Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Wakefield First-tier Tribunal dated 20 January 2010 involved an error on a point of law and is set aside. The case is remitted to a differently constituted tribunal within the Social Entitlement Chamber of the First-tier Tribunal for reconsideration in accordance with the directions in paragraphs 23 to 25 below and further directions to be given by a salaried First-tier Tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

 

 

REASONS FOR DECISION

 

1. There was an oral hearing of the appeal to the Upper Tribunal, granted at the claimant’s request by Upper Tribunal Judge Rowland after consideration of a round of written submissions. Judge Rowland had earlier given the claimant permission to appeal after a hearing at Doncaster County Court. The hearing of the appeal took place at Leeds Combined Court Centre on 23 May 2011. The claimant attended. The Secretary of State was represented by Mr Stephen Cooper, solicitor, instructed by DWP/DH Legal Services.

 

2. The First-tier Tribunal was concerned with the decision dated 25 April 2009 that on supersession the claimant was not entitled to employment and support allowance (ESA) from and including 30 March 2009. The ground of supersession was not stated in the decision by reference to any specific provision in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The first appears to have been relevant change of circumstances under regulation 6(2)(a), in that medical evidence had not been supplied for any date after 19 March 2009, when the previous certificate from the claimant’s GP had run out. As I understand it, from the copy of the letter dated 12 October 2009 from the Barnsley BDC (at page 273), there is no longer any issue as to the absence of any medical evidence as defined in regulations from 20 March 2009. I therefore propose to say no more about that issue. If the Secretary of State considers that it is of continuing relevance to the appeal against the decision of 25 April 2009, a submission to that effect can be made in advance of the rehearing that I have directed.

 

3. The second potential ground of supersession was the receipt of the report dated 1 April 2009 from an approved health care professional (Mrs Marianne Bainbridge, a registered nurse) following examination (regulation 6(2)(r)). A supersession on that ground could not have taken effect before 25 April 2009. The only points-scoring descriptor that was identified in that report was “Risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach a toilet quickly” (Employment and Support Allowance Regulations 2008, Schedule 2, paragraph 10(a)(vii)), scoring six points. In her summary of functional activity, the HCP wrote:

 

“Client suffers from irritable bowel syndrome and has had investigations into this condition. In my opinion based on the history the client risks losing control of his bowel so that he can not control the full evacuation of his bowel if he is not able to reach the toilet quickly. Client stated he has to plan his route when going places due to urgency and would lose control of some of his bowels if he could not get to the toilet in time.

Client does not wear pads for this condition.”

 

4. On his ESA50 questionnaire signed on 22 February 2009 the claimant had not ticked any boxes against the question “Can you control your bowels so you do not need to change your clothes due to soiling?” (page 16), a question which incidentally does not reflect several of the specifics of the statutory descriptors under the activity of continence. Instead he wrote in the box for further information, including how often clothes needed to be changed:

 

“Bowel urgency – As long as I am near toilet facilities I can usually get to toilet without soiling.”

 

He had already mentioned this problem in the general description of his illness or disability at page 4, saying that he often had to go 12 times a day and needed to be able to get to toilet facilities quickly, so that, for example, it was not possible for him to commute by public transport.

 

5. The descriptor in paragraph 10(a)(vii) of Schedule 2 to the ESA Regulations is as follows:

 

“Risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel of the full voiding of the bladder if not able to reach a toilet quickly.”

 

The descriptor in paragraph 10(a)(iii), scoring 15 points, is as follows:

 

“At least once a month loses control of bowels so that the claimant cannot control the full evacuation of the bowel.”

 

The descriptor in paragraph 10(a)(v), scoring nine points, is as follows:

 

“Occasionally loses control of bowels so that the claimant cannot control the full evacuation of the bowel.”

 

6. The tribunal, in disallowing the claimant’s appeal and confirming the decision of 25 April 2009, found that he qualified only for the six points under the activity of continence. Although there was a typing error in the tribunal’s statement of reasons under the heading “irritable bowel”, I am satisfied that the intention was to refer to and confirm the meeting of the conditions only of paragraph 10(a)(vii) of Schedule 2 to the ESA Regulations. The whole of what was set out under that heading was as follows:

 

“Whilst the Tribunal took into account the fact that in the Appellant’s claim pack on page 16 he indicated that he could control his bowels and re-affirmed this when discussing it with the Examining Medical Practitioner, the Tribunal took into consideration the evidence given during the Tribunal hearing and the difficulties that he has in controlling his bowels and were for that reason able to accept what he said and re-affirmed that the descriptor [10(a)(vii)] was appropriate which gave the Appellant six points.”

