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Employment and support allowance

CE/1316/2017 :Whether tribunal gave sufficient reasons why claimant no longer met conditions of entitlement / tribunal commenting on claimants well kempt appearance

Upper Tribunal Judge: Rowland

After a First-tier Tribunal upheld a decision superseding her award of ESA the claimant appealed to the Upper Tribunal. 

While the tribunal had accepted that the claimant had “multiple health problems” it found that she did not satisfy any of the descriptors in Schedules 2 and 3 of the Employment and Support Allowance Regulations 2008 and that the conditions of regulation 29 (substantial risk to health) were not satisfied.  

In giving the claimant permission to appeal, Judge Lloyd-Davies had raised the question whether the First-tier Tribunal ought to have explained why it had reached a different conclusion from that reached when the award of ESA was made following an assessment in 2013.

The documents relating to the 2103 decision were missing so had not been available to the First-tier Tribunal given that her conditions were unlikely to have improved. 

But in giving his decision, Judge Rowland says that although mistake or ignorance of a material fact or a change of circumstances are grounds for supersession of an earlier decision, it is not necessary for the Secretary of State to show that a previous award was based on an error of fact or that circumstances have changed to supersede a decision:

“This is because regulation 6(2)(r) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 read with regulation 7A(1), provides that such a decision may be superseded if the Secretary of State has received new evidence from a health care professional.  In other words, the Secretary of State may simply take a different view of the case in the light of the new evidence.” 

He adds that:

“A claimant has no right to assume that the same decision will be made following the receipt of new evidence, but any apparent difference ought to be explained, although it may be sufficient merely to point to there being additional evidence or, indeed, merely to say that, on the totality of the evidence now available, the tribunal disagrees with the previous decision.

… In cases concerning employment and support allowance or personal independence payment, the descriptors chosen or any reliance on regulation 29 should be clear from the decision making the award, whether it was an original decision notice, a “mandatory reconsideration notice” or a decision notice issued by the First-tier Tribunal.

However, whether such information should be obtained is a matter of judgment that depends very much on the circumstances of the particular case.  Where it is not obtained so that the reasons for an earlier decision are unclear, it will usually be open to a tribunal to say that either there must have been a change of circumstances or it disagrees with the previous decision, without it being necessary to decide between the two.”  

Judge Rowland then asks what the consequence is of the First-tier Tribunal having failed expressly to give a reason for departing from a previous award:

“As the Secretary of State submits, R(M) 1/96 requires that the reason for departing from the previous award must be “reasonably obvious” from the First-tier Tribunal’s other reasoning.  The examples given in R(M) 1/96 are where there were clear findings of fact showing a change of circumstances or where the evidence relied upon was particularly clear. 

But, if there is “no entitlement to preferential treatment”, I incline to the view that it is sufficient that the reasoning as a whole be particularly clear, even if, on the evidence, the case was on the borderline.  In other words, the reasoning must be such as to be able to carry the clear implication that the First-tier Tribunal either found a change of circumstances or disagreed with the previous decision.” 

While in this case permission to appeal was given on the premise that it was unlikely that there had been a change of circumstances that would justify terminating the award, Judge Rowland rejects this premise:

“Some of the conditions from which the claimant has suffered are unlikely to have got significantly better, but that does not seem true of all of them.  An acute asthma attack had caused the claimant to be hospitalised in 2014 but the First-tier Tribunal found her asthma to be stable and treated with inhalers at the time of the Secretary of State’s decision in 2016.  Similarly, the claimant suffers from chronic depression, but it does not necessarily follow that her mental health problems cannot improve.  For instance, she gave evidence to the First-tier Tribunal that there had been, ten years earlier, a period in her life when she was drinking, had a mental health worker and sometimes behaved aggressively.  Things had improved since then.”

Judge Rowland then holds that in most respects the First-tier Tribunal gave clear reasons for reaching the decision it did and, what is more, it did so largely on the basis of the claimant’s own evidence as to what she did and on the basis of its own observations of her. 

“Insofar as its findings and reasoning are unassailable, the necessary implication of them is that either it disagreed with the previous assessment in the light of the evidence before it or there had been a material improvement in the claimant’s condition, and that was sufficient to explain why it did not continue the previous award in the absence of any evidence as to the basis of that award.”

However, Judge Rowland then upholds the claimant’s appeal on the grounds that the there are two descriptors in which the First-tier Tribunal’s reasoning is not clear. 

These are:

descriptor9(b) - “The majority of the time is at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change of clothing, if not able to reach a toilet quickly.”; and

descriptor 13(c) – “Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.”

