Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CE/406/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 2/9/09 under reference 946/09/02807 is SET ASIDE because its making involved an error on a point of law.

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1. It is unnecessary to hold an oral hearing of this appeal. The Secretary of State did not request an oral hearing, and though the appellant did request one, I am able to allow the appeal on the papers. The tribunal made material errors of law in relation to Activities 19, 20 and 21 of the Limited Capability for Work Assessment (LCWA).

2. The appellant brings this appeal against the decision of the First-tier Tribunal (Social Entitlement Chamber) heard under reference 946/09/02807 on 2/9/09 with my permission. She argued that the tribunal’s decision that she was no longer incapable of work, having failed a Limited Capability For Work Assessment, was wrong in law because the tribunal failed to take her evidence into account in relation to Activities 15, 16, 19 20 and 21 of the Assessment, reached conclusions that were not supported by the evidence, and came to conclusions which, in the appellant’s words, were ‘Wednesbury unreasonable’ (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223,‘Wednesbury’). She also submitted that the tribunal had erred in law in failing to take into consideration the deterioration in her mental health (ground 6). The Secretary of State did not support the appeal.

3. Although the appellant’s grounds were in several places couched in terms of Wednesbury unreasonableness, which I explain later, it seemed to me that her submissions raised the questions of (i) a simple failure to take into account relevant evidence, (ii) a failure to give sufficient reasons and (iii) a failure to analyse the descriptors in the relevant Activities properly. Her final submission, however, that the tribunal erred in law by failing to take into account a deterioration in her mental health, is unsustainable. The tribunal is not permitted by law to take account of circumstances which did not obtain at the time the decision was made: Social Security Act 1998, section 12(8).

4. To offend against the principle in Wednesbury a tribunal must have come to conclusions which are outside the whole range of conclusions that a properly directed tribunal could reasonably reach. The tribunal’s decision plainly does not fall within this category. Reasonable people may reasonably disagree, and that is what occurred in this appeal. It is clear from the Statement of Reasons that the tribunal did consider the evidence, including that of the appellant herself. Indeed, it accepted her evidence in various respects. The tribunal did not, however, accept that the appellant’s problems fell within the terms of the descriptors. So long as they interpreted the descriptors correctly, they were entitled to so decide. The Upper Tribunal cannot interfere because it disagrees with the First-tier Tribunal’s decision unless there has been an error of law. The view the tribunal takes of the facts is a matter for them.

5. In giving leave I queried whether the tribunal had correctly interpreted various descriptors. The Secretary of State did not fully address these questions. This is regrettable since the new limited capability for work assessment raises complex questions of interpretation. Since I have decided that the decision must be set aside in any event, I do not propose to deal with the issues he did not address at any length.

6. The activities in dispute were 15 (execution of tasks), 16 (initiating and sustaining personal action), 19 (Coping with social situations), 20 (Propriety of behaviour with other people) and 21 (Dealing with other people).

Activity 15 (Execution of tasks)

7. To score points on the descriptors for this activity, the appellant must either be unable successfully to complete any everyday task (descriptor 15(a)), or only be able to successfully complete everyday tasks with which the claimant is familiar in a longer time than would be expected from a person without any form of mental disablement (15(b) – (d)). I refer to these time scales as ‘the longer time’ and ‘the norm’. The time scales for accomplishing the task vary from more than twice the norm to 1½ times the norm.

8. The appellant submitted that no one ever asked her how long it took to undertake any task even though she had stated in the self-assessment questionnaire that her ability to execute tasks varied; on some days, she did not want to do anything.

9. The appellant’s submission raises two questions: (i) if the claimant lacks the motivation to start a task, does she fall within this activity? (ii) Should the tribunal have taken a task-by-task approach?

10. The Secretary of State submits that lack of motivation to begin tasks is immaterial to activity 15. I accept that submission. It is consistent with the wording of the descriptors, which involve the completion of tasks, in other words the actual performance of tasks rather than the claimant’s ability to initiate an activity. Lack of motivation to begin a task is, however, relevant to the descriptors in activity 16. The Limited Capability for Work Assessment is intended ‘to provide a systematic, analytical way of establishing a claimant’s …disabilities’: GS v Secretary of State for Work and Pensions (ESA) [2010] UKUT 244 (AAC) [11], per Judge Jacobs. Each of the various activities of the mental health assessment concerns a discrete aspect of mental functioning. The initiation of personal action is treated separately from the ability to complete tasks. I have accordingly come to the conclusion that the motivation to get started with a task is not material to activity 15.

11. The next question raised is whether the tribunal’s approach, which did not include asking the claimant how long it took her to perform any particular task, was correct. The tribunal instead considered the appellant’s good and bad days and found that since even on bad days the appellant managed to run her home and the family, it was unlikely that it took her at least 50% longer to complete everyday tasks.

