The MOJ's ESA appeals video - my comments

Here's a mirror for the original video olanasfogblog.blogspot.co.uk/2012/06/ministry-of-justice-video-on-tribunals.html

Yup, that's why peeps are mirroring it. No doubt Grayling will claim he's withdrawing it from the kindness of his heart because it's not as helpful as it might appear to be.

All is well...





The MOJ & DWP will be delighted to know we have resurrected their 'missing' video.

Do enjoy...


Actually, upon it's resurrection (courtesy of the ilegal servers - well done Patrick!) I've decided to torture myself and watch this painful pretence of a 'helpful' video once again. My overwhelming conclusion is much as it was back in March; it's dreadful - yes truly awful and nothing like the real tribunals I've been to of late. I'm not having a pop at the DWP or the MOJ for trying to help people, but I doubt this was a genuine intention to assist benefit claimants facing the rigours of an ESA appeal. In all honesty I give this one a grand score of 2 out 10 in terms of its accurate portrayal of the real thing.

Having looked at it again, my earlier thoughts remain the same; indeed I would like to go a little bit further in enlarging upon my concerns:


Formality of the proceedings


Tribunals are not always held in an environment such as the one shown in the video. Of the three venues which I attend one is the main court room of the local county court at Torquay which looks just as formal as the picture of the courtroom shown in the first post of this article. The venue at Exeter is less formal but still very much a Tribunal centre, it used to be the employment tribunals centre so it is laid out with the judge sitting on a raised plinth some way from where the claimant sits. The Plymouth venue is probably the least formal but again it is very much a tribunal centre with a main hearing room which is much larger than the room shown in the video; there is a large table so the judge & panel members sit some distance from the claimant; but at least is on the same level. Plymouth is a far less formal than the one at Torquay. I was granted leave to appeal on the issue over a tribunal sitting in a courtroom in an application made to the Upper Tribunal. My argument was that it was in breach of the Tribunal's procedural rules and contrary to the overriding objectives of the Tribunal to have conducted a hearing without 'avoiding unnecessary formality and seeking flexibility in the proceedings'. Judge Jacobs at an oral hearing in London listened carefully to my argument but rejected it because he considered it was the way in which the hearing was conducted rather than the environment in which it was heard which dictated the degree of formality. It's not a judgment I entirely agree with but none the less I gave it my all and am satisfied it had a fair hearing. However, I'm mindful that only this week three professional witnesses who attended the same venue on behalf of one of my clients all told me that the very same Court room wasn't the right place to hear benefit appeal cases; I agree with them rather than the very learned Judge Jacobs.


The Tribunal's inquisitorial approach


Unfortunately not all Tribunals are as willing to listen to the claimant as the one shown in the video. On the whole I would say that the Tribunal gets it about right in the majority of the cases we bring before them. Whilst I have a lot of respect for the majority of the staff and judiciary who hear these Tribunals there remains a need to be realistic. Judges and panel members are human beings and as such their attitudes vary enormously. I have encountered and heard accounts from my clients of Tribunals which are to be blunt reported to me as very 'hostile'. There are some members who do not always hear and weigh the evidence as objectively as they should, you get the impression that they make up their mind with little regard to the evidence before them. In essence what I am saying is that it would be wrong to pretend all Tribunals are fair. It is probably a bold statement to make when so much of my work is connected with appeals before our Tribunals but I do not think it right to allow everyone facing an ESA appeal to think they are completely 'safe' in the Tribunal's hands. My fear is this approach could lull claimants into a false sense of security and could end up in a state of shock when they attend their hearing. In a culture where so much emphasis is being placed on the morality of the benefit culture it invariably rubs off on some Tribunals who end up adopting their own morals, it shouldn't happen but the reality is that it does. It's all the more reason why clients need someone on their side when so many people stand in judgement against them, it is right that it should be someone with a proper working knowledge of the tribunal and the complexity of social security benefit legislation. What chance do claimants stand if Tribunals join in with their own spin on which set of morals should apply? The Tribunal can be quite gruelling in the way they cross examine a claimant upon their evidence, clients tell me they feel as though they've been put on trial. The August 2011 rioters would invariably have had access to a lawyer when dragged before the courts, why is that we do not extend the same degree of assistance to someone facing the most controversial of benefits? People like Gareth cannot contest the mammoth Secretary of State on their own without adequate help, a self help video is no where near enough. These people are fighting preposterous attacks upon their credibility, they are not just in it for the money; they are in it for what the State owes them - it's called support.


