Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CE/1005/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision: The appeal is dismissed.

REASONS FOR DECISION

1.     The claimant claimed employment support allowance (ESA) for the first time in about April 2009. He was awarded ESA from and including 5 April 2009. Although that award is not on the file, in accordance with the provisions of the Welfare Reform Act 2007 and the Employment and Support Allowance Regulations 2008, this initial award would have been during the assessment phase during which the Secretary of State had to determine whether the claimant did indeed have limited capability for work in accordance with that Act and those Regulations.

2.     The claimant completed the questionnaire, which is signed by him and dated 17 May 2009. He explained that he suffered from depression and had been advised by his doctor to have sessions with a counsellor, and that he was very emotional. His most recent appointment with the counsellor was stated to have been on 5 April 2009. In relation to the physical descriptors, he indicated that he had no problems, and it has not been contended either before the tribunal or on this appeal that he should score any points on the physical descriptors.

3.     In relation to the descriptors relating to mental, cognitive and intellectual functions, the claimant again indicated no problems except in relation to going out. In answer to the question whether he felt confident enough to leave home on his own and go out to places he knew, he stated that it varies. He went on to state that he only felt confident about going to a place he knew if someone goes with him sometimes. I note that if this questionnaire was accepted on its face, the claimant would only score 9 points at best and then only if for the majority of the time he was unable to get to a specified place with which he was familiar without being accompanied by another person, but would score 15 points if there was at least one specified place to which he was unable to get without being accompanied on each occasion. The words “a specified place” in descriptors 18(b) and (c) are to be contrasted with the words “any specified place” in descriptor 18(a). The answer in the questionnaire leaves open the question whether there was any particular place to which he was unable to get without being accompanied either on each occasion or the majority of the time.

4.     The claimant was then examined on 10 June 2009 by an approved disability analyst (ADA) who described herself as a registered nurse. The report contains the factual evidence of the ADA as to what she was told by the claimant. That evidence would be admissible whether or not the ADA possessed any special expertise. The claimant is reported as having explained that the condition started 7 months earlier, when he had stopped working, that he had been on medication which he had stopped a few months previously and that he was using no medication for his depression. He had had 4 counselling sessions which he found beneficial. He had good days and bad days when he had low mood. He had been crying a lot.

5.     He gave a description of a typical day which, as recorded by the ADA, included details of his going out, shopping, visiting family and friends and other matters (file, pp.30 and 37). The ADA found no problems in relation to any descriptor. In relation to going out, she refers to him going out she refers specifically to the places he has gone to and friends and family whom he has seen. She does not address at all the question whether there is any particular place with which he is familiar which he cannot get to at all or for the majority of the time without being accompanied by another person. Although it is right to observe that the claimant did not suggest that there was such a place, in view of the descriptor it is something that an ADA ought to address in questioning the claimant about his functional ability.

6.     The ADA concluded that in her opinion the claimant scored no points on any of the descriptors.

7.     On the basis of this report, a decision maker concluded on 17 June 2009 that the claimant scored no points on the limited capability for work assessment, and therefore superseded the award of ESA.

8.     The claimant appealed, stating in his notice of appeal that the decision was wrong as he was unable to work due to his illness and regularly received sick notes from his GP. He provided in support, through his representatives, a letter dated 25 November 2009 from his GP which stated that the GP had been seeing him regularly since December 2008. It goes to state that “He presented with symptoms of depression; in particular, he was struggling to cope and was incredibly tearful. [He] has engaged with services and has had both medical treatments and counselling, but he still remains symptomatic. In particular, [he] struggles to get out of the house on his own and will only get to a specified place with which he is familiar, e.g., the supermarket, when he is accompanied by another person. Taking part in his normal activities, e.g. going out with friends, are precluded for the majority of the time, due to overwhelming anxiety. [He] finds it very difficult to deal with other people if he does not already know them. In particular, he finds that his concentration is affected and he is finding that he needs help when filling in any forms that he has to complete.”

9.     A counsellor also gave a statement, dated 3 November 2009, to the representatives that she had seen him as his counsellor regularly between January and April 2009. She considered that he was suffering a delayed depression in reaction to his separation from his wife. He had been working night shifts and became unable to cope. He worked very hard, showing courage in his efforts to reach an understanding on his condition and found security within the circle of his children and grandchildren which nurtured him and allowed him a measure of recovery. She considered that he needed such loving support and would not cope well with change or the loss of his comfort zone.