12. The way in which a tribunal approaches this activity may vary from case to case, given the potentially vast number of tasks a claimant may perform from day to day and the particular problems with task-completion that a claimant presents. However, in this appeal the appellant’s case was that she lacked motivation to start tasks, and not that she had difficulty completing them. Once the tribunal established that the appellant was routinely able to run her home and family, it was entitled to infer that the appellant was not taking a longer time to complete her everyday tasks. In these circumstances, the tribunal performed its inquisitorial role adequately and was justified in its conclusion.

Activity 16 (initiating and sustaining personal action)

13. In order to score points for this activity, the descriptors require that the claimant cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks) -16(a); or cannot do so without requiring either daily verbal prompting - 16(b); verbal prompting for the majority of the time -16(c); or frequent verbal prompting - 16(d). In all cases, the verbal prompting must come from another person and be given in the claimant’s presence.

14. Although I queried whether the tribunal had dealt with this activity satisfactorily when I granted permission to appeal, I have come to the conclusion that it did so. The tribunal’s task is to decide whether the appellant fell within any of the relevant descriptors. These are closely defined in terms of function within set parameters. The tribunal need only decide whether the appellant could not initiate or sustain personal action without verbal prompting. It did not have to decide whether she was able to perform at the highest level the appellant set for herself. The evidence in this appeal was that she could. The tribunal reasoned that although the appellant’s ability in this sphere was variable, she was nonetheless able to do everything necessary to run the household without verbal prompting from another. The tribunal made adequate findings of fact and was clearly correct to find on the evidence before that she did so without verbal prompting.

15. The appellant queries whether the tribunal took into account all of the evidence in finding that she did not suffer from cognitive impairment or a severe disorder of mood or behaviour. In particular, it did not specifically mention Dr John’s report, which stated that the appellant suffered from a severe anxiety/depressive illness and some loss of concentration. This would be serious, indeed, if correct.

16. The tribunal did, however, deal with the report. In [15] of the Statement of Reasons it noted that the report post-dated the Secretary of State’s decision and was written at a time when, by the appellant’s own admission, her condition was worse. The tribunal must, by implication, have considered that at the date of decision the report did not reflect the appellant’s mental health condition. It should be re-emphasised that the tribunal is not permitted to deal with circumstances which did not obtain at the date of the Secretary of State’s decision. Accordingly, there was no error of law in respect of this activity.

17. The tribunal could easily have buttressed its finding by an express reference to the approved healthcare professional’s finding at p55, section 25 of the ESA85 that there was no evidence of a significant disability affecting the client’s cognition, comprehension, ability to learn, initiate tasks or complete tasks, but its omission to do would not have been sufficient for me to set aside the decision, if this were the only error the tribunal made.

Activity 19 (Coping with social situations)

18. The appellant argued in relation to activity 19 (coping with social situations) that the tribunal’s decision was unreasonable in the Wednesbury sense in that the evidence upon which it based its decision would not ordinarily involve social interaction and therefore could not support its conclusion. She also argued that the tribunal had not taken into account other evidence which was relevant to the assessment of this activity: her feelings of worthlessness, reluctance to leave the house, difficulty coping with the medical examination and the approved healthcare professional’s evidence that the appellant appeared timid and tense.

19. There is substance in the appellant’s argument. In JE v Secretary of State for Work and Pensions [2010] UKUT 50 (AAC), [6] – [13] Judge Williams rightly criticised the way in which this activity is dealt with in the ESA50 (self-assessment questionnaire) and the ESA85 (medical report) when compared with the wording in Schedule 2 to the Employment and Support Allowance Regulations 2008. The claimant is not given an accurate impression of the content of the descriptors in this activity in the self-assessment questionnaire. Activity 19 refers to normal activities, for example, visiting new places or engaging in social contact which are either precluded, precluded a majority of the time or frequently precluded because of overwhelming fear or anxiety (descriptors 19(a)(b) and (c) respectively). The questions in the self-assessment questionnaire do not mention ‘normal activities’ at all and do not flag up the relevance of the level of anxiety or fear which the claimant feels. It is unlikely that a layman would realise that it was important to elaborate on the extent of his anxieties or fears. While it is understandable that the questions on the ESA50 are posed in a way which does not suggest ‘the right answer’, it is also important for the tribunal to recognise that a claimant is asked questions which do not reflect the wording of the descriptors. It is therefore particularly important in activity 19 that the tribunal question the appellant in a suitable way which enables her to give evidence on matters which would otherwise not be obvious to the layman.

20. In JE v Secretary of State for Work and Pensions [2010] UKUT 50 (AAC) the Secretary of State gave evidence of the DWP medical services policy on activity 19.

