DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.
The decision of the Chippenham First-tier Tribunal dated 07 December 2013 under file reference SC904/12/00869 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.
The Upper Tribunal is able to re-make the decision under appeal. The decision that the First-tier Tribunal should have made is as follows:
The Appellant’s appeal against the Secretary of State’s decision dated 22 February 2012 is allowed.
The Appellant’s existing award of incapacity benefit qualifies for conversion into an award of employment and support allowance (ESA). This is because the Appellant meets the terms of descriptor 1(a)(ii) of Schedule 2 to the ESA Regulations 2008 (as amended), scoring 15 points, and also meets the equivalent descriptor 1(b) in Schedule 3 to the ESA Regulations 2008 (as amended). This is because he cannot repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort. He accordingly has both limited capability for work and limited capability for work-related activity. It follows that he is entitled to ESA at the support group rate as from 21 March 2012. The Secretary of State’s decision dated 22 February 2012 is revised accordingly.
This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
The main issue in this appeal
1. This appeal concerns the test contained in the mobilising descriptor for the employment and support allowance (ESA) work capability assessment which is defined in terms of an inability to mobilise a certain distance “repeatedly … within a reasonable timescale because of significant discomfort or exhaustion”.
2. The activity in question itself is defined as “mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used” (Employment and Support Allowance Regulations 2008 (SI 2008/794; “the ESA Regulations”), Schedule 2, activity 1, as substituted by the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) Regulations 2011 (SI 2011/228; “the 2011 Regulations”), regulation 4(1) and Schedule 1).
3. The descriptors in issue are all in the following format:
(i) mobilise more than X metres on level ground without stopping in order to avoid significant discomfort or exhaustion;
(ii) repeatedly mobilise X metres within a reasonable timescale because of significant discomfort or exhaustion.”
4. The distance of X metres is defined as 50 metres (descriptor 1(a), scoring 15 points), 100 metres (1(c), 9 points) or 200 metres (1(d), 6 points).
The background to the appeal
5. The Appellant is a man who is now aged 53. He suffers from severe peripheral vascular disease, diabetes and problems with both elbows. His GP had signed him off sick as his “capacity to walk/stand is very limited”.
6. On 20 December 2011 the Appellant completed an ESA50 questionnaire as part of the conversion process from incapacity benefit to ESA. He indicated that the maximum distance that he could walk was about 120 to 150 yards, but only with great discomfort, and that his ability to walk 50 metres varied.
7. On 7 February 2012 the Appellant underwent an ATOS medical examination by a nurse. The nurse’s opinion was that descriptor 1(c) for mobilising applied, which would score 9 points only (mobility limited to 100 metres).
8. On 7 February 2012 a decision maker agreed with this assessment, concluded that the Appellant scored 9 points on the work capability test and so was not entitled to ESA under the conversion process.
9. On 6 March 2012 the Appellant sent in a letter of appeal, explaining that walking any distance and any repeated activity caused him pain in the legs. Mr Feirn, his CAB representative, provided a written submission for the appeal, arguing that the Appellant was entitled to 15 points for mobilising (descriptor 1(a), the 50 metre limit) and 9 points for standing and sitting (descriptor 2(b)) and also met the test for the mobilising activity in Schedule 3. Failing that, the representative argued that both regulation 29 and 35 applied.
The hearing before the First-tier Tribunal
10. On 7 December 2012 the First-tier Tribunal (the tribunal) held an oral hearing of the Appellant’s appeal. The Appellant attended along with Mr Feirn. The tribunal decided that only the 9-point mobilising descriptor applied, and that there were no exceptional circumstances, and accordingly confirmed the Secretary of State’s decision that the Appellant was not entitled to ESA. His appeal was therefore dismissed.
