THE UPPER TRIBUNAL                                                                     Case No: CSE/456/09

ADMINISTRATIVE APPEALS CHAMBER

Appellant:                 

Respondent:              

Date of decision:        6 November 2009

DECISION OF THE UPPER TRIBUNAL

DJ MAY QC

JUDGE OF THE UPPER TRIBUNAL

ON APPEAL FROM: First-tier Tribunal (Social Entitlement Chamber)

Tribunal Case No:     917/09/00323

Tribunal Venue:         Greenock

Hearing Date:            25 June 2009

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal against the decision of the First-tier Tribunal given at Greenock on 25 June 2009 is refused.  It is dismissed.

REASONS FOR DECISION

1.                The claimant has appealed against the decision of the tribunal set out at page 83 which confirmed the decision of the Secretary of State issued on the 5 March 2009, recorded at page 1.  In that decision, it was found that the claimant did not satisfy any point-scoring descriptors. 

2.               The first ground of appeal relates to hearing and descriptor 8(d).  The activity of hearing is

            “hearing with a hearing aid or other aid if normally worn.”

The relevant descriptor is

“cannot hear someone talking in a loud voice in a busy street, sufficiently clearly to distinguish the words being spoken.”

3.               The points that can be scored for satisfying that descriptor are six.  The claimant’s position in the appeal is set out in both the grounds at page 106 and in the response to the Secretary of State’s submission at page 128.  The Secretary of State does not support the claimant’s appeal in relation to this descriptor for the reasons set out in paragraphs 17 and 18 at pages 125 and 126.  In relation to hearing the tribunal made the following finding in fact

“[the claimant] has no hearing in his right ear but although missing some low range sounds in the left, he enjoys Alcoholics Anonymous meetings and has no difficulty either with group or with “drawing out” shy new members.  Similarly, he had no difficulty with the Stepwell condition management programme he had taken part in or with hearing at the examination or Tribunal hearing.”

They then went on to say

            “[the claimant] told us unprompted that he particularly likes to talk to strangers who

come to the AA meetings which suggests he does not have much difficulty hearing.  He may occasionally have to ask someone to repeat what he or she has said but not enough to hinder his participation in and enjoyment of group meetings.  He did not mention any problem with hearing in the factory or when shopping in the town.  His annoyance at his wife’s stopping to talk was not related to difficulty in hearing.  The Tribunal believes he would have accepted a hearing aid if he had really had a problem.  The test under 8(d) is hearing someone talking in a loud voice in a busy street and [the claimant] can do this using his left ear.”

4.               In assessing the evidence, the tribunal said

“Dr Kelly is trained and experienced in assessing people for their capability and had taken a careful history and carried out a full examination.  [The claimant’s] evidence at the Tribunal was freely and clearly given and agreed with the history taken by Dr Kelly who is disinterested as to the outcome and therefore this evidence is preferred where it differed from what [the claimant] wrote on the form ESA 50.”

5.               In the form the claimant when asked the question in the context that he could hear ‘when someone is talking to you in a busy street can you hear what they are saying?’, he answered that question ‘no’.  However, Dr Kelly in his report when dealing with the summary of functional ability said

“The client’s hearing problem is moderate.  He has little hearing on one side but he demonstrates good functional hearing on the other side.  He has no problem hearing in a quiet room.  His history indicates some difficulty if there is background noise but he says that if he is with people he knows and is face to face with them, he can cope ok, which would be in keeping with good hearing on one side.  Overall, therefore, I feel he should be able to manage the descriptors contained in the hearing activity including Hd [sic], if someone was to raise their voice.”

6.               The tribunal as a fact finding body were entitled to accept that evidence and they have set out a reasoned basis for doing so.  There was thus a sufficient evidential basis for the tribunal reaching the conclusion which they did.  In reaching that conclusion the tribunal also had regard to the factors outlined in their statement about what the claimant can do in relation to hearing and the fact that he did not mention any problem with hearing in the factory or when shopping in town.  The grounds of appeal and the claimant’s response to the Secretary of State’s submission do not question the tribunal’s assessment and acceptance of Dr Kelly’s evidence.  It is apparent from them that the claimant does not agree with the decision of the tribunal and submissions are made as to why the evidence should have been viewed differently.  However, it is not for the Upper Tribunal to assess the evidence but to see if it would have come to a different conclusion.  I am satisfied that the tribunal did not err in law. 