“The activity “coping with social situations” is intended to reflect lack of self-confidence in social situations that is greater in its nature and its functional effects than mere shyness or reticence. It reflects levels of anxiety that are much more severe than fleeting moments of anxiety such as any person might experience from time to time.

The terminology “overwhelming” is indicative that the level of anxiety referred to suggests a specific and overpowering experience of fear, resulting in physical symptoms or a racing pulse, and often in feelings of impending death such as may occur in a panic attack.

This activity relates normal activities which may include visiting new place or (bold in original) engaging in social contact. These are activities that would feature in the activities of daily living “normal” individuals. A reference to social situations considers activities such as:

Use of public transport

Shopping

Talking to neighbours

Use of phone

Hobbies and interests

Social interaction with family”

Judge Williams commented at [15] and [16]:

15 ‘What is clear from the descriptor, and is echoed in the policy statement, is that the test of “normal activities” is potentially wide. I agree that the descriptor suggests that the activities to be contemplated are activities of “normal” people, not the previous activities of the claimant. At the same time, the wording of the descriptor suggests that the “overwhelming fear or anxiety” does not have to be experienced in respect of all normal activities. Nor does it have to occur continually to be significant. In this case, for example, the representative asked for consideration to be given to experiences either for “a majority of the time” or “frequently”. It is common ground that “frequently” means less than most of the time. It might fall somewhere near the “often” in the ESA50.

16 It is a question of fact whether an intermittent reaction at the level stated in the descriptor occurring either in temporal terms or in activity terms (or both) meets the test. For example, someone who is genuinely overwhelmed about the idea of going out – and rarely does so - may not be overwhelmed when making a phone call to a friend or neighbour or answering a call on a phone which (like so many phones now) tells her or him who is calling. It is at least arguable that someone who cannot go out most of the time for this reason meets this descriptor at least at some level even though he or she is prepared to sit at home and telephone. There is a balance to be struck between different social situations. Where there is evidence of significant problems with some social situations, there may be a need to explore a wider range of those situations to make a full judgment of the extent of the limitation.

21. With some caveats, I respectfully agree with Judge Williams’ views. It is a matter of fact and degree whether a claimant can be said to be precluded from normal activities by overwhelming anxiety or fear. ‘Precluded’ and ‘overwhelming ‘are strong words. In this context precluded means being prevented from doing something. It is not satisfied by a preference not to do something. ‘Overwhelming’ certainly indicates an overpowering feeling, or something approaching it. The descriptors refer to ‘normal activities’. Whether the plural includes the singular in this context is a matter for full argument in a case in which the issue specifically arises.

22. In this appeal, the tribunal did not, on balance, deal adequately with the issues. The Record of Proceedings records evidence that she has few friends, but she sees them sometimes; she shops (which requires social interaction on a number of levels), and takes her child to school (which may require interaction with other parents). On the other hand, there was also evidence that she restricted herself to social activities which she had to perform to survive or meet her legal obligations. While the tribunal would have been justified in finding that the appellant did not satisfy 19(a), she may have satisfied that (b) or (c) had she been questioned more carefully. This might have given her either 9 or 6 points.

Activity 20 (Propriety of behaviour with other people)

23. The tribunal accepted that the appellant became irritable from time to time with her children and reacted disproportionately. However, in her self-assessment questionnaire, she wrote that she was always getting cross with her children for no reasons [sic] or for little things. She said the same in oral evidence. She also claimed to become violent sometimes and to cause others to become upset with her because of her behaviour. This does not appear to have been explored by the approved healthcare professional and was not explored adequately during the hearing or in the Statement of Reasons. The tribunal failed in its inquisitorial duty in this respect. It is possible that she may have been entitled to 6 points for 20(f).

Activity 21 (Dealing with other people)

24. The tribunal did no more than state their conclusion without examining relevant evidence given by the appellant in her ESA50. It is possible that evidence in relation to one mental health descriptor, such as activity 20, may be relevant to another, such as activity 21. The appellant’s evidence of occasional violent reactions and becoming angry with her children may have been relevant, for example, to 21(f), which attracts 6 points.

25. I have come to the conclusion that the tribunal materially erred in law in its approach to the evidence in relation to Activities 19, 20 and 21. I cannot substitute my own decision because (i) there is insufficient evidence before me, (ii) credibility issues are involved and (iii) the proper disposal of the appeal requires a tribunal comprising a lawyer and medical member. I accordingly remit the appeal to a freshly constituted First-tier Tribunal to rehear. The tribunal must not take account of changes of circumstance after the date of the Secretary of State’s decision. The appellant should be aware that success before the Upper Tribunal is no indication of the outcome of the appeal when it is reheard by the First-tier Tribunal.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 21 September 2010