ESA Case law links

Question (1)

Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.[/b]


THE UPPER TRIBUNAL

CSE/555/2011

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal is allowed.

Permission to appeal was given by a District Tribunal Judge. The decision of the First-tier Tribunal sitting in Stranraer on 1 July 2011 (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 judgement, the tribunal erred in law.

REASONS FOR DECISION


Undertaking a “view” of a place

1. In issue before the tribunal (in addition to descriptor 3(c) for bending or kneeling, which the tribunal awarded) was descriptor 1(d) of the Employment and Support Allowance Regulations 2008 (before amendment on March 28 2011):

“Cannot walk more than 100 metres on level ground without stopping or severe discomfort”.

2. In its statement of reasons, the tribunal recorded that the claimant and her representative told the tribunal that she was in discomfort as soon as she began to walk and would have to stop after 50 metres before continuing. The tribunal’s statement of reasons for its decision then continues thus:

“During the Tribunal Hearing the Appellant said that she had habitually walked from her home (in Bowling Green Road, Stranraer) to Morrisons. It was maintained that this was approximately 100 metres. This was the distance that both the Appellant and her representative said that she could walk albeit after a brief stop after 50 metres or so.
…

Both the Appellant and her representative had said that the distance between her home and Morrisons was 100 yards and that she, the Appellant, could walk this distance but no further. The question could be answered by finding out whether the distance between her home and Morrisons was, in fact, 100 yards. Given that the Appellant was in much better health and could walk now without any obvious difficulty we felt that the best way of testing the matter as at the date of decision was to actually go and see whether the distance was in fact 100 yards.

I, as Judge, felt that as a matter of fairness to the Appellant and her representative it would be appropriate to invite either on or both of them to join us for the site visit and having checked with the Clerk that although this was unusual it was not contrary to any known rule of procedure I duly asked both the Appellant and [the claimant’s representative], whether they were happy to go with us. Neither in any way demurred and indeed [the representative] said that that would be perfectly all right. We duly took the trip to West Bowling Street and back via Morrisons. At no point did we stop or get out of the car. The total journey took approximately 12 minutes. It was discovered that the distance between West Bowling Street and Morrisons was 539 yards.

…

The question has arisen as to whether it was appropriate to have a site visit and if so whether the Appellant and/or her representative should have been asked to accompany us on such visit. In my judgement a Tribunal has an inquisitorial function and the object of the exercise is, fundamentally, to try and ascertain as far as possible the reliability of what is being maintained. The Courts are more reluctant to have site visits because the Court system is adversarial rather than inquisitorial but I personally have been involved in one such visit (to a local aerodrome) and the Sheriff determined that all parties should attend so that justice was seen to be done. Had the geography been known to either the medical member or myself then obviously a site visit would have been unnecessary because our local knowledge would have enabled us to gauge the accuracy of the distances involved. Obviously the Appellant and her representative may have been a little uncomfortable on the return journey from Morrisons to the Tribunal because at that stage the distance had been ascertained but the conversation in the car had been neutral and agreeable especially on the way out.”

3. It is argued on behalf of the appellant that the above procedure was, in effect, a “walking test” which tribunals are prohibited to undertake; patently, however, this is not the case because the tribunal was not watching the appellant walk and then assessing the quality and extent of her capacity to walk in the light of such observations. Much more substantially, however, it is contended that the tribunal stopped being a judge, and became both an investigator and a witness. The submission made on behalf of the Secretary of State to the Upper Tribunal disagrees and regards the procedure followed as an aspect of the undoubted inquisitorial function of a tribunal:

“I submit that in this case the trip that the Tribunal embarked upon was justified in view of their need to “ascertain the facts” of the case. The claimant’s representative has not explained why they consider that she was disadvantaged by the Tribunal participation in the fact-finding process. It is difficult to see how it would have made any difference to the outcome if the Tribunal had adjourned and asked someone else to verify the distance between the two points.”

4. The present case is quite different from J B v SSWP [2009] UKUT 61(AAC) where the chairman of a tribunal telephoned a doctor’s surgery to check the authenticity of documents that a claimant had produced. There had been no consent by the parties for the tribunal chairman to do this (or even knowledge of it) so that, in effect, the judge was making himself a witness in the case in circumstances where the information which he obtained could not be the subject of comment by the parties. In this appeal, however, what was done had the consent of both the claimant and her representative and was carried out by the tribunal in their presence; there was nothing covert in the process. A private view by an adjudicating body is usually objectionable.

5. Even where there is no provision made by statute for a viewing, it is competent for a judge to leave the court in order to view a location. However, if a view is taken after the leading of evidence (as here), then it requires the consent of all parties. I appreciate that it is the Secretary of State’s policy not to send presenting officers routinely to tribunal hearings, and the absence of a presenting officer was the situation here; nevertheless, this matter is so important and so unusual that, any tribunal minded to order a view must also obtain the prior requisite consent from the Secretary of State. The present tribunal therefore erred in not doing so.

6. Furthermore, the only proper rationale for a view of a location is where it is essential for the purpose of understanding the evidence but not carried out to test it. A lawful use is, therefore, highly unlikely to arise in the social security context; it is usually deployed, for example, in a road accident case where the surrounding geographical features are confusing and require to be properly comprehended. An analogy in social security might be where the circumstances of a possible industrial accident need to be clarified. The tribunal, however, was not elucidating evidence: it was rather testing the accuracy of a proposition that the distance between two given points was a 100 yards. This use of a site visit in order to confirm or challenge the evidence, rather than better to understand it, also renders the tribunal’s subsequent decision erroneous in law.

7. Finally, if a view is undertaken, an adjudicating authority must be meticulous in recording its exact details. There are inconsistencies on the face of the tribunal’s statement (for example, between “100 yards” and “100 metres”), and the appellant’s representative now states other inconsistencies; the judge could not have made a note while he was driving but should have continued the record of proceedings immediately after the visit and, moreover, noted on it the comments made by the claimant and her representative about the visit taken.

8. Thus, while it is competent for a tribunal to carry out a view in order to clarify their understanding of the evidence, because this was not the objective in the present appeal, and because there was no consent of all the parties, and because no proper record of what the view involved or of comments made by the parties on it was produced immediately following it, I judge the tribunal erred in law. I stress again, however, that it must be very rare indeed that all the necessary and strict constituents are present which authorise and justify a tribunal leaving its hearing room in order to view a place.

Insufficient findings of fact and giving of reasons

8. The representative on behalf of the Secretary of State submits that “since the claimant does not now dispute the fact that the distance between her home and the supermarket is in excess of 500 yards”, the Upper Tribunal Judge should decide the appeal. Regrettably, I am unable to do this. The tribunal narrated screeds of evidence but made few findings of primary fact from it. In particular, even if the claimant did, at the relevant time, habitually walk from her home to a supermarket, a distance of 539 yards, what is important is whether and when, disablement meant she had to stop or was in severe discomfort. If she could, in fact, in total walk such a distance, this is relevant to whether her evidence was accurate that she had to stop after 50 metres or so, but it is not conclusive; the tribunal wrongly seemed to think that it was and therefore made no actual findings of fact about the distance the claimant could walk on level ground “without stopping or severe discomfort”.

Summary

9. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal and in accordance with my guidance above, and the determination of the case on the merits is entirely for that tribunal. Although the claimant has been successful in her appeal limited to issues of law, the decision on the facts of her case remains open.






(Signed)
L T PARKER
Judge of the Upper Tribunal
Date: 17 January 2012

Question (3)

Reaching.


IN THE UPPER TRIBUNAL Case No. CE/633/2011
ADMINISTRATIVE APPEALS CHAMBER

Before Judge of the Upper Tribunal: E A Jupp

Decision: The decision of the First-tier Tribunal given on 16 December 2010 under registration 227/10/01863 was erroneous in law. Accordingly, the claimant’s appeal succeeds. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts & Enforcement Act 2007 I set aside the tribunal’s decision and remit the appeal for reconsideration by a differently constituted First-tier Tribunal of the Social Entitlement Chamber.


Directions: My directions and guidance are set out in paragraphs 18 to 21 below.


REASONS FOR DECISION

1. The claimant is a man born on 30 May 1958. He was awarded employment and support allowance (ESA) on 5 January 10 on the basis that he was suffering from diabetes, neck problem, visual problem and hypertension.

2. He completed the questionnaire form ESA 50 on 1 February 2010, indicating that his ability varied with regard to standing and sitting, bending or kneeling, reaching, picking up and carrying and manual dexterity, because of pain in his neck and left arm. He also indicated variable problems with the mental health activities of memory and concentration, execution of tasks and dealing with other people.

3. On 25 February 2010, he was examined by an approved disability analyst (ADA), a registered medical practitioner. The ADA reported that the claimant’s neck problem was mild, he had not seen a specialist for his problem and the medication used was of average strength. Overall, he was unlikely to have a significant level of disability affecting the upper body or upper limbs (page 69). The ADA found no evidence for mental health problems which would affect the claimant’s cognition, concentration, memory and comprehension and he was unlikely to have a significant level of disability affecting these areas or with the ability to learn, awareness of danger, ability to initiate or complete tasks or to complete them within a reasonable time. He recorded that the claimant reported pain in the first two fingers that spread up the arm to the shoulder but that this distribution did not first a nerve root pattern. There was no evidence of muscle wasting in the shoulders, arms, upper arms forearms and hands (page 95).

4. The decision maker decided that the claimant did not score any points on either the physical assessment or the mental cognitive and intellectual functions assessment and superseded the claimant's award of ESA from 1 March 2010. The claimant appealed, giving details of disc problems and nerve entrapment in his neck. He asserted that the ADA had not taken all the facts into account. The decision was reconsidered but not revised, and the appeal proceeded.