7.               As the points threshold is 15 and only three descriptors with a total value of 18 points are an issue in this appeal, the fact that the tribunal did not err in law in respect of the activity of hearing is in itself sufficient to dispose of the appeal. Even if the tribunal erred in law in relation to their treatment of descriptors 14(c) and 15(d) and the claimant satisfied the conditions for these descriptors, it would have made no material difference to the result.  However, I will deal with the grounds of appeal advanced on these descriptors.   

8.               Descriptor 14(c) which is related to the activity of memory and concentration is in the following terms

“(c) Frequently forgets or loses concentration to such an extent that overall day to day life can only be successfully managed with pre-planning, such as making a daily written list of all tasks forming part of daily life that are to be completed.”

9.               The tribunal’s treatment of this descriptor has to be read in the context of the tribunal’s reasoned acceptance of the evidence of Dr Kelly and what they said in their reasons under the specific heading of 14(c).  There they said

“This descriptor applies to people who cannot “manage day to day life without a daily written list of all tasks forming part of daily life”.  [The claimant] appeared to have a good memory and concentration as he did not need to check a list to know which venue he would find the AA at on any night.  It is normal to keep a note of doctor’s appointments.  There was no suggestion in any of his evidence that he needed to be reminded of routine tasks.  He was able to tell us about his medication which is quite complicated and he took care of it himself.”

10.            The evidence of Dr Kelly was that 14(c) did not apply – see page 49.  In the supporting medical evidence, Dr Kelly noted that the claimant said that he sometimes needed reminded to take medication doses but most of the time coped fine by himself and also took into account the claimant’s observed behaviour - see page 51.

11.            It is not correct to state, as is said in the grounds of appeal, that there was no evidence which contradicted what the claimant said at page 29, namely that he needed to be reminded to take medication, appointments etc.  What he told Dr Kelly did contradict this. The evidence of Dr Kelly was accepted.  The remainder of the grounds of appeal in respect of descriptor 14 is in the form of an attempt to criticize the tribunal’s reasoning when it noted that he did not need a checklist to know which venue he would find the Alcoholics Anonymous meeting on any night.  It is suggested that his attendance was habitual and that he would no more need to check where the meeting was than he would forget how to tie his shoelaces.  However, in my view, that argument does not undermine the reasoning of the tribunal when their statement is read as a whole and in light of their acceptance of the evidence of Dr Kelly.  It is quite apparent that the question of whether daily life could only be successfully managed with pre-planning is not in essence in the case advanced by the claimant.  It falls short of that.  I refer to the form at page 29 and what he told the examining medical practitioner.  The record of proceedings does not set out a requirement for pre-planning as is suggested in the descriptor.  I accept what the Secretary of State says in paragraph 10 of his submission. 

12.            In response to the Secretary of State’s submission, it was said by the claimant’s representative

“A list is not a requirement for this descriptor, the wording of the descriptor cites a list only as an example of pre-planning.  We do not accept that this descriptor applies only to a person so severely disabled that they require a pre-planned list to remember to get up in the morning or dress.  To limit the application of the descriptor to a requirement for a list to carry out activities which are so habitual as to be second nature, such as getting up or dressing, is too restrictive.  We submit that managing daily life entails the completion of numbers of tasks that are neither so routine as to be automatic, nor so out of the usual that any person may need to pre-plan and set a reminder. 

In [the claimant’s] case the tribunal made much of his ability to remember AA meetings, which he had been attending for many years and which were so ingrained into his routine that he would no more forget where an AA meeting was being held than he would forget the way to his bathroom.  We submit that daily tasks are so routine as to be second nature and should not be disregarded.”

