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Selected upper tribunal decisions from April 2012 to March 2013

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Court decisions

The Queen on the application of Nicholas v Upper Tribunal (Administrative Appeals Chamber) the Secretary of state for Work and Pensions [2012] EWHC 2724 (Admin) (26 July 2012) - Whether tribunal acted fairly in not adjourning hearing to obtain previous PCA reports of unrepresented claimant

New High Court judicial review judgment

In 2004, the claimant Mrs. Nicholas, was awarded incapacity benefit. She then attended a number of personal capability assessments (PCAs) from 2005 to 2007 that all confirmed that she was not fit for work.

However, a new PCA in 2008 finding her fit work and she appealed the decision.

While the First Tier Tribunal told her that it did not have the documents relating to her 2005 to 2007 PCAs and that it could adjourn if necessary to obtain them the claimant declined its offer.

On the First Tier Tribunal upholding the decision that she was fit for work the claimant sought leave to appeal to the Upper Tribunal but this was refused.

The client then sought judicial review of this refusal in the High Court on the grounds that -

  • it was unfair, as she was unrepresented and might not, have known the potential significance of earlier PCAs and the merits of any adjournment to obtain them;
  • the Tribunal acted unfairly because they effectively deprived her  of a fair and proper consideration of the merits of her case in breach of the overriding principle that a tribunal should act “fairly and justly” (Part 1 of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008); and
  • the Tribunal failed first to consider itself whether to adjourn the matter in order to obtain the previous PCAs and that if they had done so they would have concluded that they should as the previous PCAs contained potentially valuable material that would inform them as to the true merits of her case.

However, in refusing the judicial review application, Justice Haddon-Cave rules that -

“Whilst it is fair to say that the First-tier Tribunal was inquisitorial, there was no reason for the Tribunal to suppose that Mrs Nicholas' judgment of the matter was not something to be relied upon. The hearing took place some five years since the original hearing. There had clearly been some physical and psychological sequelae [abnormality], but the questionnaire clearly indicated improvements.

In my judgment there was no obvious or compelling reason why the Tribunal should have thought it was necessary to see the earlier PCAs. The PCAs might have shown a linear improvement in her condition with the points going down from 20,15 to 10. It is noteworthy… that in the medical report form, dated 19 April 2007, the claimant at that stage complained of experiencing panic attacks and having poor sleep, so to that extent there appears to have been some improvement between 2007 and 2008.

In these circumstances, the Tribunal are, in my judgment, not to be admonished for not having second guessed her decision, or indeed overridden it, or to have told her how important the early PCAs might have been. Only Mrs Nicholas knew how many there were and what they said, and it may well have been, as far as the Tribunal was concerned, that she preferred to argue her case on the fresh material.

There was in conclusion, in my judgment, nothing unfair at all about there approach leaving the question of an adjournment to the claimant.”

Justice Haddon-Cave does recognise however, that while this particularly case does not qualify as unfair each case will depend upon its own facts.

Disability living allowance

CDLA/2002/2006 [2012] UKUT 26 (AAC): Whether mobility component of DLA exportable within EEA

Judge Mesher
20 January 2012

Following his interim decision on this appeal, Upper Tribunal Judge had referred questions to the Court of Justice of the European Union (the ECJ) in December 2009 in this and two associated cases (CDLA/496/2006 and CDLA/2106/2006).

The questions were whether the mobility component of DLA was exportable to other Member States as a sickness - or possibly as an invalidity benefit - (in the same way as the care component had been decided to be exportable or whether it was a special non-contributory benefit within article 10a of Council Regulation (EC) No 1408/71 and therefore not exportable.

A third question was whether there was any other principle of European Union law that might assist the claimants in the cases referred.

The rulings given by the ECJ on those questions in May 2011 in Bartlett, Gonzalez Ramos and Taylor v Secretary of State for Work and Pensions (Case C-537/09) were as follows:

“1.      Article 4(2a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004, and of Regulation No 1408/71, in the latter version, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, must be interpreted as meaning that the mobility component of Disability Living Allowance constitutes a special non-contributory cash benefit within the meaning of that provision, referred to in Annex IIa to those regulations.

2.      Consideration of the third question has disclosed nothing capable of affecting the validity of Article 10a of Regulation No 1408/71 in either of the versions applicable in the main proceedings, inasmuch as that article allows the award of the mobility component of Disability Living Allowance to be made subject to conditions as to residence and presence in Great Britain.”

As a result, after rejecting submissions that the ECJ’s reasons were inadequate, Judge Mesher dismisses the claimant’s appeal.

This is on the grounds that there is nothing in EC Regulation 1408/71 (or any other principle of European Union law) to prevent the normal operation of the residence and presence conditions in regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 in relation to the mobility component of DLA on a claimant’s ceasing to be present and ordinarily resident in Great Britain.

CDLA/735/2009 [2012] UKUT 282(AAC): Whether care component of DLA exportable where claimant permanently leaves UK

Decision of a three-judge panel
19 July 2012

In this decision, a Three-Judge Upper Tribunal Panel holds that while the claimant had moved to another EEA state permanently the UK nevertheless remained the competent state for the purposes of continued payment of her sickness benefit (DLA).

The claimant, who in 1993 had been made an indefinite award of the lowest rate of the care component of DLA, moved permanently to Spain in November 2002.

On discovering this, the Secretary of State superseded her DLA award determining that she had no entitlement from November 2002.

With a tribunal upholding the claimant’s appeal against this decision, the Secretary of State appealed to the Upper Tribunal.

In considering the appeal, the Three-Judge Panel explain that it was “common ground” that the tribunal was correct in holding that the claimant had no further DLA entitlement under UK domestic law provisions alone.

Instead, the question was whether the residence conditions that prevented this were themselves overridden by her rights as a citizen of the European Union under EC Regulation 1408/71..

Following a detailed analysis of Regulation 1408/71 the Three-Judge Panel concludes as follows –

“The claimant was within the personal scope of Regulation 1408/71 and the benefit in issue was within the material scope of the Regulation as a cash sickness benefit.

We find the reasoning of the Court of Appeal in Ruas compelling; that decision is binding on us. The defined terms “employed person” and “self-employed person” have the same meaning throughout the Regulation wherever those terms are used subject to their being read in context. Consequently, it is sufficient that the claimant was an insured person by virtue of having paid national insurance contributions in the past in order to come within the defined terms. She did not need to be actually in employment or self-employment at the material time, or to have a contribution record which would have entitled her to contribution-based cash sickness benefits under United Kingdom legislation, for Article 22 to apply.

The claimant accordingly fell within the scope of the rules in Chapter 1 of Title II of Regulation 1408/71, and was entitled to the payment of the benefit in Spain under Article 22 of Regulation 1408/71.

When the claimant transferred her permanent residence to Spain, Article 13(2)(f) of the Regulation had the prima facie effect of making Spain the competent State from 6 November 2002, but Point 20(a) preserved the status of the United Kingdom as the competent state for the purpose of the application of the provisions of Chapter 1 of Title III in relation to her award of DLA.”

The three Judges add that even if they were wrong on the above point and Point 19(a) applied to her, Article 22 of Regulation 1408/71 preserved the right of the claimant to receipt of the care component of DLA until such time as the Secretary of State validly superseded that award to reduce it to a nil entitlement but that –

“Supersession purely on grounds of a change of residence would be unlawful under European Union law.”

The Secretary of State is considering whether to apply for permission to appeal against this decision and have issued guidance (DMG 35/12).

NB - Regulation 1408/71 concerns the co-ordination of differing national social security systems in order to avoid social security rules operating as a barrier to the free movement of workers. Over time its terms have been extended beyond workers (employed persons) to include self-employed persons, students, and civil servants. Since 1 May 2010, Regulation 1408/71 has replaced by Regulation 883/04.

Under Reg 833/04 the following benefits are fully exportable -

  •  invalidity benefits
  • old age benefits
  • survivors case benefits
  • pensions for accidents at work or occupational diseases
  • death grants

AA and the care component of DLA are invalidity benefits for the purposes of both EC Reg 1408/71 and EC Reg 833/04.
 
Following EC Reg 833/04 there should be no issue about someone being able to move to another EEA state and retain their AA or DLA care component.
 
CDLA/735/2009 would seem to apply only to those pre May 2010 cases where the DWP has refused to pay DLA / AA on the grounds that the person has permanently moved.

CDLA/943/2011 [2012] UKUT 429 (AAC): Severe mental impairment: factors to be considered under the “severe behavioural problems” test

Judge N J Wikeley
15 September 2012

The claimant was a child with autism who very much lived “in his own world” and had challenging behaviour. He was awarded the highest rate of the care component of DLA from the age of 3 to 5. At the age of 5, on a renewal claim, he was awarded the highest rate of the care component and the lower rate of the mobility component for 3 years.

His mother appealed against the decision to award him only the lower rate of the mobility component and said “even though he can walk, he often won’t walk because of his autism ... he often wants to go in the opposite direction and his understanding is so limited this can become very difficult, he will have a tantrum or pull away strongly the other way.”

The tribunal found her evidence to be “clear, objective and credible” and that her son was severely mentally impaired within the meaning of that term in the legislation.

It went on to consider whether the claimant satisfied the “severe behavioural problems” test under regulation 12(6) of the Social Security (Disability Living Allowance) Regulations 1991 that provides:

“(6) A person falls within subsection (3)(b) of section 73 of the Act (severe behavioural problems) if he exhibits disruptive behaviour which -

(a) is extreme,
(b) regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property, and
(c) is so unpredictable that he requires another person to be present and watching over him whenever he is awake.”

The tribunal found that all three sub-conditions in regulation 12(6) were satisfied and made an award of higher rate mobility under to run alongside the existing award of the highest rate care component.

In doing, it set out the approach as follows:

“We have also taken the view that the severity of behavioural problems should, in their application to the Mobility Component, be that displayed and observed in the context of going out and about. It should not be ‘diluted’ by evidence of comparatively docile or compliant behaviour in a secure and structured indoor environment, whether school or home.”

The Secretary of State appealed to the Upper Tribunal on the sole ground of appeal was that the tribunal had misapplied regulation 12(6). In particular, it argued that there was no limitation as to the time when the behaviour occurs or the type of activity undertaken, and the tribunal had erred in law by disregarding the claimant’s behaviour at other times when not out and about.

In upholding the Secretary of State’s appeal, Judge Wikeley cites with approval R(DLA) 7/02 in which the Commissioner ruled as follows:

“... it seems to me that the requirement in Regs. 12(6)(b) and (c) that the claimant must need watching over, for the purpose of restraining potentially   disruptive behaviour, ‘whenever he is awake’ indicates that the watching over        must be required at home just as much as outside it, and must be required whether or not the claimant is ‘seeking to take advantage of the faculty of mobility.’ It is plainly not sufficient if the claimant only requires watching over when outside the home.

I accept that it may be difficult to see that reg. 12(6)      really falls within the scope of the rationale behind the other heads of entitlement to the mobility component (whether at the higher or lower rate). But that cannot justify giving Reg. 12(6) a meaning other than that which it plainly has.”

Judge Wikeley therefore directs that a new tribunal must have regard to the claimant’s behaviour both indoors and outdoors and,  as regulation 12(6(c) requires, the issue of unpredictability must be such that the presence of another watching over him must be “whenever he is awake” and so wherever he is awake.