5. The tribunal was held on 16 December 2010, the claimant being present. The tribunal confirmed the decision of the Secretary of State to supersede the award, but did award the claimant 12 points, six each for difficulties with sitting and standing, and manual dexterity. It recorded on the decision notice that regulations 29 and 35 were not satisfied and no descriptors were awarded under Schedule 3 of the Employment and Support Allowance Regulations 2008. I should make plain here that this appeal arises under the legislation as in force prior to the amendments made by the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work Related Activity (Amendment) Regulations 2011, although I see no reason why my decision, where relevant, should not apply to the legislation as amended from that date.

6. The claimant appealed with my permission, on the grounds of the inadequacy in the tribunal’s reasons for not awarding points in respect of descriptor 5(c) as then in force:

“Cannot pick and move a light but bulky object such as an empty cardboard box, requiring the use of both hands together.”

An award under this descriptor would have attracted a further six points, enabling the claimant to attain 18 points, and thus satisfy the minimum requirement of 15 points for physical descriptors to obtain entitlement to benefit.

7. The claimant’s representative noted that in paragraph 9 of the statement of reasons, the tribunal had come to the conclusion that:

“On that basis the tribunal does credit that there are problems beyond a mild disability with the neck, shoulder and left arm/hand, which reasonably caused significant problems as detailed below.”

In paragraph 13, the tribunal had then commented in respect of descriptor 5(c):

“The movement required however, is not particularly dependent on grip as such but also pressure and movement requiring the use of both hands together.”

In the representative’s submission, descriptor 5 (c) is not simply concerned with the claimant's ability to use both hands/arms when lifting a bulky object. It would also include shoulder movements and the need to raise or move the arm away from the side of the body and at the same time using some pressure to lift and move the object.

8. Further, given the comments in paragraph 9 of the statement of reasons, it was assumed that the tribunal had disagreed with the ADA's assessment of the level of disability, yet in paragraph 13 the tribunal had seemed to agree with his clinical findings. It was therefore submitted that the tribunal had erred in law by giving inadequate and conflicting reasons for not awarding points in respect of descriptor 5(c).

9. The Secretary of State does not support the appeal. In paragraph 5 of his submission, his representative draws attention to an extract from the guidance issued to health care professionals by the Department for Work and Pensions (DWP) in the Training & Development ESA Handbook in respect of Activity 5:

“Scope

This activity relates mainly to upper limb power, however joint movement and co-ordination may also have to be considered. It is intended to reflect the ability to pick up and transfer articles at waist level, i.e. at a level that requires neither bending down and lifting, nor reach upwards (these activities are covered by other areas). It does not include the ability to carry out any activity other than picking up and transferring, i.e. it does not include ability to pour from a carton or jug. All the loads are light and are therefore unlikely to have much impact on spinal problems. However, due consideration should be given to neck pain and the associated problems arising from cervical disc prolapse and marked cervical spondylitis. These conditions may be aggravated by lifting weights in exceptional circumstances. The ability to carry out these functions should be considered with the use of any prosthesis, aid or appliance.”

10. The Secretary of State correctly points out that this guidance is not binding on decision makers or tribunals. He also notes that the ADA might have been influenced by the fact the claimant had not seen a specialist to consider that his disability was milder than it was. Although the Secretary of State does not mention this, the tribunal did note that the claimant said that he had an MRI scan and was awaiting an appointment with a specialist, and that the ADA seemed to have overlooked this.

11. In the Secretary of State’s submission, the claimant’s representative’s submission that the tribunal’s observations in paragraphs 9 and 10 of the statement of reasons are inconsistent with those in paragraph 13 is ill founded. He submits that it is clear from the tribunal’s reasoning in paragraph 13 that it had considered the ADA's report and had questioned the claimant further about aspects on which it was unsure, before finding as a fact that the claimant had sufficient grip to be able to pick up and hold an empty cardboard box and move it, giving very careful consideration to the nature of the restriction required by the wording of the descriptor and that the tribunal had reached a conclusion it was entitled to make on the evidence. The claimant’s representatives repeat their submission that inadequate reasons were given in respect of descriptor 5(c).

12. On descriptor 5(c) the tribunal said:

“13. As regards picking up and moving or transferring by the use of the upper body and arms the appellant confirmed that he could use his right hand without difficulty but probably not with his left hand as it would cause a lot of pain. However all the subdivisions of the descriptor relates to using either hand apart from 5c which relates to the moving of an empty cardboard box. The appellant thought that this might be difficult as he can’t grip with his left hand. The movement required however is not particularly dependent on grip as such but also pressure and movement requiring the use of both hands together. Given the indications given by the appellant himself and also the clinical findings of the ADA that there is only limited restriction with grip the tribunal are satisfied that the amount of grip available to the appellant would be sufficient to pick up and hold an empty cardboard box and move it. The tribunal note that further confirmation of the ability to use the left-hand, albeit restricted, was evidenced by the appellant taking hold of and opening a booklet as observed by the ADA during the course of the examination (page 65). The tribunal did not find that any of the descriptor is satisfied.”

13. I have repeated in paragraph 7 above what the tribunal recorded in paragraphs 9 and 10 of the statement of reasons. The fact that it identified the areas where it regarded significant problems as being caused and that these were at odds with the ADA’s own conclusion, for reasons which it set out, does not mean that the whole of the ADA’s report was therefore to be disregarded and that the tribunal’s overall reasons contain a conflict. The ADA’s clinical findings were accepted by the tribunal, in conjunction with the evidence given by the claimant himself, with regard to the restriction on grip and I see no difficulty with the tribunal’s findings on this point.

14. However, activity 5 as described in the Employment and Support Allowance Regulations 2008 refers to the “use of the upper body” as well as the arms, a fact noted by the tribunal at the beginning of paragraph 13. It then limited its consideration of the claimant’s potential difficulties with descriptor 5(c) to problems with his left hand and did not consider the accepted problems with his shoulder.

15. The DWP guidance set out by the Secretary of State’s representative refers to due consideration being given to neck pain and the associated problems arising from cervical disc prolapse and marked cervical spondylitis in connection with this activity. Whilst recognising that this document is guidance only and not binding, it should also be noted that, for each descriptor within this activity, the legislation includes the use of the “upper body” as well as the arms. Bearing in mind that the relevant descriptor is “the picking up moving or transferring of a light but bulky object such as a large cardboard box requiring the use of both hands together”, this includes the need to consider the use of the claimant's shoulder and neck in this process and how they would be affected by the claimant's limitations which the tribunal had already accepted.

16. The tribunal accepted that there were “problems beyond a mild disability with the neck, shoulder and left arm/hand” and that these caused significant problems, leading to awards of six points each under descriptors 2f and 6g. It is, of course possible that notwithstanding its findings under these two descriptors the tribunal could have found that the movements required would not be sufficiently affected by the claimant's particular neck and shoulder problems to score points under descriptor 5(c). Nonetheless, by failing to make a finding at all, the tribunal erred in law.

17. It is therefore appropriate for its decision to be set aside for inadequacy of findings and reasons for the decision and for the case to be remitted to a differently constituted tribunal.


DIRECTIONS

18. The new First-tier Tribunal must hold an oral hearing and conduct a complete reconsideration of the issues that arise for decision in this appeal, together with any others which merit consideration, subject to the discretion provided by section 12(8) of the Social Security Act 1998. It must make and record full findings of fact on all necessary points, with reasons for its acceptance of the evidence which is preferred and why the other evidence is rejected.

19. It must not take account of circumstances which did not obtain at the date of the decision appealed against, 1 March 2010, but must take account of any evidence which came into existence after that date, but which relates to the circumstances as at that date. If the claimant is minded to submit further evidence, he will appreciate that this must relate to whether or not he satisfied the descriptors which he contends applied to him at 1 March 2010 and not at the date any report is given. It may be that the consultant’s report after the appointment which was expected at the time of the tribunal will assist.

20. The claimant is advised to attend the new hearing if at all possible.

21. The claimant will bear in mind that my decision is limited to matters of law; the new tribunal will make its decision on the evidence before it and the outcome may not be different or more helpful to him.

22. For the reasons stated, the claimant’s appeal succeeds. As further findings of fact are necessary I am not in a position to remake the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, I remit the appeal for reconsideration.






(Signed on the original) E A Jupp
Judge of the Upper Tribunal

(Dated) 16 November 2011

Question (5)

Manual dexterity.


IN THE UPPER TRIBUNAL Case No. CE/1826/2011

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Carlisle on 24 March 2011. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal.

2. The Claimant is a woman now aged 46 who suffers from a tremor and certain mental health problems.

3. The First-tier Tribunal’s decision was to dismiss the Claimant’s appeal against a decision, made on 19 May 2010, superseding and removing with effect from that date the Claimant’s award of employment and support allowance/credits on the ground that she did not have limited capability for work in accordance with the limited capability for work assessment. The decision maker, accepting the opinion of the examining doctor, considered that the Claimant did not score any points from either the physical or mental health activities comprised in that assessment.

4. The Tribunal, however, found that the Claimant satisfied descriptor 6(e) (“cannot physically use a conventional keyboard or mouse”), worth 9 points.