11. The tribunal later issued an extremely detailed 55-paragraph statement of reasons. This included the following findings of fact:
“20. When Mr S commences walking, he is able to walk the first 20 yards normally. Thereafter he begins to experience progressively worsening symptoms in his legs and feet, causing him to experience increasing discomfort. The maximum distance that Mr S is able to walk before he is unable to walk any further due to severe discomfort is between 120 and 150 yards.
21. However, if Mr S walked a shorter distance such as 55 yards, he would, after half an hour, be able to walk 55 yards again.”
12. The tribunal’s statement of reasons also included the following further explanation:
“29. We were satisfied that Mr S would be able to walk a little over 50m within descriptor one and, were he to stop, would be able to do so again within say half an hour to an hour. Mr S suggested that if he did so, he might be in pain, though we were satisfied that such pain would not amount to severe discomfort, given that Mr S had stopped after walking significantly less distance than the point at which he experienced severe discomfort and had had an opportunity to rest. Again, after doing such walking on a second occasion, and with an appropriate rest of say an hour or two, we were satisfied that Mr S would be able to walk a little over 50m again. This was consistent with Mr S’s account that the discomfort he experienced increased as he walked further.
30. Accordingly, we were satisfied, using in particular the expertise available to the tribunal provided by [the medical member], that if Mr S limited his walking to say 55m, his discomfort would not have reached such a level that, after a period of rest, he could not walk a similar distance again within a reasonable timescale. We were satisfied that the rest would have relieved the discomfort he experienced during the first 55 m walk to a sufficient extent that he would be able to walk that distance once again without experiencing significant discomfort or exhaustion. Again, although he may be required to rest before attempting a similar distance once more, we were satisfied that the rest would once again ease his symptoms, given the limited distance he had walked on each occasion and thus he would be able to repeat walking that distance again within a period of hours without experiencing significant discomfort or exhaustion. Accordingly, we were satisfied, taking an overall view, that Mr S was able to repeatedly walk more than 50m within descriptor one within a reasonable timescale, though were he required to walk more than 100m within descriptor one, although he could manage that on one occasion, we were not satisfied that he could do so repeatedly within a reasonable timescale.”
The application for permission to appeal
13. Mr Feirn – who unfortunately no longer acts for the Appellant, as the relevant CAB office has lost its specialist caseworker due to funding changes - applied to the tribunal below for permission to appeal. He set out two grounds of appeal. The first ground was that the tribunal had misdirected itself in law as to the proper meaning and application of the mobilising descriptor in Schedule 2. The second ground was that the tribunal had failed to give sufficient reasons as to why regulation 29 of the ESA Regulations did not apply and had also failed to give any reasons why regulation 35 did not apply.
14. District Tribunal Judge Street gave permission to appeal to the Upper Tribunal. In doing so, she posed the following question (emphasis in the original):
“It appears that the Tribunal have had very specific time periods in mind in assessing the ability to mobilise repeatedly within a reasonable timescale. Has the Tribunal interpreted the provisions too restrictively, both as regards the time scale chosen and having regard to the test which refers to significant discomfort or exhaustion, rather than severe discomfort?”
Ground of appeal 1: the mobilising descriptor
The Appellant’s argument
15. The submissions of Mr Feirn for the Appellant can be summarised thus. The word “repeatedly” means “again and again, or over and over”. The inclusion of the word “repeatedly” in the statutory test implies a higher level of repetition than was required for previous descriptors in the incapacity benefit and original ESA regime, which already included the notion of “reasonable regularity”. The mobilising descriptor has to be considered in the light of the nature of the work involved, relying on Charlton v Secretary of State for Work and Pensions  EWCA Civ 42 (reported as R(IB) 2/09). The tribunal had to take a realistic approach; Mr Feirn put is in this way:
“It is hard to visualise or comprehend that needing to take a 1 to 2 hour rest before the third attempted time of walking 50 metres (paragraph 29, statement of reasons) can be considered as doing an activity repeatedly. Especially when [considered] in the work environment, with all its economic pressures and requirement to perform tasks and activities as part of their employment.”