In addition, Judge Wikeley gives the following detailed guidance on questions relating to regulation 12(6)(a)  that would almost certainly need to be addressed at any re-hearing.

What does “extreme” signify?

The Judge holds as Mr Commissioner Rowland observed in CDLA/2470/2006 that “extreme” behaviour is “of a type that regularly requires a substantial degree of intervention and physical restraint”. In other words, Judge Wikeley says:

… the behaviour must be extremely disruptive. Furthermore, the disruptive behaviour must result from the severe mental impairment: “insofar as such problems are primarily a manifestation of a claimant’s age rather than of such mental impairment, they are irrelevant to entitlement” (CSDLA/202/2007). This is ultimately a question of fact for the tribunal, involving “a large element of judgment” (CDLA/2167/2010).”

What does “regularly” mean?

Judge Wikeley holds that:

“The claimant’ extreme behaviour need not occur constantly, continuously or all the time. That would be to set the threshold for eligibility too high. Rather, it must be such that it “regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property”.

The word “regularly” is a protean one, so taking its meaning from its context. The Commissioner in CDLA/2470/2006 commented that “such a degree of intervention and restraint is likely to be required on a significant proportion of occasions when the claimant walks moderate distances outdoors”. I agree with that observation as far as it goes.

… As Mr Deputy Commissioner (now Judge) Warren noted in CDLA/17611/1996, the requirements of regulation 12(6) “fall to be answered in respect of the claimant’s condition generally and not with any special emphasis on behaviour when walking out of doors”.

However, I also agree with Judge Mark’s helpful formulation that “Interventions may be regular if they are frequent in one context but infrequent, or even rare, in another context provided that looked at overall there is a regular requirement to intervene and physically restrain the claimant” (CDLA/765/2010).”

What does “physically restrain” signify?

Judge Wikeley says that the nature of the intervention and physical restraint required to satisfy regulation 12(6)(c) will be fact and context specific:

“Obviously a strapping 16-year-old may require a considerably higher level of physical restraint than a slight 5-year-old. A firm grip on the arm of such a 5-year-old may well be sufficient to avert danger, whereas it may have no effect at all on a 16-year-old who may have the strength of an adult.”

What does “watching over” mean?

Judge Wikeley advises that:

“The new tribunal should bear in mind the guidance in the leading case of R(DLA) 9/02. As Mr Commissioner (now Judge) May noted there, the test is “specifically restrictive” and the carer must be both “present” and “watching over”:

… Since the oral hearing of this appeal, Judge Mark has issued his decision in CDLA/965/2012. Judge Mark held that “requires” in regulation 12(6)(c) means “reasonably requires” That seems to be uncontroversial. Judge Mark also expressed the view that if the carer is present close enough to hear what the claimant is doing and so to intervene if necessary, and is either looking in with sufficient regularity or (conceivably) observing the claimant on CCTV, then the fact that the claimant’s bedroom door is shut does not inevitably mean that the carer is not present and watching over the claimant whenever he is awake (at paragraphs 14 and 19). This is at the very least a significant gloss on the Commissioner’s ruling in R(DLA) 9/02, although Judge Mark sought support from the observations in CDLA/2167/2010.

… I simply make the following observation. It seems to me that there is some force in Judge Mark’s qualification. Obviously the statutory language must take its ordinary meaning from its context, in the absence of any indication to the contrary. ‘Watching’ means observing, being on the lookout, keeping someone or something in sight, or keeping vigil. However, ‘watching over’ may carry a slightly different nuance in meaning, of exercising protective care over someone or something. After all, regulation 12(6)(b) does say “watching over” and not “looking at”. It is arguable that the Commissioner in R(DLA) 9/02 may have elided the meanings of ‘watching over’ and ‘watching’ (see e.g. at paragraph 12). That is not to say that the meaning of “watching over” can be stretched like a piece of elastic, not least as it is coupled with the restrictive requirement that the carer be “present”. That, of course, is ultimately a question of fact for the first instance tribunal.”

What is the significance of a ‘structured environment’?

After considering divergent earlier case law, Judge Wikeley says:

“In my view an undue focus on labels such as ‘structured regimes’ or ‘structured environments’ runs the risk of losing sight of the plain statutory language. It also obscures the need for the tribunal’s careful fact-finding. In practice there is a diverse range of ‘structured environments’ in both mainstream and special needs schools. What the tribunal must do in applying regulation 12(6)(c) is to start by establishing the predictability or otherwise of the extreme disruptive behaviour. At one extreme, is it solely triggered by readily identifiable factors (e.g. traffic, sudden noise or being denied access to a particular activity)? If so, it may be predictable. Or, at the other extreme, is the behaviour typically random, such that, as it was put in CDLA/2470/2006, the carers are “in a permanent state of apprehension as to what he will do whenever he is out of sight” (at paragraph 11). If so, it may be unpredictable. This will then require consideration of both what happens and what is reasonably required on a regular basis, and whether that amounts to requiring “another person to be present and watching over him whenever he is awake.” Thus the nature, degree and intensity of the supervision involved all need to be examined.

It may be significant that on the facts of R(DLA) 7/02 the child in question attended a specialist autistic unit attached to a mainstream school. It may well be that on those facts it was always going to be difficult to meet the necessary statutory criteria. However, for the most severely disabled and vulnerable young people in some special needs schools, I would not agree with the observation in R(DLA) 7/02 that regulation 12(6)(c) is not satisfied if “the structured regime of the school is of itself sufficient to prevent the claimant becoming disruptive” (at paragraph 15). It all depends on the nature of the type of supervision that is reasonably required. “

CDLA/2710/2011 [2012] UKUT 254 (AAC): Inadequate reasons given for finding claimants evidence to be exaggerated / failure to address supportive ESA report evidence

Judge Wikeley
5 July 2012

The claimant , who suffered from degenerative disc disease and depression, appealed against a decision to refuse her either component of DLA. While a tribunal did award her the lowest rate of the care component she appealed further to the Upper Tribunal

Mobility

Upper Tribunal Judge Wikeley explains that the tribunal stated in its reasons statement that the appellant was not “virtually unable to walk” although it could not actually assess how far the appellant could walk “because we found ourselves unable to rely upon the evidence of the Appellant as we formed the impression at the oral hearing that she was exaggerating her disabilities”.

The reasons given by the tribunal for its findings were that -

  • in her DLA claim pack the appellant had stated that she could only walk 50 metres in two minutes, but at the hearing she said that she had “guessed the distance”;
  • a health care professional (HCP)in an ESA medical report had selected descriptor 1d (“cannot walk more than 100 metres on level ground without stopping or severe discomfort”) and not descriptor 1b (“cannot walk more than 50 metres ...”); and
  • the GP factual report simply stated “pain walking and sitting”, without reference to any distance (likewise her consultants’ letters).

While Judge Wikeley says that it is “entirely right” that assessments of credibility are for the tribunal, he says that nevertheless “the evidence must be considered in the round and adequate reasons given”. 

With respect to the issue of the claimant “guessing distance” he says that -

“The simple fact that the appellant had put “50 metres” on her claim form and had told the tribunal she had “guessed” that figure is hardly evidence that either she was not virtually unable to walk or that she had exaggerated her symptoms.  Not all claimants will go out with a surveyor’s tape measure or ask a family member or friend to pace the distance they can walk.  Moreover, many people, as a matter of ordinary speech, when they say they “guessed the distance” actually mean that they estimated the distance as best they could, not that they simply thought up some random figure, doubling the figure they first thought of.”

Secondly, Judge Wikeley holds that referring to the ESA walking descriptor selected by the HCP, does not necessarily support the finding that the appellant was not virtually unable to walk or of exaggeration on her part -

“Obviously considerable care must be taken when using a report prepared for one benefit (ESA) for the purposes of another benefit (DLA).  In particular, the first tier tribunal appears to have overlooked the fact that the difference between walking descriptors 1b and 1d is not simply one of distance.  Descriptor 1b refers to “cannot walk more than 50 metres on level ground without repeatedly stopping or severe discomfort”, whereas descriptor 1d simply states “cannot walk more than 100 metres on level ground without stopping or severe discomfort”.  One possibility is that the HCP thought that the appellant could manage to walk 50 metres with one stop – in which case she would qualify for descriptor 1d but not the more demanding 1b. 

There is, moreover, no suggestion at all that the HCP thought that the appellant was exaggerating; she found muscle wasting and recorded that the appellant “walked 25 metres, slowly, to the examination room and I found this consistent”.  The HCP also recorded the appellant’s account that she could walk for 3 minutes at a slow pace - which, if the appellant’s estimate on the claim pack of her speed was accurate, might suggest a distance of around 75 metres, which might well make a claim for higher rate mobility borderline.”

Thirdly, referring to the lack of any distance mentioned in the GP factual report and the consultant’s reports, only goes so far the Judge maintains -

“Those doctors were concerned with the appellant’s diagnosis and treatment; they were not making a specific assessment of functional ability and were not asked a direct question about the distance she could manage.  Whilst that medical evidence may not take the appellant’s case any further forward as regards the distance she could walk, it certainly does not provide evidence of exaggeration by her.”

Care

The reasons given by the tribunal for its decision that the appellant was entitled to the lowest rate care component were that her -

  • evidence was that she needed help to wash her hair, dressing and getting in and out of the bath, and could not peel or chop vegetables; and
  • GP had noted “pain when using arms and difficulty writing”.

Judge Wikeley highlights two potential difficulties with this explanation -

  • the appellant might be forgiven for asking why the first tier tribunal felt that she was exaggerating her difficulties with walking when they apparently had no difficulty in accepting her evidence on care; and 
  • it may be arguable that the tribunal did not find sufficient facts or give adequate reasons for explaining why their conclusion was that she was entitled to the lowest but not to the middle rate care component.

However, he holds that there was a more fundamental difficulty with the tribunal’s approach.

The only reference the tribunal made to the ESA report was in the context of the question of higher rate mobility.

This, the Judge holds, poses two difficulties -

“First, the ESA report - whilst accepting it was prepared for a different purpose - was the closest the first tier tribunal had to comprehensive and contemporaneous medical evidence.  The date of decision was 1 July 2010 and the date of the HCP’s report was 19 August 2010. Although prepared some six weeks after the date of the decision, there was no serious suggestion in the papers that there was any significant difference in the appellant’s condition as at those two dates.  As the appellant’s solicitor observed in the written submission to the first tier tribunal, such reports are “routinely proffered as evidence by the DWP and used to argue against entitlement [in DLA appeals]”.

Second, the ESA report found the following descriptors to apply, in addition to the walking descriptor previously mentioned: standing and sitting descriptor 2e (“cannot stand for more than 30 minutes...”); bending or kneeling descriptor 3c (“cannot bend, kneel or squat... without the help of another person”); reaching descriptor 4d (“cannot raise either arm above head height...”).  The total ESA score was thus 24 points.  All this at least suggested that the appellant’s care needs might exceed those identified by the first tier tribunal …”

The Judge therefore sets aside the tribunal’s decision and remits the appeal for rehearing and concludes that -

“The first tier tribunal’s decision on the care component was thus in error of law by reason of inadequate reasoning, in that it failed to address the supportive (not necessarily conclusive, but certainly supportive) evidence in the contemporaneous HCP report prepared for the Department.”

