had the word “includes” appeared instead of “means” but it does not. It results from that, inexorably, that any difficulties with respect to dressing and undressing are not to be taken into account with respect to an assessment of whether or not a person is able to manage their toilet needs unaided. Only the three matters specified are.  Whilst the appellant contends that such a result is unfair that does not assist. The test has to be interpreted on the basis of the words used.”

Judge Hemingway then continues:

“The relevant activity also encompasses the separate function of managing incontinence. In this case the appellant had indicated that he experienced incontinence of the bladder (he has not claimed to suffer from incontinence of the bowels) only rarely, in fact, according to the healthcare professional, once a month.

… As noted above, managing incontinence is also defined. That definition too is a strict one in the sense that the “means” as opposed to “includes” is used. It is clear from the definition, which is set out in full above, that the removal and replacement of clothing, in other words dressing and undressing, is not included.

However, cleaning oneself after an incidence of incontinence is included.  

So, and to perhaps answer a question raised in the appellant’s grounds of appeal to the Upper Tribunal, if a person troubled significantly by a condition such as irritable bowel syndrome were to regularly soil himself or herself as a result, then whilst a difficulty dressing and undressing and a difficulty in washing clothing would not be taken into account, any difficulty cleaning himself or herself would.”

CPIP 2819 2015: The interpretation and application of Activity 3 “Managing therapy or monitoring a health condition”.

Judge E. Jacobs

This case concerns the interpretation and application of Activity 3 in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377): “Managing therapy or monitoring a health condition”.

In giving permission to appeal to the Upper Tribunal, Judge Bano said:

“I am giving permission to appeal so that consideration can be given to how PIP Activity 3 should be applied to someone in the claimant’s position - what descriptor should be applied to a person who needs continual supervision to monitor their health condition but who does not normally need any significant help in connection with therapy or medication?”

In his claim for PIP, the claimant set out the difficulties he experienced as a result of his paranoid schizophrenia and on Activity 3 and wrote:

“I am in a 24-hour staffed care home so that my mental state is be continuously assessed.

Prolonged failure to take medication renders me prone to paranoia and hallucinations.”

A health professional interviewed and examined the claimant. In her opinion, descriptor 3(b) applied:

“Needs either-

(i)      to use an aid or appliance to be able to manage medication;

          or

(ii)      supervision, prompting or assistance to be able to manage medication or monitor a health condition.”

She reasoned that:

“Due to his medical condition and level of input it is reasonable to expect that supervision would be required to manage his health condition and this is supported by him currently living in a 24 hour care home soon to be moving to supported living.”

The decision-maker accept the health professional’s opinion. As Activity 3b was the only descriptor that applied, the decision-maker refused the claim in October 2014.

The claimant exercised his right of appeal to the First-tier Tribunal. The tribunal confirmed the 1 point for Activity 3b, and added a further two points for Activity 10b, making a total of 3. As that did not reach the minimum threshold of 8 points for the daily living component at the standard rate, the tribunal dismissed the appeal.

On Activity 3, the tribunal accepted that the main function of the care home was to monitor his condition and make sure there were no signs of deterioration. Someone knocked on his door twice a day to check on him. He managed his own medication and had a review of his care plan every 6 months. He was not receiving therapy that required supervision for more than 3½ hours a week.

In considering the claimant’s further appeal, Judge Jacobs holds that there is no doubt that the claimant satisfied descriptor b on the basis that he needed some form of help (whether supervision, prompting or assistance) to monitor his health condition, adding:

“It is impossible to read monitoring a health condition into any other descriptor. It is not mentioned. The language of the descriptors and the terms of the definitions distinguish between this and managing medication or therapy. If the claimant is to score more points for Activity 3, this can only be done on the basis that he needs help to manage therapy.”

The claimant’s representative argued that the assistance the claimant required could properly be classified as therapy as:

  • he was placed in supported and supervised accommodation;
  • he was well and living in the community because of the support   he received;
  • Staff gave him his medication; and
  • they helped with his daily life to keep his stress levels to a minimum.