The hearing has a judicial function


The video deflects almost entirely from the very purpose of determining a case in the first - tier tribunal, let's not forget these cases are legal hearings. They are not just about making simple findings of facts. Of course the video is limited in what it can show you but it makes little attempt to portray how the law has to be considered in order to arrive at a correct and legally binding determination over a claimant's entitlement to benefit. A common failing is for a Tribunal to duplicate questions based upon those which the claimant completed when answering their ESAU 50 self assessment questionnaire. I have found myself reminding Tribunals that they must consider the 'statutory test' contained within the ESA Regulations as laid out in what is known as schedule two. I draw to their attention an Upper Tribunal judgement made by Judge Williams; here's the link to the judgement in case CE 2373 2009 of the Administrative Appeals Chamber. It's important because the statutory definitions of each 'descriptor' (which relate to the questions answered by the claimant) are different to those asked in the ESA 50 form and in the ESA 85 medical report completed by the health-care professional. It's vitally important because the Tribunal should end up 'scoring' a claimant against the regulations rather than the questions in the ESA 50. If a Tribunal makes this mistake they do so in error of law, it would form grounds of appeal to an Upper Tribunal. I remind them of this in what I term the 'issues raised by the appeal' section in our appeal submission which we provide to the Tribunal. If they disregard it and my client loses their cases I would be looking to make an application for leave to appeal to an upper Tribunal by default.

By far the biggest error (in my opinion) which this Tribunal made was in their hearing of Gareth's evidence. As pointed out when I first wrote about this video (see above) you have to ask yourself what would have happened if the appellant's friend Imogen had not attended the hearing, would Gareth have said anything about his mental health problems? I strongly suspect, if he is anything like the majority of clients I see, he would not. The Tribunal should not have placed a reliance on Imogen when it came to 'filling in the gaps'. What they should have done in their inquisitorial approach is to have have asked Gareth when they were speaking to him. There are many claimants in Gareth's position who would not mention a mental health condition, the Tribunal should at least have attempted to probe Gareth before turning to Imogen. It's useful to have a supportive friend in attending the hearing but the Tribunal should never be reliant on them in the way portrayed in this video.

If this Tribunal had not found the case in Gareth's favour and Imogen had not attended, their judgment would almost certainly be one which could be overturned in the Upper Tribunal by citing another Upper Tribunal judgement in the case of CE/191/2010 which is a judgment by Judge Parker having a relevance to the adequacy of its reasons and application of mental health descriptors. What they don't tell you is how Gareth's appeal went, if you look at the decision notice carefully it doesn't say whether the appeal was allowed or not. On the simplistic basis of questions asked the Tribunal wouldn't have been able to come to any decision. It would have needed to probe exactly how Gareth had difficulties in specific descriptors from the physical & mental range of the assessment. This would usually entail quite intensive questioning, citing examples, ascertaining frequency and establishing the degree of limitation. These appeals can last around an hour, sometimes less and sometimes more. In the course of preparing any client for the rigours of an ESA appeal we would routinely, alongside preparing a detailed appeal submission, prepare them by asking them questions in a way which would not be dissimilar to how they are questioned by the Tribunal. This can never be an exercise where we 'put words in claimant's mouth'; it is one which helps us (a) ensure the client is adequately prepared (b) draws out any otherwise unmentioned problems from the client and (c) can help us in drawing to a clients attention where their case is unlikely to succeed. It is particularly helpful in mental health cases like Gareth's, but has to be conducted with a great deal of caution. It is not at all uncommon to have the client's support worker or community psychiatric nurse present. Its usefulness is in extracting as much information as possible to identify precisely where their entitlement is according to law.

Our regional Tribunal user's group always tells us that one of the most helpful aspects of our work is in preparing an appeal submission which clearly sets out which physical and or mental health descriptors can be applied to the client, it needs to be reasoned with regards to lawful entitlement. In some cases a client may not meet any of the descriptors contained within the 'Limited Capability For Work Assessment' but still qualify under the provisions of the exceptional circumstance regulations, this is commonly overlooked by decision - makers and Tribunals. There are many amendments to all of the current legislation and it within the role of the Tribunal to ensure the correct version is being applied; these should all be dealt with as issues raised by the appeal; nobody in the video asked Gareth if he had sought legal advice or clarified whether he was satisfied that he did not want to check any of the evidence & legislation with a benefits advisor. Gareth would have received a submission from the Secretary of State which would typically have been around 64 pages. It is unlikely he would, given his mental state, comprehend the issues raised in all of the evidence sent to him. Imogen suggested that it would have been unlikely Gareth would have attended without her help. There is specific case law on whether a Tribunal should consider an adjournment in certain cases where the claimant indicates they have requested an oral hearing but then do not attend on the days. The case law is familiar to me as it is a case which we brought in the Upper Tribunal, it went on to result in a successful award. On a final point the Tribunal clerk did not correctly clarify whether Imogen was attending as a witness or merely as a supportive friend.