CDLA/3162/2011 [2012] UKUT 312 (AAC): Whether chronic diarrhoea might make someone “virtually unable to walk”

Tribunal Judge Lane

In this decision, Judge Lane usefully reviews the case law relevant to the issue of chronic diarrhoea and the higher rate of the mobility component.

A tribunal confirmed the decision award of the highest rate of the care component and the lower rate of the mobility component for the appellant’s daughter ‘M’ (a child who was 8 years old at the date of claim).

He then appealed to the Upper Tribunal arguing an award should have been made of the higher rate of the mobility component. This was on the grounds that his daughter was virtually unable to walk through ulcerative colitis which caused her to have chronic diarrhoea.

Judge Lane explains that the tribunal dealt with the higher rate of the mobility component by finding that though very restricted by chronic diarrhoea, the child did “not have a physical disability which renders her virtually unable to walk”,

This she says, was based on the sparse findings that her family felt very restricted in their daily lives were not accessing the things they would like to do for fear of unpleasantness of M not reaching a toilet in time.

After extensively reviewing relevant DLA case law on this issue, Judge Lane sets aside the tribunal’s decision and remits the appeal for rehearing, saying -

“Could M’s diarrhoea have affected her putting one foot in front of the other, in other words, could it affect her physical act of walking? I have come to the conclusion… that diarrhoea is capable of affecting the physical act of walking and might therefore make a person virtually unable to walk. The physical pain of preventing herself from soiling herself might stop her from walking, as might the added pain and soreness associated with faeces running down her legs." 

As a result she holds that -

“The Tribunal’s decision was, accordingly wrong in law in finding that ulcerative colitis did not indicate a physical problem with walking itself.  The condition could comprise a condition capable of interfering with the act of walking.  The decision must accordingly be set aside for that reason alone.”

Judge Lane then outlines that a new tribunal -

“… will have to decide whether any, or any combination, of M’s physical symptoms affected her physical act of walking, and if they did, the frequency with which this was likely to happen and the likelihood that this condition would affect the M over the very short distances envisaged by the concept of being virtually unable to walk.”

She concludes by giving detailed guidance as to how the evidence available from the child’s parents, consultant and clinical psychologist must be considered. 

What needs to be borne in mind she reiterates, is the very short distances involved in the concept of being virtually unable to walk must also be borne in mind not any need M might have private public transport. 

CDLA/100/2012 [2012] UKUT 355 (AAC): Evidence by child - need for tribunal to consider R(DLA) 3/06 and Senior President's Practice Direction

Judge Wikeley
24 September 2012

The claimant was aged 14 and suffered from chronic fatigue syndrome/ME. 

Her appeal against a decision to refuse her DLA was dismissed. and it was plain from the tribunal’s statement of reasons that she was extensively questioned in the course of the hearing about what she could and could not do.

Her mother then appealed to the Upper Tribunal on the grounds that the conduct and questioning of the tribunal was misleading as -

  • her daughter was only just 14 and “didn’t get things right or say when they had happened”; and
  • that when she herself tried to correct this she was asked not to talk.

Her mother further submitted that the tribunal should have been asking her questions as her daughter was a minor who “tries her utmost to look on the bright side as any young girl would” adding that -

“She doesn’t think about her ME all the time as she has lived with the pains, dizziness, feeling sick, fainting and headaches for nearly two years now.”

In setting aside the tribunal’s decision Judge Wikeley highlights the detailed guidance given in the Tribunal of Commissioner’s decision R(DLA) 3/06.

This includes that while a tribunal should have proper regard to the wishes of a child of sufficiently mature years and understanding who wishes to give evidence in a DLA claim made on their behalf it -

“… should be very cautious before requiring any child to give evidence, and should only call for a child to give evidence if it is satisfied that a just decision cannot otherwise be made.

Before reaching such a conclusion, the tribunal should consider first all the other available evidence, and then ask itself whether any necessary additional evidence can be obtained from another source, for example, a health visitor, social worker, teacher, family member or friend, to avoid the need for the child to be called at all.”

Judge Wikeley also highlights the Practice Direction issued by the Senior President of Tribunals Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses that instructs that -

“A child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so. “

In therefore remitting the claimant’s appeal for rehearing Judge Wikeley directs that in deciding what evidence to hear the new tribunal should bear in mind the guidance contained in both in R(DLA) 3/06 and in the Senior President of Tribunals’ Practice Direction.

CDLA/107/2012 [2012] UKUT 330 (AAC): Need for tribunal to identify ground to supersede an existing DLA component award

Judge Bano
5 September 2012

The claimant was a woman with arthritis, peripheral artery disease and depression who was in receipt of an indefinite award of higher rate mobility component and lowest rate care component of DLA.

Following a heart bypass operation, she applied for her DLA award to be superseded, stating that there had been no change with regard to her mobility needs, but that her care needs had increased as a result of the operation.

She appealed the decision maintaining her existing award.

While a First Tier Tribunal continued to award her the lowest rate care component on the basis of the ‘cooking test’ it decided to remove the award of highest rate mobility component as it -

“… did not consider that there was reliable evidence on the balance of probability on which to make findings of fact that the Appellant was virtually unable to walk.  The Tribunal considered that such a finding would be inconsistent with the Surgeon recommending walking exercise and inconsistent [with] the appellant going shopping in Asda.”

In setting aside the tribunal’s decision and remitting the appeal for rehearing, Judge Bano holds that it was apparent that in relation to higher rate mobility component the tribunal addressed itself solely to the question of whether the appellant satisfied the conditions of entitlement. 

As the claimant had an existing award, he highlights that this approach “overlooked the fundamental requirement that the award of higher rate mobility component could be removed only if the tribunal was satisfied of the existence of a valid supersession ground”.

He continues -

“As the Tribunal of Commissioners explained in paragraph 91 of R(IB) 2/04, if a tribunal takes the view that an existing award does not appear to be justified, it can then consider  whether the award should be superseded.  The findings of fact on which any supersession decision is based may need to be spelt out in some detail in view of the requirement in paragraph 10(4) of R(IB) 2/04 that the supersession ground must form the basis of the supersession, in the sense that the original decision can only be altered in a way which follows from that ground. 

In the absence of any other explanation, the failure of the tribunal in this case to deal with the supersession issue also leaves it unclear why they decided to exercise their discretion under section 12(8)(a) of the Social Security Act 1998 to consider an issue that was not raised by the appeal.”

In addition, he highlights -

“… that the tribunal failed to make the findings of fact needed in order to decide whether the claimant satisfied the conditions of entitlement to higher rate mobility component. 

Whether a person is virtually unable to walk is not a fact, but a statutory test of entitlement.  In order to decide that question, the tribunal needed to make specific findings of fact on the claimant’s distance, speed, duration and manner of walking without severe discomfort.  Their failure to do so means that the appeal must be allowed on this ground also.”

CDLA/965/2012 [2012] UKUT 387 (AAC): Severe mental impairment for the purposes of the higher rate of the mobility component

Judge Mark
12 October 2012

The claimant, who was born in 2001, was autistic and suffered from ADHD. She had been awarded the highest rate of the care component and the lower rate of the mobility component. 

The issue before the tribunal was whether due to severe mental impairment she was entitled to the higher rate of the mobility component under section 73(3) of the Social Security Contributions and Benefits Act 1992 and regulations 12(5) and (6) of the Social Security (Disability Living Allowance) Regulations 1991.

To be entitled to higher rate mobility component on the basis of severe mental impairment, you must pass the following tests -

  • you must be entitled to highest rate care component; and
  • you suffer from “a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning”; and
  • you “exhibit disruptive behaviour” that “is extreme”; and
  • you “regularly require[s] another person to intervene and physically restrain [you] to prevent [you] causing physical injury to [yourself] or another, or damage to property”; and
  • your behaviour “is so unpredictable that [you require] another person to be present and watching over [you] whenever [you are] awake”.

While the tribunal accepted that the claimant displayed behavioural problems, they found that they were not severe within the meaning of the above legislation.

This was because it reasoned that the claimant could be left alone at some times during the day when she was awake.  The evidence as to this was that there was a sensory room in the claimant’s bedroom in the house in which she lived with her grandparents.  There was a bubble tube to help calm her down and a padded area, with padding on the floor and walls.  The claimant was left alone in her bedroom whilst her grandparents were either downstairs or in another bedroom within earshot.  Her grandmother spent most of her evenings in one bedroom while the claimant was in another.

In seeking permission to appeal, it was contended on behalf of the claimant that the periods when her bedroom door was closed were so short that they could be considered as ‘de minimis’ (minimal). 

It is also contended that the layout of the house was such that the grandparents remained able to supervise the claimant and monitor her activities closely when she was in the bedroom as they could hear what she was doing.

After reviewing relevant caselaw in detail, Upper Tribunal Judge Mark states that -

“In my judgment, the wording of regulation 12(6)(c) is clear to the extent that it must be shown that the disruptive behaviour of the claimant must be “so unpredictable that he requires another person to be present and watching over him whenever he is awake”. 

However, it appears to me that, as in the provisions of section 72 of the Social Security and Benefits Act 1992, “requires” means reasonably requires.  What the claimant reasonably requires may be more or less than he or she gets.  To take an extreme example, a claimant who is kept in a straight jacket, or who is administered large quantities of an inappropriate sedative while awake in the evening, may as a result not require in the evening another person to be present and watching over them because of unpredictable disruptive behaviour.  That would not normally be an appropriate way of treating that claimant, although it may on occasions be needed if a carer was not available.  So too, although a claimant may be very disruptive and in other respects fall within regulation 12(6)(c), there may be nobody available for part of the day to be present and watch over him or her.” 

In CDLA/2470/2006, it could be that the parents of the claimant had no option, because for example of other demands from other children, but to take a chance and leave the claimant at times with nobody present and watching over him, even though as a result they were in a permanent state of apprehension.  In such a case the claimant would still require to have somebody present and watching over him, but there was simply nobody available to do it.”

Judge Mark concludes by setting aside the tribunal’s decision and substituting his own decision that the claimant was entitled to the higher rate of the mobility component.

CDLA/1104/2012 [2012] UKUT 356 (AAC): Claimant who does not wish to receive care may still be entitled to a care award

Judge Jacobs
26 September 2012

In his DLA claim pack, the claimant (Mr. K) had indicated problems with mobility, care and cooking a meal.

However, Mr K told the tribunal hearing his appeal against the decision to refuse him benefit that he did not want any “help at home” and that his main concern was his lack of mobility.

In dismissing his appeal, the tribunal explained that:

“As indicated by the appellant at the hearing, he did not wish to consider eligibility for the care component of the benefit.”

In setting the tribunal’s decision aside, Judge Jacobs outlines that the need for attention or supervision is a condition of entitlement to a care component award not the need for a claimant to be willing to receive attention or supervision:

“The award that is made does not provide the claimant with the care required. It provides a sum of money. The award is not conditional on that money being used towards the care needs that led to the award. A claimant is free to save it or to spend it, and has free of choice on how it is spent.

Mr K’s comments to the tribunal show that he misunderstood the distinction between the conditions for an award and the nature of the award.”

