Latest decision summaries

23 May 2018

This page contains our latest summaries of disability related upper tribunal and court decisions

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Disability Living Allowance

CDLA/1427/2017: Test of severe impairment of intelligence and social functioning is a single one and demands consideration of all evidence available

Upper Tribunal Judge Paula Gray

To be entitled to the DLA higher rate mobility component on the basis of ‘severe mental impairment’, a child must satisfy all the following conditions:

they must be entitled to the highest rate care component, even if it cannot be paid, for example because they live in a care home; and
they 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
they ‘exhibit disruptive behaviour’ that ‘is extreme’; and
they ‘regularly require another person to intervene and physically restrain [them] to prevent [them] causing physical injury to [themselves] or another, or damage to property’; and
their behaviour ‘is so unpredictable that [they require] another person to be present and watching over [them] whenever [they are] awake’.

The claimant was nine years old and had global developmental delay, poor communication skills and behavioural difficulties including PICA syndrome, an eating disorder which concerns eating non-nutritious objects, such as dirt.

He had been awarded the higher rate of the care component but the lower rate of the mobility component of DLA. Following a tribunal refusing his appeal for an award of the higher rate of the mobility component his mother appealed to the Upper Tribunal.

In setting aside the tribunal’s decision, Judge Gray holds that the tribunal applied too high a test in their finding that there was no requirement for regular restraint for the majority of the time.

She highlights that the test in regulation 12 (6)(b) of the DLA Regulations 1991 is whether the claimant 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:

“ ‘Regularly’ is a word which bears its natural meaning; it is not otherwise qualified … In CDLA/2470/2006 it was said that “such a degree of intervention and restraint is likely to be required on a significant proportion of occasions …”.

Judge Gray also holds that it was a material omission for the tribunal to fail to address the evidence of the claimant’s principal social worker:

“The references by her to [the claimant] being prone to physically attack anyone sitting near to him were graphic and are sufficiently set out in my grant of permission to appeal. Similarly the point that made by the class teacher about his lack of ability to engage in toilet training at nine years old.

The omission to deal with that evidence was of itself a material error of law that warrants the decision being set aside. It is not possible to understand from the statement without reference to that evidence why the First Tier Tribunal found that he did not suffer from a severe impairment of social functioning.”

Judge Gray concludes that:

“The process of deciding whether the latter part of the test under regulation 12 (5) is met, that is to say whether E’s arrested development or incomplete physical development of the brain results in severe impairment of intelligence and social functioning demands consideration of all the evidence in relation to it.

The First Tier Tribunal appears to have looked at the various strands of evidence in isolation, because they found that the [medical] evidence … indicated that he did not suffer from severe impairment of intelligence; they then found that the evidence from the class teacher indicated that he did not have severe impairment of social functioning. However the evidence should not be compartmentalised in that way. The evidence from one witness can inform or be informed by evidence from another.”

Following her own consideration of the evidence available to the tribunal, Judge Grey awards the claimant the higher mobility component.

Employment and support allowance

CE/3347/2017: Caution needed in assessing at face value account of a person with learning difficulties / dismissal of a GP’s observations on the basis that they simply report what the GP has been told requires proper explanation

Upper Tribunal Judge Paula Gray

The claimant had learning difficulties and schizophrenia. At a paper hearing, a First Tier Tribunal (FTT) dismissed his appeal against the decision that he did not have a limited capability for work.

Upper Tribunal Judge Grey notes that in its statement of reasons the tribunal placed very considerable reliance upon the typical day said to have been described by the appellant to the HCP. She cautions that:

“Depending, of course, on the level of difficulty, the possibility must always be considered in those with learning difficulties that they lack insight into their own condition and abilities to the extent that they may give an apparently persuasive account of their activities which is at odds with their actual ability, or misinforms the casual listener as to the level of sophistication of behaviour.