5. In the written submission to the Tribunal on behalf of the Claimant it was submitted (among other things) that the Claimant satisfied descriptor 5(b) (“cannot pick up and move a one litre carton full of liquid with either hand”), which would have been worth an additional 9 points. The Claimant stated, in her ESA 50 questionnaire, that she needed both hands to steady herself. That appears also to have been the effect of her oral evidence. The Tribunal’s reasoning in relation to activity 5 appears to have been confined to the last sentence of para 5 of the Statement of Reasons: “On her own evidence she could pick up and move things, when necessary using two hands.”

6. It is submitted on behalf of the Claimant that the Tribunal thereby erred in law in that descriptors 5(a) and 5(b), in referring to inability to pick up and move the specified carton full of liquid “with either hand”, require one to ask whether the claimant can perform the activity with either hand alone, and that the fact that the claimant could do it with both hands together does not prevent points being scored.

7. The Secretary of State, in supporting this appeal, appears to agree with that contention. On the whole I think that the contention is correct. It is arguable that those descriptors are merely looking at whether the claimant can pick up and move the carton, and that if he can do so using both hands, he should not score points. However, if that had been the case it would not seem to have been necessary to add the words “with either hand”. That point wouId seem to acquire additional force in the light of the wording of descriptor 6(i): “cannot pour from an open 0.5 litre carton full of liquid”. That would seem not to be satisfied if the claimant could pour using both hands (unless one takes the view that the activity of pouring is one which involves using only one hand, as the other is often necessary in order to hold or steady the receptacle). It seems to me that the addition of the words “with either hand” in descriptors 5(a) and (b) (as in descriptors 6(a), (b) and (c)) does indicate that the claimant’s ability is to be determined by reference to each hand used alone.

8. I note that the position is different under the version of Schedule 2 to the Employment and Support Allowance Regulations 2008 which came into force on 28 March 2011, where the words “with either hand” are removed from the equivalent descriptors.

9. The First-tier Tribunal does not appear to have made a finding that the Claimant could not pick and move a one litre carton with either hand alone, but merely that she could do so using both hands “when necessary”. I cannot therefore, in reliance on the First-tier Tribunal’s findings of fact, substitute a decision in the Claimant’s favour.

10. In view of my conclusion in relation to this first ground of appeal, it is unnecessary for me to express any view in relation to the two other grounds, which were also supported by the Secretary of State.

11. The new tribunal will reconsider the appeal afresh, but will apply the law as set out in paragraph 7 above.



Charles Turnbull
Judge of the Upper Tribunal
19 December 2011

Question (7)

Understanding communication by both verbal means (such as hearing or lip reading) and non-verbal means (such as reading 16 point print) using any aid it is reasonable to expect them to use, unaided by another person.



IN THE UPPER TRIBUNAL

Case No CIB/2177/2008

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD


Decision: The appeal is allowed. The decision of the appeal tribunal which sat at Basildon on 26 November 2007 involved the making of an error on a point of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 8 of the Reasons.


REASONS FOR DECISION


1. This appeal is (save as indicated below) supported by the Secretary of State. The tribunal made a number of errors of law, as further set out below.


Background


2. The claimant has been in receipt of Incapacity Benefit from and including 26 November 1998. In 2005, he had met the threshold under a Personal Capability Assessment (“PCA”), obtaining 8 points in respect of the physical descriptors (hearing) and 18 in respect of those for mental health. Following a further PCA, a decision was taken on 17 April 2007 that he obtained 10 physical points (again for hearing) but this time only 5 points in respect of his mental health. Because of the rules in regulation 26 of the Social Security (Incapacity for Work) (General) Regulations 1995, the claimant’s aggregate score of 5 points in respect of the mental health descriptors, being less than 6, fell to be disregarded altogether. However, if he had obtained one more point under the mental health descriptors, his aggregate score in respect of them would have been treated as 9, which, when added to the 10 physical points, would have meant that he would have met the PCA threshold.


The adjournment request


3. The claimant’s appeal came before the appeal tribunal on 26 November 2007. On 21 November, the claimant had been to see the Welfare Rights Department of a local firm of solicitors. Whether he had seen them previously I do not know. They had written that day to the claimant’s GP, indicating that the claimant considered that he had further difficulties of mental health than those that had so far been allowed and seeking the view of the GP. No reply was received in time and so the claimant attended the tribunal with a submission (61) summarising the issue, exhibiting the letter which had been sent to the GP, and inviting the tribunal to consider adjourning. (The submission is wrongly dated 26 October 2007, but that is merely a clerical slip.) The appeal tribunal went ahead, confirming the decision as regards the mental health points, and, as regards hearing, substituting descriptor (e) (“Cannot hear well enough to understand someone talking in a normal voice in a busy street”) for descriptor (d) (“Cannot hear well enough to understand someone talking in a normal voice in a quiet room”), thus reducing the physical points from 10 to 8, but making no difference to the outcome.


4. While the record of proceedings records on its front-sheet that the submission was before the tribunal, nowhere does the record of proceedings or the statement of reasons indicate that any consideration was given to the adjournment request, much less the appeal tribunal’s reasons for not granting it. I gratefully adopt the observations of Mr Commissioner Jacobs, the tenor of which was cited with approval in the subsequent judgment of the Court of Appeal, in R(IB)6/03, that:

“In some circumstances, the reason for a refusal [sc. of an adjournment] may be obvious. The most obvious example is if no reason is given for the application. In most cases, a reason is needed. However, those reasons need not be elaborate. They must be read against the background of the terms of the application and the circumstances of the case. They need not set out every factor that the tribunal took into account. It will usually be sufficient to set out in a sentence the principal factor that the tribunal took into account. That reason need not be set out in the full statement of the tribunal’s decision. It is sufficient if it appears from the record of proceedings or the decision notice”.

A decision whether or not to adjourn is for the discretion of the tribunal but it is not a discretion wholly without limits. In this case, the failure to give reasons to the standard required by the words quoted above makes it impossible to discern whether any refusal was within or outside the bounds of the tribunal’s discretion and so caused the decision to be in error of law.

Scope of Activity 11 “hearing with a hearing aid or other aid if normally worn”


5. The claimant further appeals on the ground that the appeal tribunal failed to give sufficient reasons for replacing hearing descriptor 11(d) with (e). The Secretary of State does not support the appeal on this point. I do consider that there was an error of law in relation to hearing, but prefer to put it on the footing (which, after further submissions, the Secretary of State does support) that the tribunal failed to make sufficient findings of fact. The claimant’s evidence was at one point “I hear O.K. no prob[lem]” but at another “hearing – I lip read”. In my judgement, the wording of activity 11 makes it imperative to distinguish between (on the one hand) what a claimant can actually hear with the aid of a hearing aid or other aid if normally worn (which is relevant for the purposes of the hearing descriptors) and (on the other) ways in which a claimant may compensate for his or her hearing impairment to achieve understanding, such as lip-reading or the use of sub-titles to aid understanding of a television programme (which are not relevant for the purposes of the hearing descriptors). I consider that this follows from the wording of descriptors (b), (c), (d) and (e), in that the test is not whether the claimant is unable to “understand someone talking in a loud voice in a quiet room” (or as the case may be), which might be achieved with the aid of lip-reading, but whether a claimant “cannot hear well enough to understand someone talking in a loud voice in a quiet room” (emphasis mine). It also follows from the wording of activity 11 in the Schedule to the 1995 Regulations “Hearing with a hearing aid or other aid if normally worn”, in that the word “hearing” is in this context not apt to extend to activities which are alternatives to hearing and the sort of “aid” referred to is an aid to “hearing” so understood.


6. In the present case, the tribunal failed to establish how much the claimant could actually “hear” in the sense described above and how much of his ability to understand was achieved through the alternative strategy of lip-reading and so was in error of law.


Treatment of mental health descriptors in issue


7. Criticisms are also made of the tribunal’s reasoning in relation to additional mental health descriptors which had been put in issue by the claimant. The tribunal should have made findings of fact in relation to those descriptors and shown adequate reasons for their conclusion on the descriptors in issue. These would need to have addressed, among other matters both any variability in the claimant’s condition and, if their conclusions differed from those of the decision in 2005 following an earlier PCA, why they did so. By failing to do so the tribunal was in error of law. As I am setting aside the decision on other grounds, I do not regard it as necessary to explore this aspect in any further detail.


Directions


8. I direct therefore that the question of whether the claimant satisfies the PCA is to be looked at by way of a complete re-hearing in accordance with the legislation and this decision. Unless otherwise directed, the claimant or his representative must ensure that any further written evidence is filed with the First-tier Tribunal no less than 21 days before the hearing date. The tribunal will need to make full findings of fact on all points that are put at issue by the appeal in relation to both physical and mental descriptors. If the tribunal rejects the claimant’s evidence, it must provide a sufficient explanation why it has done so and must give adequate reasons for its conclusions. The tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on 17 April 2007- see section 12(8)(b) of the Social Security Act 1998 - but may have regard to subsequent evidence or subsequent events for the purpose of drawing inferences as to the circumstances obtaining at that time: R (DLA) 2/01 and 3/01.


9. While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing. The decision on the re-hearing is a matter for the First-tier Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.



(signed)


C.G.Ward
Judge of the Upper Tribunal
12 December 2008

Question (9)

Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the presence of any aids or adaptations normally used.




IN THE UPPER TRIBUNAL Case No CE/609/2011
ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision: The appeal is allowed. The decision of the First-tier Tribunal sitting at Manchester on 1 November 2010 under reference 946/10/01421 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 19 of the Reasons.

REASONS FOR DECISION

History

1. The claimant had had an operation for bowel cancer. He did not have a stoma. He had had to undergo chemotherapy. In a submission to the tribunal written by his pro bono legal adviser, descriptors 1 (walking) 2 (standing and sitting), 3(bending and kneeling), 5 (picking up and moving) 6 (manual dexterity) and 10a (continence) were put in issue. The decision appealed against in this case was taken on 15 December 2009, so it is with the original form of the descriptors that we are concerned.