The role of the medical panel member


To suggest the medical member of the Tribunal is just like the claimant's own doctor is grossly misleading, they are nothing like your doctor, It is inherently dangerous to suggest any such similarity. This could potentially lead to very serious situations arising particularly in mental health cases. Lets say we have a claimant who suffers from a bi-polar disorder who at the time of his or her appeal is complying with their medication which is having a stabilising effect upon them. None the less the claimant's own doctor has opined that their patient is unfit for any work. Assume that the Tribunal disagrees and makes the decision that the claimant has no limitation for work and is therefore not entitled to Employment & Support Allowance. This could potentially create a disastrous mistrust between the claimant and his own doctor. As a result he or she may trust more in the medical panel member and say 'I've been told I'm okay, that means I need not take my medication'. The bond of trust between the claimant and his own doctor has been broken, he or she may have it in their mind that this video was the one which told them 'the panel member is just like my own doctor'. The potential consequences of creating mistrust between a patient and his or her own doctor hardly needs spelling out does it?


This video does not accurately portray what claimants should expect when attending their Employment & Support Allowance appeals. It does nothing to promote a need to seek proper help with an appeal which could potentially have disastrous consequences upon the person appealing. A national average of 40% of Employment & Support Allowance appeals are successful; with specialist help the success rates soars to 80%. It's not about bending the rules to suit the claimant, it is all about making sure the Secretary of State gets it right. It is no mere coincidence that legal aid funding for welfare benefit appeals is being withdrawn next April just as government introduces a whole new raft of hard hitting benefits.


Government cruelly labels via its media campaigns claimants as 'fakers, cheats, liars and scroungers'. An Employment & Support Allowance appeal Tribunal allows a claimant to show how their claim is entirely genuine. What government doesn't like is providing people in need with the support which Employment & Support Allowance should provide. Government is deliberately withdrawing specialist help from advice agencies which are at breaking point because it knows that time and time we get the results that prove them wrong. These appeals are far more complex in law than government wants you to believe that's why we want our clients to continue to get proper help with these appeals. The Ministry of Justice 'self help' video is not the right way of ensuring claimants get the help they deserve.

IN THE UPPER TRIBUNAL Case No. CE/191/2010
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge L T Parker

Decision:


The appeal is allowed. Permission to appeal was given by an upper tribunal judge. The decision of the First-tier tribunal sitting in Cardiff on 27 September 2009 (the tribunal) is wrong in law. I set aside the tribunal’s decision and return the appeal to a new tribunal for a wholly fresh hearing. The upper tribunal is not in a position to remake the decision under appeal as further findings of fact are required. The appeal is not supported by the Secretary of State but, for the reasons set out below, in my judgment, the tribunal erred in law.


REASONS FOR DECISION

Background

1. The tribunal confirmed the decision of a decision maker (DM) on behalf of the Secretary of State dated 27 April 2009 superseding an award of employment and support allowance (ESA) from and including 19 January 2009; that award had been made on the basis the claimant was suffering from depression and low mood. The tribunal accepted the reasons of the health care professional (the doctor) who had undertaken the medical examination on 15 April 2009 on which the DM then relied in making his supersession. On his ESA questionnaire, the claimant described panic attacks, shutting himself off, not answering the phone or door. The doctor did not accept any functional impairment which attracted points and this was followed by the DM.

2. The claimant appealed to a tribunal from the DM’s adverse decision. He attended the hearing with his sister. He produced a note from his general practitioner (GP), dated the day prior to the hearing, which stated he should refrain from work for 3 months and gave the diagnosis as “low mood, depression, agoraphobia, grief, bereavement”. The claimant gave evidence to the hearing to which his sister had nothing to add.

3. To the doctor at the medical examination on 15 April 2009, the claimant said that he “always shops with family due to anxiety”. At the hearing, his evidence included the following:

“Shop with sister, all the time. Can’t go into shop – floor comes up to me. Left trolley in shop last time I went in. We go shopping late at night. I don’t like crowds. …[My sister] does my paperwork for me. Goes to PO for me. When I go places – I get anxious…sit there without light on. If problem in home, I’d ring [my sister]. Don’t like speaking on the phone to people. Never go out with friends – not interested…was referred for MHT but I never went. Walked out of dentist the other day.”