She also relied on DWP guidance, which refers to safety and to the risk of deterioration that can arise from a failure to carry out therapy.

While Judge Jacobs says that this 2is an ingenious argument” he does not accept it:

“It is necessary to start with the facts. What is it that the staff do for the claimant? I accept what the representative says, but the question is whether that is therapy. There is no definition of what ‘therapy’ involves. No doubt that reflects the many and varied forms that it may take. But I do not accept that keeping an eye on the claimant to spot deterioration and the support provided with his general living to help keep him free from stress amounts to therapy. It is support, certainly, and important support that has proved effective, but it is not therapy.

Therapy may be difficult to define with precision, but it is a concept that has limits. There are many things that are beneficial for a claimant that are not therapy. A job, for example, may help a claimant socialise and develop self-esteem. It might even be described as therapeutic. But it would not generally be properly described as therapy.

Something more than a beneficial effect is necessary. I do not propose to lay down what would or might be sufficient to amount to therapy. It is sufficient to say that the evidence in this case does not contain it.”

He concludes by accepting that Judge Bano’s concern is understandable against the background of the change from disability living allowance to personal independence payment for those of working age.

One condition of entitlement to disability living allowance was that the claimant reasonably required “continual supervision throughout the day in order to avoid substantial danger to himself or others” (section 72((1)(b)(ii) of the Social Security Contributions and Benefits Act 1992).

However, he finds that there are a number of differences between that provision and Activity 3.

“First, continual, the word used for disability living allowance, is not the same as continuous, the word used for personal independence payment: see R(A) 1/72. The tribunal’s findings show that the supervision in the care home was not continuous. Staff were present throughout the day and night, they could be called on if required, they checked on the claimant at regular intervals, and they provided general support with daily living. That is based on the oral evidence at the hearing. But even taken together, it is not continuous.

Second, even if the availability of the staff could amount to supervision in a general sense, supervision as defined for the purposes of personal independence payment requires presence. That is a demanding requirement, which was not satisfied on the evidence. The claimant was largely left to his own devices. I do not need to decide what degree of proximity is required for presence, but the mere availability of staff in the care home is not sufficient in the circumstances of this case to amount to presence.

Third, unlike disability living allowance, personal independence payment contains precise time requirements for descriptors c to f. And those time requirements only apply to managing therapy. Even if the medication is therapy, the evidence does not support a finding that help is required for a minimum of 3.5 hours a week.”

In brief he therefore finds that the answer to the question posed by Judge Bano in his grant of permission is that only descriptor b applies to someone in the claimant’s position.

CSPIP/33/2015: Tribunal’s duty to give claimant an opportunity to consider a new issue which may result in a less favourable decision than that appealed

Upper Tribunal Judge: Bano 

The claimant had several health conditions including asthma, plantar fasciitis and plantar fibromatosis.

She appealed a decision awarding her the mobility component of PIP at the standard rate but refusing an award of the daily living component at either rate. As well as challenging the daily living component descriptors which had been applied to her she contended she was entitled to 12 points under descriptor 2(e) of the Regulations, and therefore to mobility component at the higher rate.

The tribunal’s statement of reasons recorded:

The Tribunal, itself, having considered the papers in advance felt bound to advise the Appellant that the existing standard rate award may be at risk in the event that the Tribunal took an adverse decision and suggested to the Appellant that she may wish to consider withdrawing her appeal in order to safeguard the existing award.  This was explained to her at some length.  It was suggested that she may wish to obtain proper representation.  In the event, she declined to reconsider the matter or to obtain representation and wished to proceed with appeal and the hearing.”

The tribunal then decided to remove the mobility component which had been awarded citing significant concerns as to the claimant’s credibility:

“She was able to walk around hospital departments and although she stated that she could walk more than 20 m. she preferred to walk less than that distance because of the subsequent effect it would have on her. She sat at the hearing for 45 minutes and without difficulty and albeit not then standing was able to walk out of the room without difficulty. 