2. The tribunal rejected the appeal, awarding 0 points. The claimant appealed further, arguing (among other points) that the tribunal had failed to make sufficient findings with regard to continence and that it had erred in its treatment of medical evidence.

3. The Secretary of State supports the appeal, although as will be seen I consider the basis of that support in part to be unsound.

Continence

4. The tribunal found that “he was not using a stoma and his chemotherapy had ceased. His bowels were clearly controllable with his medication and he only experienced difficulties as a result of trying to reduce the dose.” As to what those difficulties were, the tribunal did not make findings as such. The evidence of the claimant (which the tribunal considered unreliable) was recited at length. That evidence as recited was that :

“Although about 6 to 8 inches of his large bowel had been removed he did not need to wear a colostomy bag and did not suffer from any discharge. He did have a problem with the formation of stools. He had medication for this and, at the time of the decision he was adjusting his medication in order to get the right balance. The medication makes his stools firm. If he takes too much then he will become constipated. If he takes too little then he will suffer diarrhoea and may even temporary incontinence. He said that the medication was helping a lot but he would push the limits to get the balance right. He said that at the date of the decision he had well formed stools or constipation. He would only suffer from diarrhoea if he did too much exercise, in which case he could have accidents up to once or twice a month. He would then have to change and wash his trousers.”

5. This description does not entirely match the tribunal’s record of proceedings, which records:

“I’d have accidents 1 or 2 x p/m, I’d have to change and wash trousers.”

Whilst the record of proceedings is not intended to be a full record of evidence, it provides no support for the potentially important words “up to”, nor for the distinction between “could” and “would” in the tribunal’s summary of the evidence.

6. The Secretary of State supports the appeal with regard to continence, arguing that such control as there was appeared to be effected by means of the medication and not by the claimant’s own conscious will, which was what the expression “voluntary control” in activity 10a was directed towards. The authority for this was said to be the decision of Mr Deputy Commissioner Jacobs (as he then was) in CIB/14210/96, where he in turn relied on the decision of Mr Commissioner Walker QC in CSIB/38/1996, where the latter held that voluntary control was control that involved the operation of the will and that chemical control by means of medication did not amount to “voluntary control.”

7. The point was not necessary for the decision in CIB/14210/96, which turned on the view, subsequently disapproved by a Tribunal of Commissioners in R(IB)4/04, that a claimant who did not have a bladder could not fulfil the bladder-related continence criteria for incapacity benefit. CSIB/38/1996, on which it relies, has been both the subject of academic criticism (see Wikeley (1997) 4 JSSL D133-134) and has been judicially not followed. In R 2/00 (IB) Mrs Commissioner Brown said, in a Northern Ireland case:

“As regards Commissioner Walker's decision in CSIB/38/96, if he meant that all medication must be disregarded in determining whether or not a claimant has voluntary control, I do not share his views. Medication can enable a person to exercise control by will where previously he could not have done so. If a person acquires or regains control by will over the emptying of bladder or bowel, however the ability to exercise that control was brought about, he cannot, in my view be said to have "no voluntary control". Even, therefore, adopting Ms Slevin's contention of "voluntary" as meaning "having the action controlled by will" the use of medication need not be excluded. I do not therefore consider that the Tribunal erred in taking account of medication in this case.”

8. Mrs Commissioner Brown’s view was followed by Mr Commissioner Rowland (as he then was) in CIB/3519/2002. I respectfully agree with both those Commissioners and thus am unable to accept the Secretary of State’s concession, which made no reference to either of these authorities, on the point.

9. Nonetheless, questions still arise about the applicability of descriptor 10a. While it is not arguable that the claimant has “no voluntary control” for the purposes of descriptor (i), questions still arise concerning the possible applicability of descriptors (iii), (v) and (vii). The descriptors are set out below:

10 (a) Continence other than enuresis (bed wetting) where the claimant does not have an artificial stoma or urinary collecting device.

10 (a) (i) Has no voluntary control over the evacuation of the bowel. 15

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

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

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

10 (a) (viii) None of the above apply. 0

10. Common to all those descriptors is the need for a determination that there were either instances of a loss of control or that there was a risk of a loss of control. Each is expressed by reference to “the full evacuation of the bowel.” Clearly people troubled by such conditions may experience them with varying degrees of severity: see for instance the medical evidence at para 10 of CIB/14332/96. The claimant’s representative’s submission to the First-tier Tribunal, acknowledging that the matter was likely soon to come before the Upper Tribunal, argued that if the claimant “could not control say 10% of the evacuation process, then he could not control the full (i.e. 100%) evacuation.” Without authority I would incline to the view that what is required to qualify is a loss or risk of loss of control resulting in a full evacuation. If small losses of control were intended to qualify, the logical formulation would have been “…so that the claimant cannot fully control the evacuation of the bowel.” I am fortified in this view by authority which has more recently become available. In NH v SSWP(ESA) [2011] UKUT 82 (AAC) Judge Lane, discussing whether cases on the incontinence descriptor for incapacity benefit had any relevance to the provisions for bladder incontinence under ESA (which are materially identical for present purposes to those for bowel incontinence), held (at para 8):

“In the Secretary of State’s view, these PCA cases on incontinence did not encompass the requirement that any loss of control had to lead to a full voiding of the bladder. That is true, and the current activity of continence marks a significant change from the PCA in that respect. But descriptor 10(a) (vii) specifically incorporates the principle that a claimant can satisfy the descriptor if his urgency is such that, unless he is able to reach a toilet quickly, he will void his bladder, albeit that now the risk must be that he will of fully voiding his bladder.”

11. That there was such a distinction between partial and full evacuation of the bowels, with only the latter sufficing, was also accepted by Judge Mesher in KP v SSWP [2011] UKUT 216 (AAC).

12. The necessary questioning in order to determine whether the extent of any accident which a claimant has suffered or is at risk of suffering is “full” is liable to be intrusive. Helpful guidance is provided in the NH case.

13. The tribunal failed to make sufficient findings about these matters, in particular the extent of loss of control experienced by the claimant and the extent (if any) to which he was at risk of a full evacuation of his bowel unless he could each a toilet quickly. There does not appear to be any suggestion that the claimant was in any way being unreasonable in either taking exercise, or adjusting his medication, the two activities liable to affect the onset of diarrhoea, but if there was, findings bearing on the reasonableness of the steps taken would also be required.

Neuropathy

14. There were further errors of law. The claimant had claimed the problems set out in [1] above. He said he experienced pain, numbness and cramps affecting his legs, causing problems with balance, and numbness in his hands. The numbness had developed towards the end of his chemotherapy. treatment. When examined, he told the examining doctor, Dr Rozani, about the numbness. Dr Rozani then recorded “Client says his oncologist says the numbness is not a usual chemotherapy side effect”. This was relied upon by Dr Rozani at at least two places in his opinion. However, the appeal documents also contained a letter (which had not been before Dr Rozani) from Dr Conroy, a specialist registrar in oncology, to the claimant’s GP, recording that he had reviewed the claimant in clinic and that “we have had a long discussion today and I have explained that, unfortunately, the symptoms he describes in his hands and feet are vey common side effects following treatment with Oxaliplatin chemotherapy.”

15. The tribunal found that “The numbness in his hands and feet was not caused by any joint pain but was as a result of altered sensation. It was inherently improbable that this would affect his balance, walking, standing or bending and kneeling to any significant degree.” Dr Conroy had clearly stated that the symptoms the claimant had described to him were very common side effects of his treatment. In those circumstances, if the tribunal was going to make a finding that the extent of the symptoms experienced was inherently improbable, its duty to give reasons required it, in my view, to state why it was reaching that conclusion despite what Dr Conroy had written.

16. The tribunal also indicated that it purported to accept the evidence of Dr Conroy, which it regarded as not inconsistent with the opinion of Dr Rozani. In my view, the tribunal’s duty to give sufficient reasons meant that it needed to explain how it regarded the two as not inconsistent when Dr Conroy’s letter was stating the direct opposite of what the claimant had said was his oncologist’s view as recorded (and relied upon) by Dr Rozani.

Other errors of law

17. I need not consider whether there were any other errors of law in the tribunal’s decision. Any that there were will be subsumed in the rehearing I propose to order.

Disposal

18. I have considered whether or not I am prepared, having found there to be errors of law, to make the necessary further findings myself. I am not, even on the basis of the record of proceedings rather than the evidence as recorded in the decision, because there is no evidence about the extent of bowel evacuation and I am unwilling to infer it from the need to wash trousers, which could be occasioned by something less than a “full” bowel evacuation. Further, it may be necessary to consider continence descriptor (vii) concerning risk if the claimant does not get any higher score under the continence descriptors. That only carries 6 points and the other descriptors potentially yielding points to make up the shortfall to the 15 point threshold require proper findings, with the benefit of medical expertise, on the evidence regarding neuropathy in relation to the extent of disability the claimant alleges.

19. I regret therefore that there will have to be a further hearing. I direct therefore that:

(a) the question of whether the claimant satisfies the work capability assessment is to be looked at by way of a complete re-hearing in accordance with the legislation and this decision.

(b) unless otherwise directed, the claimant or his representative must ensure that any further written evidence is filed with the First-tier Tribunal no less than 21 days before the hearing date.

(c) the tribunal will need to make full findings of fact on all points that are put at issue by the appeal in relation to the descriptors claimed and any others which the tribunal considers it proper to investigate.

