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Employment and support allowance

CE/2665/2017: Correct approach to assessing ESA descriptor 5c - Cannot use a pen or pencil to make a meaningful mark with either hand

Upper Tribunal Judge: Wright 

The key issue on this appeal is the scope of descriptor 5(c) in Schedule 2 to the Employment and Support Allowance Regulations 2008.  That descriptor comes under the “Manual dexterity” activity and is concerned with whether a claimant “Cannot use a pen or pencil to make a meaningful mark with either hand” and attracts an award of nine points if met. 

A First-tier Tribunal decided that the claimant satisfied manual dexterity descriptor 5c ‘Cannot use a pen or pencil to make a meaningful mark with either hand’, expressing the view in its reasons that the single signature on the ESA50 was not a ‘meaningful mark’.

In upholding the Secretary of State’s appeal, Upper Tribunal Judge Wright cites with approval the decisions in SM v SSWP [2015] UKUT 617 (AAC) and SSWP v LH [2017] UKUT 475 (AAC) that both considered descriptor 5c.

In addition, in terms of this appeal, Judge Wright makes the following points:

“First, the language of the test requires consideration to be given to the person’s ability to use both the right and the left hand.  If the person can make a meaningful mark with one hand but not the other hand. or can do so with each hand, then he or she will not meet descriptor 5(c). (I have deliberately avoided the use of “both hands” here given the possible connotation of such usage that what is required is the use of the right and left hands at the same time.)  That it seems to me is the obvious and logical result of the statutory language of “Cannot….with either hand”; the opposite of which is that the person can carry out the function with at least one hand.    

Second, as LH in particular makes plain, the test is not whether the person can write a word or a sentence with either hand.  The test of not being able to make a meaningful mark with either hand is therefore more difficult for a claimant to satisfy than the old test in descriptor 5(d) in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, where the test of “cannot use a pen or pencil” was interpreted as meaning “that the claimant scores the points if he is physically unable to use a pen or pencil to write in a normal manner”

.. Third, and building on the first two points, the use of the word “Cannot” in the descriptor requires attention to be given to a claimant’s functional ability to make a meaningful mark with either hand across a range of potential situations. This is because if the claimant can make a meaningful mark with one hand then the descriptor is not satisfied. 

He then finds that the tribunal was therefore wrong in this case to focus solely on the claimant’s ability to make the mark he did in the signature box on the ‘Declaration’ section of the ESA50 form.

But he considers the most critical error in the tribunal’s approach to descriptor 5(c) was its failure to consider in the round and across several potential or actual situations whether the claimant was unable with his right hand or his left hand to make a meaningful mark with a pen or pencil:

“For example, could he make the mark of a tick or a cross with either his right or his left hand on a census form or an election card?  If he could, even if it was only with one hand, it is not apparent on what basis it could be concluded that he could not make a meaningful mark with either hand.  In other words, the tribunal wrongly focused solely on the mark made by the claimant in the signature box on the ESA50 form (and even there did not acquit itself properly).”     

CE/1600/2018: ESA40 leaflet imposes a duty to report when their DLA stops although it does not expressly refer to it 

Upper Tribunal Judge: Jacobs

The claimant has been receiving an ESA since 26 July 2013. His on the basis that he qualified for the severe disability premium. However, while he ceased to qualify when his award of DLA came to an end he did not inform the ESA section. A decision was later made that he had been overpaid ESA due to his failure to disclose he was not in receipt of DLA and a civil penalty was also imposed.

On appeal, a First-tier Tribunal decided that the claimant was not liable to repay the overpayment and that no civil penalty should be imposed. The judge found that the claimant was not under a duty to report that his disability living allowance award had come to an end:

“Leaflet ES40JP was provided in the appeal papers. Under the heading “Changes you must tell us about” [81], there are 12 bullet points which relate to changes in circumstances. There is no information within the leaflet which would indicate to an appellant that the cessation of his or her disability living allowance need to be notified to the respondent. There is, however, a generic catch all which relates to whether or not an appellant is uncertain about changes to his circumstances. 

I find that the leaflet does not assist the respondent. The leaflet fails to refer to the sort of change in circumstances that the respondent is now relying on.”

However, in hearing the Secretary of State’s appeal, Upper Tribunal Judge Jacobs holds that there was a duty to disclose:

“A claimant cannot be liable for failing to report something to the Department for Work and Pensions unless there was a duty to report. The Secretary of State identified the source of the duty as the leaflet ESA40 04/13. This is not the number used by the judge in paragraph 10 of the written reasons, but it is the document that is in the papers. 

The judge was right that nowhere in the leaflet is there any express instruction to report if an award of disability living allowance stops. The judge was also right that the leaflet advises claimants: ‘If you are not sure if we need to know something, tell us anyway."

More importantly, the leaflet gives the instruction to report ‘Any changes to do with pension income, benefits and allowances’. It goes on:

‘By “benefits” we mean things like’ and then lists a number of benefits including income support and jobseeker's allowance. Finally, there is this paragraph:

‘Also tell us if you or your partner start or stop getting any pension income, benefits or allowances. Tell us if the amount of money you or your partner are getting changes.’

As the tribunal misdirected itself that the claimant was not under a duty to report, Judge Jacobs sets aside its decision. He directs that the appeal be reheard as the tribunal had not dealt with the client’s contention that he  had reported the change to his DLA by telephone. There was a contemporaneous written record saying the opposite, but he disputed its accuracy. That issue needs to be resolved at a hearing. 

CSE/279/2018: Whether tribunal hearing an ESA appeal required to consider adjournment if representative not lodged relevant papers from PIP claim 

Upper Tribunal Judge: May

Following a First-tier Tribunal deciding that the claimant was not entitled to ESA, the claimant appealed to the Upper tribunal.

His grounds of appeal were that the tribunal should have considered an adjournment to obtain the evidence that had awarded him the mobility component of PIP for mobilising no more than 50 metres.

The Secretary of State supported his appeal, saying that “the apparent lack of mobility aids used by the claimant means that in my view, the criteria for assessing mobility in both PIP and ESA would have been very similar and would have focused on the distance she can walk”.

However, in dismissing the claimant’s appeal, Judge May explains that the claimant’s representative had made a supporting submission and included both the decision notice from the PIP appeal and a supportive GP medical report used in that appeal.

In addition, the representative did not submit to the tribunal it should adjourn the hearing to obtain papers relating to the successful PIP appeal.

Judge May then says:

“I am not persuaded in these circumstances that it was necessary for the tribunal of its own volition to consider whether or not to adjourn the hearing before it.

It was, in my view, entitled to proceed to hear the appeal in circumstances where the claimant was represented by a responsible representative, that representative had set out clearly in the written submission the case which was to be made on her behalf and had lodged such documents in respect of the personal independence payment which were considered by the representative to be relevant in the appeal.

The tribunal were entitled to assume that the claimant’s representative knew the case which was to be presented on her behalf and had lodged the documents considered to be necessary to support it. In these circumstances I do not consider that the tribunal erred in law along the lines submitted by both the claimant and the Secretary of State.”

He concludes by holding that AG v SSWP did not assist in the claimant’s case as the Upper Tribunal Judge’s comments in that case are obiter (non-binding).                                                            

 Ken Butler

11 February 2019

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