IN THE UPPER TRIBUNAL			Case No  CE/2649/2012
ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD 

Attendances:	

For the Appellant:	The appellant in person, accompanied by his wife

For the Respondent	Mr Huw James, solicitor

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Burnley on 21 June 2012 under reference SC123/12/00291 involved the making of an error of law and is set aside.  

Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007, I substitute the decision which the tribunal ought to have given, in the following terms:

	The appellant’s appeal against the Secretary of State’s decision dated 	7 December 2011 is allowed.  The appellant achieved a score of (at 	least) 15 points at the date of that decision and consequently had 	limited capability for work.  The appellant’s existing award qualified for 	conversion to employment and support allowance and any existing 	entitlement to credits is maintained.

Any benefit paid to the claimant by way of jobseeker’s allowance meanwhile is to be offset against any employment and support allowance payable by virtue of this decision.

REASONS FOR DECISION

1. The appellant, a man aged 52 at the date of decision, had been entitled to incapacity benefit and/or incapacity credits since 29 December 2006 on the grounds of incapacity for work due to stress.  As part of the conversion process to employment and support allowance (ESA) he was seen by a Healthcare Professional (“HCP”) on 22 November 2011.

2. The HCP noted, among other matters) that:

a. the appellant was being treated with Amitryptyline.  He saw the GP monthly but had not had counselling or been referred to a specialist;
b. he described low mood, anxiety, panic attacks, sleep problems, loss of interest, loss of enjoyment, poor concentration, lack of energy, irritability and agitation for most of the time;
c. his last job had been five years ago with the local Council and the main reason for leaving work had been work-related stress;
d. he did not go out unless accompanied and would not answer the front door unless he knew who it was; and
e. on clinical examination, rapid pulse rate and moderately high sitting blood pressure were found.  The appellant was observed to have reduced facial expression, withdrawn mood, to appear tense and to be sweating to an increased extent.

3. The HCP accepted that the appellant had anxiety and depression and awarded 9 points on the basis that he was unable to get to a specified place with which he was familiar without being accompanied by another person.

4. Judge Lloyd-Davies directed an oral hearing of the application for permission to appeal, which I heard in Manchester on 30 November 2012.  I set out below extracts from my grant of permission to appeal.

	“1. [The appellant] has a mental health problem with stress and 	depression.  It is also evident from his claim form that while he can put 	things down on paper, he does not always find it particularly easy to do 	so.  He did not have anyone at the first tribunal helping him.  Lawyers 	say that the tribunal’s job is an “inquisitorial” one: that means that 	sometimes it has to ask relevant questions even if people don’t tell the 	tribunal things themselves.  Did the first tribunal need to do more to ask 	questions in this case?

	2. Here is an example.  [The appellant] told the first tribunal he left his 	last job because of stress.  He gave me more details.  He told me he 	used to have to do a driving round, emptying bins and things like that 	on a fixed route.  The stress came when the people at the depot used 	to ring him up and ask him to go somewhere different.  He would say “I 	will do it at the end of my round.”  The Council people said “No, do it 	now”.  He used to feel stressed out when he got back to the depot.  He 	had to go off sick.  It made him bad-tempered with his wife.  He had 	mood swings.  Before that he had been a road sweeper and that had 	been OK.

	…

	5. If the first tribunal had asked more questions, I wonder whether it 	might have reached different conclusions.

	6. For instance, a person can get points for ESA if they find it hard to 	cope with minor unplanned change.  The sort of changes [the 	appellant] had to deal with when he was a driver don’t sound unusual 	to me but he obviously found it hard to cope with them.  Different 	people have different abilities to cope with change and maybe [the 	appellant’s] is low.  If that is so, his experience as a driver makes me 	wonder if he should have got points, even if the driving job was back in 	2006.

	…”

5. The grant of permission also raised similar questions in relation to activity 16 “Coping with social engagement”).  The appellant‘s father, now an elderly man, had had to come into a shop and get him, because he told me he felt nervous being among people.