 

7. Because there will have to be a complete rehearing of the appeal before a new tribunal I do not want to say too much about the evidence as to other descriptors put in issue by the claimant, or even about the detailed evidence on the activity of continence. I shall also, with due respect to the range of issues put forward by the claimant on his appeal to the Upper Tribunal, not go through all of them. Some of them, as he acknowledged, become water under the bridge once the decision of the tribunal of 20 January 2010 has been set aside. Many can be revisited as necessary in the rehearing (although I remind the claimant that that hearing will not be an inquest into everything that the Department has done in relation to his case and that the new tribunal will wish to focus directly on issues that could make a difference to the points that the he could score under the work capability assessment). Instead, I shall concentrate first on the tribunal’s reasons in relation to the activity of continence and then on a second issue of law which may well be relevant in the rehearing.

 

8. Those issues correspond in the main with the grounds of appeal that Judge Rowland found arguable when giving permission to appeal on 13 December 2010:

 

“The facts that the claimant has some control over his bowels and satisfies descriptor 10(a)(vii) does not necessarily mean that he does not also satisfy descriptor 10(a)(iii), which is concerned with occasional loss of control. It is arguable that the First-tier Tribunal’s reasoning does not adequately explain the rejection of the claimant’s case in this regard.

 

The third ground is also arguable. I have some doubt whether activity 11, upon which the claimant relies in respect of his loss of concentration, is relevant, because it is concerned only with a loss of concentration due to lost or altered consciousness. Activity 14 might be more relevant, although it is not clear that the claimant’s day to day life is affected to the requisite extent. There does not seem to be any express requirement in regulation 19 of the [ESA Regulations] that satisfaction of a descriptor in Part 2 of Schedule 2 should be as a result of a mental illness or disablement, as opposed to a specific bodily disease or disablement. In any event, it seems possible that mental disablement might be the result of a bodily disease. The claimant asserts that he suffers from a lack of concentration after about five hours’ activity, due to the `poor chest expansion’ noted on doc 146. I am not aware of any written medical evidence suggesting a connection in this case.”

 

9. On the first ground mentioned by Judge Rowland the issue, as was very fairly posed by Mr Cooper at the hearing on 23 May 2011, is whether, in the light of all the evidence put forward by the claimant the tribunal had adequately explained why it concluded that he did not satisfy the conditions of descriptor 10(a)(iii). That would give him 15 points, enough on its own to pass the work capability assessment (WCA). However, contrary to the way Judge Rowland put it, that descriptor requires the actual loss of control of the bowels so that the claimant cannot control the full evacuation of the bowel to occur at least once a month. If the frequency is less than that, but still at least “occasionally”, descriptor 10(a)(v) is satisfied. Since that only scores nine points, satisfaction of another descriptor scoring at least six points would have been necessary for the claimant to pass the WCA.

 

10. The following elements of the evidence before the First-tier Tribunal indicating actual loss of control of the bowels were identified by the claimant at the hearing of 23 May 2011. The first was that on the ESA50 questionnaire he only said that he could usually get to the toilet without soiling, implying that sometimes he could not. The second was in his description of the problems to the HCP (page 30). There he was recorded as saying that he suffered from bowel urgency up to 12 times a day and would soil himself if he could not get to the toilet in time. He was also recorded as saying that he had tried pads, but they did not work. That, said the claimant, implied that he did soil himself. He says that he had explained to the HCP that he had tried elasticated pants, but that they were not adequate to contain the full evacuation of the bowels that followed from a loss of control before being able to get to a toilet. He did explain that at the hearing on 20 January 2010 (see the record of proceedings at page 198). The third was the example given in his additional witness statement at page 161, part of what was sent in with the letter dated 8 January 2010. This was of diverting to Ferrybridge Services on a car journey because of urgency and then soiling himself in the car park although there was only 100 yards further to get to the toilets. He also said that he had described this to the HCP. The fourth were the maps at pages 158 to 160 showing toilets in the Harrogate area easily accessible by car, which he said showed the degree of planning needed for him to get to and from hospital in Harrogate, which would not have been necessary if he would not actually soil himself if not able to get to a toilet quickly, as was his inability to use public transport (even trains with toilets). The fifth was the MRI scan showing his colon completely empty, which the claimant said showed that there was complete evacuation of the bowels. The sixth was in his evidence to the tribunal at page 198 where he said that he would go in a field if necessary. He has later said that he could recall numerous occasions of doing so.

 

11. Nothing was recorded in the tribunal’s record of proceedings about how often the claimant was actually unable to control the full evacuation of his bowels. At the hearing on 23 May 2011 he said that the tribunal had not asked any questions about that.