She then adds that:

“Tribunals should not be casual listeners. They need to be active listeners, and should probe the account put forward, where possible through hearing evidence from someone close to the appellant who knows the level at which they function. The appellant did not attend this hearing and perhaps more materially, neither did his parents. To fail to positively offer that opportunity in the circumstances may of itself have been an error of law. “

Judge Grey highlights that the letter from the claimant’s GP seemed to have been dismissed by the FTT on the basis that there was no indication that the information was acquired other than by report, presumably from the claimant or his parents, the implication being “that it was simply self-serving.”

Judge Grey points out however, that the letter was headed “Appeal for ESA” and concluded by expressing the hope that the comments could be taken into account. She then says:

“It would be perhaps unusual for a professional person to put forward such positive assertions in relation to a formal legal challenge if they were based merely on information provided without there being some element of independent knowledge or exercise of professional judgment to corroborate any such report.”

She then cites the decision in CA/3419/2102 which held that :

“A claimant’s GP is just as professional as any other doctor or health care professional who gives evidence to a tribunal, and, save where a proper explanation is given as to why he or she would do this, should not be assumed to simply be a vehicle for repeating what the claimant has told the GP as opposed to offering the GP’s professional opinion.

Judge Grey ends by quoting the final substantive paragraph of the GP’s letter which said:

“Due to his ongoing mental illness [schizophrenia] alongside his learning disability, he struggles with any new tasks or any difference in his routine as previously mentioned. If anything like that happens, he becomes extremely anxious and deteriorates rapidly. I find it very difficult to see how [name] could manage any job, no matter how simple. Any need for regular attendances to sign-on/attend appointments for his benefits causes him considerable stress and he deteriorates.”

She holds that this part of the letter is so patently of relevance in relation to the potential application of regulation 29 that it was essential that its evidential value was clearly assessed and explained.

In setting aside the FTT’s decision, Judge Grey encourages the claimant to attend the hearing preferably together with somebody who knows him well, his mother or father perhaps, who can speak to the tribunal about the practical problems that his learning difficulties in particular cause him.

Personal independence payment

CPIP/3404/2016: Assistance to self-catheterise by itself is not “therapy” for the purposes of “managing therapy or monitoring a health condition”

Upper tribunal Judge: Bano

This decision is now reported as [2017] AACR 31

The claimant had previously been awarded PIP partly because she needed her partner’s help to insert a catheter as she was unable to do so alone due to brittle bones in her wrist.

However, after she reported a change of circumstances submitted a new PIP claim. She was examined by a health care professional who reported that the claimant’s statement was inconsistent with her medical condition and her urologist’s report that she could insert a catheter. She was then awarded two points under descriptor 5(b) (needs to use an aid or appliance to be able to manage toilet needs or incontinence).

Her mandatory reconsideration request was refused despite her submitting letters from a community mental health nurse and her urologist which both referred to her need for help.

A First Tier Tribunal also confirmed the award under descriptor 5(b) but not descriptor 5(d) (needs assistance to be able to manage toilet needs) as it did not accept that the claimant needed her partner’s help and it also held that self-catheterisation did not amount to therapy for the purposes of activity 3.

In considering her further appeal, Upper Tribunal Judge Bano holds that to describe help with catheterisation as “therapy” would be a strained use of language. The specific provision made by paragraph 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 for the management of incontinence to include self-catheterisation for the purposes of activity 5 also indicated that catheterisation should not count as “therapy” for the purposes of activity 3.

He further holds that self-catheterisation” referred to the type of catheterisation device used and did not require a catheter to be self-administered; otherwise the definition of “manage incontinence” would be ineffective in both descriptor 5(e) (needs assistance to be able to manage incontinence of both bladder or bowel) and descriptor 5(f) (needs assistance to be able to manage incontinence of both bladder and bowel).

Judge Bano then reasons that Activity 5 represents an attempt to calibrate toilet needs and problems resulting from incontinence in terms of their severity, and that intention might be undermined if some situations which were specifically provided for in activity 5 were also held to fall within the more general provisions of activity 3.