The least credible aspect of her evidence was her claim that her walk to her GPs would be around 28 m which was coincidentally the same distance as observed by the Health Consultant.  The Tribunal did not believe her that the GP surgery was as close to her home.  It is a matter of judicial knowledge (albeit not put to her) that the distance between her home and Clydebank Health centre where her GP is situated by taking the shortest route would be in the order of 2 miles. 

She took a caravan holiday in Skye.  It was inconceivable that in doing so she did not walk.  In the circumstances the award under 2(c) for mobility is regarded by the Tribunal as singly inappropriate and in view of her plantar fasciitis substituted an award under 2(b) in its stead [“can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided”].”

The claimant appealed to the Upper Tribunal on the ground that she had not in fact told the tribunal that she walked to her GP’s surgery, but had said that her husband dropped her off there by car.  She also complained that the tribunal had made assumptions about her holiday in Skye, and asserted that she had gone there for the purpose of sightseeing. 

She stated that, contrary to the tribunal’s findings, she did not limit her walking as a matter of preference, but because of pain in her feet.  Finally, the claimant submitted that the tribunal failed to consider whether she could ‘repeatedly’ mobilise the distances specified in Activity 2 of the mobilising descriptors.

In finding that each of these grounds were made out, Upper Tribunal Judge Bano holds that:

“It is inconceivable that the claimant would have told the tribunal that the distance from her home to her GP’s surgery was 28 metres when it is in fact nearer two miles and the tribunal’s admitted failure to put to her the result of their researches deprived her of the opportunity to correct any misunderstanding about how she got to the surgery.  A condition such as plantar fasciitis, coupled with plantar fibromatosis, could be expected to impose severe restrictions on the claimant’s walking ability. The tribunal’s observation of the claimant walking out of the tribunal room after sitting for 45 minutes could not give them any useful assistance in determining how far the claimant could move after standing, and the tribunal gave no satisfactory reason for rejecting the Health Care Professional’s assessment of the claimant’s ability to stand and move unaided as being between 20 and 50 metres. 

Similarly, the tribunal ought to have asked the claimant about what she did while on holiday before reaching conclusions on the basis of assumptions about her activities.  Finally, the Statement of Reasons is conspicuous by the lack of any reference to the matters which need to be considered under Regulation 4, even though the appeal in relation to mobility was brought specifically on the basis that the Health Care Professional’s assessment of the distance which the claimant could mobilise did not take proper account of her inability to do so repeatedly.”

Judge Bano then highlights that a number of DLA decisions have drawn attention to the pitfalls of tribunals making decisions which are less favourable to a claimant than the decision under appeal. 

He cites in particular CDLA/884/2008 in which it was said:

“Tribunals need to be aware of the dangers of being both prosecutor and judge, one of which is the risk of making errors unprompted by the parties.  Such errors are too common and are contributing significantly to the caseload of the Commissioners ….There are other risks in being both prosecutor and judge.  The most obvious is that there can be a perception that the tribunal has prejudged the case … a tribunal is in a difficult position. 

If it gives the claimant too robust a warning at the beginning of the hearing, it runs the risk of giving the impression of having prejudged the case.  If it does not give such a robust warning, the warning may not adequately convey to the claimant the case he or she needs to consider resisting with the consequence that a decision not to withdraw the appeal, or not to ask for an adjournment, is not fully informed.  This is a powerful reason for tribunals refraining 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.”

Judge Bano concludes by saying that he can see no reason why the tribunal in this case should have wanted to consider whether the award of mobility component was over-generous:

“The claimant’s case for an increase in her award was moderately and cogently argued and consistent with the independent medical evidence.  The award of descriptor 2(c) by the Health Care Professional was fully reasoned, even if the claimant did challenge it on the ground that Regulation 4 of the PIP Regulations was not taken fully into account.   Be that as it may, the tribunal’s decision to consider on its own initiative whether to remove mobility component led to precisely the kind of unprompted error envisaged in CDLA/884/2008. 

