Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/2186/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  I set aside the decision of the tribunal and remit the case to a new tribunal for rehearing in accordance with the directions given below.

REASONS FOR DECISION

1.     Although the claimant sought an oral hearing of his application for permission to appeal, he failed to indicate whether he wanted an oral hearing of the actual appeal after he had been given permission to appeal.  I am satisfied that I can decide the issues of law arising on this appeal without such a hearing.

2.     I consider that the tribunal’s statement of its reasons for its decision failed adequately to explain to the claimant why his submissions had been rejected.  For the reasons given below, I consider that on a careful examination of the facts and law the claimant scores no points on most of the descriptors relied on by him but that there are two descriptors on which he could score points and I am unable to find anything in the tribunal’s statement of reasons which adequately explains why he does not score those points.

3.     As pointed out by Commissioner Rowland in CIB/4497/1998, the minimum requirements for a statement of reasons are that the unsuccessful party must know why his or her principal submissions have been rejected and the process of the tribunal’s reasoning must be sufficiently clearly outlined to avoid any reasonable suggestion that the tribunal have made an error of law.  What is required depends very much on the circumstances of the particular case before the tribunal. 

4.     In the present case, the claimant has Asperger’s Syndrome, and was acting in person without a representative.  The evidence clearly showed that he did have a number of the problems typically associated with Asperger’s Syndrome, even if these problems were not as severe with him as with some others with that Syndrome.  His problems with them, together with a criticism of the examination leading to the completion of the medical report form, are the basis of his appeal.  Although I infer that the tribunal appears to have accepted his evidence, it did not state this clearly.  This, coupled with a similar approach by the approved disability analyst on the medical report form has led the claimant to believe that he has been found to be ‘not disabled’ and a malingerer. 

5.     There are many people who have in reality a limited capability for work, but who cannot be treated as having limited capacity for the purposes of the 2008 Regulations because they do not score enough points on the work capability assessment.  That does not mean that the tribunal considers that they have no such limitations or that they are not telling the truth.  In the real world a person with mental health problems may be very limited, as a result of those problems, as to work he or she might obtain, but they are not picked up fully or at all by the work capability assessment.  Significant criticisms have been made of the test in this respect, but decision makers and tribunals have still to apply it. 

6.     It is fair to say that the computerised questionnaire used for the medical report form can sometimes be of little value, depending on how carefully it has been completed by the approved disability analyst and on the awareness of the disability analyst of the problems caused by different types of mental disabilities.  There will also be a question in relation to some disabilities whether they can properly be assessed at a short interview of the kind used to prepare the report.   However, it appears to me that in this case the tribunal really proceeded to reach its decision on the basis of the claimant’s own evidence.  The only facts which it found as to his condition, as set out in paragraph 8 of the statement of reasons, were those which he himself had told them.  What the tribunal failed to do, however, was to go on and explain why those facts meant that he did not score sufficient points on the work capability assessment so as to be treated as having limited capability for work for the purposes of the 2008 Regulations.  It further failed adequately to investigate the possible application of descriptors 20(d) and (f) and 21(a) and (c) relating to his reaction to minor events or criticisms and his dealing with other people.

7.     In the present case, the claimant indicated problems with learning and comprehension, memory and concentration, execution of tasks, coping with change, coping with social situations and propriety of behaviour with other people.  I have no doubt that he has problems in all those areas.  But that is not the end of the matter.  He has to show that his problems are so severe as to entitle him to at least 15 points on the work capability assessment.  Not everybody with Asperger’s Syndrome is afflicted to the same degree, and the problems of the claimant are not as severe as many sufferers, or are better dealt with by him. 

8.     In relation to learning or comprehension in the completion of tasks, the claimant (who had been assisted by his sister in completing the form) did not indicate any difficulty in learning how to do a task, or indicate that he ever could not understand and remember how to do a task such as shopping for and cooking a meal or ironing clothes (file, p.29).  He did indicate at p.36 that he found it very hard to take in information sometimes, for instance where there is a lot of written information.  He also found it difficult to concentrate, read or learn something when there is lots of background noise.  He told the approved disability analyst that he could cook safely, do shopping if necessary, use a computer, do some web programming, and had tried to learn a Java script through open university.  He had stopped the university course because he ran out of funds (p.50).  He attended a theatre group several times a week, did amateur dramatics and travelled by train to attend an Asperger’s group.  He had helped to organise a Discworld convention in Ireland.

9.     The claimant repeated much of this information to the tribunal.  It appears to me to be self-evident that although the claimant may have had difficulty (as have many without any mental health problems) in taking in a lot of written information and in concentrating in a noisy environment, he was able to learn and remember even complicated procedures well beyond the “moderately complex” tasks such as operating a washing machine to clean clothes contemplated by this descriptor.  The standard set by the descriptor is a very basic one, and that is no basis for any award of points.

10. In relation to memory and concentration, the lowest threshold for the award of points is that the claimant would have to frequently forget or lose concentration to such an extent that overall day to day life can only be successfully managed with pre-planning such as making a daily written list of all tasks forming part of daily life that are to be completed.  Again, I can find nothing in the evidence before the tribunal to suggest that the claimant would come close to scoring points on this basis. 

11. Although there is some evidence that he needs encouragement to do things, there is no suggestion that for the majority of time he would forget or lose concentration to such an extent that overall day to day life could not be successfully managed without verbal prompting from somebody else given in his presence.