In relation to the issue of whether the tribunal was under a duty to disabuse Mr K or disregard his wishes, Judge Jacobs holds that:

" The tribunal should always consider how it can best help a claimant who is not represented. This help may manifest itself in the way that the tribunal questions a claimant. It may appear in the way that the tribunal exercises its powers, such as the power to consider issues not raised by the appeal. In this case, it should have been evident to the tribunal that Mr K had misunderstood. It should have explained the law to Mr K so that he was able to make an informed decision whether he wanted the tribunal to consider the care component. And the tribunal should have ensured that he understood that his concern did not, in any event, affect the cooked main meal test. In this way, the tribunal would… have used its special expertise effectively so that Mr K could participate fully in the proceedings.”

CDLA/1503/2012 [2012] UKUT 291 (AAC): Whether interpretation a fair reflection of appellant’s evidence

Judge Williams
26 July 2012

In this case, Upper Tribunal Judge Williams holds that the inaccuracy of interpretation at a First Tier Tribunal appeal hearing can be a ground of appeal to the Upper Tribunal.

In doing so he makes the following remarks -

“There are bound to be some cases where interpretation of critical aspects of evidence can cause problems such that the tribunal does not have a full and fair view of the evidence actually given by an appellant.

And there will be a few cases where this only emerges when the appellants and representatives have seen the record of proceedings and statement of reasons of tribunals for decisions. Where the issue only emerges at that stage, as here, then the issue is properly one to form a ground of appeal.

Here there are specific and careful points made for the appellant about the adequacy of the interpretation. I have no idea (nor probably had the First-tier Tribunal) of the specific qualifications of the interpreter or the interpreter’s knowledge of the specific dialect spoken by the appellant.

It is always, for example, a relevant question whether the interpreter was interpreting into English or from English. And in many cases regional and local dialect is important. A First-tier Tribunal cannot in my view be expected to check all those issues, so some may emerge only when the full record of proceedings and statement of reasons are available, as here.”

CDLA/2499/2011 [2012] UKUT 337 (AAC): Award of carer's allowance not inconsistent with award of DLA care component

Judge Wikeley
10 September 2012

The claimant suffered from generalised osteoarthritis and received the lower care and lower mobility components of DLA.

Following her request for a supersession of her award due the deterioration of her condition a decision was made instead to remove her DLA entitlement altogether.

Following a First Tier Tribunal upholding this decision she appealed to the Upper Tribunal.

 Among the claimant’s grounds for appeal was that the tribunal had erred in finding that the fact that the she claimed carer’s allowance in respect of her disabled husband was inconsistent with her claims as to the nature and extent of her own disability.

Upper Tribunal Judge Wikeley upholds the claimant’s appeal and remits it for rehearing.

In doing so he stresses that an award of carer’s allowance is not in itself inconsistent with an award of DLA being made to the person who is herself providing the care.

However, he also says that findings needed to be made to establish the type of care provided by the claimant to her husband and the activities involved

In this case, he holds that tribunal seems to have operated on the basis of two quite erroneous assumptions -

“The first was the assumption that, because the appellant had an award of carer’s allowance, she therefore could not qualify for DLA. This was an erroneous assumption as to the law.

The second was an assumption, without any questioning, that the appellant was providing hands-on physical assistance to her husband (who it appears was waiting for a kidney transplant). This was an erroneous assumption as to the facts… [as] there was evidence before the First Tier Tribunal that it was actually the appellant’s adult daughter who was providing most of the care. Furthermore, and in any event, the concept of “caring” is not specifically defined in the context of carer’s allowance, but is generally understood to include e.g. supervision as well as active assistance (see e.g. Commissioners’ decisions CG/006/1990 and CG/012/1991).”

CDLA/2030/2012 [2012] UKUT 465 (AAC): Tribunal’s duty to explain to claimant if it is considering reducing DLA award

Judge D. Williams
13 December 2012

The claimant had a serious road traffic accident in 1993 which left him with long term disablement. He was awarded the lower rate of the mobility component and highest rate of the care component in 2004 on an indefinite basis. This was superseded from June 2010 by a decision awarding only the lowest rate of the care component.

Having heard the appeal against the reduction, the tribunal went further and stopped the award of the lowest rate of the care component.

However, Judge Williams finds that there was nothing in the tribunal’s record to indicate that either the claimant or the Department’s presenting officer party was made aware that the tribunal had this in mind and gave proper, if any, notice of its intentions. I say “both parties” because the Secretary of State was represented. He adds:

“In particular, there is nothing in the record of proceedings to indicate that the tribunal expressed concern to the presenting officer, or asked for an explanation, about why the Secretary of State kept the lowest rate of the care component award in place.

This is relevant as the Secretary of State had confirmed the view that the lowest rate of the care component should remain in place in an additional submission to the tribunal made after new medical evidence had been received by the tribunal. The evidence included contemporary medical evidence that one of the appellant’s arms was “functionally useless”.

He concludes by upholding the claimant’s appeal holding that:

“This is clearly a case where the tribunal should have explained to both parties that it was considering reducing the appellant’s award further. In particular, as the appellant was unrepresented at the hearing, the tribunal should have explained to the appellant the consequences to him of the appeal going ahead if it had that in mind. Given that both parties were present, the tribunal should have given an opportunity for them to discuss the issue before the appeal went ahead or for the appellant to reflect on whether he should withdraw the appeal or should ask for an adjournment. There is no indication in the record of proceedings or the statement of reasons that the tribunal did any of this beyond the cryptic phrase “all to be looked at again”.

There is a fundamental issue of fairness here. An appellant should not be “ambushed” at a hearing with a new issue by the other party or by the tribunal. The parties were entitled to know that the tribunal was considering the removal of benefit that was not in dispute between them so that they could make submissions and give evidence on the matter. That may require an adjournment so that further evidence can be obtained or advice given by an absent representative. Or it may suggest a timely withdrawal of the appeal by the appellant. As is often the case, this appellant was represented but the representative was not present.”

Employment and support allowance

CE/618/2011 [2012] UKUT 201 (AAC): Meaning of "in-patient" / recovery from in-patient treatment

Judge Williams
12 June 2012

This appeal is about the meaning of “in-patient” in regulation 25 of the Employment and Support Allowance Regulations 2008 (the Regulations). There is no definition of the term in the Regulations or in the empowering legislation.

Regulation 25 provides for hospital inpatients and those recovering from hospital inpatient treatment to be treated as having limited capability for work.

Judge Williams holds that there are two tests used for identifying who is receiving hospital treatment as an “in-patient”:

  1. was the individual admitted to hospital?
  2. did the individual occupy a bed at the hospital?

He adds that -

“In practice, the two tests will often be two ways of looking at the same thing, one being the administrative process while the other reflects the kind of treatment given. Neither requires any specific time period nor any need for the admission or occupation to be for a minimum period involving “overnight” (which is itself problematical because, for example, it   can be meaningless for accident and emergency admissions).

… There is in my view no basis for reading into the regulations a rule requiring a minimum 24 hour admission, so “day-patients” are not excluded by the regulation. But it does not follow that they are all included. It depends why they are at the hospital. “

Turning to the appellant’s case, Judge Williams holds that the factual issues were whether he –

“… was admitted to hospital or attended (whether he was described as a day-patient or an out-patient) without admission; and whether the treatment on his knee required more than transient occupation of a bed (for example, for the performance of the operation and if general anaesthetic was administered for recovery before discharge).

If he was both admitted and was given a bed to occupy for a period then he was in my view an in-patient for the purposes of regulation 25. If he was not admitted and was not given a bed for any period, then he was not.

More generally, there will inevitably be borderline cases where, for example, it was expected that there would only be a short stay but complications caused it to be extended, or where an overnight stay was expected but did not happen, or where a bed was occupied but no one got round to admitting the patient.

In practice, the question of importance is whether any subsequent day is needed as a day of recovery from the treatment. That may depend on the kind of anaesthetic or other drugs used as well as the short term effect of any surgical intervention or other treatment.”

CE/725/2011 [2012] UKUT 25 (AAC): Whether tribunal gave adequate reasons for its decision

Judge Paines
20 January 2012

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

He then appealed on the grounds that the tribunal’s statement of reasons gave inadequate reasons for preferring the evidence of the examining doctor to that of his GP with regards the descriptor activities of walking, sitting and coping with social situations.

In considering the appeal, Judge Paines usefully outlines what a tribunal must show in its statement of reasons -

“As a matter of first principle, a tribunal deciding an appeal are legally required to apply all the relevant substantive law, interpreting it correctly.  They are also obliged to give an adequate statement of their reasons for their decision.  A statement of reasons is adequate if it tells the reader why the tribunal reached the conclusions they did, in sufficient detail to show whether they applied the law correctly or not.

The duty to apply the relevant law carries with it a duty to make findings of fact sufficient to enable them to decide which descriptors are met and which are not.  If a tribunal were to overlook an activity in the work capability assessment, they would not have applied the law correctly.  But, provided the reader can understand (a) why the tribunal awarded no points, or why they awarded the points they did, for each of the activities and (b) whether they applied the law correctly in doing so, the requirement of an adequate statement of reasons is satisfied.

Thus, for example, it may, according to the circumstances of the case, be an adequate statement of reasons for a tribunal to deal with all the mental functions in the assessment by saying that there was nothing to indicate a mental disability, or to explain why a claimant scored no points in respect of several of the physical activities by saying that his or her disablement only affected (say) manual dexterity.  If it is apparent from the statement of reasons that there has been nothing to suggest that a particular activity is affected by a claimant’s condition, the reader will understand why the tribunal did not consider it without their needing to refer to it.

If a particular descriptor has been put in issue by or on behalf of a claimant, the statement of reasons must enable the reader to understand why the tribunal disagreed (if they did).  But the law does not either mandate or outlaw any particular forms of explanation, provided they do not betray a misunderstanding of the substantive law or a failure by the tribunal to apply their mind to the issue.  Tribunals must not, for example, proceed on the basis that examining doctors working on behalf of the DWP are always more reliable than a claimant’s GP, or vice versa.”

In dismissing the claimant’s appeal, Judge Paines concludes that the tribunal’s statement of reasons in this case meets the required
standard of adequacy.

CE/758/2011 [2012] UKUT 60 (AAC): Tribunal hearing ESA appeal after having heard and dismissed IB appeal: adjournment request

Judge Williams
16 February 2012

The tribunal had heard and disallowed an incapacity benefit (IB) appeal immediately before hearing the claimant’s ESA appeal.

The claimant’s representative then applied for an adjournment on the ground that the tribunal had formed a view about the appellant and his credibility that would compromise a fair hearing of the later appeal.

The tribunal judge heard the application and rejected it, without consulting the medical member.

In upholding the claimant’s appeal and setting the tribunal’s decision aside Upper Tribunal Judge Williams finds that the tribunal erred as -

  • it changed its constitution twice by reconstituting itself as a single member tribunal and then reconstituting itself again as a two member tribunal but failed to make any proper record of the decision made while the tribunal was comprised of a judge alone or of the double reconstitution; and
  • it failed fairly to consider the views of the medical member of both the IB         appeal and the ESA appeal about the decision to adjourn the ESA appeal so failing fairly to deal with any question of prejudice to the appellant in both appeals being heard consecutively by the same tribunal, the point having been put expressly to the two member tribunal.