6. It seems to me that both activity 14 (which deals with “coping with change”) and activity 16( “coping with social engagement”)  require an examination of what it is with which a person is unable to “cope”.  To “cope” is a word of relatively general application.  Its significance in the present context is well expressed by a definition given in the Oxford English Dictionary (Online Edition) of “To manage, deal (competently) with, a situation or problem.”  It seems to me that a variety of human behaviours and responses may be indicative of a failure to “cope” in such a sense.  Among them may be stress reactions and discomfort sufficient to require the intervention of another in circumstances where such intervention would not normally be expected.

7. However, because the work capability assessment looks at specific activities, it is not a failure to cope in every context which will result in the award of points.  In PD v Secretary of State for Work and Pensions (ESA) [2012] UKUT 255 (AAC) I acknowledged

	“the difficulties that there may sometimes be in forming a view as to 	whether a person meets the mental health descriptors for ESA.  In 	particular, the context of a particular piece of evidence may be very 	important.”

The comment is equally applicable in the present case.  The tribunal knew that the main reason for leaving the last job was work-related stress. That invites one to conclude that the appellant was not “coping” then and to ask why that was.  Either change or social engagement was quite capable in the context of a driving job with a local authority to have been the catalyst for stress.  It was therefore at first glance  necessary to explore what had caused the stress, which the tribunal did not do.  I accept that the job in question had been some time ago and that people do sometimes move on from their mental health difficulties.  If there had been evidence that that was so, then such an exploration might not have been necessary.  But here that was far from the case: see, in particular, the matters in paragraphs 2 and 3 above.

8. In written submissions, the respondent relied on the observations in decision R(IB)6/05 that a Commissioner (i.e. the predecessor to an Upper Tribunal judge) was not a fact-finding body  and that it was not the function of the Court of Appeal - or, by extension, that of a Commissioner, to teach tribunals how to perform their function of weighing the evidence.  He submits that the tribunal did discuss the appellant's previous employment, including his reasons for leaving that role.  That is correct, to the extent that, as the record of proceedings shows:

	“Depression started 5-6 years ago. Was working for [… ] Council. Was 	under a lot of strain and pressure, as driver.”

9. That was fine, so far as it went, but it omitted the vital stage of asking what it was that had caused the strain and pressure.  Only then could the tribunal decide whether or not it was relevant to one of the scoring activities. It is therefore not a question of teaching the tribunal how to weigh evidence, but of directing attention to the questions which the particular structure of the legislation requires to be asked.  

10. At the oral hearing before me, it was correctly conceded on behalf of the respondent that the inquisitorial duty might result in a tribunal being obliged to ask further questions if a point were to arise indicating that there were matters to be followed up.  It was then submitted that the Upper Tribunal should only intervene if the tribunal’s approach to questioning was outside the normal range of questioning. While I agree that it is not for the Upper Tribunal to intervene just because it can think in general terms of a further question or two that it might have been a good idea to ask, it is the Upper Tribunal’s function to intervene to ensure that those questions are asked the need for which is dictated by the legislation which the First-tier Tribunal has to apply.

11. The answers if the questions had been asked are set out in paragraph 2 of the grant of permission, quoted in paragraph 4 above.  I accept the evidence of the appellant as honest and straightforward.  I conclude that his ability to cope with change is indeed low and that the requirements of descriptor 14(c)  “Cannot cope with minor unplanned change (such as the timing of an appointment on the day it is due to occur), to the extent that overall, day to day life is made significantly more difficult” is made out.  Difficulty in coping with change to the extent of an inability to hold down a job requiring what objectively would only have been a very modest level of change is indeed such as would make day to day life significantly more difficult.  That confers 6 points which, taken together with the 9 points previously awarded, takes the appellant to the 15 point threshold.

12. As that is so, I do not need to dwell on whether, had more questions been asked about social engagement, the appellant would also have been entitled to points in respect of that activity. 

13. I do not find that the test in schedule 3 is made out.  The impact of the appellant’s difficulty in coping with change is not such that “day to day life cannot be managed”.  That is evident in the descriptions of everyday life given to the HCP, the tribunal and me.  Though life is more difficult, day to day life is managed, with the help of, in particular, the appellant’s wife and father.  I thus do not consider that the appellant has limited capability for work related activity.

CG Ward
Judge of the Upper Tribunal
15 August 2013