The tribunal’s failure to invite the claimant to put her case with regard to the distance from her home to her GP’s surgery and with regard to what she did while on holiday, when she could not possibly know that those matters would be crucial to the tribunal’s decision, deprived the claimant of the opportunity to correct any errors by the tribunal and amounted to serious breaches of the requirement of fairness.”

Comment: The legal principle outlined in this case is not new – as Judge Bano’s citing of CDLA/884/2008 shows. While this case concerns PIP, the principle also applies to DLA or ESA appeals. Its warning that tribunals should refrain from “making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases” is reiterated here. This new decision highlights the duty of tribunal to give claimant an opportunity to consider a new issue which may result in a less favourable decision being made. Should a tribunal warn that it is minded to do so it may be advisable to request an adjournment to seek further supportive evidence/consider withdrawing the appeal.

CSPIP/40/2015: “Cook” in PIP descriptors does not include bending to use an oven/ “Managing therapy” can include help to set up a TENS machine

Upper Tribunal Judge: Agnew 

This appeal concerns the proper interpretation of PIP Daily Living Activities 1(c) and 3(c):

1(c) Cannot cook a simple meal using a conventional cooker but is able to do so using a microwave - 2 points

3(c) Needs supervision, prompting or assistance to be able to manage therapy that takes no more than 3.5 hours a week - 2 points

The tribunal had awarded the claimant points under Activity 1c as:

 “We agreed that descriptor 1c applied on the basis that the appellant was unable to bend down to use the conventional oven but could use a microwave.”

However, the Secretary of State submitted that this is incorrect because the definition in Schedule 1 provides that “ “cook” means heat food at or above waist height” and therefore whether or not a claimant can bend down to use an oven is irrelevant as the activity relates to cooking at or above waist height.

Although agreeing that the tribunal had erred in this respect, Upper Tribunal Judge Agnew comments he believes 3c is poorly drafted by including “using a conventional cooker” in the descriptor when none of the other descriptors in this activity use “conventional cooker”:

“All the other descriptors relate to “cook a simple meal” only. The tribunal was correct, ignoring the definition of “cook” that normally a conventional cooker will have a below waist height oven and so a claimant who cannot bend cannot use the whole cooker.

I can also see difficulties coming up in the future as to what is meant by a “conventional cooker”; is it a gas cooker, an electric plate cooker, a flat piece surface where elements heat up under the surface.

Some people may not be able to use gas cookers if they are allergic to gas or cannot press down the switch to start the spark which is common on a conventional gas cooker – it could be said that they “Cannot cook a simple meal using a conventional cooker”. If this remains a hypothetical cooking test, then what is the hypothetical conventional cooker? I do not need to answer these questions in this decision.”

Turning to the meaning of “Needs supervision, prompting or assistance to be able to manage therapy” the declined to make an award under 3(f) saying that:

“In relation to descriptor 3(f) it was argued by the representative that because the appellant’s wife requires to assist him for a maximum of 10 minutes to set up the TENS machine and for approximately 2 minutes to remove it at the end of each session that he requires assistance to manage the entire length of hi therapy which lasted for between 1 and 12 hours a day. We do not accept this.

The relevant therapy in this case is what the TENS machine does while it is fitted to the appellant. Assistance to set it up is not assistance with the management of the therapy. It is undoubtedly assistance with the fitting of the instrument which delivers the therapy but once in place the therapy manages itself.”

Having interpreted the descriptor in that way it excluded the tribunal from considering whether or not Activity 3(c) applied.

Holding that the tribunal had erred, Judge Agnew highlights that the phrase is “assistance to be able to manage therapy”, holding that:

“The assistance in setting up the TENS machine for the claimant, then allows the claimant to manage his therapy. I therefore agree that the 12 minutes spent by his wife each day in setting up and taking down the TENS machine is assistance to be able to manage the therapy that took no more than 3.5 hours a week and so Activity 3(c) applies. I therefore hold that the tribunal also erred in failing to consider Activity 3(c) and find that the claimant is entitled to 2 points under Activity 3(c).I agree with the Secretary of State that the assistance that was given was for no more than 3.5 hours each week. I agree that the time the claimant spent on his own on the TENS machine was not time that should be taken into account and therefore Activity 3(f) is not applicable.”      