10. The claimant was represented at the tribunal hearing and gave evidence. The representative raised issues as to the qualifications of the ADA and the adequacy of the examination which have also been raised on this appeal. His depression had arisen as a result of his redundancy and divorce. He indicated both that his condition was more or less the same at the date of the hearing but that the counselling he had received eventually did help. He had stopped taking medication because he did not think it worked. He gave evidence as to his daily routine and other matters in response to questioning both by the tribunal and by his representative. While he gave evidence that he could not face a work environment, there was no suggestion that there was any place with which he was familiar that he would be unable to get to unaccompanied. The GP’s statement that the claimant could only get to a specified place with which he was familiar when accompanied by another person was plainly contradicted by all the evidence given by the claimant both at the tribunal and at the assessment. In the circumstances, the tribunal was plainly entitled to conclude that the claimant had not scored any points on the descriptor relating to getting around.

11. It then went on to consider the other possible descriptors raised by the evidence of the GP and the counsellor, and on the evidence concluded that none of those descriptors applied. There is no challenge to any of these findings as such and they were clearly justified on the evidence.

12. The claimant’s representative has instead sought to challenge the refusal of the tribunal to adjourn to enable a fuller mental health assessment to be carried out by a better qualified person than the ADA, and to challenge the admissibility of the ADA’s report. It is said that the tribunal gave inadequate reasons for rejecting his contentions as to the report based on the decision in CDLA/2466/2007; that the tribunal did not address the question of the burden of proof which is said, in the case of an existing award, to be on the Secretary of State; and that it was unclear whether the refusal of the adjournment application was because the tribunal considered the 22 minutes examination by the ADA to be adequate or whether the tribunal felt that it could compensate for any inadequacy by taking its own evidence.

13. Leave to appeal was given by an Upper Tribunal Judge on the basis that the grounds relating to the burden of proof and the nature of the ESA award/supersession were arguable as was the ground that the tribunal failed to give sufficient reason for accepting that a 22 minute examination was a proper one although she pointed out that in CIB/908/2003 it was held that a short examination may be proper and all that was warranted in the circumstances. She did not consider that the grounds relating to the identification and qualifications of the ADA were arguable as they were made clear on the front page of her report.

14. In response, the claimant’s representative has contended that CIB/908/2003 was wrongly decided.

15. In my judgment, CIB/908/2003 is plainly and obviously correct. The length of a medical examination must depend on the facts that require to be found and assessed. If the issues are very limited ones, then they may be properly assessed in a very short time. If they are more complicated then the ADA will need to take longer. In the present case, the assessment took 22 minutes. There was no dispute that the claimant suffered from depression. It is plain that as a registered nurse the ADA had no mental health qualifications. Any opinion she expressed therefore in relation to the claimant’s mental health would be of little or no value. She was trained, however, to question him as to the effects of the depression on his ability to perform the relevant descriptors and she did report on his answers. There is no suggestion that the factual information that was provided is not admissible evidence, or that she failed to ask the right questions, except that in my view she might perhaps have asked more specific questions as to whether there was any specific place that he could not go to without being accompanied.

16. In any event, any deficiency in her questioning, or indeed any failure to conduct the examination properly does not invalidate the assessment procedure. It simply means that the tribunal should consider whether the resulting report, or some part of it, can be relied on at all, and if so, what weight should be given to it. A medical examination is not a requirement before a decision is taken by the Secretary of State but an option available to him (see regulation 23(1) of the ESA Regulations).

17. Further, this was the first assessment of the claimant’s limited capability for work. His entitlement to ESA pending the assessment is a temporary one. There is no burden of proof on the Secretary of State to prove some change of circumstances when superseding the original award in such a case. As described in R(IB) 2/09, paragraph 46, by Moses LJ in relation to regulations 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 (applied to the equivalent provision in the ESA regulations in CE/1050/2010), the assessment is a fact gathering exercise in which there is no formal burden of proof on either side. The process to be adopted by both decision maker and tribunal is inquisitorial and not adversarial.

18. In the present case it is clear that the ADA elicited relevant information from the claimant which enabled her to make a factual report, on the basis of which information the decision maker was entitled to make the appropriate assessment and supersede the initial award. The tribunal then heard further evidence, including both evidence from the claimant himself and the evidence of the GP and the counsellor. On the basis of the claimant’s own evidence it was clear that he did not score any points for any of the descriptors and his claim had to fail. I can see no reason why the tribunal should have adjourned for a mental health assessment on the facts of this case and it was right to refuse to do so. If the claimant had wanted to provide a full mental health assessment, he had had 7 months in which to obtain one, and there is no suggestion that he had made any attempt to do so, or that it could have affected the outcome of the appeal bearing in mind his own evidence.

(signed) Michael Mark

Judge of the Upper Tribunal

10 September 2010