The Secretary of State’s argument
16. Mr David Kendall, who now acts for the Secretary of State in these proceedings, does not support the Appellant’s appeal to the Upper Tribunal. He argues that the Court of Appeal’s decision in Charlton is confined to the issue of what is now regulation 29 of the ESA Regulations, and does not assist with the interpretation of the various Schedule 2 descriptors. He accepts that the activities listed in Schedule 2 to the ESA Regulations have “a connection with the workplace” to the extent that they have been “drawn up to reflect the demands of the modern workplace and to take into account the development and availability of adaptive technology and to take into account the obligations of employers to make reasonable adjustments in order to accommodate people with long term disabilities”. However, he submits that both the nature of any specific working environment and wider questions of employability are irrelevant. Furthermore, whether an activity can be performed “repeatedly... within a reasonable timescale” is, he says, a question of fact for the First-tier Tribunal. Mr Kendall concedes that in the present case the tribunal’s findings “are perhaps on the margins envisaged by case law”, but concludes that they were sustainable on the evidence and findings made.
The Upper Tribunal’s analysis
18. I also accept as correctly made Mr Kendall’s concession that the various activities in Schedule 2 have “a connection with the workplace”, albeit that the descriptors are not concerned with any one specific working environment and do not bring in wider questions of employability. This concession properly reflects the direction of policy travel as embodied in legislative change in this area. The first clue is in the change of name; Parliament has approved the shift from the “personal capability assessment” in the incapacity benefit scheme to the “work capability assessment” under the ESA regime. The second clue lies in the drafting of the various activities and individual descriptors, and in particular the amendments which took effect on March 28, 2011 (see further the Explanatory Memorandum to the draft 2011 Regulations, sent to the Social Security Advisory Committee on 13 August 2010). Thus the first three activities in the original Schedule 2 to the ESA Regulations – walking, standing and sitting, bending or kneeling – were seen as providing a high degree of overlap for e.g. wheelchair users, so providing an inaccurate assessment of an individual’s true level of functional limitation in the workplace. This resulted in a radical re-writing of the first activity, transforming it from “walking” to “mobilising”, the specific inclusion of the “work station” test in the second activity (standing and sitting) and the abolition of the third activity (bending or kneeling) as being both an unnecessary and undesirable requirement in the modern workplace.
19. It follows that the activities and descriptors in Schedule 2 do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work. They have to be applied on their own terms, but understood against the backdrop of the modern workplace. In deciding whether a particular descriptor is met, decision makers and tribunals may therefore find it helpful to consider the claimant’s ability to undertake the activity in question in a range of different working contexts. However, claimants will not be awarded a defined descriptor simply because they can show that it would apply to them if they were employed to do a particular job in a specific type of working environment.
20. This is entirely consistent with the well-established principle that decision makers and tribunals must consider whether a claimant can perform a particular activity with a reasonable degree of repetition, sometimes referred to as “reasonable regularity” principle. This principle applies to the ESA scheme just as it did to the previous incapacity benefit regime. As Upper Tribunal Judge Turnbull has explained, “if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account” (see AF v Secretary of State for Work and Pensions (ESA)  UKUT 61 at paragraph 11, approved and followed in SAG v Department for Social Development (ESA)  AACR 6). Judge Nicholas Paines QC has described the principle in similar terms: “it is implicit in this that a description set out in a descriptor will not fit a claimant who can only perform the relevant task exceptionally or infrequently” (AG v Secretary of State for Work and Pensions (ESA)  UKUT 77 (at paragraph 18).
21. Within the legislative scheme as a whole, this principle only makes sense in the context of the needs of a modern workplace and the level of activity that an employer attuned to the requirements of disability discrimination law can reasonably expect. Plainly, the test is not about a high-pressure working environment, e.g. a call-centre with demanding targets or a factory production line with a fast-moving conveyor belt. Equally, however, the test is not about what the person can do in their own home and entirely in their own time and at their own pace, subject to no external constraints or pressures whatsoever. If reasonable regularity is judged by the latter criterion, then the test has ceased to be a test of “whether a claimant’s capability for work is limited by the claimant’s physical or mental condition” within regulation 19(1) of the ESA Regulations.