Judge Williams concludes by pointing out a procedural danger with the approach the tribunal had taken -

“The tribunal clearly relied on its decision in the IB appeal when making its decision in the ESA appeal. In its statement of reasons for its decision in the ESA appeal it states … that it did not propose to repeat the findings of fact in relation to the appellant’s physical or functional capability at the date of his IB appeal, although it relied on those findings.

That approach runs the danger of making the statement of reasons for the decision on the ESA appeal inadequate unless both a statement of reasons was made for the earlier appeal and it is appended to, or made available with, the statement of reasons for the ESA appeal. It also creates administrative problems.”

CE/1073/2011 [2012] UKUT 76 (AAC): Adequacy of Statement of Reasons

Judge Lane
14 February 2012

The claimant had appealed against the tribunal’s decision at a paper hearing that she did not have a limited capability for work.

In upholding her appeal, Upper Tribunal Judge Lane sets aside the tribunal’s decision on the grounds that “it is riddled with errors”.

One of the objections the claimant had raised was the tribunal’s failure to engage with her criticisms of the medical examination she attended.

Although Judge Lane considers most of her complaints about the to be immaterial she says that the remainder of the points the claimant made involved issues of whether she actually did, for example, bend down at the examination, or walk with her husband as recorded by the Atos Healthcare Professional (AHCP). 

Judge Lane holds that while the tribunal was obliged to decide whether it preferred to accept what the AHCP recorded or what the appellant said in her appeal papers “it could not simply ignore the issues”.

Turning to the issue of the claimant’s medical evidence, Judge Lane explains that before the hearing, the claimant supplied a consultant’s report dated 26 August 2010 which post-dated the Secretary of State’s decision by 5 months. 

However, she highlights that -

“The tribunal did not mention this evidence at all.  It did say, in respect of nothing in particular, that it could not take into account any changes of circumstance after the date of the Secretary of State’s decision.  That is, of course, correct: Social Security Act 1998, section 12(8).  However, it can and must take into account evidence which, although of a later date than the decision, casts light on the circumstances as they stood at that time.  It is impossible to tell whether the tribunal thought that the consultant’s report did not tell it anything about the circumstances as they stood at the relevant time, or whether it simply overlooked its existence.

Having regard to the contents of that report, it might have been open to the tribunal to decide that it did not assist it in deciding whether the appellant’s functional limitations fell within the descriptors, whether or not her condition had changed. But it did not take this course.” 

Finally, Judge Lane turns to the way the tribunal dealt with the claimant’s manual dexterity. 

She outlines that the tribunal found that the claimant could wash, dress, cook meals, deal with correspondence, wash dishes and do the laundry and light housework and therefore did not meet any of the descriptors in relation to manual dexterity. 

However, Judge Lane finds that –

“It is the ‘therefore’ that is problematic. The listed items do not equate directly to the descriptors laid down by law, and the tribunal did not make findings on whether, as one example only, the appellant did her correspondence with pen and paper or on a personal computer, thereby showing that one or two descriptors were potentially eliminated.  What the tribunal may have meant is that, given that the appellant could do all of the things it listed, it found that she must also be able to accomplish the specific tasks set out in the descriptors which involve similar capabilities.  But I see no reason why I should make this assumption, having regard to the numerous inadequacies I have already identified.”

CE/1295/2011 [2012] UKUT 255 (AAC): Assessment of mental health descriptors / importance of considering evidence of part time work in context

Tribunal Judge Ward
12 July 2012

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

In giving his decision, Upper Tribunal Judge Ward highlights that -

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

He then outlines that while the claimant was still receiving medication to treat his depression he had started work in a cafe prior to the date of the tribunal hearing.

The tribunal had concluded that in view of his ability to sustain such employment the claimant “was able to lead a normal active life”.

While Judge Ward agrees that the ability to hold down a job after the date of decision could be evidence of circumstances obtaining at the date of decision - March 2010 - the tribunal had “merely found that the claimant had been able to visit the café (by implication around the date of decision), had begun to work there by July 2010 and at the date of hearing was working there full-time”. 

He then adds that there were several findings of fact that the tribunal should have made including that -

  • the job was part time at 15 hours per week;
  • the place where he worked was a privately owned cafe run by a little team “like a family”;
  • he had been a customer of the cafe since it opened; 
  • when he started work in July 2010 his boss had said “let’s start slowly and see if you can cope”; and
  • in the early days there were misunderstandings with colleagues and customers and “the claimant took things too personally”. 

In setting aside the tribunal’s decision, Judge Ward says -

“The task for the tribunal was to decide how the claimant had been in late March 2010.  Far from suggesting that he was able then to lead a normal active life the evidence about the café suggests that even a little over three months later familiarity with the place and people was important; even then, people who knew him from his being a visitor were unpersuaded that he could cope; that he had been able to get started in an environment where he had first been able to try out the work by helping out; that he only worked part-time; that even then, there were difficulties…

In my view, had the tribunal asked the right questions and made the necessary findings, it would have recognised that the claimant was fortunate enough to have been offered work which, although real enough, was therapeutic for him, carried out as it was in an environment where the kindness and solidarity of others created a supportive environment in which he could move forward. 

It did not mean that at the date of decision he was free of disability resulting from his mental ill-health.  Nor can it be inferred from the many things which the claimant was able to do that he did not experience scoring limitations on any of the mental health descriptors.  It follows that the tribunal’s failure to adopt an inquisitorial approach and to make the necessary further findings was material and an error of law.”

Judge Ward concludes by examining the information given by the claimant about his mental health on his ESA50.

In doing so, he finds that at the time of the decision the claimant did meet the threshold of limited capability for work and awards him a total of 21 points under the coping with change; propriety of behaviour; and dealing with other people descriptors.

CE/1757/2011 [2012] UKUT 225 (AAC): Use of alcohol and “substantial risk” if found not to have a limited capability for work

Judge Levenson
27 June 2012

The claimant suffered from mental health problems and alcohol abuse and had appealed to the Upper Tribunal on a First Tier Tribunal finding that he did not have a limited capability for work.

Judge Levenson agrees in principle with the Secretary of State that needing the use of alcohol to visit new places or engage in social contact can be compared with the use of self-hypnosis or relaxation techniques or anti-anxiety medication.

However, he does state that it is matter of degree –

“A small glass of beer or lager before going out might be one thing, half a bottle of vodka would be something else.”

In the latter kind of case, Judge Levenson holds that Regualtion 29(2)(b) of the Employment Support Allowance would be brought into play -

“…the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”

Judge Levenson outlines that the First Tier Tribunal considered this in the context of the claimant’s attempts at self-harm. In respect of alcohol it stated that “the alcohol problem would not be a risk because on the evidence of the appellant he can function with the amount he consumes for example before he goes out”.

However, in upholding the claimant’s appeal and remitting it for rehearing Judge Levenson says that -

“It seems to me that if a claimant has to drink significant amounts of alcohol before going out, even to the pub, and 3 ½ cans of alcohol before facing the First Tier Tribunal then it is incumbent on the First Tier Tribunal to consider whether and how much alcohol he might need to drink before going to work, on the way to work, and while at work, in order to actually work.

Significant amounts on a daily basis might well pose a substantial risk to his own health and also (depending on the nature of the work) to the health of others. The First Tier Tribunal was in error in not giving proper consideration to this issue. The new panel must do this.”

CE/2045/2011 [2012] UKUT 70 (AAC): Rising from sitting and transferring from one seated position to another

Judge Wikeley
9 February 2012

The claimant had appealed against the tribunal’s decision that while she had a limited capability for work she did not meet the stricter conditions for the support group.

Upholding the claimant’s appeal, Upper Tribunal Judge Wikeley concludes that the claimant met both of the criteria for the “Rising from sitting and transferring from one seated position to another” function in Schedule 3 to the Employment and Support Regulations 2008 -

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

The second condition ((b)) is that you could not “move between one seated position and another seated position located next to one another without receiving physical assistance from someone else”.  This conclusion is supported by your own statement on the questionnaire … and by the examining doctor’s findings of severe arthritis in both knees and severe disability due to impairment in both hips and knees (page 37), along with findings of loss of function due to pain and stiffness in the arms and severe arthritis in the right wrist …

I disregard the examining doctor’s view that you should be able to rise and transfer yourself independently … on the basis that it is simply inconsistent with the weight of the evidence.

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

Note - Judge Wikeley highlights that examining doctor’s evidence did not relate directly to the relevant test under Schedule 3. This is because the doctor referred to moving from sitting on a bed to sitting on a chair, while the legal test appears to be about moving from a seat to another seat.  It may be possible to manage the former reasons the Judge, but not the latter.

CE/2120/2011 [2012] UKUT 98 (AAC): Tribunal’s improper use of the ‘slip of the pen’ rule

Judge Jacobs
23 March 2012

Following a tribunal dismissing her appeal against the decision that she did not have a limited capability for work the claimant sought leave to appeal to the Upper Tribunal.
Her grounds were that the tribunal had failed to deal with her submission that regulation 29 of the Employment and Support Allowance Regulations 2008 applied to her i.e. that there was a substantial risk to he health if she were found to not to have a limited capability for work.

While granting the claimant leave to appeal, the presiding Judge also added the following passage to the tribunal’s statement of reasons -

“The tribunal considered whether the appellant was entitled to Employment and Support Allowance by reasons of exceptional circumstances identified under Regulation 29(2)(b) of the ESA Regulations 2008.

The specific disease diagnosed was cervical spondylosis with radiculopathy. The further physical disablement, not originally reported in the appellants ESA 50 or to the medical examiner was back pain. There was no evidence of mental health disablement for the reasons set out at paragraph 6 hereof.

Paragraphs 7-10 above set out the reasons for the tribunal’s finding of the fact that the appellant’s neck and back problems did not cause significant restriction of functional ability. Consequently, on the balance of probabilities and the available evidence there would be no substantial risk to the mental and physical health of the appellant if she was found not to have a limited capability for work.”

In considering the claimant’s appeal, Upper Tribunal Judge Mark
highlights that a tribunal has two powers to alter its reasons.

It has power to correct its reasons under rule 36 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 -

36 Clerical mistakes and accidental slips or omissions

The Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction or any document produced by it, by-

(a)       sending notification of the amended decision or direction, or a copy of the amended document, to all parties; and

(b)       making any necessary amendment to any information published in relation to the decision, direction or document.

It also has power to amend its reasons under section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007. However, the power to amend only arises if the decision was set aside on review.

As the decision in this case was not set aside, Judge Mark points out that the judge could therefore only have exercised the power to correct under rule 36.

In explaining the scope of rule 36 Judge Mark quotes from his decision in CE/2444/2010 -

“Rule 36 is by its contents a species of slip rule and should be interpreted in accordance with the nature of that type of provision. As such, it deals with matters that were in the judge’s mind when writing but for some reason did not find their way onto the page. Typical examples are the typing error that produces the wrong date or a momentary lapse of concentration that results in the word ‘not’ being omitted. The rule does not cover matters that the judge had planned to mention but forgot to include. …”

In then upholding the claimant’s appeal, Judge Mark says -

“I consider that the additions were outside the scope of rule 36. They went beyond a momentary slip of the judge’s mind that occurred as he was writing the reasons. They are too long for that. The most likely explanation is that the judge on this occasion forgot to deal with them”

CE/2275/2011 [2012] UKUT 289 (AAC): Initiating or sustaining personal action and membership of the support group

Judge Levenson
14 August 2012

The cliamant suffered from depression and panic attacks.