(d) if the tribunal rejects evidence given by the claimant or in support of his case, it must provide a sufficient explanation why it has done so and must give adequate reasons for its conclusions.

(e) the tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on 15 December 2009- see section 12(8)(b) of the Social Security Act 1998 - but may have regard to subsequent evidence or subsequent events for the purpose of drawing inferences as to the circumstances obtaining at that time: R (DLA) 2/01 and 3/01.

(f) these directions are subject to any further directions which may be given by a District Tribunal Judge.

20. While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing.

21. The decision on the re-hearing is a matter for the First-tier Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.



CG Ward
Judge of the Upper Tribunal
22 December 2011

Question (12)

Awareness of hazard or danger


This one may have a relevance if say it could be established that sleep deprivation decreased a claimant's awareness of hazards?



IN THE UPPER TRIBUNAL Case No. CIB/1595/2010

ADMINISTRATIVE APPEALS CHAMBER

Before: Judge of the Upper Tribunal: E A Jupp


Decision: The decision of the First-tier Tribunal given on 2 February 2010 under registration No. 228/09/03974 was erroneous in law. Accordingly, the claimant’s appeal succeeds. Under Section 12(2)(a) and (b)(i) of the Tribunal’s Courts & Enforcement Act 2007 I set aside the tribunal’s decision and remit the appeal for reconsideration by a differently constituted First-tier Tribunal of the Social Entitlement Chamber.

Directions: My directions and guidance are set out in paragraphs 15 to 18 below.


REASONS FOR DECISION


1. The claimant is a woman born on 8 February 1973. She became incapable of work on 2 January 1997, the cause of incapacity being stated as back pain and depression. She was entitled to incapacity credits. The papers include the examining medical practitioner’s report from a previous examination on 1 February 2006 and the resulting score. On that occasion, the claimant had scored nil in respect of physical descriptors, but 21 in respect of mental descriptors.


2. She completed form IB50 on 10 February 2009 and was examined by a medical services health care professional (the HCP) on 20 April. The nurse who completed that assessment recorded the claimant as looking unwell and tired, and that a smell of alcohol was detected although the claimant was sober. Against the claimant’s own score of 73 points on the physical descriptors, the decision maker awarded 6 points for problems with manual dexterity, and 5 in respect of mental descriptors - two each as the claimant sat for hours doing nothing, and as stress was a factor in making her stop work, and one as she was anxious that work would bring back or worsen her illness. As a result, her award of incapacity credits was superseded on 21 June 2009.


3. The claimant appealed through her representative, the local law centre, on the grounds that the decision maker failed to appreciate the true extent of the claimant’s disabilities, which continued to satisfy the personal capability assessment (the PCA). Further, the claimant had previously attended a number of medicals which had satisfied the PCA but, if anything, there had been a deterioration in her condition since she was last examined, successfully, for the PCA. The decision was reconsidered but not revised. The appeal proceeded.


4. A skeleton argument was submitted by counsel on behalf of the claimant, seeking a further single point in respect of the claimant's sleep problems interfering with daytime activities. This would enable the claimant to secure a score of 6 in respect of mental descriptors. As regulation 26(1)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995 provides that an aggregate score of between 6 and 9 points in respect of mental descriptors should be treated as a score of 9 points when added to the score in respect of the physical descriptors, this would enable her to achieve the required score of 15.


5. Counsel submitted that the HCP had found that the claimant “adjusted her daytime activities to fit in with her sleeping pattern” and had also documented that the claimant usually slept poorly because of “thinking about things”. In CIB/23/2009 Upper Tribunal Judge Wikeley stated “I accept the argument by the appellant’s representative that the [examining medical practitioner’s] findings about adjustment of daytime activities is tantamount to an interference with such activities”.


6. The claimant opted not to have an oral hearing. The tribunal dismissed her appeal and recorded on the decision notice that, based on its own evaluation of the evidence, it agreed with the Secretary of State’s selection of the descriptors applicable to the claimant.


7. In the statement of reasons, the tribunal recorded:

“The submission made on behalf of the appellant was considered by the Tribunal but after considering the description of a typical day the submission in respect of the application of the further mental health descriptor was rejected. It was recorded by the health care professional that although the appellant slept poorly because of thinking about things she usually got up from bed at 7.30.am. There then followed a description of what the appellant did throughout the day. There was no hint within that description of the appellant being compromised during the day because of her sleeping poorly at night. As the appellant had elected for the appeal to be decided on the papers the Tribunal had no opportunity of questioning her to determine precisely what was meant by “sleeps poorly” and no opportunity of taking further evidence in respect of the descriptor DLe. It was noted that at page 29 of the appeal bundle the appellant said “I sleep in the day sometimes” but in the absence of the appellant or further detail in the submission on her behalf that could not be further explored. On the evidence before it the Tribunal finds that the descriptor does not apply.”


8. The District Judge refused permission to appeal, stating that CIB/23/2009 was not authority for the proposition claimed and in any event were obiter as the issue in that case concerned panic attacks (this is not so, satisfying the descriptor on sleep problems interfering with daytime activities was part of the Judge’s decision, enabling the claimant to achieve the minimum score). The tribunal had assessed the evidence and come to a conclusion, with clear reasons why it had done so.

9. The claimant then appealed with my permission. In giving permission I observed:

“
…….My own preliminary view would be that where a claimant is stated to adjust to an abnormal sleep pattern, that is not an indication that “sleep problems interfere with day time activities”, without further evidence, which here appears to have been limited to the claimant's submission that she sometimes fell asleep in the afternoon…..”


10. The Secretary of State does not support the appeal. His representative analyses the evidence of the claimant’s sleeping arrangements as follows:

“7….Bed – at any time. Sleeps poorly – mind worries all time. Waken @ different times. Worn out next day. Irritable“ - page 5 of bundle – Health Care Professional’s (HCP) report 1/2/06;

“I sleep in day sometimes & can’t sleep at night” – page 29 of bundle – self assessment form 10/2/09;

“Usually gets up at about 7.30 am” – page 50 of bundle – HCP’s report 20/4/09;

”Was very concerned and did not sleep well because of coming here today” – page 50 of bundle – HCP’s report 20/4/09;

“Usually sleeps poorly because of thinking about things” – page 50 of bundle – HCP’s report 20/4/09;

“Adjusts daytime activities to fit in with sleeping pattern.” – page 63 of bundle – HCP’s report 20/4/09.

He submits that the tribunal pointed out that CIB/23/2009 was only relevant to the facts of that case and could not be construed as a universal interpretation of the law, adding that this coincides with my own view as expressed above that one might not follow CIB/23/2009 as a matter of course, but the facts in the particular case in question should be considered. He correctly draws attention to my having referred to the claimant falling asleep in the afternoon, whereas what she said, of course, which he did note, was that she sometimes fell asleep during the day.

11. The Secretary of State’s representative also notes that:


“12. Thus, the tribunal had to determine from the evidence that the claimant had sleep problems as a consequence of a mental health condition and that such problems interfered with day time activities. As far as the tribunal was concerned, the evidence that the claimant had a sleeping problem was accepted and, by implication, it would appear that it also accepted that such problems were as a consequence of a mental health condition. However, it found no evidence that such problems interfered with her daily routine. It made reference to the HCP’s report, noting that the claimant normally rises at 7.30 am. Although it was unable to ascertain how many hours the claimant might sleep at night, it felt that the HCP’s report showed the claimant to be reasonably active throughout the day without any hint of her routine being compromised through lack of sleep. The tribunal also documented the claimant’s evidence that she sometimes sleeps during the day, but this could be for any number of reasons, the claimant telling the HCP, for instance, that she starts drinking when she gets up and consumes up to 12 cans every day (page 49).


13. In my view, therefore, the tribunal was entitled to reach the conclusion it did, basing its decision on the evidence, or, more precisely, the lack of evidence supporting the claimant, that was presented to it. It may well be that the claimant does adjust her daytime activity to fit in with her sleeping pattern, but, as the UT Judge states when granting permission to appeal, that is not necessarily an indication that sleep problems interfere with day time activities, and the claimant needed to show where her problem intruded on her day. No evidence of such was laid before the tribunal. Basically, there was no evidence that sleep problems interfered with the claimant’s routine, and, in my view, the tribunal was clear in its facts and reasons so as to be entitled to refuse a score under descriptor 16(e).”


11. Not surprisingly, the response on behalf of the claimant is that the Secretary of State’s position that there is “no evidence” cannot be squared with the evidence listed at paragraph 7 of his submission, repeated at paragraph 9 above. The submission adds:


“5. It is submitted that the Secretary of State’s analysis underlines the Appellant’s case that the [First-tier tribunal’s (FTT)] decision involves an error of law for inadequate reasons. It is the Appellant’s case that the FTT has failed to identify and record matters that are critical to a proper determination of descriptor DL(e) so as to enable the parties to understand its thought processes when it made its decision (R(1) 2/06) para [49]). As a result, it is not possible to tell whether, in reaching its conclusion on the facts, the FTT applied the law correctly.


6. It is not possible to tell how, having accepted that the Appellant sleeps poorly, the FTT’s conclusion that this did not affect any daytime activities that she would otherwise undertake, can be reconciled with the HPC’s finding (on page 63) that the Appellant: “djusts daytime activities to fit in with sleeping pattern” when this is, in the words of CIB/23/2009 “tantamount to an interference with such activities.”