CSPIP/109/2015: "Cannot follow the route of a … journey without another person" is not restricted to help with navigation but can include problems caused by anxiety

Upper Tribunal Judge: Agnew

The claimant had contended that Activity 11f “Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid” should apply to her. However, the First Tier Tribunal rejected this and instead awarded her 4 points for Activity 11b “Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant”.

In doing so it reasoned as follows:

“Planning and familiar journeys – In our view, it does not follow from the appellant feeling or being unable to go out alone that this is because she is unable to follow a route. It was not argued or found that the appellant has a cognitive, intellectual or sensory impairment which renders her unable to follow any route, whether familiar or unfamiliar.

We were satisfied from what was said in the PIP2, to the HP and us that the appellant’s difficulty in going out was because she was prone to anxiety giving rise to a need for prompting in order to undertake any journey to avoid overwhelming psychological distress and that with such prompting she could, and did, undertake journeys.”

The claimant appealed to the Upper Tribunal on the grounds that the tribunal misinterpreted the descriptor by imposing a higher requirement than the descriptor warranted. The evidence showed that she could not go out without another person and accordingly that she was unable to follow a route unaccompanied because she was unable, and/or felt unable due to anxiety, to go out alone in the first place.

However, the Secretary of State maintained that that the tribunal had correctly considered the requirements of the descriptor. This was because
the reference to “another person”, and “assistance dog” or an “orientation aid” showed that orientation and sensory impairment problems are meant to be included under this descriptor” and so it is navigation that is being tested in these descriptors. Therefore a person who required to be present but did not help with navigation would not be included.

In response the claimant’s representative argued that “A person who cannot undertake a journey, cannot follow a route” and submitted “that the test for mobility are not designed so that someone who can plan and follow a route, intellectually, or in their imagination, but due to a disability cannot execute it, unless accompanied, is to be excluded from the benefit 

Activity 11 – Planning and following a journey is in the following terms:

1. Planning and following a journey.

a. Can plan and follow the route of a journey unaided.

0

 

b. Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant.

4

 

c. Cannot plan the route of a journey.

8

 

d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.

 

10

 

e. Cannot undertake any journey because it would cause overwhelming psychological distress to the claimant.

 

10

 

f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid.

 

12

In considering his decision, Upper Tribunal Judge Agnew reasons that the meaning of “cannot follow the route of a … journey without another person …” has to be determined in the context of all the listed sub-activities in Activity 11 having regard to the other Activities:

“Reading each sub-activity on its own suggests that there is no consistent theme between each sub-activity. Activity 11a refers to “Can plan and follow the route of a journey unaided” while Activity 11c is the opposite i.e. “Cannot plan the route of a journey”.  Activities 11b and 11e refer to the need for “prompting to be able to undertake” or “cannot undertake” a journey “to avoid overwhelming psychological distress” or “it would cause overwhelming psychological distress”.

So while there is a mental health element specified for Activities 11b and 11e, there is no specific mental health element in the other activities. It also seems to me to be extraordinary that a person who cannot undertake any journey because it would cause overwhelming psychological distress (Activity 11e) gets only 10 points, whereas a person who can go out and follow a journey on a familiar route with another person (Activity 11f) gets 12 points - so the permanently housebound gets less points than the person who can sometimes go out.

He adds that if the Secretary of State is right then Activities 11d and 11f stand in a category of their own relating to the ability to navigate, whereas Activities 11b and 11e are in a different category relating to “psychological distress”.

In upholding the appeal, Judge Agnew finds that the Secretary of State is incorrect:

“I consider that “cannot follow” does not have the restricted meaning put forward by the Secretary of State. It is the “cannot” that is the significant word and “cannot” is not qualified by any reason. I consider that is covers the situation where a claimant “cannot follow” the route because they cannot navigate the route or because they cannot follow it because of some psychological factor, such as anxiety, even if they have the intellectual capacity to follow the route in theory.

