Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal at Chesterfield under reference 031/09/00900, held on 2 October 2009, did not involve the making of an error on a point of law.

Reasons for Decision

A.          The issues

1.           Two issues arise before the Upper Tribunal.

2.           The first issue concerns the interpretation and application of two provisions in Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI No 794). It raises a more general question of the proper approach to the interpretation and application of that Schedule as a whole and, for that matter, Schedule 3.

3.           The second issue concerns the proper approach to evidence of a healthcare professional that has been amended by another on audit.

B.          The first issue

Background

4.           Employment and support allowance is a relatively new social security benefit that was created by the Welfare Reform Act 2007. It is designed to replace incapacity benefit and income support on the basis of incapacity. That is why it follows the model of jobseeker's allowance by providing two bases for entitlement: the claimant’s contribution record and the claimant’s financial position. The provisions that I have to interpret apply to both. Like incapacity benefit, the allowance deals with capacity for work. Unlike that benefit, it distinguishes between limited capability for work (section 8) and limited capability for work-related activity (section 9). This case concerns the former and particularly Schedule 2 to the Employment and Support Allowance Regulations 2008. My reasoning applies equally to the latter and Schedule 3 to those Regulations.

The decisions on the claimant’s capability for work

5.           The claimant was awarded an employment and support allowance from 13 November 2008. His capability for work was then assessed. He completed a questionnaire, in which he described his disability in these words: ‘I only have my left hand. I was born with my right fore arm missing.’ Following an interview and examination by a healthcare professional, the decision-maker scored the claimant’s disabilities at 12 points. Six points were for his inability to use both hands to pick up and move a light but bulky object. The other six were for being unable to turn a star-headed tap with one of his hands. With that score, the claimant was no longer entitled to his allowance, which was terminated on supersession. This was confirmed on appeal by the First-tier Tribunal.

The descriptors in issue before the tribunal

6.           The claimant’s representative asked the tribunal to consider whether he should have scored for descriptor 6(e) or (f) in Schedule 2. Each of those descriptors carries 9 points. If the claimant satisfied either, he would be entitled to an allowance. The descriptors for the activity of manual dexterity are:

The tribunal’s reasoning

7.           The claimant’s representative argued that the claimant needed help with trouser and shirt buttons and would have particular difficulty with buttons on the collar band and left cuff. The tribunal rejected this reasoning. It referred first to the clinical findings in respect of his left hand and to his ability, when in work, to serve food, handle money and operate a till. It then dealt with the representative’s argument:

‘Fastening most buttons can be dealt with using only one hand by most people and the Tribunal did not consider that the appellant was an exception. The Tribunal did accept that it would be impossible for him to fasten his left cuff button and he may well have difficulty with his top shirt button if he had a tight collar. However the Tribunal did not interpret this descriptor as meaning that each and every button on a shirt needed to be done up/undone. The descriptor refers primarily to small buttons and the reference to a shirt is only an example of the type of garment requiring small buttons. The descriptor does not state that all the buttons on a shirt need to be capable of being dealt with. In addition, the descriptor does not specify whether a long sleeved or short sleeved shirt (i.e. without cuffs) is to be considered. This suggested to the Tribunal that consideration of cuff buttons is not a key factor in the descriptor, but rather it is small buttons generally that are to be considered.’

8.           The claimant’s representative also argued that although the claimant could use a keyboard and a mouse with his left hand, this was not normal use. The tribunal rejected this argument:

‘However the Tribunal did not consider that one-handed use was so far beyond the range of normal use as to qualify; even if the word “normal” were to be imported into the descriptor.’

The representative has not challenged the tribunal’s decision in respect of this descriptor.