12. I am persuaded by the argument on behalf of the claimant that the Secretary of State’s analysis in fact highlights the failure of the tribunal to weigh the evidence as it should have done, and to give adequate reasons for its decision. There is certainly evidence of disturbed sleep. There is evidence of some daytime problems although, it has to be said, not a great deal of detail on which a tribunal could base a decision. It is possible that if the tribunal had addressed this descriptor as it should have done, it would have concluded an adjournment was necessary, given the significance of the single point available for this descriptor as to whether or not the claimant achieved a sufficiently high score to pass the test overall. In the initial appeal against the decision maker’s decision, the claimant’s representative asserted that, far from improving, the claimant was in fact deteriorating (and she did score 6 on the physical descriptors on this occasion which she had not done on the previous occasion) so that it was important for the tribunal to make clear findings of fact and to make plain the reasons for its decision. I am satisfied that it did not do so in respect of whether the claimant satisfied this descriptor and that it is appropriate for the decision to be set aside and remitted for further consideration by a differently constituted tribunal.


13. The claimant’s representative’s relies on CIB/23/2009 where the Judge accepted that the EMP’s finding about adjustment of daytime activities was tantamount to an interference with the activities of the claimant, in that case. In giving permission to appeal, I indicated that I was not then persuaded that that wording alone is sufficient to indicate that a claimant satisfies the descriptor, and that further findings of fact would be necessary in each case. In my judgment the wording indicates that a claimant does not have a normal sleep pattern and that some adjustment is made to deal with this. It flags a potential problem and that satisfaction of the descriptor is in issue, but as Mr Commissioner Jacobs, as he then was, held in CIB/5336/2002:


“14. The claimant’s representative argues that interference is not limited to preventing the claimant undertaking daytime activities. I accept that argument. Daytime activities may be prevented completely, or only be possible at certain times of the day, or be possible but only very intermittently or very slowly. All of these are potentially ways of interfering with the activities. Any of them is sufficient to satisfy the descriptor. This is subject to two qualifications. First, they must result from sleeping problems. Second, as with the word ‘cannot’ in descriptor 15(a), the issue depends on the proper use of language. When is a change in the activities undertaken or the pattern that would otherwise be followed an interference? A minimal change may not be sufficient to amount to an interference. So, for example, the fact that the claimant cannot start her daytime activities until a little later than normal or needs a rest at some time during the day, is not necessarily sufficient to satisfy the descriptor. Nor would it be necessarily be an interference just because the claimant has to change the time or order in which she performs the activities. This is a question of fact and degree, turning on the proper use of language”.
I emphasise the final sentence, that this is a question of fact and degree, turning on the proper use of language, so that a proper judgment can be made.


14. Without further evidence, the phrase “adjusts daytime activities to fit in with sleeping pattern” is not conclusive. If that sentence is one of the automatic pre-prepared responses available to an HCP completing form IB85, (and I note that it appears to have been used also on the earlier EMP's report in 2006) then I suggest that consideration is given to its removal or, at the very least, improvement by amplification.


DIRECTIONS


15. The new First-tier Tribunal must hold an oral hearing and conduct a complete reconsideration of the issues that arise for decision in this appeal, together with any others which merit consideration, subject to the discretion provided by section 12(8) of the Social Security Act 1998. It must make and record full findings of fact on all necessary points, with reasons for its acceptance of the evidence which is preferred and why the other evidence is rejected. It should bear in mind that the claimant also suffers from alcohol dependence, which may be relevant to her daytime activities.


16. It must not take account of circumstances which did not obtain at the date of the original decision appealed against, 21 June 2009, but must take account of any evidence which came into existence after that date, but which relates to the circumstances as at that date. If the claimant is minded to submit further evidence, she will also appreciate that this must relate to whether or not she satisfied the descriptors which she contends applied to her at 21 June 2009, and not at the date any report is given. In any event, full details should be made available to the tribunal in respect of the problems asserted in connection with her sleep problems.


17. The claimant is advised to make every effort to attend the new hearing if at all possible, failing which, again if at all possible, she should be represented. If she considers it will be difficult to travel to the hearing, she should contact the tribunal clerk to discuss what arrangements may be made to help.


18. The claimant will bear in mind that my decision is limited to matters of law; the new tribunal will make its decision on the evidence before it and the outcome may not be different or may be less or more helpful to her.


19. For the reasons stated, the claimant’s appeal succeeds. As further findings of fact are necessary I am not in a position to remake the decision under section 12(2)(b)(ii) of the Tribunal, Courts and Enforcement Act 2007, I remit the appeal for reconsideration.




(Signed) E A Jupp
Judge of the Upper Tribunal

24 November 2010

Question (14)

Coping with change


See paragraph(s) 29 with particular regard to how the Judge concluded that attendance at the Medical Examination Centre on her own was a significant departure from a normal routine (this is also referred to in ATOS guidance). It could be argued that some claimant's simply have no choice in attending on their own. You may also argue that a person took more anti-anxiety medication to get them there or there was considerable anxiety before and after the visit. The grounds put forward by the claimant were rejected in this case but could perhaps have been applied with more forceful evidence. You would need to apply this IB case to the current descriptor criteria.



CIB/16/2007


DECISION OF THE SOCIAL SECURITY COMMISSIONER




1. This is an appeal by the claimant against the decision of the Middlesbrough Appeal Tribunal given on 21st September 2006. By its decision the tribunal dismissed the claimant’s appeal against the decision of the decision maker made on 26th June 2006 that the claimant was not incapable of work. The appeal is not supported by the Secretary of State.


2. For the reasons given below, I have concluded that the decision of the tribunal was erroneous in point of law as respects certain of the descriptors relevant to whether the claimant is capable of work. In the light of the material before me, I am able to substitute my own decision in relation to those descriptors and do so under the provisions of section 14(8)(a) of the Social Security Act 1998. That, however, does not alter the overall outcome of the claimant’s appeal, since it does not lead to her being found to be incapable of work. I therefore allow the appeal but substitute my own decision to the same effect as that of the tribunal.


3. This appeal arises as follows. Very sadly, the claimant’s daughter died at the age of 28 in 2000. The claimant continued to work thereafter but suffered reactive depression and by 9th July 2001 was no longer able to work. She received statutory sick pay until 11th January 2002 and then claimed incapacity benefit. Under sections 171B(3) and 171C of the Social Security Contributions and Benefits Act 1992, the question whether or not the claimant was incapable of work was then to be determined in accordance with a personal capability assessment. The claimant was awarded incapacity benefit from 12th January 2002 pending assessment. She was then assessed on 8th May 2002 and found to be incapable of work.


4. On 17th June 2004 the claimant attended a medical examiner for a further personal capability assessment. On that occasion the examination was not completed because the doctor formed the view that the claimant had a severe mental health problem and was exempt from assessment. She went on, however, to advise the Secretary of State that the claimant’s condition would be expected to improve significantly in 18 months. I comment in passing that the fact that the assessment was not completed means that there is no evidence in the papers before me of the evidence relating to any previous assessment of the effect of the claimant’s mental health problems.


5. On 22nd December 2005 the claimant’s G.P. was sent a form asking for further information. He completed the form on 10th January 2006, stating that he had last seen the claimant on 16th November 2005. She had been suffering from recurrent anxiety and depression since 2000. It had recently improved but her recent visit resulted from a further episode of depression and he had again prescribed Fluoxetine. The claimant had had a carpal tunnel operation in August 2005 which had improved her carpal tunnel syndrome. Attached to the report was a computer printout from which it appeared that the claimant’s depression in November 2005 resulted from family problems and in particular her sister’s illness.


6. The claimant herself was then asked to fill in an incapacity questionnaire, which she did on 20th January 2006. For the purposes of this appeal it is relevant to note that she described herself as receiving treatment for anxiety and depression “as and when necessary” and explained that she had recently had an anxiety attack after placing her mother in residential care and watching her sister’s health deteriorate. She also said that she had problems with her right hand as a result of carpal tunnel syndrome.


7. The claimant then underwent a further personal capability assessment on 9th June 2006. The doctor applied both the physical and the mental descriptors set out in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, S.I. 1995 No. 311. The doctor concluded that the claimant did not satisfy any of the physical descriptors but that:

(1) mental stress was a factor in making her stop work;

(2) she frequently felt scared or panicky for no obvious reason; and

(3) she was scared or anxious that work would bring back or worsen her condition.


Those descriptors gave the claimants points of 2, 2 and 1 respectively. By way of summary, the doctor stated:

“There is no evidence of any significant cognitive impairment. The customer’s mental health condition causes mild functional impairment. Seems to be managing quite well with all her routines.”


8. The assessment report was considered by the decision maker on 26th June 2006 and the doctor’s view was accepted. The result was that the claimant scored 5 points on the mental assessment and none on the physical assessment. In order to be found incapable of work, the claimant had to score 10 points by reference to mental descriptors alone or 15 points by reference to physical descriptors alone or mental and physical descriptors taken together: regulation 25 of the Incapacity for Work Regulations. The claimant clearly failed to satisfy that requirement and was determined not to be incapable of work. That decision was notified to her by letter dated 28th June 2006.


9. The claimant appealed against the decision by notice of appeal dated 4th July 2006. She referred to her physical problems with her right hand and the disruption it caused to her sleep. She then continued:

“Consequently I feel tired during the day and therefore only do household tasks when I feel competent enough to do them and complete them.

I take medication for anxiety and depression in agreement with the doctor, as and when I need it during stressful situations that occur and have again become stressed and weepy at your reply to my medical assessment.

The day I went for my assessment I feel I appeared calm, confident and in control. However, this does not display the inner turmoil I feel when dealing with situations like these. I feel nervous, anxious and nauseous.”

The decision was reconsidered on 27th July 2006 but was not changed and the appeal proceeded.