A First Tier Tribunal upheld the claimant’s appeal to the extent that it found that he had a limited capability for work.

It found that descriptor 16(a) in Schedule 2 of the ESA Regulations 2008 applied. This carries 15 points and at the relevant time read as follows:

“16(a) Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks).”
 
The First Tier Tribunal explained in its statement of reasons that -

“We were not asked to consider any Activities under Schedule 3 of the ESA Regulations 2008 by the appellant or her representative, but we took the view that none of them did”.

The claimant appealed to the Upper Tribunal on the grounds that if the First-tier Tribunal finds that descriptor 16(a) of Schedule 2 applies, then it must consider (and apply) descriptor 10 of Schedule 3 (that determines membership of the support group). At the relevant time descriptor 10 read as follows:

10. Personal Action

(a) Cannot initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks);

(b) Cannot initiate or sustain personal action without requiring daily verbal prompting given by someone else in the claimant’s presence; or

(c) Fails to initiate or sustain basic personal action without requiring daily verbal prompting given by someone else in the claimant’s presence owing to a severe disorder of mood or behaviour.”

The District Tribunal Judge who had chaired the First-tier Tribunal refused permission to appeal to the Upper Tribunal on the basis that the Schedule 3 assessment was more stringent and a person could only enter the support group if they had a severe level of functional limitation.

He cited the statement of the Minister in the relevant parliamentary committee considering the legislation that “we intend to place in the support group only the minority of customers who are so severely impaired that it would not be reasonable to undertake work related activity”.

 However, in upholding the claimant’s appeal, Upper Tribunal Judge Levenson holds that -

“Irrespective of what the Minister told the relevant committee, looking at the wording of the legislation and regulations I cannot find any support for the Secretary of State’s argument that a person qualifying under Schedule 3 must inevitably be more severely impaired than one who qualifies under Schedule 2. The claimant’s reference to the reaching descriptors is persuasive on this point.

The only difference between the wording of descriptor 16(a) in Schedule 2 and descriptor 10(a) in Schedule 3 is that 16(a) contains a cause of the inability to carry out the specified tasks (cognitive impairment or a severe disorder of mood or behaviour). Arguably this actually makes 16(a) narrower than 10(a). In any event, the First-tier Tribunal having found that 16(a) applies, it is a necessary consequence that 10(a) applies, leading to the decision that I have made above.”

CE/2446/2011 [2012] UKUT 293 (AAC): Failure to preserve record of proceedings

Judge Mesher
15 August 2012

Judge Mesher holds that a failure of a First Tier Tribunal to preserve or produce a record of proceedings rendered inadequate its reasons.

This is because both parties to the appeal and the Upper Tribunal were unable to see the basis for the claimant’s oral evidence at the hearing being found to be unsupportive of her case.

CE/2585/2011 [2012] UKUT 331 (AAC): Whether risk of losing full control of bowel

Judge Rowland
20 August 2012

In this decision, Judge Rowland considers the pre 28 March 2011 limited capability of work descriptor in respect of faecal incontinence -

Descriptors 

10(a)(i) - Has no voluntary control over the evacuation of the bowel – 15 points

10(a)(iii) - At least once a month loses control of bowels so that the claimant cannot control the full evacuation of the bowel - 15 points

10(a)(v) - Occasionally loses control of bowels so that the claimant cannot control the full evacuation of the bowel – 9 points

10(a)(vii) - Risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach a toilet quickly – 6 points

10(a)(viii) - None of the above apply -  0 points

The claimant had told the First Tier Tribunal that he had bouts of irritable bowel syndrome and diverticulitis and that he lost control of his bowels occasionally/rarely’.  This happened on one occasion at the cinema when he was unable to get to a toilet in time. He said he thought it had happened twice in the last 6 months and that as a result he had had to shower and change clothes.

The tribunal dismissed the claimant’s appeal finding that, whatever the extent of the loss of control, it was not, in the light of his evidence, something that occurred “occasionally” and that there was also no risk of loss of control if the claimant did not reach a toilet quickly.

In doing so, Judge Rowland holds that the tribunal erred, since -

“While an occurrence may be so infrequent as not even to be “occasional”, it seems to me that, on a scale where an occurrence once a month scores 15 points, and an occasional occurrence scores 9 points, twice in six months must amount to “occasionally”. 

It is possible that the First-tier Tribunal regarded the claimant’s use of the word “rarely” in his evidence as suggesting that the occurrences were less frequent than the twice in six months he also mentioned, but that is not clearly stated.”

Even if that were wrong, Judge Rowland adds that the tribunal clearly erred in its approach to descriptor 10(a)(vii) –

“To say that the claimant “is normally able to reach a toilet in time” was no answer to the question whether there was a risk of his losing control of his bowel “if he is not able to reach a toilet quickly”.  Indeed, to say that he normally reaches a toilet in time implies an acceptance that sometimes he was not able to reach a toilet quickly and did lose control of his bowel, at least to some extent, which plainly implies a risk.  Therefore, it was important in this case for there to be a clear finding as to whether or not the claimant did lose, or at least was at risk of losing, control of his bowels to the extent that there was a full evacuation.” 

Judge Rowland there sets aside the tribunal’s decision. However, does not substitute his own decision as there was no detailed medical evidence as to whether loss of control would result in a full evacuation of the claimant’s bowel.

CE/2643/2011 [2012] UKUT 292 (AAC): Dangers in tribunal’s generalised cross-referring to a statement of reasons on another decision

Judge Ward
3 August 2012

This was a case in which the claimant’s appeals in relation to employment and support allowance (ESA) and disability living allowance (DLA) were heard in a single session. 

While the claimant did not pursue the tribunal’s decision to remove the lowest rate of care component from her she appealed to the Upper Tribunal its decision that she did not have a limited capability for work.

Judge Ward outlines that the operative part of the tribunal’s reasons statement in relation to the ESA appeal was very short with it reporting that -

“These reasons should be read in conjunction with the reasons given regarding her linked appeal for Disability Living Allowance (DLA)…”

In setting aside the tribunal’s decision Judge Ward highlights that the statement of reasons in the DLA case was much longer and then comments as follows -

“While there were obvious areas where the DLA reasons might have been relevant to ESA, notably in relation to walking, they go wider than that. 

I am concerned that a generalised invitation to read the statement of reasons for one benefit in conjunction with that  on another may serve to obscure rather than enlighten the reader as to the tribunal’s reasons for its decision on the first benefit.” 

However, he sets aside the tribunal’s decision on the following two grounds -

“First, neither the ESA nor the DLA statement indicates what the tribunal made of the claimant’s GP's evidence that anxiety (in particular) and also depression remained a problem despite medication.  The issue of the impact of her mental health on her ability to perform the descriptors had been put in issue by the claimant.  Secondly, neither statement of reasons, even when they are read together, explains to any significant extent why the claimant’s evidence was found to be “unconvincing”.

CE/2894/2011 [2012] UKUT 256 (AAC): Need to have evidence to show health care professional “experienced” / relevance of DLA award

Tribunal Ward
11 July 2012

The claimant was in receipt of an indefinite award of DLA at the higher rate of the mobility component and the lowest rate of the care component. However, following a medical examination by Healthcare Professional (HCP), a registered nurse, he claimant was awarded 0 points under the work capability assessment.

In dismissing his appeal, a tribunal found that it “preferred the evidence in the report from the HCP because she was an experienced HCP because she had nothing to gain by misrepresenting the facts.”

However, in upholding the claimant’s appeal Upper Tribunal Judge Ward first explains that the definition of a “health care professional” is given regulation 2(1) of the Employment and Support Allowance Regulations 2008 and is (so far as relevant) “ ‘health care professional’ means (a)…; (b) a registered nurse; or (c)….” 

He then reasons that -

“The person who conducted the examination was a registered nurse, which fulfilled the requirement.  The Secretary of State submits, and for the purposes of this decision I accept, that to be appointed as an HCP, the registered nurse would have had to have gone through the necessary training to enable her to perform examinations. 

It seems to me that there is no basis for inferring a requirement of “experience” (as opposed to qualification) from the statutory scheme and the Secretary of State submits that such a person will have to be trained, but again, no mention is made of experience. 

I consider that the tribunal was in error for having no evidence to conclude that the HCP was “experienced” and that the error was material.”

Judge Ward also holds that the tribunal also erred in law by not considering the possible relevance of the existing award of DLA or, if they did consider it, by indicating what they made of it, adding that -

“While the tests for the two benefits are not the same, there is sufficient common ground that one may provide material evidence for the other.”

CE/110/2012 [2012] UKUT 294 (AAC): Dealing with other people: whether anger can be significant distress

Judge Ward
7 August 2008

In this decision, Upper Tribunal Judge Ward considers the pre-March 2011 descriptor -

“21D. The claimant misinterprets verbal or non-verbal communication to the extent of causing himself or herself significant distress for the majority of the time”

Judge Ward sets out that in this case -

“The tribunal found that “the appellant thought people talked about her.  She reported an incident where she had to be restrained by her Mum as she had attacked some people who she thought were talking about her.  She said that this had happened 2 or 3 times...She had had verbal altercations with people in the street on 2/3 occasions since Christmas” [it was by then October].  The tribunal rejected her claim under descriptor 21 not on the grounds of infrequency … but because the result of her misinterpreting the non-verbal communications of others was to make the claimant angry rather than distressed.”

He then goes on to set aside the tribunal’s decision explaining that -

“I am not a psychologist, but it seems to me that I do not need to be.  I can accept as a matter of human experience the submissions on behalf of the claimant that “anger and distress are not mutually exclusive emotions” and that, in any event, much of the claimant’s bravado was belied by the evidence of her doctor, her oral evidence and the distressed and tearful way (vouched by the record of proceedings) in which some of that evidence was given. 

The tribunal thus erred either by concluding that because she was angry, that could not amount to “distress” for the purposes of activity 21 or alternatively by failing to explain why on the facts of this case the claimant’s anger did not amount to “distress”.”

CE/331/2012 [2012] UKUT 257 (AAC): Whether tribunal erred in deciding to proceed with a paper hearing

Judge Wikeley
19 June 2012

The claimant had requested a paper hearing and the First Tier Tribunal (FTT) heard and dismissed his ESA appeal in his absence.

In holding the tribunal had erred in this case in doing so, Judge Wikeley highlights that rule 27 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 provides that

“the Tribunal must hold a hearing before making a decision which disposes of proceedings unless -

(a) each party has consented to, or has not objected to, the matter being decided without a hearing; and
(b) the Tribunal considers that it is able to decide the matter without a hearing.”

Citing with approval CE/330/2011 that held that there has to be an oral hearing unless both conditions (a) and (b) are satisfied, Judge Wikeley holds that -

“On that basis it seems to me more than arguable that there may have been an error of law in the tribunal’s approach in the present case.  In other words, the FTT must surely actively consider whether it is able to decide the appeal without the appellant being present at the oral hearing; and the fact that that issue has been considered, together with brief reasons for the tribunal’s decision about how it has exercised its discretion, should be placed somewhere on record.” 