While there may be situations in which assisting a person with catheterisation may form part of a treatment which amounted to therapy for the purposes of activity 3, by itself assisting a person to catheterise did not do so.

Judge Bano concludes by setting aside the tribunal’s decision and remits the appeal for rehearing. This is on the grounds that the tribunal erred in failing to properly consider properly the question of whether the claimant needed assistance to administer a catheter. The activities it referred to did not provide a sufficient test, the letters from the mental health nurse and urologist were not mentioned and it failed to address the claimant’s assertion that she was unable to insert a catheter because of the condition of her wrists.

CPIP/1251/2017: Whether tribunals should offer a telephone hearing if claimant elects to have a paper hearing

Upper Tribunal Judge: Rowland

The claimant had ticked a box on her notice of appeal to state that she wanted her appeal decided on the papers. The alternative offered was to “attend a hearing”. However, in her grounds of appeal on the same document, the claimant said:

“I would prefer to attend the hearing but beg your pardon as my condition may not allow me to keep any appointment due to its unpredictability.”

A tribunal later dismissed her appeal following a paper hearing.

Upper Tribunal Judge Rowley explains that a telephone hearing is a “hearing” for the purposes of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 as rule 1(3) provides:

““hearing” means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication”.

He then goes on to highlight that neither the standard form for giving notice to appeal, which is expressed in terms of attending an appeal, nor the standard letter sent later, which is expressed in terms of a hearing where the claimant “can meet” the Tribunal, admits to the possibility of a telephone hearing in which a claimant might participate from home.

He says that while telephone hearing may be adequate for case management or when considering a point of law that it is much less useful than a face-to-face hearing in cases where facts are in dispute or an assessment of disability, or of the effects of disability, is required. That is because non-verbal communication is lost.

As a result, he says that a First-tier Tribunal may need to ask itself whether consent or a lack of objection may have been based on a lack of information about the possible options, particularly where there is reason to suppose that the claimant might have wanted a telephone hearing.

This is particularly so in the case of the claimant’s appeal, in which she further exploration of the claimant’s evidence was required since:

“the claimant told the health care professional that she did she did not cook at all, apparently because not only standing but also using a perching stool caused back and leg pain, and yet the health care professional said that she cook using an aid or appliance, without referring to that evidence.”

He outlines there also appeared to have been an inconsistency between, on one hand, the social and occupational history recorded by the health care professional in her report and, on the other hand, the functional history recorded in the same document.

Judge Rowley therefore sets aside the decision of the tribunal

Remits to a differently constituted panel.

CPIP/1567/2017: Good reason for failure to attend PIP assessment

Upper Tribunal Judge: Mesher

This case concerns whether the claimant had good cause not to attend a face to face PIP assessment (regulation 9 of the Social Security (Personal Independence Payment) Regulations 2013).

The claimant’s main condition was psychosis. He had an award of the highest rate of the care component and the lower rate of the mobility component of disability living allowance (DLA).

His wife, who was his appointee was unsuccessful in her request that a PIP assessment be carried out at their home.

Following the claimant failing to attend an appointment at an Atos assessment centre a decision was made to end his DLA entitlement.

Following his appeal, the tribunal recorded that:

[The appointee] detailed that it was very difficult to get [the claimant] to leave the house, mainly due to reasons connected with his mental health condition. We noted from the GP records summary that he sees his GP infrequently. He did leave the house in 2015 to attend Moorfields hospital for a medical appointment relating to his eyes which have cataracts. [The appointee] detailed that it had been very difficult to get him to leave the house on that occasion. It had required both of their sons to attend at their home and for [the claimant] to be driven to the appointment.

[The appointee] was asked at the Tribunal hearing why she did not get their sons to attend their home and drive [the claimant] to the medical assessment on 16/06/16. She stated that this was because [the claimant] did not want to attend the assessment and that in those circumstances it was not possible for her or her sons to make him attend.”