10. In connection with the appeal the claimant was represented by the local authority welfare rights unit. Her representative obtained from her G.P. an opinion dated 30th August 2006 “for the period from 26th June 2006” on a number of mental and physical descriptors. For the purposes of the present appeal it should be noted that he expressed the view that:

(1) the claimant was frequently distressed at some time of the day due to fluctuation of mood;

(2) sleep problems interfered with the claimant’s daytime activities;

(3) the claimant sometimes avoided carrying out routine activities because she was convinced they would prove too tiring or stressful;

(4) the claimant was unable to cope with changes in daily routines;

(5) the claimant frequently found that there were so many things to do that she gave up because of fatigue, apathy or disinterest;

(6) the claimant became irritated by things that would not have bothered her before she became ill.

He described her as suffering from anxiety when out of her comfort zone.


11. The claimant’s representative put before the tribunal a written submission in which it was contended that the various descriptors set out in paragraph 10 applied in addition to those found by the decision maker to apply. Each such descriptor carries 1 point. On that basis the claimant would score 11 points by reference to mental descriptors and would satisfy the personal capability assessment test. It was also contended that the claimant’s carpal tunnel syndrome meant that she was unable to turn a sink tap or the control knobs on a cooker with one hand, although she could with the other. If so, she would be entitled to a further 6 points.


12. The claimant gave oral evidence at the hearing on 21st September 2006. She said that she had an agreement with her G.P. that she would take medication for anxiety and depression when she was desperately low. She had taken the tablets in November and December 2005 but not since then. She said that she still had a disturbed sleep pattern and would go to sleep on the couch during the day. She had panic attacks most days and was scared for no reason. She said that she gets up between 8.30 and 10.00 a.m., makes breakfast, tries to do a tidy round, if she wants to has a shower. She takes things at her own pace. Some days she cannot be bothered getting up. She does housework if she can be bothered. She watches TV, listens to music and reads books if her concentration is OK. She makes a meal, or her husband may help if he is in. She answers the door after checking who it is and only answers the phone after leaving it to be collected by the answerphone. She used to do dressmaking as a hobby but no longer does. Her sister rings twice a day to make sure she is OK and her husband rings. She does not make any phone calls. She drives occasionally. As to driving, the claimant explained that her mother lives in Newcastle and she drives to see her. It takes 1½ hours and she might need to stop if she has an attack of feeling she does not want to be driving. She tries to visit her mother once a week but since June 2006 has only managed once a fortnight. She has terrible mood swings and does not feel calm as stated in the examining doctor’s report. She does go out with family and friends.


13. The claimant gave brief evidence about her physical difficulties as a result of carpal tunnel syndrome. She can write with her right hand (she is right-handed) but cannot tie a shoelace. She uses her left hand rather than her right to pick things up.


14. The tribunal, having considered the evidence, found that the claimant suffered from sleep problems which interfered with her daytime activities and awarded her 1 point in that respect. Otherwise it accepted the decision maker’s assessment both for mental and physical descriptors. The tribunal’s statement of reasons as respects the only physical descriptor in issue goes through the evidence carefully and fully and gives clear reasons for accepting the medical examiner’s opinion. Understandably, it does not form part of the claimant’s grounds of appeal and I need say no more about the physical descriptors.


15. The tribunal clearly gave equal care to the various mental descriptors which the claimant contended were satisfied. The claimant contends, however, that in relation to each descriptor which was found not to be satisfied, the tribunal either made inadequate findings of fact or gave unclear reasons or both. I will therefore deal with what the tribunal said later in this decision.


16. Leave to appeal against the tribunal’s decision was refused by the chairman but was granted by Mr. Commissioner Leveson on 22nd January 2007. His reasons were that the grounds of appeal were arguable and the reasoning of the tribunal seemed to make unwarranted assumptions about the nature of the evidence from the G.P.


17. In his submission on the appeal the Secretary of State summarised the claimant’s grounds as being essentially that the tribunal did not give sufficient explanation for preferring the examining practitioner’s opinions and evidence to that of the claimant’s G.P. The submission drew attention to two Commissioners’ decisions relevant to the point. In CIB/724/2005 the Commissioner expressed the view that the tribunal was entitled to take into account the lack of clinical examination by the G.P. and the fact that the forms he had ticked gave no indication of the reasoning which led to his conclusions, in contrast to the report of the medical examiner. In CIB/3706/97 the Commissioner commented that as the tribunal had in general preferred the evidence of the examining medical practitioner it was not surprising if it consequentially accepted the evidence of the claimant and his G.P. so far as it coincided but not otherwise. (That comment was made in relation to a submission that the tribunal had been picking and choosing the evidence from the claimant and his G.P. which it was prepared to accept.) The Secretary of State in this case also made the point that on all occasions on which there was a difference of opinion the tribunal took into account its own questioning of the claimant.


18. The claimant’s representative made observations in reply stressing the independence of the G.P.’s evidence, as shown by his having made changes to the form as respects the physical descriptors and having answered adversely to the claimant’s case as respects some of the mental descriptors. She repeated that the tribunal had failed to provide sufficient findings of fact as to why they preferred evidence by the examining medical practitioner.


19. I turn now to consider the various descriptors contended to be satisfied.

Frequently distressed at some time of the day due to fluctuation of mood (descriptor 16(c))


20. The tribunal observed that the medical adviser had found the descriptor not satisfied on the basis that the claimant was not depressed on examination, there were no ideas of self harm and the claimant was not anxious on examination. The claimant’s evidence of mood swings and not feeling calm was acknowledged, but the tribunal said there was no evidence from her that she was distressed at some time of the day due to fluctuation of mood. The G.P.’s evidence was noted but the medical adviser’s opinion was preferred as it was based upon observations of and discussions with the claimant by a medical adviser and was a professional and unbiased opinion based upon those observations and clinical findings.


21. The grounds of appeal make reference to the G.P.’s evidence and point out that the tribunal did not ask what caused or triggered the mood swings and how often they occurred. The point is also made that the tribunal accepted the evidence of the claimant and the G.P. about sleep problems but rejected it as respects fluctuating moods.


22. The examining doctor’s report records (p.63) that the claimant said that every day the following symptoms occurred and were usually troublesome: low mood, tearfulness, anxiety, panic attacks and irritability. The format of the report, while allowing the doctor to state evidence in support of a conclusion, does not provide for reasons why evidence adverse to the conclusion was rejected, so it is not possible to see why the doctor did not regard the evidence just mentioned as of relevance, or, if it was regarded as relevant, why it was nevertheless outweighed by the other evidence referred to (which is not in itself particularly persuasive in relation to a question about fluctuation of moods). The tribunal does not appear to have taken that into account. Further, I do not understand why the tribunal said that there was no evidence from the appellant that she was distressed at some time of the day due to fluctuation of mood, having earlier recorded her evidence about mood swings. The tribunal may well have felt inhibited about pursuing this directly with the claimant, given the stress that is laid on not using mental health descriptors as a check list (see p.7 of the bundle) and so I do not find an error of law in that respect. In my view, however, the tribunal did fail to give adequate reasons for rejecting the evidence of the G.P. and apparently ignoring that of the claimant, and instead preferring the evidence of the examining doctor.


23. It further seems to me that the evidence is sufficient to show that the claimant does in fact satisfy the descriptor. What she said to the tribunal seems to me to be consistent, if stronger, than what she is recorded as having said to the examining doctor. I accept the submission made by the claimant’s representative that the G.P. has not simply ticked every box presented to him but can be seen to have considered his answers. He has had much more opportunity than the examining doctor to assess how far the claimant’s mood is likely to fluctuate and cause her distress and I bear in mind the difficulties with the examining doctor’s opinion to which I have referred. In those circumstances, I award the claimant 1 point in respect of this descriptor.


Avoids carrying out routine activities because he is convinced they will prove too tiring or stressful (17(c))


24. Again the tribunal relied on the medical adviser’s opinion. On this occasion, however, the opinion was based on statements made by the claimant that she usually likes to make meals, she usually prefers to keep busy, she can usually easily vacuum, clean windows, clean the bathroom, wash dishes and do housework, that she drove to the examination, that she goes shopping for bread and milk most days and that chats to friends and family on the telephone most days. The tribunal also took account of the claimant’s own oral evidence, as summarised above and stated that there was no evidence that the claimant did not carry out routine activities because they were too stressful; rather it was simply the case that on some occasions she could not be bothered to do so.


25. The grounds of appeal are that the tribunal failed to give any sufficient reasons why it preferred the evidence of the examining doctor and failed to ask why the claimant could not be bothered. Attention was also drawn to the claimant’s evidence as respects driving to Newcastle.


26. This particular descriptor was recently considered by Mr. Commissioner Williams in CIB/1374/2006. The Commissioner said that it clearly requires (a) a finding whether the claimant avoids carrying out routine activities and (b) a finding whether (if he does so) that is because he is convinced that they will prove too tiring or stressful. That decision was given on 5th July 2006 and evidently was not before the tribunal. If it had been, no doubt the tribunal would have made more explicit findings on (a) and (b) as identified by the Commissioner, as would have been helpful. As it is, however, the tribunal referred to what was cumulatively a fairly substantial body of evidence from the claimant herself that she usually managed a considerable number of routine tasks and indeed preferred to keep busy. The claimant did not dissent from what she was recorded as having said to the examining doctor on this aspect of the case, except as to the number of times she went to the supermarket. The evidence of the examining doctor which the tribunal preferred was therefore very largely, albeit indirectly, the evidence of the claimant, although clearly the doctor had formed an opinion on the basis of that evidence which the tribunal took into account. This is not, as might have been thought, an example of preferring the evidence of the medical adviser to the evidence of the claimant and her G.P.; it is rather a case in which the G.P.’s view was largely contrary to the claimant’s own evidence of what she did. In fact she usually undertook, rather than avoided, routine activities. No elaborate reasoning for accepting the medical adviser’s view was required.