Had descriptors 9(b) and 13(c) both been satisfied the claimant would have scored the 15 points necessary for an award of ESA.

As a result, Judge Rowland holds that:

“Accordingly, I allow the claimant’s appeal on the ground that the First-tier Tribunal’s reasoning is materially inadequate.  In the circumstances, it is necessary for the facts of the case to be reconsidered by a tribunal with a doctor among its members and I therefore remit this case to the First-tier Tribunal to be re-decided by a differently constituted panel.” 

Judge Rowland concludes by rejecting the claimant’s first ground of appeal that as the health care professional’s computer “crashed” it was unlawful that she had to write up the results of the consultation afterwards from memory.

He holds that there would necessarily be anything unlawful in what was done and that the question was simply whether the record of the interview was accurate.

He outlines that the claimant had the opportunity to challenge the findings before the First-tier Tribunal and indeed she produced an annotated copy of the report showing where she disagreed with it. And that it was not necessary for the First-tier Tribunal to resolve all the disagreements because the question it had to decide was whether she satisfied any of the descriptors and many of the disagreements could be regarded as not relevant.  

The claimant’s second ground of appeal related to the way the First-tier Tribunal hearing was conducted. Her main point was that the judge commented that she did not look depressed and that her appearance was well kempt, and the claimant says that she found the comments insulting, degrading and upsetting. 

In rejecting this, Judge Rowland says that what the judge said was perfectly proper:

“The health care professional had recorded that the claimant was “well kempt”, “looks well”, had a “normal facial expression”, “coped well at interview” and had a “normal manner”. Those observations were obviously not conclusive as to the claimant’s mental health, but they were relevant, because the Secretary of State and then the First-tier Tribunal had to decide not just whether the claimant was suffering from depression and other conditions but whether the effects of those conditions were so severe that point-scoring descriptors were satisfied. 

For instance, because people who are severely depressed may present as unkempt because they do not take care of themselves, being well kempt can be an indication, although no more than an indication, that a claimant’s level of depression is not particularly severe. 

… In any event, it was appropriate for the judge to mention the observations because that gave the claimant an opportunity to comment on them by, for instance, saying (if it was the case) that she only made an effort when she had to go out to an important appointment or that she had had help in getting ready to go out.  I do not regard it as arguable that what the judge said showed the proceedings were unfair.  On the contrary, it promoted fairness.”

CE/416/2018: DWP failure by to provide tribunal with full adjudication history of ESA award / absence of statement of reasons

Upper Tribunal Judge: Wikeley

In opening remarks Upper Tribunal Judge Wikeley states that it is difficult, but not impossible, for an appeal to the Upper Tribunal to succeed where an appellant has failed to obtain a statement of reasons from the First-tier Tribunal (FTT).

However, he then says that this is one such exceptional case.

Following a work capability assessment on 15 September 2016, a DWP decision-maker decided on 25 October 2016 to supersede an earlier decision dated 5 July 2016 and disallowed the appellant’s claim to ESA. Following an unsuccessful mandatory reconsideration, a FTT dismissed her appeal.

The appellant, applied in-time for a set aside. she then applied out of time for a statement of reasons for the Tribunal’s decision. Both applications were refused.

While the District Tribunal Judge also refused permission to appeal to the Upper Tribunal Judge Wikeley granted it:

“As the late request for a SoR was rejected by the FTT, I am bound to apply rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), i.e. there must be an explanation for the delay and I must be satisfied it is in the interests of justice to admit the application. I am satisfied that the delay can be explained by the Appellant’s poor health and lack of access to advice.”

In addition, Judge Wikeley highlights that it is arguable at this stage that the FTT which decided the appeal on did not have the full picture of the history of the appellant’s ESA claim. This was because there was evidence to show that she was in the support group when the appealed decision had been made:

“Piecing the various bits of evidence together, it therefore seems to me at least arguable at this stage that the FTT which decided the appeal on 24.02.2017 did not have the full picture of the history of the Appellant’s ESA claim.

If so, that would be a breach of the Secretary of State’s duty under rule 24(4)(b) and so arguably an error of law. For that reason, I consider that it is in the interests of justice to admit this application for permission to appeal despite the fact that there is no SoR and the Appellant’s request to the FTT for such a statement was late.”

He then adds that:

“In fairness to the Tribunal, I should make it clear that the references in the appeal papers to the Appellant having previously been in the support group only appeared in correspondence after the Tribunal had dealt with the appeal. There was no reason why the Tribunal, on the basis of the papers before it, should have been alive to the fact that the Appellant had previously been placed in the support group.”     