However, the tribunal upheld the decision that the claimant was not entitled to PIP “because he failed to attend or participate in a consultation to enable DWP to assess entitlement”.

In considering the appeal, Upper Tribunal Judge Mesher holds that:

“If a claimant fails without good reason to attend or participate in a consultation they have been required to attend in accordance with regulation 9 … then a negative decision must be made by the Secretary of State.

If it is once accepted that the requirement has been properly imposed, then I think that “failing” to attend must mean simply not attending. The requirement has supplied the legal obligation that is then breached by not attending.”

But he then stresses that:

“In general, all excuses for not attending according to what was specified in a valid notice are to be considered as part of determining whether or not there was good reason.

In finding that all personal factors relating to the claimant will obviously be relevant, he says:

“The words “without good reason” should not be artificially limited. In other social security contexts, for instance jobseeker’s allowance and its predecessor, unemployment benefit, it has been recognised that in considering whether a claimant has good reason for not applying for a vacancy, the suitability of the vacancy is a relevant factor.

In the present context, the fact that a judgment about the suitability of carrying out any consultation at all is built in to the process leading to a requirement to attend and participate in a particular consultation points towards a claimant being able to raise the issue of suitability on any appeal against a disallowance following a negative determination under regulation 9.

I do not wish to give many examples in case they are thought to have a limiting effect, but it seems to me that the question of suitability plainly extends in the present context to consideration of what useful additional evidence a consultation would be likely to add in the particular circumstances.”

In the claimant’s case, Judge Mesher explains that the tribunal concentrated on him personally and reached the specific conclusion that his non-attendance at the consultation was due to conscious choice rather than to his physical and mental health conditions preventing his attendance.

However, he considers that this conclusion was undermined by the tribunal’s failure to take into account the fact that the claimant had an appointee and so was accepted by the Secretary of State as being unable to act:

“Even if the tribunal took the view that the claimant was capable of organising his own attendance at the consultation, including organising the assistance of others, there needed to be an explanation of why that view overrode the acceptance that he was unable to act. It may also have been the case that the tribunal applied a somewhat wrong test in the concluding paragraphs of the statement of reasons in asking itself whether the claimant was “incapable” of attending the consultation … or whether his mental and physical health conditions “prevented” him attending.”

Judge Mesher then holds that where the tribunal fundamentally went wrong in law was in excluding consideration of the suitability of the consultation:

“While the tribunal mentioned that it might have been desirable for the claimant to have been offered a home appointment, it drew no consequences from that view and by indicating that it had to consider the appointment actually required by Atos showed that it was excluding the suitability of that particular consultation as a factor. That was a material error of law.

So in setting aside the tribunal’s decision, Judge Mesher concludes that:

“The nature of the claimant’s disability and mental and physical condition (even if his psychosis was relatively stable in day to day life staying at home), the judgment that he was unable to act embodied in the appointment of his wife under regulation 33 of the Social Security (Claims and Payments) Regulations 1987 and the existence of an award of DLA (although of unknown length) including the highest rate of the care component of DLA raised questions at least about whether a consultation at a consultation centre was suitable.

There had not been any express consideration of whether a telephone consultation would be more suitable.

It appears wrong in principle that Atos’s own self-imposed rules about the criteria for accepting a consultation at a claimant’s home should control a tribunal’s judgment of whether a consultation at a centre is suitable or not.

… If only the claimant’s own circumstances are to be looked at, there seems no doubt that he was incapable of getting to the Islington centre if left entirely on his own to do so.”

Judge Mesher also holds that that the appealed decision covered both PIP entitlement and the termination of entitlement to DLA. Accordingly, he orders that the decision to end the claimant’s DLA be set aside and payment of DLA resumed.