The arguments on the appeal

9.           The response by the Secretary of State’s representative to this issue was:

‘4. With regard to 6(f), in his direction the Upper Tribunal Judge has wondered if the solution is to focus on the underlying function that the descriptor is designed to test and cites his own decision in R(IB)02/03 in support. I agree with that approach. The guidance to health care professionals given in the training and development ESA Handbook states: “This activity relates to hand and wrist function. It is intended to reflect the level of ability to manipulate objects that a person would need in order to carry out work-related tasks.”

5. Even for a person with two fully functioning arms and hands, there are buttons that are hard to do up, such as those on the back of a garment, or placed under flaps of fabric, or inside pockets. I submit that as the descriptor is to assess manual dexterity, it should be down to the claimant’s ability to manipulate the accessible buttons; if some buttons can be done up and undone with one arm/hand, I submit that the descriptor cannot be met. Any other interpretation would, I submit, predicate the test on the garment and the accessibility and size of its buttons, rather than on the physical capacity of the claimant to grip and manipulate small buttons.’

10.        The reply from the claimant’s representative was:

‘I agree that the underlying purpose of the descriptor is to assess manual dexterity. Contrary to the Secretary of State’s assertion descriptor 6(f) as it is written indicates a size and type of button that ordinarily and reasonably requires the manipulating abilities of fingers and thumbs of two hands, even though one hand may simply be to keep an item to which a button is fastened stationary.

Descriptors 6(a) to 6(e) consider the lack of manipulative skills in both hands, descriptors 6(g) to 6(i) have consideration to both hands. It is submitted 6(f) falls to be in this latter group.’

Something has obviously gone wrong with the penultimate sentence, but the meaning is clear.

Analysis

11.        In R(IB) 2/03, I considered a similar issue in relation to incapacity benefit. I undertook a functional and a linguistic analysis of the legislation, in each case considering the issue both in principle and on the authorities. The core of my reasoning was in paragraph 7:

‘The personal capability assessment is divided into two sections. One deals with physical disabilities, the other with mental disabilities. The activity of rising from sitting falls within the former. That section consists of a variety of activities that deal with different functions of the body. It is obviously designed to test in a systematic, analytical way the claimant’s various physical disabilities. The scores attached to each disability, when added together, indicate the extent of the claimant’s physical capacity for work. It is, therefore, to be expected that each of the activities will concentrate on different parts of the anatomy so as to isolate, as far as possible, the claimant’s ability in respect of each.’

12.        The representatives are agreed that that is the correct approach to employment and support allowance. I accept their submissions. There are differences between incapacity benefit and the allowance, but they are not material to this issue.

13.        It follows that the tribunal was wrong to consider the practicalities of dressing, the type of shirt and so on. Even the Secretary of State’s representative, having submitted that a functional analysis was appropriate, was tempted into this type of speculation. It is important to appreciate the context. The ultimate purpose of the descriptors is to test a person’s capability for work. They test the claimant’s manual dexterity for work-related purposes. They do not test the claimant’s ability to self-care. The reference to shirts and blouses is for the purpose of illustration. They are not words of definition or limitation.

14.        The proper approach to the interpretation and application of descriptor 6(f) is this. The descriptor tests the claimant’s anatomical functions that would be involved in fastening or unfastening buttons. They include pinch grip, co-ordination of finger movements, and flexibility of the finger joints. The reference to small buttons identifies the size and shape of the object to which those functions are applied. The First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor. By doing that, it will avoid the myriad questions that otherwise appear to arise on descriptors. Is the ability to use a tap tested with wet or dry hands? What sort of surface is the £1 coin resting on? How smooth or thick are the pages of the book? And so on and so on.

15.        I agree with the claimant’s representative to the extent that some of the descriptors expressly apply if the claimant can use neither hand and others expressly apply if the claimant can use one hand, but not the other. I do not agree that all the descriptors must be so classified. Some are not specific one way or the other. That reflects the possibility that a claimant may not be able to perform an activity with either hand on its own, but may be by using them together. Fastening a button in an example. A person may not be able to manage this with either hand individually, but may be able to do so with the combined function of each hand.