In upholding the appeal, Judge Wikeley reasons that:

“This Tribunal inadvertently erred in law. As a result of the Department’s failure, it was not presented with the Appellant’s relevant and full ESA adjudication history. In particular, the Tribunal was not told that the Department had previously placed the Appellant in the ESA support group.

It is no excuse to say that the Appellant should have mentioned this fact in her correspondence with the Department and the Tribunal. Her point, in lay terms, was that she was worse in 2016 than she had been in 2013. She was entitled to expect that the Department would present the Tribunal with the full relevant facts. I therefore allow the appeal and set aside the Tribunal’s decision.” 

He concludes by remaking the decision as follows:

“The Secretary of State has been unable to produce a copy of the decision of 5 July 2016 that was superseded on 25 October 2016. Moreover, the independent medical evidence produced by the Appellant is consistent with a finding that she met the criteria of paragraph 1 of Schedule 3 to the 2008 Regulations at all material times. There is certainly nothing in that evidence to suggest that there had been any improvement in her mobility in 2016; if anything, the opposite.

The decision that the First-tier Tribunal should have made, and which I now make, is therefore as follows: The Appellant’s appeal is allowed. The Secretary of State’s decision of 25 October 2016 is revised. The Appellant’s award of employment and support allowance (ESA) should not have been superseded from that date. The Appellant has limited capability for work and limited capability for work-related activity from that date and so remained entitled to ESA at the support group rate.“

CE/1272/2018: Full time student receiving DLA or PIP to be treated as having a limited capability for work for ESA

Upper Tribunal Judge: Wikeley

This appeal concerns a full-time student’s entitlement to employment and support allowance when he is entitled at the same time to disability living allowance (DLA).

The appellant, had learning difficulties and dyslexia. In September 2016 (when he was 25) he began attending a two-year full-time course at a local college.

He was awarded employment and support allowance (ESA) from 30 September 2016. He had for some time also been in receipt of the middle rate of the care component of DLA.

In January 2017 he underwent a work capability assessment following which a decision-maker concluded that he scored 0 points and so did not have limited capability for work as from that date.

His request for a mandatory reconsideration was refused and a First-tier Tribunal later dismissed his appeal. 

Judge Wikeley first sets out the legal framework of the appeal as regulations 18 and regulation 33(2) of the Employment Support Allowance Regulations 2008. This sets out the exemption to the general rule that full time students are excluded from ESA eligibility.

He then cites CPAG’s Welfare Benefits and Tax Credits Handbook 2017/18 summary of their effect:

“If you are ‘receiving education’ you can only qualify for income-related ESA if you are getting DLA, PIP or armed forces independence payment … Unless you are a ‘qualifying young person’ for child benefit purposes, if you qualify for income-related ESA as a full-time student because you are getting DLA, PIP or armed forces independence payment, you automatically count as having limited capability for work”.

Judge Wikeley then explains that the First-tier Tribunal went wrong by simply treating the appellant’s ESA appeal as a standard limited capability for work appeal and simply considered the physical and mental descriptors.

 While recognising that this was not a standard case, Judge Wikeley says that the approach of both the Department and the First-tier Tribunal was disappointing:

“The appellant’s support worker … had repeatedly spelt out the case on his behalf. She set it out in the request for a mandatory reconsideration, in the notice of appeal, in a post-hearing application for a set aside and in a subsequent application for permission to appeal.

She had made the point very shortly and very clearly. She had specifically referred to regulation 33(2) in the notice of appeal. She really could not have made the point any more clearly and yet for some reason her argument was repeatedly ignored. Reading the grounds of appeal is always a good place to start.”

In remaking the First Tier Tribunals decision, Judge Wikeley then sets out he issues that arise under regulation 33(2):

“Regulation 33(2)(a): was the claimant not a qualifying young person? A ‘qualifying young person’ has the same meaning as in section 142 of the Social Security Contributions and Benefits Act 1992 (see regulation 2(1) of the Employment Support Allowance Regulations 2008), i.e. in the context of child benefit awards.

Was the appellant aged 16-19 and undergoing a full-time course of non-advanced education or approved training that began before he reached 19? The short answer to the question put that way is No, he was not a qualifying young person, as he was aged 25.

Regulation 33(2)(b): was the claimant receiving (full-time) education? The short answer is Yes. The First-tier Tribunal found he was in full-time education. I adopt that finding of fact, which was plainly sustainable on the documentary and oral evidence. 

Regulation 33(2)(c): was it the case that paragraph 6(1)(g) of Schedule 1 to the Act did not apply in accordance with regulation 18? The appellant was entitled to DLA. Accordingly, paragraph 6(1)(g) of Schedule 1 to the Act did not apply in accordance with regulation 18.