Even if a claimant can in theory navigate a route, if the claimant cannot in fact go out and follow it without the assistance of another person, dog or other aid, whatever that reason, I consider it brings the claimant within the Activity. There is, with the exception of Activity 11e … a logical progression in the Activities.

If a claimant can “plan and follow” a route there are no points; if the claimant can plan and follow the route, but needs prompting to go out and follow it, then it is 4 points. The next stage requires someone else to plan the route for the claimant, who must then be able to follow that plan alone and hence gets 8 points. The next stage is the person who cannot follow an unfamiliar route without another person etc., so the activity gets to the stage where outside assistance is needed in order to be able to follow the route and thus qualifies for 10 points.”

Judge Agnew also rejects the Secretary of State’s argument that “another person” has to be construed in line with “assistance dog” and “orientation aid” so that “another person” is restricted to someone helping with “orientation and sensory impairment” alone:

“There are definitions of “assistance dog” and “orientation aid” which limited the scope of dog and aid, but there is no definition limiting the purpose for which the person can be used. Activities 11d and 11f do not qualify “another person” such as “aided by” or “assisted by” which are words defined in paragraph 1 of the schedule. I therefore conclude that the reason the person is required so that the claimant can follow the route can be any reason including a mental health reason such as overcoming anxiety or other psychological distress.”

As a result, Judge Agnew holds that the tribunal erred in finding that descriptor 11f is restricted to navigation and remits the appeal to be heard by another tribunal.

CSPIP/754/2014: Moyna “broad brush” approach to evidence does not apply to PIP

Upper Tribunal Judge: Gamble 

In dismissing the claimant’s appeal against the decision that she was not eligible for PIP, the tribunal said that it had:

“… adopted a broad axe approach to all of the evidence as is required in the case of Moyna”

The claimant’s solicitor appealed to the tribunal on the following grounds:

“We feel the tribunal have erred in law to quote Moyna in their Statement of Reasons as we understand PIP have different regulations and supersedes Moyna in regard to a previous Commissioner’s decision in regard to DLA.  The fifty per cent rule ought to have been applied rather than the broad brush approach set out in Moyna.  The tribunal failed to properly assess the variability of the client’s condition and to apply the appropriate criteria.”

Secretary of State for Work and Pensions v Moyna (R(DLA) 6/03) is a decision of the House of Lords relating to the cooked main meal test for the purpose of the lowest rate of the care component of disability living allowance (section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992)

In giving the judgment in Moyna, Lord Hoffman held that the cooking test

does at a literal day to day level, but instead:

“It involves looking at the whole period and saying whether, in a more general sense, the person can fairly be described as a person who is unable to cook a meal.  It is an exercise in judgement rather than an arithmetical calculation of frequency.”

In R(DLA) 5/05 Judge Hickinbottom extended the principle of Moyna to all aspects of entitlement to the care component of disability living allowance under section 72(1):

“Although the criteria in the various sub-sections of section 72(1) are discrete and very different, the comments of Lord Hoffman inform the general approach to each.  In respect of each, an exercise in judgement has to be made taking  “a broad view of the matter”, i.e. taking account of all relevant factors.  In respect of none can a determination be made upon an arithmetical formula or by reference to an invariable benchmark.”

However, in setting aside the tribunal’s decision, Upper Tribunal Judge Gamble holds that the approach in Moyna cannot be applied to PIP:

“Clearly personal independence payment is designed for the same group of claimants as those for whom disability living allowance was designed or at least for the part of that group who are of working age. 

However, it is a replacement for disability living allowance.  It has different and distinct statutory criteria of entitlement.  In particular, the broad terms of sections 72 – 73 of the above Act are replaced under personal independence payment by the much more prescriptive and detailed activities and descriptors of parts 2 and 3 of schedule 1 to the Personal Independence Payment Regulations 2013, made under the powers conferred by sections 78 – 79 of the Welfare Reform Act 2012. 