4. The tribunal correctly noted that the burden of proof was on the Secretary of State to demonstrate that supersession of ESA was justified. The tribunal narrated the evidence. The tribunal dismissed the appeal having found as follows with respect to the mental health descriptors:

“…The Tribunal found that the Appellant had no problem with concentration or expression and communicated well during the Tribunal hearing. It was clear that he was self-caring and went about his daily business without problems. He took his medication when needed, which assisted him with his asthma and his mild depression. He has been offered help with respect to his problems with bereavement, but has not taken up that offer. The Tribunal accepted the [doctor’s] findings after the formal examination of the appellant’s physical and mental abilities. There was no other evidence produced by the appellant save for a sick note dated 8/10/09, the day before the hearing. The Tribunal was satisfied that at the date of the decision the Appellant did not have limited capacity for work.”

Appeal to the Upper Tribunal

5. The claimant appeals because of what he considers is a difference in opinion between the doctor and his own GP. Upper Tribunal Judge Jupp gave permission to appeal for the following reasons:

“Permission is given for further consideration of the adequacy of the tribunal’s findings of fact and the reasons for its decision. It does not appear to have explained why the approved disability analyst’s report was accepted in preference to the claimant’s own evidence (see CIB/2308/2001 para 20).

In particular, the tribunal did not investigate why the claimant did not follow up the referral to the mental health team. The doctor’s report stated that “none of the above” applied with regard to coping with social situations despite the claimant’s evidence both in the claim form and at the examination to the contrary. The claimant again confirmed this at the tribunal hearing, but his evidence was rejected, and the examining doctor’s evidence was preferred. As indicated by the headings, (although this is not necessarily conclusive in itself), the statement of reasons does not contain a section where the reasons for its decision are addressed.”

6. The response on behalf of the Secretary of State concentrates on the last 3 sentences of the upper tribunal judge’s reasons when giving permission to appeal. The submission states, firstly:

“The Tribunal did not separate its statement of reasons into headings so its deliberations on each of the activities and descriptors are less clear than if each had its own paragraph. However, I submit that this on its own is not an error of law.”

7. The Secretary of State then turns to how the tribunal dealt with activity 19, which is set out in the submission:


“Activity 19. Coping with social situations Pts

a) Normal activities, for example, visiting new places or 15
engaging in social contact, are precluded because of
overwhelming fear or anxiety.

b) Normal activities, for example, visiting new places or 9
engaging in social contact, are precluded for the
majority of the time due to overwhelming fear or anxiety.

c) Normal activities, for example, visiting new places or 6
engaging in social contact, are frequently precluded,
due to overwhelming fear or anxiety.

d) None of the above apply. 0”

The Secretary of State’s submission continues: “this activity is intended to reflect lack of self-confidence in social situations that is greater in its nature and its functional effects than mere shyness or reticence…the level of anxiety referred to suggests a specific and overwhelming experience of fear, resulting in physical symptoms or a racing pulse, and often in feelings of impending death such as may occur in a panic attack”. The submission points out that the expert medical member on the tribunal is entitled to draw appropriate conclusions from the clinical examination; in the present case the doctor noted:- “the claimant did not appear to be trembling, increased sweating was not apparent, he did not make rocking movements, he coped well at interview, he spoke at a normal rate, he experienced neither depersonalisation or derealisation….”

Discussion

Adequacy of Reasons

8. There has to be a sense of balance about what a tribunal is required to set out in its statement. An upper tribunal judge is concerned with whether the statement of reasons is adequate, perfection is not required, which can be judged only in the context of the evidence and submissions as a whole. What matters is that a party should be able to discern the reasons why his evidence has failed to satisfy. As the tribunal has given no indication why it preferred the doctor’s opinion to the claimant’s own evidence, the reasons are necessarily insufficient.

9. Headings in a statement of reasons are not essential, whether this is, for example, with respect to individual activities and descriptors or relating to the distinction between findings and reasons. However, headings do help to focus a tribunal’s mind on what is both relevant and required. In any event, the crux is that the tribunal moved from “findings” to “decision” but nowhere, either in form or in substance, did it explain its reasoning. If appropriate, the tribunal could have stated its preference for the doctor’s opinion very simply by adopting his clinical findings as its own and stating what it read from those clinical findings on their application to the question whether the claimant did or did not fit a particular descriptor. Without discussion of the clinical findings and what they objectively demonstrated on a balance of probabilities about the appellant’s functional impairment, it was in no way made clear to him why the Secretary of State had discharged the onus of proof.