CPIP/3104/2017 :Whether descriptor 5b satisfied if a claimant has a reasonable need to use incontinence pads even if they are not used

Upper Tribunal Judge: Rowley

The issue in this appeal was whether the tribunal erred in law in its consideration of daily living descriptor 5b.

Under descriptor 5b a claimant scores two points if he or she:

“Needs to use an aid or appliance to be able to manage toilet needs or incontinence.”

Under the definitions in part 1 of Schedule 1 “manage incontinence” means “manage involuntary evacuation of the bowel or bladder, including use a collecting device or self-catheterisation, and clean oneself afterwards”.

Upper tribunal Judge Rowley first outlines that the following principles have been established in Upper Tribunal cases.

Incontinence pads fall within the definition of “an aid or appliance” (CPIP/2908/2015).

“Descriptor 5b can be satisfied in its terms by a reasonable need to use an aid or appliance on a precautionary basis on many more days than those on which incontinence actually occurs.” (CPIP/387/2017).

The “need” must be a reasonable need. Thus, the descriptor may be satisfied even if an aid or appliance is not actually used, so long as it is reasonably needed (CPIP/1534/2015).

It is sufficient if a person satisfies a descriptor at some point during a 24-hour period, for a period which is more than trifling and which has some degree of impact on him or her (TR v SSWP (PIP) [2015] UKUT 626 (AAC); [2016] AACR 23).

In this case, Judge Rowley finds that the tribunal erred in law in its consideration of the claimant’s night-time needs:

“If the tribunal found that the claimant did wear incontinence pads at night (which, on any view, constitutes some point of a 24-hour period), it erred in failing to explain why that meant that she did not satisfy daily living descriptor 5b.

If, on the other hand, the tribunal found that the claimant did not wear incontinence pads at night, it failed to consider a further relevant matter in the light of its clear finding that she wet the bed at night (with an unspecified frequency).

Drawing together the principles set out above, daily living descriptor 5b will be satisfied if a claimant has a reasonable need to use incontinence pads (even on a precautionary basis) at night for the majority of the time, even if they are not in fact used by the claimant. It was incumbent on the tribunal to explore and make findings on this issue. Its failure to do so amounted to an error of law.”

CPIP/13/2018: Health Care Professional failure to conduct mental function assessment in reliance on what claimant said

Upper Tribunal Judge: Perez

In considering the claimant’s appeal, Judge Perez outlines what he had said on his ESA50:

“The claimant said he has brain damage (pages 11 and 44), has difficulty learning jobs (page 12), is now slower in mental processing (page 44), has a poor memory and uses a memory board to help him remember things (page 44), has trouble remembering where he is going (page 44), showed a card in his wallet where he had counted his money and written down exactly how much he had in there to remind him how much he had taken out with him (page 48), and referred in several places to taking “time” to do things: pages 22 (toilet needs), 24 (dressing) and 32 (budgeting). He said he “used to work for Remploy but was unable to cope and left 4-5 years ago” (page 44). “

She then goes on to hold that the tribunal erred in failing to take issue with the Healthcare Professional’s (HCP’s) failure to adequately assess cognitive and intellectual functioning, and finding insufficiently supported by the evidence.

The HCP had said that –

“[The claimant] reported that he did not have any mental health difficulties that required further assessment. Therefore, a mental function assessment was not conducted at this time.

However he said he is depressed because he lost his career and can’t do what he would like to do, but prefers to keep his depression and feelings to himself and has not consulted anyone about it”

Judge Perez holds that the HCP decision not to do “a mental function assessment” was wrong for three reasons.:

“First, it depended on the claimant’s view of his mental health to decide not to do a “mental function assessment”. Some descriptors are affected not just by mental ill-health, but by other problems with mental, cognitive or intellectual functioning.

Second, even in a claimant who has not reported problems with memory or functioning, it is arguably unreasonable for an assessor to depend on a claimant’s own view of whether an assessment is needed.

