Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CE 2373 2009

ADMINISTRATIVE APPEALS CHAMBER

JE v SSWP (ESA)

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

Directions for new hearing

A The new hearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a tribunal judge.

REASONS FOR DECISION

1 The claimant and appellant (E) is appealing against a decision of the Manchester social entitlement tribunal on 29 06 2009 under reference 946 09 01145. The tribunal confirmed a decision made for the Secretary of State for Work and Pensions that E no longer met the threshold for limited capability for work.

2 E had become incapable of work due to depression. She was sent the standard ESA50 to assess her limited capability for work. In this her adviser indicated some physical limitations and a number of mental, cognitive, and intellectual limitations. She was examined by an approved doctor. Based on the report in the standard form ESA85, a decision maker accepted some limitations in sitting and standing, but no mental health or similar limitations. E appealed because “you failed to take into consideration my mental health problem, in particular my anxiety attacks and depression.”

3 In response, the advisor arranged for E to be given a Mini Mental State Examination

at her local medical practice. Her score in that, together with a note about her medical conditions, was submitted in evidence.

4 The tribunal held a hearing of the appeal. E’s representative at the hearing conceded that no physical descriptors were in issue other than the accepted limitation with sitting and standing (for which 6 points had been scored). The tribunal was asked specifically to consider the mental health and associated descriptors 17, 18 and 19. These are coping with change, going out, and coping with social situations. The tribunal, properly, considered each in turn. It found no limitations with coping with change or with coping with social situations, but accepted limitations on going out, for which it scored a further 6 points.

5 The grounds of appeal to the Upper Tribunal raise issues specifically about descriptor 19, coping with social situations.

6 The terms of the descriptor, in Schedule 2 to the Employment and Support Allowance Regulations 2008, are (with the relevant scores):

“19 Coping with social situations

(a) normal activities, for example, visiting new places or engaging in social contact, are precluded because of overwhelming fear or anxiety (15)

(b) normal activities, for example, visiting new places or engaging in social contact, are precluded for the majority of the time because of overwhelming fear or anxiety (9)

(c) normal activities, for example, visiting new places or engaging in social contact, are frequently precluded because of overwhelming fear or anxiety (6)

(d) none of the above apply (0).”

7 The question in the ESA50 puts it in a different way:

“19 Coping with social situations

Please tick this box if you have no problems mixing with other people [ ]

Does the thought of meeting new people or going to new places make you anxious or scared?

[ ] Often [ ] Sometimes [ ] Not very often [ ] I never go out”

There is then the standard space for comment. E’s advisor stated; “It makes me scared because my self esteem is very low and I am not confident talking with other people. The “often” box was ticked.

8 The standard ESA85 deals with it in a different way again. It is listed under “adapting to change – activity outcomes”. The form lists “prominent features of functional ability relevant to daily living” and “relevant features of clinical examination.” Various descriptors were brought forward from Box 4 of the form (“description of functional ability”). The bringing forward seems to be selective. For example, the following were brought forward:

“came to the examination centre alone” (from social history)

“able to speak to relatives and friends over the telephone” (from typical day)

“once a week goes to the shop” – ASDA superstore” (from typical day, but the following four phrases, all relevant to that statement, are not copied forward)

The following were not brought forward:

“the following mental symptoms occur every day and are usually troublesome: difficulty sleeping, tearfulness and anxiety” (from conditions history)

“its very rare that she goes out” (from typical day)

“Gets impatient in the queues” (one of the four follow-on phrases noted above)

“has difficulty frequently receiving visits from her grand children due to their unpredictable behaviour and irritability” (from typical day)

Under “abnormal behaviour” it was noted that E had some difficulty coping at interview. This echoed the comment elsewhere in the form that she “needed prompting at interview”.

9 The tribunal had the benefit of oral evidence from E and a friend. The friend said “She will not come out. She doesn’t socialise any more.” The only other evidence was that of the general practitioner. E told the tribunal that she was worried by the thought of attending the tribunal as she never went anywhere new and “today was the first one …”.

10 In considering this descriptor at [7] in its decision the tribunal noted E’s own evidence (including evidence of the effect of a mugging shortly after she made her claim) and the GP’s and other medical evidence. It noted that “none of the medical evidence suggests the appellant is subject to overwhelming fear or anxiety and there was no suggestion of such by the appellant herself.” It concluded that E’s condition “fell well short of the criteria necessary for this descriptor.”

11 The representative’s grounds of appeal were about this descriptor alone. She pointed out that her note of the hearing was that E had said she was terrified, not worried, about attending the tribunal. She noted that E had commented that new places frighten her. She also questioned whether evidence of mild to moderate depression and anxiety was inconsistent with overwhelming fear or anxiety at going out”.

12 On considering the application, I raised a number of issues about this descriptor, which is a new descriptor for employment and support allowance. I also noted differences between (a) the questions on the ESA50, (b) the questions on the ESA85, and (c) the official terms of the descriptor. I invited the Secretary of State to comment on what was meant by “normal activities”? Was this subjective to the claimant, or objective to be judged by a “normal” person of similar age and circumstances? I expressed the provisional view that, in light both of the evidence and of the express focus of the appeal on this and a few other descriptors, and bearing in mind that the tribunal recorded 12 points elsewhere in its assessment of E, it had dealt with this inadequately.

13 The Secretary of State agreed that the decision of the tribunal was inadequate on this issue. The submission drew attention to DWP medical services policy, although no published source was quoted for this, nor was it given by an identified officer. But I quote the view of the Secretary of State about issues I raised in requesting a submission:

“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”

14 As this is a supported appeal, I do no more than set out the views of the Secretary of State. The Secretary of State’s representative drew from these views the submission that the tribunal had not dealt with the descriptor adequately. I did not hold a hearing about this appeal or receive full argument about those views.

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.

17 One other issue raised by the facts of this appeal is a potential overlap in some cases between descriptor 18 (getting about) and this descriptor. Descriptor 18 is about the mental, cognitive, or intellectual function of getting to somewhere familiar. That must raise a question where, as here, it is accepted (as here) that a person frequently cannot get to somewhere familiar without being accompanied. If so, how can the same individual cope with “normal activities, such as visiting new places…”? Again, that requires adequate fact finding.

18 In conclusion, while there are reasons why the formal descriptors, the ESA50, and the ESA85 all use different terminology this inconsistency does require that a decision maker and a tribunal pay attention to the terms of the statutory test. This requires adequate fact finding. It may not be enough simply to adopt the evidence in either the ESA50 or the ESA85 as determining the statutory test.

David Williams

Upper Tribunal Judge

23 02 2010

[Signed on the original on the date stated]