Activity 19: Coping with Social Situations

10. The text of this activity is set out above, within my paragraph 7. What is meant by “overwhelming” is a matter of fact and degree; it may have a medical connotation. But that same qualifier of “fear or anxiety” is used in the three descriptors which each give a very different pointage; this has the result that the real distinction lies rather in how often preclusion of social activity is caused by the “overwhelming fear or anxiety”. In any event, while the term may indeed reflect severe anxiety as is suggested on behalf of the Secretary of State, the guidance given to health care professionals is in no sense prescriptive.

11. The starting point with respect to the application of any descriptor is regulation 19(2) of the Employment & Support Allowance Regulations 2008 which provides:

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

It is against that background that a tribunal, using its expertise, applies individual descriptors. The primary condition is thus that there is a specific disease or bodily or mental disablement which causes the inability to perform the particular activity or task in issue. If a claimant, for example, establishes mental disablement which results in fear or anxiety such that he is wholly unable to undertake normal activities like visiting new places or engaging in social contact, there would seem to be no free-standing need to demonstrate “overwhelming” fear or anxiety. From the wording of the whole phrase, the use of “overwhelming” seems to add nothing once the other constituents are shown: if the shoe otherwise fits, this would in itself appear to demonstrate that the fear or anxiety is correctly described as “overwhelming”.

12. What is important, however, is that a tribunal explains how it has reached its conclusions on the application of descriptors, probably in terms of clinical features but not necessarily so. So long as there are sufficient findings of primary fact to underpin any inferences drawn and its process of reasoning is adequately explained a tribunal may not be faulted. The present tribunal accepted the doctor’s findings after his formal examination of the appellant, as it was entitled to do, but did not give even a brief explanation of how this meant that satisfaction of activities such as Activity 19, which possibly applied on the basis of the claimant’s own evidence, had been successfully refuted by the Secretary of State.


Activity 18: Getting About

13. This activity is in the following terms:

Points

“18(a) Cannot get to any specified place with which the
claimant is, or would be, familiar. 15

(b) Is unable to get to a specified place with which the
claimant is familiar, without being accompanied by
another person on each occasion. 15

(c) For the majority of the time is unable to get to a
specified place with which the claimant is familiar
without being accompanied by another person. 9

(d) Is frequently unable to get to a specified place with
which the claimant is familiar without being
accompanied by another person 6

(e) None of the above apply 0”

14. The main difference between 18(a) and other descriptors within the activity is that, to satisfy 18(a), the claimant’s condition must be so severe that he cannot even get about when accompanied; then the distinctions between 18(b) and the succeeding paragraphs relate to the incidence of the occasions when the claimant is unable to get about unless he has a companion. 18(a) and 18(b) each give 15 points, which satisfies the test, even though the functional impairment of a claimant under 18(a) is clearly more serious than that under 18(b). There are instances of other activities, for example activity 15 and activity 16, where this is also the case: the apparent rationale is the provision of an overall worst case scenario which obviously qualifies, combined with a recognition that, nonetheless, a less serious but still very severe functional impairment should also satisfy. Thus it is already inherent within the schedule that differing degrees of disability, referable to the same activity, may nonetheless attract the same pointage.

15. With respect to descriptors 18(a) and 18(b) there is a further difference in the level of incapacity required, which is important in the present claimant’s case. Descriptor 18(a) encompasses an inability to get to “any specified place” (my emphasis) whereas 18(b) covers an inability to get to “a specified place” (my emphasis). S.6(c) of the Interpretation Act 1978 provides: “In any Act, unless the contrary intention appears … words in the singular include the plural and words in the plural include the singular”. As the word “any”, however, usually means “all”, particularly when expressly contrasted with the use of “a”, this provides the necessary contrary intention. The deliberate use of different terminology implies that “any specified place” means, in effect, anywhere at all; whereas the phrase “a specified place” reads more naturally that it could include just one kind of place. In the present case there is evidence that the claimant is unable to go to shops “without being accompanied by another person” and it is possible that that situation always obtains. If, on the facts, the claimant is never able to go to shops, albeit those with which he is familiar, without being accompanied by, for example, his sister (as the evidence seems to suggest) then descriptor 18(b) potentially applies, even though the restriction is not as geographically all embracing as that under 18(a); it still represents a severe level of functional impairment.

Summary

16. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised it will be a complete rehearing on the basis of the evidence and argument available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them. Although there has been success in this appeal limited to issues of law, the decision on the facts of the case remains open. The GP’s Med 3 of 8 October 2009, listing “agoraphobia” as one of the conditions in the claimant’s case, is after the date of the relevant decision, but it still would be evidentially relevant to the claimant’s circumstances in April of the same year if his condition did not improve in the intervening months.



(Signed)

L T Parker
Judge of the Upper Tribunal

(Date) 30 July 20