In addition, Judge Wikeley holds that the tribunal also erred in proceeding on an assumption about the claimant’s previous January 2011 work capability assessment (which found that he qualified for ESA) which may or may not have been justified -

“The FTT should surely at least have considered whether to adjourn to obtain those (recent) papers. It is true that Schedule 2 to the ESA Regulations was radically changed between the two decisions, but the FTT had, for example, no knowledge of the findings of the previous medical, which might well have been relevant in the context of the present appeal, irrespective of which version of the descriptors was in issue.”

He concludes by also finding that the FTT erred in not considering problems the claimant had raised concerning his manual dexterity or the fact that he felt that regulation 29 of the Employment and Support Regulations 2008 (“substantial risk” if found not to have limited capability for work activity) was applicable to him.

CE/691/2012 [2012] UKUT 431 (AAC): “Substantial risk”: need to consider what work a claimant might be expected to do

Judge Ward
30 October 2012

The claimant was awaiting operations for knee replacement to one or possibly both knees.  He had previously worked as a landscape gardener.  He had appealed against the decision that he did not have a limited capability for work.

In dismissing his appeal, the tribunal found that he did not have sufficient physical descriptor points under the work capability assessment.

The tribunal also held that he did not have a limited capability for work under Regulation 29 of the Employment and Support Allowance Regulations 2008 as there was no “substantial risk” to his physical health if he were found not to have a limited capability for work.

Judge Ward sets aside the tribunal’s decision citing with approval the Court of Appeal’s judgment in Charlton (R(IB)2/09) and
CIB/360/2007. This is on the grounds that there was no indication in the statement of reasons that the tribunal gave any consideration to the range of work the claimant might be expected to do. Given his work background and his impaired knees, Judge Ward says, the answer was not self-evident.

In directing a rehearing of the claimant’s appeal, Judge Ward also comments that “the more onerous the points-based regime becomes, the more cases are likely to require attention to be given to the terms of regulation 29, to which correct application by decision makers and tribunals of Charlton will be vital.”

CE/1516/2007 [2012] UKUT 324 (AAC): Meaning of cannot stand unassisted or remain sitting

Judge Wikeley
24 September 2012

A test case

This appeal is a test case that concerns the proper reading to be given to the descriptors for the activity of “standing and sitting”, part of the limited work capability for work assessment.

In particular, the question Judge Wikeley considers is what is needed to score 6 points under the standing and sitting descriptor 2(c) whereby, in brief, a person meets scores 6 points, if they

“cannot ... remain at a work station, either

(i) standing unassisted ... or
(ii) sitting ... for more than an hour before needing to move away ...”.

In summary, Judge Wikeley concludes that a person who can stand at a work station for more than an hour before needing to move away does not score 6 points (even if she cannot sit for that length of time). Similarly, a person who can sit at a work station for more than an hour before needing to move away also fails to score 6 points (even if she cannot stand for that period).

In addition, a person who can neither stand nor sit continuously but can remain at a work station by a combination of standing and
sitting for more than an hour (before needing to move away) likewise does not meet the requirements of the descriptor.

However, an individual who can manage none of these scenarios meets the test under descriptor 2(c) and so scores 6 points.

Judge Wikeley holds that the same principles apply to the interpretation of standing and sitting descriptor 2(b), where the wording is identical save that the “statutory endurance
test” is a maximum of 30 minutes rather than an hour.

The linguistic context

In reaching this conclusion, first considers the linguistic context of the descriptor’s wording -

“Even though the activity is entitled “standing and sitting”, the primary focus of descriptors 2(b) and 2(c) is on whether the claimant “cannot, for the majority of the time, remain at a work station”. Rather unhelpfully, the term “work station” is not defined by the Regulations.

I suspect it has been left deliberately vague. A work station might be a desk at which one usually sits (e.g. for working at a computer); it might be a bench at which one typically stands (e.g. for working at a lathe); or it might be a supermarket checkout (at which one can either sit or stand).

… Given that the primary focus of descriptors 2(b) and 2(c) is on remaining at a work station, it follows that points will be scored only if the person concerned can neither stand nor sit there for the allotted time. If they can do one of those activities

 (say, sit at a work station for more than an hour, even if they were unable to stand for anything like that length of time), then it follows that they can remain at a work station for the requisite period and so fail to score any points.”

The legislative history

In addition, Judge Wikeley considers the relevant legislative history to be of significance.

He notes that In the original version of the ESA Regulations, the standing and sitting descriptors were combined as one activity (“standing and sitting”, activity 2), but the individual descriptors referred solely to problems with either standing or with sitting,
but not both. As before, only the highest scoring descriptor in the activity scored. Therefore a person could not now score 6 points for an inability to stand for more than 30 minutes (descriptor 2(e)) as well as a further 6 points for an inability to sit for more than 30 minutes (descriptor 2(f)).

However, he highlights that in the present version of ESA activity 2, in force since March 28, 2011, the individual functions of standing and sitting have been combined into single descriptors. The fact that they have now been combined, and referenced in terms of an ability to remain at a work station for a set duration, also results in Judge Wikeley finding that the new descriptor does provide for the consideration of combined standing/sitting ability.

The “majority of the time” and reasonable regularity

While Judge Wikeley acknowledges that descriptors 2(b) and 2(c) each expressly requires decision makers and tribunals to make an assessment as to whether a person cannot undertake the
relevant activity “for the majority of the time” he highlights that –

“At the same time, it is well established that an individual must be able to do so “with reasonable regularity”. The individual who can either sit or stand at a work station for a prolonged period may not be who can either sit or stand at a work station for a prolonged period may not be problematic.

However, there may be individuals who, because of their health condition, have to alternate between sitting and standing. One may envisage that there may be situations in which a person has to alternate so much between the two positions that it may be difficult to see how they can indeed “remain at a work station”
in any meaningful way, given the level of disruption involved."

Other ESA activities and descriptors

Lastly, Judge Wikeley stresses that –

“This decision is solely concerned with the meaning of “either ... or” in the context of the standing and sitting activity. The same reasoning may not necessarily apply where “either ... or” is used in defining other activities and descriptors, even in the same Schedule to the ESA Regulations. This is because it all depends on the particular context.”

CE/1880/2012 [2012] UKUT 428 (AAC): “Substantial risk”: failure of tribunal to consider claimant’s need for continual supervision

Judge Ward
8 November 2012

The claimant had epilepsy and learning/behavioural difficulties with. He had appealed against a decision that he scored nil points on the work capability descriptors. 

He had been awarded DLA since childhood and At the relevant time he was in receipt of DLA award of the lower rate of the mobility component and the middle rate of the care component.  The care component was awarded on the basis that he reasonably required “continual supervision throughout the day in order to avoid substantial danger to himself or others”. 

The claimant’s representative had submitted that regulation 29 of the Employment and Support Allowance Regulations 2008 should apply to him because of his learning difficulties and frequent epileptic attacks. 

Under regulation 29 someone is to be treated as having limited capability for work if they suffer from “some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.” 

Judge Ward sets aside the tribunal’s decision to dismiss the claimant’s appeal as it failed to deal adequately with the submission that regulation 29 should be applied:

“This was an error in particular in the light of the relatively recent decision by the DWP that the claimant needed continual day-time supervision, with which the tribunal did not deal at all.  If the DLA decision was to be relied upon, questions would then arise of what range or type of work the claimant could do and yet receive the supervision necessary to avoid substantial danger to himself or others.  If the DLA decision was not to be relied upon, the tribunal needed to say so and explain why.  The tribunal either failed to deal with the issue, or, if it did deal with it, it failed to give a sufficient account of its reasoning to enable the losing party to understand why he was unsuccessful on that issue.”

CSE/360/2011 [2012] UKUT 29 (AAC): Propriety of behaviour with other people

Judge Parker
20/01/2012

In this decision Upper Tribunal Judge Parker considers WCA Activity 20 of Schedule 2 to ESAR 2008 as at March 27 2011: “Propriety of behaviour with other people”.

In particular she considers the distinction between Activity 20(d) that provides -

“20(d)  Has a strongly disproportionate reaction to minor events or to criticism, to the extent that the claimant cannot manage overall day to day life when such events or criticism occur.”

- and Activity 20(f) that provides -

“20(f)   Frequently demonstrates a moderately disproportionate reaction to minor events or to criticism but not to such an extent that the claimant cannot manage overall day to day life when such events or criticism occur.”

Considering the difference between the two Activities Judge Parker says that -

“It is unsurprising to me that the content of descriptor 20(f) has been dropped in the amendments in force from March 28 2011.  When one compares the text of 20(d) with 20(f), on a plain reading it is only the former which requires any impact on day to day life.  All that is necessary, in effect, under 20(f), is a frequent demonstration of a moderately disproportionate reaction to minor events or to criticism;  as  expressly  this does not have to be such that she then “ … cannot manage overall day to day life …”, consideration of that matter is redundant under 20(f), albeit critical under 20(d).  The only purpose of the words from “but not …” onwards in 20(f) seem to be to point the distinction with 20(d).”
           
Remitting the claimant’s appeal to another tribunal, Judge Parker holds that –

“Very careful fact-finding is required, having regard to all the essential terms of any particular descriptor.

Under descriptor 20(f), “frequently”, while it denotes that something happens often, cannot require that it happens for “the majority of the time” as that latter phrase is already used in 20(c); “moderately” is usually a synonym for “mildly”; “disproportionate” is the opposite of “proportionate” and is a matter of fact and degree having regard to the circumstances against which one is reacting; “minor” is the opposite of “major” and, again, has to be judged depending on the circumstances of the events in question; as there is another  “to” before the word “criticism”, “minor” does not qualify that noun.  

The result does not have to be “to such an extent that the claimant cannot manage overall day to day life when such events or criticism occur” so it is otiose to consider that, which only has relevance under 20(d).  The tribunal therefore erred in law in considering that the claimant had to establish that “any disproportionate reaction by her to minor events or to criticism was having an effect on her overall day to day life”.

Thus, for 20(f) the new tribunal requires to be satisfied that the claimant has established a mental disablement such that it leads on a frequent basis to her exhibiting a moderately disproportionate reaction to minor events or to criticism; she does not have to show a “strongly” disproportionate reaction because that is covered by 20(d).” 

General

CG/1059/2012 [2012] UKUT 435 (AAC): Carer’s Allowance: Full time research student is receiving full-time education

Judge Mark
21 November 2012

The claimant had been in receipt of carer’s allowance since 2004.  However, her award was superseded in May 2011 when it was determined that the claimant was not entitled to carer’s allowance from October 2006 because she had been engaged on a course of full time education. 

The claimant had commenced a Master’s degree on that date, which appears to have been completed in 2008 and since January 2008 she had been engaged on a PhD thesis. 

A further decision of May 2011 determined that there had been an overpayment of carer’s allowance from October 2010 to January 2011 amounting to £11,295.50 which had been paid as a result of the claimant’s failure to disclose that she was in full time education.

Judge Mark identifies that the key question was whether the claimant, was receiving full-time education for the purposes of section 70(3) of the Social Security Contributions and Benefits Act 1992. In reasoning that she was, Judge Mark says:

“A research student is carrying out the research and writing her thesis as a student member of the university with a view to obtaining a degree from that university, and is doing so under the supervision of teaching staff at the university.  The work is part of her education and is done for that degree. 