The ability to mobilise a set distance “repeatedly... within a reasonable timescale”
23. First, it seems clear from the tribunal’s statement of reasons that it confirmed the award of 9 points on the basis that the Appellant satisfied the terms of mobilising descriptor 1(c)(ii), and not 1(c)(i) (see the last sentence of paragraph 30 of the tribunal’s reasons at paragraph 12 above). The Secretary of State’s representative in this case has not sought to argue that because the Appellant could manage more than 100 metres on one occasion, he therefore could not qualify under descriptor 1(c) at all. I regard that implicit concession as rightly made.
24. Second, Mr Feirn, in his original submission to the tribunal, had argued that it was unrealistic to expect the Appellant to use a wheelchair, given that he had not been assessed for one and had problems with both his elbows and with the effects of diabetes. The tribunal did not make an express finding on this point. However, it is clear from the tribunal’s treatment of regulation 29 that they considered that a wheelchair could be provided in the workplace “and a colleague designated to push him to the toilet if required” (at paragraph 51). Given the tribunal’s overall reasoning and findings on the mobilising descriptor, it is implicit that the tribunal concluded that there would be times when the Appellant could not reasonably use a wheelchair unaided. I also proceed on that basis.
25. So what then is meant by an ability to mobilise a set distance “repeatedly... within a reasonable timescale”? An excellent starting point is the decision of Upper Tribunal Judge Jacobs in AH v Secretary of State for Work and Pensions (ESA)  UKUT 118 (AAC). That case turned in part on the proper meaning and application of activity 1 in Schedule 3 to the ESA Regulations (as amended). However, given that activity 1 in Schedule 3 and the mobilising descriptor 1(a) in Schedule 2 are defined in exactly the same terms, Judge Jacobs’s analysis is clearly very much in point. Two points stand out.
26. The first point is the importance of focussing on the particular wording of the relevant activity and descriptor when considering the reasonable regularity principle.
“13. The Secretary of State’s representative has conceded that, subject to any particular provision within an activity or descriptor, the test is whether an activity can be undertaken repeatedly, reliably and safely. I accept that concession, which is consistent with the caselaw.
14. In the case of Activity 1, there is a clear contrast in the language. Descriptor (a) applies if the claimant cannot mobilise for more than 50 metres without stopping, whereas descriptor (b) applies if the claimant can do so, but not ‘repeatedly … within a reasonable timescale’. That makes it impossible to read the need for regularity into descriptor (a).”
27. Thus the very fact that limb (ii) of descriptors 1(a), (c) and (d) of Schedule expressly incorporates a “repeatedly … within a reasonable timescale” criterion means, by necessary implication, that this general principle does not qualify limb (i) of each of those descriptors. This approach is consistent with the history of the drafting of the new descriptors. The original plan was for descriptors simply defined in terms of an inability to “mobilise more than [50/100/200] metres on level ground without stopping or experiencing severe discomfort” (Work Capability Assessment Internal Review, October 2009, in Explanatory Memorandum to the 2011 Regulations, p.151). The qualifier “repeatedly” appeared only in the proposed 50 metre descriptor but not in those relating to 100 metres or 200 metres.
28. However. the subsequent Addendum – Technical Review by Chief Medical Officer (March 2010, Explanatory Memorandum, p.180) made three further recommendations, each of which was incorporated in the final version of the 2011 Regulations. The first was that “severe discomfort” was ambiguous and was to be replaced by “significant discomfort”. I note here that the tribunal occasionally referred to “severe” rather than “significant” discomfort. While that mistaken usage is unfortunate, I am not sure that it amounts to an error of law in itself, in the light of the tribunal’s overall analysis. The second was that exhaustion should be added to the statutory definition, to accommodate problems associated with fluctuating conditions. The third, tellingly for present purposes, was that:
“An individual must also be able to repeat a task. If, after doing an activity once, an individual cannot repeat it within a reasonable time then they should be considered as unable to carry out the activity at all.”