27. It is of course true that the tribunal also accepted the claimant’s own evidence that sometimes she could not be bothered to do the housework. In CIB/1374/2006 it was said that the tribunal should have considered why, on the evidence, the claimant chose to do nothing. Was he convinced that the activities would prove too tiring or stressful? Here the claimant herself volunteered the explanation for her inactivity on such limited occasions as she was inactive, namely, that she could not be bothered. This appears to me to imply apathy or lack of interest rather than a conviction that the routine activities in question will prove too tiring or stressful. As to the claimant’s driving to Newcastle, the evidence was clearly that the claimant regularly undertook a fairly considerable drive, even if sometimes she had to stop en route.


28. Having regard to the above, in my view it was not an error of law for the tribunal not to pursue this descriptor further. In this connection I note that the claimant’s written submission to the tribunal spoke of it becoming “obsessive to keep busy because [the claimant] does not like to sit and think”, and stated, “she can get everything ready to start chores and cleaning and is too exhausted to do them.” If I had found an error of law on the part of the tribunal, I would nevertheless have reached the same conclusion on the evidence.


Unable to cope with changes in daily routine (17(d))


29. In relation to this descriptor the tribunal began by noting that the opinion of the medical adviser was that the claimant did not satisfy the descriptor because she was not anxious on examination, she had normal concentration and she had no significant lifestyle restrictions resulting from her mental health problems. Having recorded that the claimant’s G.P. was of the opposite opinion, the tribunal considered the evidence of a varying daily routine on the basis of what the claimant had told the tribunal: that is, that sometimes she went to Newcastle, sometimes she went to the supermarket, sometimes she went out and socialised with friends, she chose whether to have a shower when she got up, she took things at her own pace and sometimes she did not bother to get up. The tribunal concluded that there was nothing to suggest that the claimant had a rigid routine from which she could not change and overall, considering the details of the claimant’s daily life as described both to the tribunal and to the examining doctor, the claimant did not satisfy the descriptor.

30. In her grounds of appeal the claimant contends that the tribunal chose the evidence of the examining doctor over the evidence of the G.P. and that the tribunal failed to take into account that what the claimant described was her daily routine; she was used to doing different things on different days and it was routine for her. If she were given something different to do, she would be unable to cope. I assume that the claimant intended to raise in relation to this descriptor as well as the others the issue whether the tribunal had given adequate reasons for its preference of the examining doctor’s evidence.

31. In my view there is force in the point made on behalf of the claimant that a daily routine may have some variable elements if there is overall a broadly settled and regular pattern. In particular, it does not seem to me that a regular trip, such as the claimant’s trip to Newcastle, which is not made every day necessarily amounts to a change in daily routine for this purpose if it is nevertheless something done regularly. The descriptor is not, in my view, directed to day-to-day variations determined by the claimant in a pattern which she has herself established. Although with some hesitation, I have concluded that the tribunal erred in law in
considering the descriptor on the footing that it contemplated a rigid routine which the claimant herself could not change. I therefore set aside the tribunal’s decision in this respect.

32. On the footing that the descriptor itself is not so rigid, I consider that the evidence is very finely balanced. Clearly the claimant can accommodate some variety in her daily routine. The examining doctor thought that the claimant did not satisfy the descriptor, and I have set out in paragraph 29 above the reasons given as expressed by the tribunal. The G.P. thought that she did, but gave no reasons. Nothing in the claimant’s evidence illuminates what sort of change in routine would be beyond her capacity to cope with. At the end of the day I note that the examining doctor relied also on the claimant’s having attended the examination centre alone. That was clearly a significant departure from the claimant’s daily routine, not chosen by her and for a purpose of importance to her. The report records the claimant as having stated that she was only mildly stressed because of having to come to the examination centre and that is evidently how she appeared to the doctor. I note that she says that in fact she was much more anxious than she appeared. Even allowing for that, however, it seems that she coped well with this change in routine. In all the circumstances, I conclude that the claimant does not satisfy this descriptor.


Frequently finds that there are so many things to do that she gives up because of fatigue, apathy or disinterest (17(e))


33. As with descriptor 17(c) (avoids carrying out routine activities) the tribunal relied heavily on the claimant’s own account of how she spends her time, both to the medical adviser and to the tribunal itself. The tribunal concluded that the claimant “was able to carry out a full range of tasks across the day”. It noted her evidence that sometimes she could not be bothered to do housework but found that “there was no suggestion that the [claimant] felt this way frequently”. The tribunal reminded itself of the G.P.’s opinion that the descriptor was satisfied, but, faced with the conflict with the opinion of the medical adviser, reached its own conclusion on the basis of the claimant’s evidence, as already indicated.


34. The grounds of appeal also note the conflict between the G.P.’s view and the view of the examining doctor and I shall again assume that it is contended that there was a failure to give adequate reasons for the preference of the examining doctor’s view. Additionally it is contended that the tribunal failed to identify why the claimant could not be bothered to do housework on some days and the frequency of that occurrence. It is pointed out that the claimant said she did not make phone calls, that both her sister and her husband rang her and that in the first instance she left the call to be collected by the answerphone.


35. In my view, the tribunal, in noting the examining doctor’s reliance on the claimant’s own evidence of her usual activities and her preference for being busy and in finding as a fact that the claimant was able to carry out a full range of tasks, made clear enough the reasons for their preference of the examining doctor’s opinion over the opinion of the G.P. in the absence of any reasons to support the G.P.’s opinion. It seems to me implicit in the tribunal’s acceptance that sometimes the claimant could not be bothered to do housework that it was accepted that the claimant gave up through apathy or lack of interest, or possibly fatigue, because the tribunal went on to consider the issue of frequency. Again it seems possible that
the tribunal was inhibited from pursuing that issue too directly. Given, however, the evidence that the claimant was usually busy and preferred to be so, to which I have already referred, I take the view that the tribunal did not err in law in concluding that on any view there was no suggestion that the claimant did frequently feel she could not be bothered .

Gets irritated by things which would not have bothered her before she got ill (18(d))


36. The tribunal again noted that the medical advisor’s opinion was that the descriptor was not satisfied and that the G.P.’s opinion was that it was. The medical adviser’s opinion was said to be based on his assessment that the claimant has a calm nature and her mental health condition caused mild functional impairment only. There was nothing to substantiate the G.P.’s opinion. The claimant herself denied that she was a calm person. The tribunal preferred the examining doctor’s opinion because it was an opinion of a medical adviser trained in carrying out assessments for the personal capability assessment and was an unbiased opinion based upon observations of the claimant, clinical findings and discussions with the claimant.


36. The ground of appeal is that the tribunal failed to give adequate reasons for why it preferred the opinion of the medical adviser. Attention is drawn to what the claimant said in her appeal notice about her inner turmoil and to her evidence before the tribunal.


37. It is notable that the one respect in which the claimant appears to say that the medical adviser is downright wrong is on this question of being a calm person. She does not seem to have been asked directly whether or not she made the statement, but it seems that the claimant was effectively putting in issue whether what she said was accurately recorded, although the record of proceedings shows that the claimant did not say she was not a calm person but that she did not feel calm. This is not just a matter of the doctor’s assessment. One possible explanation might be that the claimant told the doctor she was calm by nature, meaning when she was well. The question how this discrepancy arose was not pursued at all. I note also that in fact the only evidence relied upon by the examining doctor in support of his conclusion reached on this aspect was that the claimant (as she had apparently said) had a calm nature. Given its potential importance for this descriptor, I have come to the conclusion that the tribunal’s duty to act inquisitorially means that the point should have been explored further and that failure to do so was an error of law. I therefore set aside the tribunal’s decision in this respect also.


38. On the evidence, then, the medical adviser concluded that the descriptor did not apply, but relied on a single statement of uncertain status. The G.P., who has the advantage of having known the claimant for some time, thought it did apply. The point made earlier, that the G.P. exercised judgment in answering the form before him, should be recalled here. The claimant by her written submission to the tribunal asserted that she feels very irritated by sudden noise and distraction. In general the tribunal appears to have accepted the claimant’s oral evidence; there is certainly no finding that she was prone to exaggeration. On this scanty material, I conclude that the claimant’s statements (excluding the possible statement to the examining doctor), supported by the G.P.’s evidence, should be accepted in preference the doctor’s opinion, based on one somewhat disputed statement. I therefore award the claimant 1 point in respect of this descriptor.

Overall conclusion


39. The result of my decision is that the claimant has scored 2 extra points. With the extra point awarded by the tribunal itself, that gives her a total of 8 points. By the operation of regulation 26 of the Incapacity for Work Regulations that would be treated as a score of 9 points if added to points in respect of physical descriptors. It remains, however, a score of 8 points for the purposes of a score determined by reference to mental descriptors alone and, as is obvious, falls short of the required score of 10 points.


40. For the reasons I have given I allow the appeal and set aside the decision of the tribunal. I substitute my own decision to the same effect as the decision of the tribunal and the decision maker. With effect from 26th June 2006 the claimant was not incapable of work and accordingly ceased to be entitled to incapacity benefit.






(signed on the original) E. Ovey
Deputy Commissioner
16th May 2007

Question (16)

Coping with social engagement due to cognitive impairment or mental disorder.




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