When invalid care allowance was first introduced in 1975, in presenting the Social Security Bill to the House of Commons, the then Secretary of State for Social Security, Barbara Castle, stated that it and another new benefit introduced in the same Bill “would provide new non-means-tested help for those of working age who are deprived of the opportunity to earn their living and who have no rights under existing contributory insurance schemes.”
… It is clear that the reason for excluding those in full-time education, in addition to those gainfully employed and those under 16 years of age, was that they were not being deprived of the opportunity to earn a living because they were full time students.  Full-time students at the present time may frequently also be gainfully employed and, where they are carers may be deprived of the opportunity of earning a living, or at least part of a living, at the same time. 

However, I can see no reason to interpret section 70(3), re-enacting as it does section 37 of the Social Security Act 1975, to draw a distinction between full-time undergraduates and full-time postgraduate students, or between full-time postgraduate students doing a degree course and those doing a research degree.  All are receiving full-time education for the purposes of section 70(3) on the basis of which all are to be treated as not being deprived because of their caring responsibilities of the opportunity to earn a living.”

However, Judge Mark holds that the tribunal had erred in making clear findings as to whether the claimant had as she contested made contacted the Carer’s Allowance Unit by telephone in relation to her changes in circumstances’. He therefore sets aside its decision and remits the appeal for rehearing by a new tribunal.

Housing benefit

CH/1344/2011 [2012] UKUT 52 (AAC): Whether claimant renting “exempt accommodation”: need for landlord to provide support to more than a minimal extent

Judge Turnbull
15 February 2012

The claimant had learning or mental health difficulties. The issue in her appeal was whether her accommodation was “exempt accommodation” - i.e. accommodation

“provided by a non-metropolitan county council ….. a housing association, a registered charity or voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision.”

If a claimant lives in such exempt accommodation the effect is that broadly, a local authority cannot restrict, by reference to a rent officer’s determination (or by reference to the local housing allowance rules) the amount of rent eligible for housing benefit unless there is suitable cheaper alternative accommodation available to the claimant and it is reasonable to expect the claimant to move to it.

In a lengthy and detailed decision Upper Tribunal Judge Turnbull considers -

  • the nature and extent of the claimant’s voluntary organisation’s landlord’s support; and
  • if it was greater than would normally be undertaken by a landlord in respect of tenants without a disability.

He concludes that the only the only concrete examples of assistance actually provided to the claimant herself which may have involved some “support” appeared to be -

(i)  the discussions and investigation in relation to tensions between her and the other occupants, and the possible provision of a separate annex, which appear to have resulted in a move to a different house

(ii) the change of the type of lock on her bedroom door, and the installation of a buzzer at the bottom of the stairs.

- but doubts however “whether (i) went beyond ordinary housing management, and the buzzer may in any event have been an “auxiliary aid” which was required to be provided under the Disability Discrimination Act 1995”.

As he finds that the landlord was providing support to the claimant to no more than a minimal extent, Judge Turnbull dismisses her appeal and holds that she did not occupy “exempt accommodation.

Judge Turnbull concludes by acknowledging that he reached the opposite conclusion in two earlier decisions - CH 150 2007 and CH/4432/2006 - and that it could be argued that the landlords in these types of case are all offering much the same type of service.

He continues that -

“Apart from anything else, it would obviously be unsatisfactory if a tenant’s accommodation were capable of moving in and out of the “exempt accommodation” definition in accordance with the extent to which the available support was actually required over different periods of time."

However, he ends by maintaining that –

“… if the results are unsatisfactory, that seems to me to be a consequence of the need to decide whether “support” is “provided” to more than a minimal extent. It cannot in my judgment be enough that the landlord is prepared to provide the support - i.e that it is available to the tenant - unless there is a real prospect that the tenant will need it on something more than a very occasional basis.

I find it difficult to answer that question without having close regard to what the landlord has actually done. It is unfortunately inherent in such a test that some landlords may just about scrape over the line … while others will not do so.”

CH/3165/2011 [2012] UKUT 191 (AAC): Overpayment - whether local authority inaction is official error

Judge Mark
1 June 2012

In this decision, Upper Tribunal Judge Mark holds that inaction by a local authority in not suspending housing benefit payments when it had grounds to do so can amount to an “official error”.

However, he stresses that this does not necessarily mean that any overpayment cannot be recovered as the housing benefit recipient might still reasonably be expected to realise that payment was not due to them.

Income support

CIS/828/2008 [2011] UKUT 508 (AAC): Whether claimant had a right to reside as the widow of a British citizen

Judge Rowland
15 December 2011

The claimant was a Swiss national and after coming to the UK married a British citizen and they had a daughter. Following her husband’s death she claimed and was awarded income support as a lone parent.

She then appealed against a later decision that she had no income support eligibility as she did not have a right to reside in the UK.

Following a tribunal upholding her appeal on the ground that she had a right of residence under regulation 14(3) of the Immigration (European Economic Area) Regulations 2006 the Secretary of State appealed to the Upper Tribunal.

Judge Rowland upholds the appeal holding that -

“There can be no doubt that the appeal tribunal erred in law in the way in which it relied on the 2006 Regulations in support of its decision.  I am not sure whether the appeal tribunal failed to realise that the term “family member who has retained the right of residence” is a term of art defined in regulation 10, or whether it simply misconstrued regulation 10.  It seems entirely possible that it was the former but, in any event, the claimant plainly was not a “family member who has retained a right of residence” within regulation 10 and so it is plain she had no right of residence under regulation 14(3). 

Regulation 10 is concerned to protect the position of family members of a “qualified person” who has died or whose marriage has been terminated.  However, regulation 6 defines “qualified person” so that only an “EEA national” may be a “qualified person” and regulation 2(1) defines “EEA national” as “a national of an EEA State” and then defines “EEA State” in such a way that it includes Switzerland but excludes the United Kingdom.  Accordingly, as the claimant’s husband was a British citizen, he was not a “qualified person” and so she was not a “family member who has retained the right of residence”.  Moreover, even if the claimant’s husband, or the man with whom she subsequently went through a ceremony of marriage, were a “qualified person” she would not satisfy the conditions of any of paragraphs (2), (3), (4) or (5) of regulation 10.

Jobseeker's allowance

CJSA/1128/2011 [2012] UKUT 115 (AAC): “Secret trust”: Whether claimant held capital on behalf of her children

Judge Michael Mark
28 March 2012

The claimant had appealed against a decision revising and withdrawing her entitlement to income based JSA made on the grounds that she was beneficial owner of land purchased for in 2007 which had a value in excess of £16,000.

However, the claimant maintained that the money used to buy the land was paid to her as the result of an inheritance from her aunt. She also contended that the money received was held on trust by her for herself and her five children in equal shares. 

With a tribunal having dismissed her appeal as the only written evidence of this trust arrangement were letters from her children, the claimant appealed to the Upper Tribunal.

Upper Tribunal Judge Mark upholds the claimant’s appeal and remits it for hearing by a new tribunal.

In doing so he holds that the tribunal had overlooked the possibility of a trust existing which was not recorded in any will but which had been established by the communications between the aunt and the claimant when the question was discussed between them as it appears to have been i.e. a “secret trust”.

He explains -

“If there is a secret trust, it will not appear in the relevant will or codicil.  It must, however, have been communicated by the deceased to the legatee or person taking on intestacy, with the intention of creating a trust, and have been expressly or impliedly accepted by her.  Acceptance is readily inferred once communication occurs unless the intended recipient protests.  The trust must also be sufficiently certain to be enforceable.  The new tribunal will need to consider whether what was said was sufficient to create a trust, the terms of which were sufficiently clear to be enforceable.”

He also outlines that the claimant could seek to prove the creation of a trust in favour of her children by “estoppel” (a legal bar to alleging or denying a fact because of one's own previous actions or words to the contrary) -

“If estoppel were to be relied on, each child would have to show why the claimant should be estopped from denying that child an equitable interest in the property at the date of the decision in 2009.  At present, the only possible basis for such a claim would seem to be that the claimant acknowledged the existence of a trust to them in 2006/7, that as a result they did not investigate the matter further, or retain documents, at the time and that as a result they have acted to their detriment on the faith of her assurances. 

There may also be evidence of one or more of the children as to some other detriment but it is for them to adduce appropriate evidence to prove it. To the extent that any such trust is established as at the date of the decision under appeal, that part of the beneficial interest in the land would not have belonged to the claimant and would not therefore form part of her capital.”

Tax credits

CJSA/2639/2010 [2012] UKUT 72 (AAC): Overpayment: tribunal’s jurisdiction

Judge Wikeley
29 February 2012

The claimant had been awarded income-based jobseeker’s allowance (JSA) for various periods between 2003 and 2007.  He also worked in the TV production business for part of the period in question and in 2004 took part in the Business Enterprise Scheme (BES), a government scheme designed to encourage jobseekers to move into self-employment.

In October 2008 a decision maker made a supersession decision on the claimant’s entitlement to JSA to disallow benefit altogether for various specified periods between September 2003 and March 2007 and to reduce entitlement for part of the month of April 2007.  The basis for that decision was the finding that the claimant had been in remunerative work (being self-employed) at the times in question. 

A detailed decision, held on the DWP file, also stated that the claimant had been overpaid a BES training premium from February 2004 until August 2008.

DWP practice is not to send claimants a full copy of the detailed decision from the internal file. Instead, a “plain English” letter, summarising the main points, is sent to them.  The letter in this case simply stated that the claimant had been paid the wrong amount of JSA for various dates between 2003 and 2007, because he was in self-employment, and that: “We will write and tell you how much you have been overpaid as soon as possible”. 

There was no separate mention in the letter of the specific sum relating to the allegedly overpaid JSA or BES training premium.

While a tribunal allowed the claimant’s appeal it also found that the client had been made a recoverable overpayment for a different period than that held by the decision maker.

In upholding the claimant’s appeal to the Upper Tribunal, Judge Wikeley finds that the tribunal erred in assuming only one period in the entitlement decision as it was clear from his correspondence that this was not so.

He also highlights that the tribunal erred in its jurisdiction as it apparently took the view that it was hearing an appeal against both (1) an entitlement decision and (2) an overpayment decision.

However, the Judge explains -

“… there is actually no evidence on file of any overpayment decision ever having been made by the DWP.  There is certainly no evidence that any such decision was ever notified properly to the claimant.  For example, the letter of 12.10.2008 about the entitlement decision simply said “We will write and tell you how much you have been overpaid as soon as possible” – but no such letter is on file.

… The First Tier Tribunal thus erred in law because it decided a question which was simply outside its powers on this appeal.  The claimant had appealed against the entitlement decision.  He had not had an overpayment (recovery) decision at that stage, so he could hardly have appealed against any such decision, and so that latter question was not before the First Tier Tribunal. This ground alone is sufficient to set aside the tribunal’s decision.”

Judge Wikeley therefore sets aside the decision of the Secretary of State. He also directs that a new tribunal cannot make a decision in relation to the recoverability of any alleged overpayments as there is no evidence that any overpayment decision has been made (and that any such decision will give rise to fresh rights of appeal).

Ken Butler - 4 February 2013