As a result, descriptors 1(a), 1(c) and 1(d) were subdivided, such that the original formulation of each descriptor was preserved in limb (i), whilst a new limb (ii) included the ‘repeatedly … within a reasonable timescale’ qualification to each relevant distance. For my part, unlike Mr Feirn, I do not regard this as importing a more demanding test than that of “reasonable regularity”. I would simply regard the wording here as a legislative variant on that case law principle, but to the same effect.
29. The second point to be derived from AH v Secretary of State for Work and Pensions (ESA) (at paragraphs 18-22) is the importance, where the legislative text contains irreducible terms, of applying that statutory language without any gloss.
18. The words ‘repeatedly’, ‘significant discomfort or exhaustion’ and ‘reasonable timescale’ are normal words in everyday use. Like all words, they take their meaning from their context, or at least the context colours their meaning. I can, though, see no reason why they should have a different meaning just because they appear in Schedule 3. The purpose of that Schedule is to identify claimants who are not required to take part in work-related activity. But it does so by reference to the nature and extent of their disabilities, not by reference to work-related activity itself. The effect of coming within Schedule 3 may differ from the effect of coming within Schedule 2, but the criteria for classifying claimants are the same.
19. I am not going to attempt to define what these words mean. That would be wrong. It would be the wrong approach to statutory interpretation and would trespass impermissibly into the role of the First-tier Tribunal. It is not for the Upper Tribunal to give more specific content to the law than the language used in the legislation. The Upper Tribunal will not decide that ‘repeatedly’ means five times, ten times or any other number. Nor will the Upper Tribunal decide that ‘reasonable timescale’ means five seconds, five minutes or any other time.
20. The correct approach was explained by Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions Ltd  1 WLR 1163, at 1171:
‘It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament.’
21. The key to applying the words of Activity 1 lies in making findings of fact relevant to those words that are as specific as the evidence allows. And, if the claimant is present at the hearing, the tribunal should ensure that it obtains evidence that is sufficient to that purpose. Just to take one example: the tribunal should have probed Mr H’s evidence that he ‘could not repeatedly do 50 metres’. How far could he walk before stopping? What made him stop? How did he feel? How soon could he proceed? How often could he repeat that process? This was particularly important in this case, because of the content of Mr H’s evidence to the tribunal. At least as it was recorded by the judge – the record of proceedings does not have to be verbatim – his evidence was expressed in the language of the Schedule. The tribunal had to obtain evidence that would allow it to assess Mr H’s answers by reference to that language. It could not do that if the evidence repeated that language. The tribunal would at least need to know what Mr H meant by ‘repeatedly’, as he might not be using it in the same way as in Activity 1.
22. I accept Mrs Mitchell’s argument that the tribunal failed to make findings of fact on the terms of the Activity with sufficient detail to show whether or not it applied. For this reason, the tribunal’s decision involved an error of law. I am not able to say that the tribunal came to the right decision, because the evidence is not sufficient to allow me to do so.”
30. This analysis harks back to Lord Reid’s famous observation in Brutus v Cozens  AC 854 (at 861) that "The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law.” Similarly, Lord Hoffmann, in explaining the significance of those dicta, has noted that “many words or phrases are linguistically irreducible in the sense that any attempt to elucidate a sentence by replacing them with synonyms will change rather than explain its meaning” (Moyna v Secretary of State for Work and Pensions  UKHL 44 at paragraph 23). Thus Judge Jacobs’s observations in AH v Secretary of State for Work and Pensions (ESA) stand in that same distinguished tradition.