Error of law?

16.        Although some of the tribunal’s reasoning was irrelevant, its decision in respect of descriptor (f) was soundly based on the nature of the claimant’s disability and on the clinical findings. The presence of the irrelevant discussion does not show that the decision involved the making of an error of law.

17.        The claimant’s representative has also argued that the tribunal’s reasons are inadequate for not explaining why the tribunal rejected the claimant’s evidence on his difficulties with small buttons. I reject this argument. Once the correct approach is identified, the claimant’s particular difficulties with buttons on his clothing are not to the point.

C.          The second issue

How this issue arises

18.        As I have said, the claimant was interviewed and examined by a healthcare professional. That person was described on the report as a registered nurse. The examination took place on 17 March 2009, but the report shows that it was completed by a doctor on 24 March 2009. There is some explanation in the report:

‘This report was commenced by [the registered nurse] with content, up to and including the SG categories except for chewing and swallowing details recorded by them. This report was amended by me as auditor, as [the registered nurse] was unable to access the report himself.’

The explanation by Atos

19.        Those comments raise as many questions as they answer. I asked the Secretary of State’s representative to explain. The answer has been provided by Atos, the company that carries out the assessments:

‘The reports have been reviewed by Dr [CT], Atos Healthcare National Audit Manager.

The reports were identified at internal quality review as having omissions and were corrected before submission to the decision maker.

In both cases not all the support group criteria had been addressed or justified as not being applicable and the amendments inserted the missing justification.

The amendments were made by the auditing HCP in the presence of the original author for coaching purposes. However, because the report was open under the auditing HCP’s access credentials, the auditor’s name appears in the footer of the amended report and the auditor was not aware that this would occur.

No amendments were made to the conditions, condition history, typical day information, observed behaviour, examination findings or advised descriptors.

If it was to assist the Tribunal Dr [T] would be happy to provide copies of the original reports to confirm the above.’

The response by the claimant’s representative

20.        The claimant’s representative commented:

‘It is stated … that [the nurse] commenced the report with content up to the SG category. The SG category is standing and sitting. This category is considered before upper limb activity outcomes. The medical report was not audited with due care.’

Analysis

21.        I do not accept what the claimant’s representative has said, because it is based on a misunderstanding. SG as used by the auditor stands for ‘support group’, the expression used in the explanation by Atos. The representative is referring to Sg in the report. The S there stands for standing and sitting, as he says, but the g is the applicable descriptor.

22.        The way that the report was presented to the tribunal and to the claimant was unsatisfactory. It was destined to give rise to suspicion and complaint. Ideally, the tribunal should have asked the Secretary of State for a fuller explanation and for the original evidence.

23.        The Secretary of State may, of course, submit any evidence on any appeal. That evidence may be contrary to, or supportive of, the report of the healthcare professional. But the provenance of the evidence should always be clear so that the tribunal may properly assess it. That is true of all evidence, whether from the Secretary of State or the claimant, and whether it has been changed or not.

24.        The issue for me is whether in relying on the evidence in the form submitted the tribunal made an error of law in its decision. In this case, I am satisfied that it did not have any impact on the outcome. The sole issue on the descriptors that has been raised concerns manual dexterity. The nature of the claimant’s disability alone is a significant factor in applying my interpretation. The clinical findings are also relevant and they are not inconsistent with the claimant’s own evidence. He took a different view from that adopted by the decision-maker, but the difference arose from his interpretation of the descriptor.

25.        I have considered whether other issues might have arisen if the claimant and the tribunal had been told the full history of the report. In the circumstances of this case, I can see no other issue that would have arisen, given the claimant’s disability and his own evidence of his difficulties.

D.          Disposal

26.        I have not held an oral hearing. The claimant’s representative offered to attend one if that would be helpful. However, the issues have been argued out clearly by the representatives and, with that assistance, I have been able to make a decision on the papers.

27.        I dismiss the appeal.