13.            I agree that a list is not an essential pre-requisite of this descriptor.  The reference to a list is simply an illustration of what might be required.  It is submitted that daily tasks that are so routine as to be second nature should be disregarded.  That is a proposition I am not prepared to accept.  I do not consider that as a matter of law the Upper Tribunal could set out a list of tasks which are included within the terms of the descriptor and others which are not.  The descriptor is related to the management of overall day to day life.  To apply it means looking at the evidence of such management as a whole.  In this case, I consider that the tribunal did so and on the evidence accepted by them reached the view that he did not satisfy the relevant descriptor.  In my view they adopted the correct approach. 

14.            The final descriptor which is in issue in the grounds of appeal is descriptor 15(d).  It is related to the activity of execution of tasks and is in the following terms

“(d) Takes one and a half times the length of time it would take a person without any form of mental disablement to successfully complete an everyday task with which the claimant is familiar.”

15.            The grounds of appeal are in the following terms

“The Tribunal noted that ‘a man of 56 is not likely to be as quick and efficient as he was at 36’, however [the claimant’s] evidence was that he no longer had the energy and motivation to meet the targets at work.  As someone who worked until recently, and was meeting targets at work until recently, it is very doubtful that [the claimant] is comparing himself with how he was at 36.  The Tribunal note that he would have to be one and a half times slower, but make not findings on how long [the claimant] takes to perform everyday tasks with which he would be familiar.  The Tribunal refer to motivation; however consideration of this would be more appropriate to descriptor 16, which deals with initiating or sustaining personal action.  The tribunal therefore failed to give sufficient reasons as to why this descriptor did not apply.”

These grounds of appeal are directly related to what the tribunal said specifically about this descriptor.  In doing so it seems to me that they were in part responding to the case which was put to them.

They said

“[The claimant] told us that he no longer had the energy and motivation to meet the targets at work but for this descriptor he would need to be one and a half times slower than a person without any form of mental disablement.  The underlying principle of justice that such a comparison is with others of his own age must apply here and a man of 56 is not likely to be as quick and efficient as he was at 36.  He motivated himself to clean the house while his wife was at work, to walk down to meet her, to go to his AA meetings, the condition management programme and earlier, the exercise routine for recovering heart patients.  The Tribunal find that even allowing for some tiredness from his medication and the effect of his vascular disease, most of the time he does not satisfy this descriptor.”

The claimant’s evidence in support of this descriptor was somewhat limited.  As well as what he is recorded as having told the tribunal he wrote in the form at page 29

“Don’t sleep well, lack of concentration, depression, anxiety, find it difficult to get motivated, lack of energy in morning.”

The written submission to the tribunal from his representative said

“[The claimant] has reduced energy and motivation (see letter from Dr Orr) and finds that everyday familiar tasks take longer to carry out.”

16.            I find myself in agreement with the Secretary of State when he says

“Although it could be argued that the tribunal concentrated on the claimant’s reduced energy and motivation in considering whether the claimant could execute familiar tasks, it is my submission that there is no evidence to support that this claimant would satisfy any of the descriptors within this activity within the terms of the test for LCW.”

It has to be remembered that what was said by the tribunal was in the context that they accepted the evidence of the examining medical practitioner.  It was his opinion that descriptor 15(e) did not apply to the claimant. 

17.            In the Secretary of State’s submission at paragraph 12 and the response to that submission by the claimant, there are submissions in relation to the scope of this descriptor.  However, I do not consider that it is necessary to say more than this.  I am satisfied that in the context of the tribunal’s acceptance of the examining medical practitioner’s report and the limited nature of the other evidence before them they made a reasonable judgement on this descriptor.  I have not been directed to any evidence before the tribunal which would justify satisfaction of this descriptor.  Whilst the tribunal met the claimant’s argument in relation to motivation, that is not what the descriptor is about.  Neither was it necessary to go into dealing with the comparator on an age basis as that was not focussed in evidence before the tribunal.  However, in my view the comments on these matters cannot be said to be a material error in law. 

(Signed)

DJ MAY QC

Judge of the Upper Tribunal

Date: 6 November 2009