31. In the appeal before Judge Jacobs the tribunal had failed to make relevant findings of fact. That criticism certainly cannot be levelled at the tribunal in the present case. Does that mean that its decision on those facts is immune from challenge? Was it just a question of fact for the tribunal? I think not. It is well established that there will be some cases where the tribunal’s conclusion is outside the (fairly broad) bounds of reasonable judgement, i.e. it is beyond “the generous ambit within which a reasonable disagreement is possible” (G v G  1 WLR 647 at 652E per Lord Fraser of Tullybelton).
32. I agree with Judge Jacobs that it is not appropriate for the Upper Tribunal to seek to provide a precise definition of what is meant by “repeatedly” or “within a reasonable timescale”. I note, however, that Mr Kendall accepts that this tribunal’s findings “are perhaps on the margins envisaged by case law”. In my view they lie outside those bounds. I agree with Mr Feirn’s submission that the tests set out in the mobilising descriptors have to be seen in the context of the workplace, rather than in splendid isolation. The tribunal fell into error by not considering the question of what was a “reasonable timescale” against the background of a working environment. What might well be a reasonable timescale for the Appellant at home would not necessarily be a reasonable timescale in the workplace. The consequence of the tribunal’s approach was to rob the word “repeatedly” of any real meaning, as the tribunal’s findings would equally well meet a statutory test predicated on the activity in question being performed only “occasionally ... in the course of a day”. Whilst I am not prepared to draw a precise line, I am satisfied that on any reasonable analysis this tribunal’s conclusion was the wrong side of the line. The ability to perform a function in a working environment “repeatedly ... within a reasonable timescale” must be something more than “occasionally ... in the course of a day”.
Disposal of this appeal
33. I accordingly conclude that the tribunal’s decision involves an error of law. It would be disproportionate to send the matter back for re-hearing given the careful and detailed fact-finding of the tribunal. I conclude on those findings that the Appellant cannot repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort. As such he meets the terms of descriptor 1(a)(ii) of Schedule 2 to the 2008 Regulations (as amended). It follows that he also meets the equivalent descriptor 1(b) in Schedule 3 to the ESA Regulations. Accordingly the tribunal should have made the decision that the Appellant is entitled to employment and support allowance with the limited capability for work-related activity component (support group) as from 21 March 2012.
Ground of appeal 2: the regulation 29 point
The Appellant’s argument
34. Mr Feirn argued that the tribunal’s treatment of the regulation 29 issue was flawed as the tribunal only had regard to the risk to the Appellant’s health in terms of peripheral vascular disease and had failed to consider the impact of diabetes. However, the Appellant’s evidence was that when he had been working he had suffered from ulcerated toes, which further restricted his ability to walk, but that since he had left work his toes had healed and the ulceration problem had not recurred, due to his sedentary lifestyle.
The Secretary of State’s argument
35. Mr Kendall, for the Secretary of State, does not address this issue directly, although I had indicated in directions on the appeal that the grant of permission was not limited to the question identified by District Tribunal Judge Street.
The Upper Tribunal’s analysis
37. It is true that the tribunal did not give any reasons that directly addressed the issue of regulation 35 in terms of limited capability for work-related activity. However, it is equally clear that having reached the conclusion it had on regulation 29, and for the reasons it gave, it followed on that same basis that regulation 35 was not satisfied.
38. I conclude that the tribunal’s decision involves an error of law as regards the application of regulation 29 but not regulation 35 of the ESA Regulations. If this were the sole issue arising on the appeal, I certainly do not think it would be proportionate to remit the matter for re-hearing. I would simply find that regulation 29 applied because of the substantial risk of a recurrence of ulceration but that the level of activity likely to be involved in work-related activity would not engage regulation 35. However, my conclusions on the first ground of appeal make this academic.
39. For the reasons explained above, I therefore allow this appeal, set aside the tribunal’s decision and re-make the decision under appeal as set out at the head of this decision (Tribunals, Courts and Enforcement Act 2007, section 12(b)(ii)).
Signed on the original Nicholas Wikeley
on 20 November 2013 Judge of the Upper Tribunal