Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Before:

Attendances:

For the Appellant: Mr Brown, East Dunbartonshire CAB

For the Respondent: Mr Olsen, Advocate instructed by the Office of the Solicitor to the Advocate General

The appeal is allowed.

The decision of the tribunal given at Glasgow on 5 November 2009 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 below.

REASONS FOR DECISION

1. The claimant appealed against the First-tier Tribunal which disallowed his appeal against the decision of the Secretary of State issued on 26 June 2009. The tribunal found that he was entitled to six points under descriptor 5(c) but this was insufficient to cross the threshold of fifteen points. Mr Brown appearing on behalf of the claimant said that descriptor 6(e) had been before the tribunal notwithstanding the fact that it is not referred to in the list in the record of proceedings as being a descriptor in issue at page 100. Mr Olsen appearing on behalf of the Secretary of State conceded that it was before the tribunal upon the basis of Mr Brown’s statement to that effect. It is apparent that evidence relating to it was placed before the tribunal at pages 99 and 100 and in particular at page 100 where it is noted:

“Can’t use two hands using key”

2. I am persuaded by Mr Brown that this descriptor was in issue before the tribunal, though the content of the evidence in submissions put to the tribunal thereon is not altogether clear standing the sketchy nature of the record of proceedings. Accordingly the failure of the tribunal to deal with it was an error in law on their part.

3. Mr Olsen sought to persuade me that it was not a material error. Although the descriptor attracts nine points, if satisfied, it was Mr Olsen’s position that on the evidence the claimant would not have satisfied it. His argument was within short compass. It was that in relation to the activity of manual dexterity, which descriptor 6(e) forms part, the test is one of manual dexterity and not of function. There was evidence before the tribunal that the claimant had the capacity to physically press the key of a keyboard. His submission was that that was sufficient for the purposes of excluding him from satisfying the descriptor which is:

“(e) Cannot physically use a conventional keyboard or mouse.”

He made this submission in the context of what he said was the purpose of the legislation.

The claimant had suffered a significant injury to his left shoulder and had fractured his left clavicle. This condition had deteriorated subsequent to the decision appealed against. His position was that he was not able to use the keyboard for any function which required the use of two hands, such as a shift key to form capital letters or for example the sign “@”.

4. I put to Mr Olsen whether the case of Moyna, R(DLA)7/03 had any application in this case. That case was dealing with the conditions for the lowest rate of the care component or disability living allowance. In his speech Lord Hoffman said:

“18. Section 72(2) contemplates that one should be able to say of someone throughout a nine month period that he is a person whose disability is such that he cannot cook a main meal. What does this mean? One possible construction is that if there was a single occasion during the period when a remission in his disability would have allowed him to cook a meal, it cannot be said that throughout the period he was unable to do so. But the Secretary of State does not contend for this construction and I do not think that it would be right. That is not because one occasion is de minimis but because the test does not in my opinion function at that day to day level. It involves looking at the whole period and saying whether, in a more general sense, the person can fairly be described as a person who is unable to cook a meal. It is an exercise in judgment rather than an arithmetical calculation of frequency.

19.            I therefore agree with the Commissioner that the question involves taking “a broad view of the matter” and making a judgement. The standard of motor abilities required by the cooking test is not so precise as to allow calibration by arithmetical formula.”

5.               Mr Olsen sought to distinguish consideration of this descriptor from the approach in Moyna but I cannot see such a distinction. In both Moyna and the instant case what a tribunal has to decide is whether a claimant cannot, in the context of the relevant statutory provisions, perform the task as set out in the legislation. In this case it is apparent that the claimant can in some circumstances physically use a conventional keyboard but in the circumstances outlined by him in relation to the use of two hands he cannot. It would seem for example from what Mr Brown said that on a computer he could google in the weather but could not send an email. The Secretary of State in paragraph 9 of his written submission made a submission in relation to a feature contained in machines manufactured by one manufacturer which would enable the claimant to obviate the effects of his disability and physically use the keyboard with one hand for a function of the machine which would normally require two hands. I consider that Mr Olsen’s argument is too extreme and I do not accept it. The proper approach to the descriptor is to follow a similar approach to that set out by the House of Lords in Moyna. It is to take a broad view and exercise a reasonable judgement as to whether the claimant satisfies the descriptor. There are no absolutes by which “can” and “cannot” can be defined. In these circumstances I consider that the failure by tribunal to deal with this descriptor was a material error in law as they had already awarded him six points under descriptor 5(c). Accordingly I set their decision aside. I am persuaded that the appropriate disposal is to remit the matter to a freshly constituted tribunal.

6.               Mr Brown made submissions in relation to the tribunal’s decision regarding descriptor 6(f) and descriptor 3(c). Both of these descriptors were ones which on the evidence the claimant could perform in some circumstances but not in others. In relation to 6(f) it would appear that some buttons could be done up and undone but not others. In relation to descriptor 3(c) the evidence appears to be that if there was something around to pull himself up on the claimant could perform the descriptor but not otherwise. The same considerations apply in relation to these descriptors as apply to the 6(e). It thus follows that I do not accept Mr Olsen’s argument that if he can perform the descriptors in some circumstances he does not satisfy them. The tribunal in respect of these descriptors appear to have taken a broad view of the type I have referred to above. It is not necessary for me to reach a conclusion as to whether their reasoning was adequate, though I have doubts about it.

7. The fresh tribunal ought to clearly ascertain which descriptors in relation to which activities are in issue before them. Where they have to determine in relation to activities 3 and 6 they should take the approach to the word “cannot” in the context of what I have in respect of the application of the principles set out in Moyna. In determining whether the claimant satisfies each descriptor in issue they should take a broad approach and make a reasonable judgement.

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 12 July 2010