It is, in my judgement entirely consistent with the differences between the statutory conditions of entitlement to disability living allowance and those to personal independence payment to hold that the test laid down in Moyna as extended by R(DLA) 5/05 has been replaced by the fifty per cent rule for variability laid down by regulation 7 of the above regulations.   That clearly, provides for “an arithmetical formula”.  Such is the very approach rejected for the purposes of disability living allowance by Lord Hoffman in paragraph 18 of Moyna and by Judge Hickinbottom in paragraph 9 of R(DLA) 5/05.”  

Judge Gamble therefore finds that the tribunal erred in law by their explicit reliance on Moyna and remits the client’s appeal for redetermination by a freshly constituted tribunal.

Tax Credits

CTC/1918/2013: Whether the mere receipt of incapacity benefit is sufficient for the purposes of the disability element of Working Tax Credit

Upper Tribunal Judge Mitchell

Up until October 2011 Miss B received long-term incapacity benefit. However, in November 2011 she claimed working tax credit. She was working for 17 hours per week.

However, in fact Miss B ceased to meet the entitlement conditions for incapacity benefit in November 2010 when she began work that did not meet the conditions for “permitted work”.

A decision maker superseded her incapacity benefit that resulted in an overpayment between November 2010 and October 2011.

HMRC then refused to award Miss B working tax credit on the grounds that the 30 hour working week condition applied rather than the 16 hour disability-related condition.

Following a First-tier Tribunal dismissing her appeal, Miss B secured leave to appeal to the Upper Tribunal.

Regulation 4 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 (“the 2002 Regulations”) governs when a person is treated as engaged in qualifying remunerative work. A weekly minimum number of hours must be worked.

Only 16 hours are required if the person “has a physical or mental disability which puts [him/her] at a disadvantage at getting a job and satisfies regulation 9(1)(c)”.

Regulation 9(1) of the 2002 Regulation contains criteria for the disability element of working tax credit. If the criteria are met, a claimant’s maximum rate of working tax credit rises through the addition of a disability element. For a single claimant, the criteria are that s/he:

“(a) undertakes qualifying remunerative work for at least 16 hours per week;

(b) has any of the disabilities listed in Part 1 of Schedule 1, or in the case of an initial claim, satisfies the conditions in Part 2 of Schedule 1; and

(c) is a person who satisfies any of Cases A to G on a day for which the maximum rate is determined in accordance with these Regulations.”

Cases A to G are set out in subsequent paragraphs of regulation 9. They all refer to some benefit or advantage related to disability.

When Miss B’s claim was decided, Case A read:

“(2) Case A is where the person has, for at least one day in the preceding 182 days (“the qualifying day”), been in receipt of—

(a) higher rate short-term incapacity benefit;

(b) long-term incapacity benefit;

(c) severe disablement allowance; or

(d) employment and support allowance where entitlement to employment and support allowance or statutory sick pay has existed for a period of 28 weeks immediately preceding the qualifying day comprising one continuous period or two or more periods which are linked together.”

Case C, refers to passporting benefits being “payable”. At the relevant time it read:

“(4) Case C is where the person is a person to whom at least one of the following is payable -

(a) a disability living allowance;

(b) an attendance allowance;

(c) a mobility supplement or a constant attendance allowance which is paid, in either case, in conjunction with a war pension or industrial injuries disablement benefit.”

Both Case A and Case C have since been amended to take account of universal credit (Case A) and personal independence payments and armed forces independence payment (Case C).

The First-tier Tribunal had decided that Miss B could not be “in receipt” of incapacity benefit for a period during which she was not entitled to it.

However, in giving his decision, Upper Tribunal Judge Mitchell stresses that the relevant term here is “has been…in receipt of” rather than “payable”:

“The literal meaning is simply that benefit payments have been received. Departing from this meaning would only be legitimate if the legislative context demanded it. HMRC do not say it does and I cannot see how applying “has been in receipt of” literally creates an unworkable scheme. In fact, the selection of different terms in different Cases to describe the relationship between a claimant and a passporting benefit strongly suggests a deliberate decision to treat different passporting benefits differently. Moreover, the differences extend beyond Cases A and C and can even be discerned within Case A itself.”