12. With regard to execution of tasks, points are only scored if it would take at least one and a half times the length of time it would take a person without any form of mental disablement to successfully complete an everyday task with which the claimant is familiar.  Again, there is no suggestion that this is the case with the claimant.  At p.31 he has stated that he sometimes does not see when tasks need doing, and that he often needs prompting to do them well, but he also states that he can usually complete them adequately.  Despite being invited to say how long tasks take, there is no suggestion that they take him longer than they should once he has started.

13. With regard to coping with change, it is plain that the claimant has some problems with changes in routine.  At p.32 he states that unexpected changes to routines make him agitated and angry and it can take him 10-15 minutes to calm down as long as nothing else goes wrong.  If something else does go wrong it makes him even more upset.  In relation to a train being late he stated to the tribunal that he would get worried more than usual (p.99).  He got frustrated and on one occasion a cashier would not accept his cheque until he had calmed down.  If he had been telephoned the previous day and been told that the hearing had been postponed he would have got angry and worried why. 

14. It is plain that overall the claimant is able to manage his day to day life notwithstanding very minor changes, that expected changes in routine do not make his overall day to day life significantly more difficult and that overall any inability to cope with minor, unforeseen changes in routine would not be such as to make his day to day life significantly more difficult.  Despite his problems, therefore, on his own evidence, once again he scores no points on this descriptor.

15. In relation to coping with social situations, there is no suggestion that the claimant is precluded either entirely, for the majority of the time, or even frequently, from visiting new places or engaging in social contact because of overwhelming fear or anxiety.  Indeed there is no evidence of overwhelming fear or anxiety in this respect at any time.  At p.34, the claimant states that he feels self-conscious and uncomfortable and finds it hard to find things to say, and that he also finds it difficult to concentrate on what people are saying if there is a lot of background noise.  I am sure that this is true, but it does not enable the claimant to score any points on this descriptor.

16. Finally, I turn to the descriptors relating to propriety of behaviour and dealing with other people.  At p.34 examples are given of the claimant being verbally fierce if something bothers or upsets him and how people can become angry in response.  He also is said to find it hard to use the right words to express himself, which can cause problems, that he does not know whether he has upset others or what it is that he has done, and that he can quickly get frustrated and annoyed with people who deliberately misunderstand him, making him act in a passive-aggressive manner.  Dwelling on this for a number of days can also make more likely to be annoyed by things during that time and to neglect tasks.  He does state, however, at p.35 that this is not very often.

17. Most of the descriptors relating propriety of behaviour to other people plainly do not apply to the claimant.  He does not have unpredictable outbursts of aggressive disinhibited or bizarre behaviour sufficient to cause disruption on a daily basis or of such severity that no reasonable person would be expected to tolerate them or so as to cause disruption for the majority of the time or even frequently.  Nor does he disproportionately react to minor events or criticism to the extent of having an extreme violent outburst leading to threatening behaviour or actual physical violence.

18. That leaves the question whether he either has a strongly disproportionate reaction to minor events or to criticism to the extent that he cannot manage overall day to day life when such events occur, or whether he frequently demonstrates a moderately disproportionate reaction to minor events or to criticism but not to such an extent that he cannot manage overall day to day life when such events occur.  These are not issues which the tribunal appears to have investigated at all or made any reasoned findings on.  They are not matters on which I can make any findings without further evidence as to the nature of the matters which can make him more likely to get annoyed and to neglect tasks over a number of days.  On the face of the evidence before me, however, he would probably qualify for at least 6 points, and possibly 9 points in relation to the propriety of his dealing with other people.

19. With regard to dealing with other people, I can see no evidence that the claimant causes significant distress to himself or distress to others on a daily basis or the majority of the time.  Further, while he does misinterpret verbal or non-verbal communications, the evidence he has given does not suggest that this causes him significant distress on a frequent basis.  He himself says that this is not very often.  It is also the case that the claimant is aware that one of the effects of his condition is that his behaviour can impact on other people.  He states at p.35 that he finds it hard to tell when other people are upset , but he sometimes thinks he may have upset them, but he never knows what it is that he has done.  On its face that it a typical problem faced by those suffering from Asperger’s Syndrome.  It required investigation by the tribunal in order to determine whether he was unaware of the impact of his behaviour to the extent that he had difficulty relating to others even for brief periods (descriptor 21(a)(i)) or longer periods such as a day or two (descriptor 21(c)(i)).

20. Those descriptors do not require that the claimant should be wholly unaware of the impact of his own behaviour, or even that he should be aware of what the behaviour in question was.  The tribunal should investigate what behaviour of the claimant in fact has an impact on others to whom he is trying to relate, how frequent that behaviour is and the impact which it has on those others and his abililty to relate to them.  The question is whether his lack of awareness of that impact is such that it makes it difficult for him to relate to those people.  The lack of awareness may either cause him to act inappropriately in the first place or to fail to respond appropriately following inappropriate behaviour.  Difficulty does not equate to impossibility, and he can have difficulty relating to others despite the fact that others close to him will make allowances for his behaviour.

21. I am unclear why the tribunal came to the conclusion that it did in relation to these descriptors.  The facts found by it, that he had some difficulty relating to people but found ways to cope, that at university he had been able to make some friends, and that at the assessment and the hearing he had conducted himself well do not properly address these issues, which require further investigation by the new tribunal.  It will be open to the claimant at the new hearing to adduce further evidence which may lead to an award of points on one or more of the other descriptors, but, for the reasons which I have given, on the evidence that I have seen, the only descriptors on which he can score points appear to be descriptors 20 and 21.

(signed) Michael Mark

Judge of the Upper Tribunal

1 April 2011