It follows that the Appellant met all the conditions set out in regulation 33(2). He was therefore treated as having limited capability for work and so entitled to ESA. He was also relieved from the information-gathering duties in regulation 21 (see regulation 21(3)).”

Judge Wikeley concludes by upholds the appeal and remits the case the Secretary of State to conduct a further work capability assessment to determine whether the Appellant should be placed in the ESA support group.

Personal independence payment

CPIP/1347/2018: Whether good cause for failing to attend PIP medical assessment

Upper Tribunal Judge: Wikeley

The Appellant lived in Derby and had appealed against a decision that he had failed to attend a PIP medical assessment without good cause.

His appeal to the Upper Tribunal had already been the subject of two First Tier Tribunal (FTT) hearings.

In considering this new appeal, Judge Wikeley highlights that it was still unclear what the date of the appointment the appellant had been held to miss:

“So, what was the DWP decision under appeal? I note that the original DWP submission to the first FTT was hopeless and the supplementary submission to the second FTT, as it very properly recognised, was worse than hopeless.

The original DWP written response stated that the decision under appeal was that dated 13 April 2016. The second FTT (like the first FTT) dismissed the Appellant’s appeal against that decision, stating that the Appellant “has not established good cause for failing to attend the appointment scheduled for him on 23rd February 2016”

… However, the decision letter dated 13 April 2016 refers to a failure to attend a medical assessment on 8 March 2016 …, not 23 February 2016.”

In his decision, Judge Wikeley adopts and endorse the second FTT’s findings as to the appellant’s health conditions, which were such that it was reasonable to expect him to attend an appointment in Derby but not in Nottingham or Stoke (or indeed anywhere else beyond Derby).

In rejecting the Secretary of State’s decision was that the appellant, Judge Wikeley reasons that:

“The appellant has shown good cause as (i) the appointment was not in Derby; and (ii) that consultation had in any event been cancelled by Capita. As I said when giving permission to appeal, “it seems somewhat perverse to be found to have failed without good cause to attend an assessment appointment which has been cancelled by the Government’s contractor.”

He then continues:

“If the Secretary of State’s decision was that the appellant had not shown good cause for failing to attend the consultation in Nottingham on 8 March 2016, I disagree. The appellant has shown good cause on the basis of his circumstances as the appointment was not in Derby. Given that, I need not decide whether an appointment at 08.10am involving a departure from home at a much earlier hour was reasonable.”

He then adds:

“So, whichever way one looks at it, the appellant has shown he had good cause for not attending the two PIP assessment appointments as specified in the Secretary of State’s decision and subsequent response to the appeal.”

The appellant had submitted that he could see no reason why he should be asked to attend any PIP medical assessment appointment.

But Judge Wikeley also cautions that this does not mean that the appellant has good cause for not attending any PIP assessment appointment:

“Subject to any issue of ‘good cause’ which may arise, it is wholly reasonable to expect him to attend a PIP consultation in Derby. It is entirely in his interests that he does so in order that the real merits of his PIP claim can be addressed and an appropriate decision on entitlement (if any) made.

The appellant cannot continually opt out of an appointment in Derby. The case is therefore remitted to the Secretary of State for such a new appointment in Derby to be arranged.”

Note: In granting permission to appeal, Judge Wikeley held that:

“It is for the Secretary of State to decide whether an individual must do either, and, if so, which. Once the Secretary of State has chosen to exercise that discretion, the individual must comply whether he thinks it necessary or not. The penalty for non-compliance is that the claim will be refused, irrespective of what merits it might otherwise have had.

Paragraph 9(2) [of The Social Security (Personal Independence Payment) Regulations 2013] provides that, where a claimant fails without good reason to attend for, or participate in, a consultation a negative determination must be made. (My emphasis). The language is mandatory and permits of no discretion.”

Finally, Judge Wikeley highlights what he says is the broader lesson of this Upper Tribunal decision: 

“A decision that a claimant has failed to show good cause for not attending a medical assessment – e.g. for the purposes of establishing entitlement to personal independence payment (PIP) – is not a decision to be taken lightly. It may have important and for the claimant costly ramifications in practice.

Even if the claimant subsequently makes a successful claim for PIP, the effective date of that later award may be many months (or possibly even years) later. The result of a ‘no good cause’ decision can therefore be to ‘keep the claimant out of their money’ for a period during which they would otherwise be entitled to PIP on the basis of their difficulties with the activities associated with daily living and/or mobility.

Tribunals should therefore examine the Department’s evidence and arguments with some care and, where that material is deficient, with a healthy degree of scepticism“   

Ken Butler

11 October 2018

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