Third, in this case it was arguably the more unreasonable because the claimant had already asserted problems remembering things and with processing. So why should the HCP depend on him to report adequately his mental, cognitive or intellectual function? “

She finds that the tribunal erred in failing to take issue with the HCP’s failure adequately to examine the claimant given the evidence suggesting the claimant’s mental, cognitive and intellectual functioning were not normal.

This included a failure to enquire into discrepancies between his tick-box answers and their prose explanations.

Also its failure to enquire into discrepancies between the questionnaire and what the claimant reportedly told the HCP

Judge Perez also finds the tribunal erred in proceeding with a paper hearing.

It did not specify why it considered it had “adequate information” to do so.

In addition, it did not mention the claimant’s letter that said he would be unable to attend because he was unable to find his way to Hanley, not because he did not wish to attend. She says that this was not an indication of a refusal to attend if a way could be found for him to do so.

CSPIP/386/2015: Where points awarded for assistance with a therapeutic source they cannot also be awarded for assistance with therapy

Upper Tribunal Judge: Gamble

The claimant was a thirty three year old woman. She suffered from malabsorption requiring therapeutic parenteral nutrition” i.e. nutrition provided other than by the alimentary tract.

A tribunal awarded her 6 points for descriptor 2(e) “needs assistance to be able to manage a therapeutic source to take nutrition.

It also awarded her 8 points for descriptor 3(f) “needs supervision, prompting or assistance to be able to manage therapy that takes more than fourteen hours a week.”

Judge Gamble explains that it was apparent from the tribunal’s findings of fact and reasons that they treated the assistance the claimant received from her husband almost every night in connection with her therapeutic parenteral nutrition as qualifying her both for an award for descriptor 2(e) and one for descriptor 3(f).

The Secretary of State in his grounds of appeal conceded the correctness of the tribunal’s award of descriptor 2(e). In doing so the Secretary of State’s referred to the definition of “therapeutic source” in part 1 of schedule 1 to the Personal Independence Payment Regulations 2013 as including “parenteral …. tube feeding, using a rate limiting device such as …. feed pump”.

Judge gamble agrees with that concession.

However the Secretary of State’s submission also submitted that the tribunal’s decision in respect of descriptor 3(f) is erroneous in law. This was on the ground that the claimant’s nutrition from a “therapeutic source” could not also count as “therapy” for the purposes of Activity 3. Judge Gamblethen considers Applying the statutory text of descriptor 2(c) and of descriptor 3(f) of daily living activities:

“The former refers to a claimant needing “assistance to be able to manage a therapeutic source to take nutrition”. It is not in dispute that the tribunal did not err in law in holding that the claimant satisfied that statutory provision. The latter descriptor refers to a claimant needing “supervision, prompting or assistance to be able to manage therapy that takes more than fourteen hours a week”.

In my opinion, the claimant on the facts found by the tribunal could have been said to “need such assistance”, particularly when the definition of what it means to “manage medication or therapy” in paragraph 1 of schedule 1 is taken into account.

But that would only have merited an award for descriptor 3(f) had the highly specific provisions of descriptor 2(c) not appeared in part 2 of schedule 1.

I consider that those precise provisions have the effect of taking the relevant assistance entirely out of the scope of Activity 3 “managing therapy” where it otherwise would have been and placing it within the scope of Activity 2 “taking nutrition”. That is the effect of a maxim of statutory construction expressed in Latin as lex specialis derogat legi generali. The principle which that maxim expresses has been well expressed in English and clearly explained by Lord Kerr in paragraph 62 of Moohan v Lord Advocate [2015] S.C. (UKSC) 1 at p.18 as follows:

“Where two provisions are capable of governing the same situation, a law dealing with a specific subject matter overrides a law which only governs general matters.”

In applying this principle to the facts of this case Judge Gamble holds that while he specific provisions of descriptor 2(e) apply but not additionally the general provisions of descriptor 3(f).

Ken Butler