In addition, Judge Mitchell holds that this literal interpretation does not subvert the disability-related aims of the tax credits scheme.

This is because Case A is not the sole condition and there remains the requirement for a claimant to have a disability that puts him/her at a disadvantage in getting a job.

Judge Mitchell therefore sets aside the First-tier Tribunal’s decision as “on the undisputed facts”, the only conclusion open to the Tribunal was that Miss B satisfied Case A. As she stopped receiving incapacity benefit 32 days before her tax credit claim, and 45 days before her claim was decide so “clearly satisfied Case A”.

However, also remits her appeal for rehearing so a new tribunal can determine the outstanding issue of whether Miss B had ‘a physical or mental disability which put her at a disadvantage in getting a job’.

CTC/5600/2014: Consideration of Joint financial arrangements where couples maintain they have separated

Upper Tribunal Judge: Ovey 

The claimant originally claimed tax credits with her husband. After they split up she herself made a claim and was awarded tax credits as a single person.

However, she later unsuccessfully appealed to a First Tier Tribunal that her and her husband were still a couple and that she had been overpaid tax credits as a single person.

In terms of married persons, the term “couple” is defined in subsection (5A) of the Tax Credits Act 2002 as meaning:

“(a)      a man and woman who are married to each other and are neither –

(i)         separated under a court order, nor

(ii)        separated in circumstances in which the separation is likely to be permanent.”

The claimant contended that she and her husband had permanently separated.

However, HMRC submitted that checks showed that the husband had the same address as the claimant for PAYE, tax and social security purposes, had applied for credit from that address and was jointly liable with her on the mortgage over the property so that:

“as a consequence HMRC had to consider whether [the claimant and her husband] were living together as husband and wife”.

In setting aside the tribunal’s decision, Upper tribunal Judge Ovey says that:

“I do not need to consider the separation test in detail, given HMRC’s support for this appeal.  It has recently been considered by the Upper Tribunal in HMRC v. PD [2012] UKUT 230 (AAC) and DG v. HMRC (TC) [2013] UKUT 0631 (AAC), in both of which cases it was decided that a married couple living in the same house were separated for the purposes of s.3(3) and (5A).”

However, she adds that caution should be exercised as to reliance on the “financial footprint” where the question concerns separation between a husband and wife:

“Financial support may be significant when considering whether an unmarried couple have a relationship akin to that of husband and wife living together. In the converse case of separation between husband and wife, it is very likely that there will have been financial support and dependence, or interdependence, taking such forms as a joint mortgage, joint bank accounts, joint names on utility bills and so on. 

The fact that names may not have been changed may be attributable as much to inertia as to lack of separation, at least where there is no immediate practical consequence.  In the case of a joint mortgage it may well not readily be possible to remove one party from the mortgage.  The continued use of the former matrimonial home as an address for official correspondence and other postal purposes may also be explained by practical convenience, especially if, as the claimant says is the case here, one party has no convenient alternative permanent address.”

In its statement of reasons, the tribunal said:

“In cases of this nature the onus is very definitely on the appellant to satisfy the revenue and the tribunal that she was likely to be permanently separated from her husband in order to be able to claim tax credits in a single capacity.

 A mere written statement that her husband was living in a caravan or staying with friends is insufficient to discharge the burden that rests with her.  She was given the opportunity to present information to show her financial independence which would have persisted (sic) the revenue in reaching a decision.  She did not avail herself of that opportunity.”

However, Judge Ovey holds that in this the tribunal had erred as the onus was on HMRC to show that the claimant had not separated given that the decision was to terminate an award of tax credits and was not a decision on a new claim. 

Instead, Judge Ovey makes the decision which the tribunal ought to have given namely, that the respondent did not discharge the burden of showing that the Appellant did not satisfy the entitlement conditions for tax credits as a single person in the tax year 2010-2011 so that the appeal against the HMRC’s is allowed.

Ken Butler - 11 March 2016