 

12. In that state of the evidence before the tribunal of 20 January 2010 I am satisfied that potential qualification for descriptor 10(a)(iii) or (v) was raised. There was sufficient evidence that the claimant did on occasions actually lose control of his bowels, rather than merely be at risk if he did not get to a toilet quickly, and as a result of his bodily disease or disablement, not as a result of failing to take reasonable steps to avoid that result, to require an investigation of how often that happened. The failure of the tribunal to undertake that investigation led to a failure to make adequate findings of fact and a consequent failure to give adequate reasons for rejecting the claimant’s case on the activity of continence. In addition, the form of the tribunal’s conclusions set out in paragraph 6 above was not ideal, in that referring to taking evidence into account or into consideration falls short of a clear finding as to whether evidence is accepted or rejected.

 

13. In paragraphs 17 and 19 of the written submission for the Secretary of State dated 12 January 2011 it was suggested that there was no realistic possibility of the claimant qualifying for any more points than six under the activity of continence, because the evidence before the First-tier Tribunal was that the claimant suffered only a partial evacuation of the bowels when losing control, resulting in soiling. That suggestion cannot work in any way that affects the materiality of the errors identified above. First, the Secretary of State can hardly take advantage of some of the evidence before the tribunal being in terms of soiling when he has chosen to pose the relevant questions on the ESA50 questionnaire in terms of soiling such as to give rise to a need to change clothes, rather than to pose questions more directly related to the conditions of the descriptors in paragraph 10(a) of Schedule 2. Second, both the First-tier Tribunal and the HCP accepted that the claimant was at risk of being unable to control the full evacuation of the bowel in concluding that he qualified for descriptor 10(a)(vii). Therefore it cannot be suggested that, on the same evidence about what had actually happened or would happen if the claimant could not get to the toilet in time, there could not have been instances of loss of control of the full evacuation of the bowel. However, at the rehearing the new tribunal will have to consider what is entailed in an inability to control the full evacuation of the bowel and the claimant must be prepared to explain further just how he was actually affected by urgency around April 2009, as he has already done to some extent in writing and at the hearing on 23 May 2011.

 

14. In paragraphs 18 and 19 of the written submission of 12 January 2011 it was suggested that, because the evidence before the First-tier Tribunal was that the claimant had a degree of control of his bowels, at least for a time, when afflicted by urgency (so that he could write on the ESA50 that if he was near a toilet he could usually get there without soiling), there could not be qualification for descriptor 10(a)(iii) (or by implication 10(a)(v)). It was submitted that those descriptors required immediate, involuntary full evacuation of the bowel and that no further explanation was needed from the tribunal than the identification of that state of the evidence. That suggestion does not work either. It involves what in my judgment is the unwarranted addition of a restrictive condition to the actual words of descriptors 10(a)(iii) and (v). As I have already mentioned in paragraph 12 above, it seems to me that the focus must be on whether and how often the claimant actually is unable, as a result of his bodily disease or disablement, to control the full evacuation of the bowel and that the relevant condition can be satisfied even though the claimant is able to exercise control for a certain amount of time. It must be a matter for the judgment of the members of First-tier Tribunals and of the Secretary of State’s decision-makers when the relevant condition is satisfied. In the present case, there was nothing in the tribunal’s statement of reasons to suggest that descriptors 10(a)(iii) or (v) were considered as they should have been.

 

15. Accordingly, the errors of law identified above require the setting aside of the decision of the tribunal of 20 January 2010.

 

16. In relation to Judge Rowland’s second ground, I agree that the tribunal’s conclusions under the heading “concentration problems” were, in the context of the evidence and the claimant’s submissions, so brief as to confuse the treatment of two activities in a way that left the reasons inadequate. The paragraph was as follows (I have put in square brackets a comma that the sense suggests should not have been there):

 

“The Appellant confirmed that his concentration was impaired because of physical difficulties that he was enduring confirming that his concentration was not affected[,] through any mental disorder/mental illness. That being the case again, no descriptors were activated and no points were appropriate.”

 

17. The first difficulty with that paragraph is that the activity that the claimant had put forward at the hearing on 20 January 2010 was that in paragraph 11 of Schedule 2 to the ESA Regulations, within Part 1 of the Schedule, headed “Physical Disabilities”. Therefore, it could be no obstacle to qualification for points under that activity that the restriction on activities resulted from some bodily disease or disablement. The earlier mentions of concentration problems on the ESA50 and to the HCP had been in terms of difficulties after about five hours, which did not look like a description of episodes of lost or altered consciousness, as required under paragraph 11. However, what the claimant described at the hearing as having happened in summer 2008 while he was driving (which he has later said was one particularly serious example of similar experiences) could possibly have been regarded as an episode of altered consciousness resulting in significantly disrupted awareness or concentration. Therefore, no adequate reasons were given for the rejection of the claimant’s case on paragraph 11 of Schedule 2.

 

18. It is possible that the tribunal was regarding the claimant’s case as being made under paragraph 14 of Schedule 2. That paragraph is in Part 2 of Schedule 2, which is headed “Mental, cognitive and intellectual function assessment”. The tribunal might have considered paragraph 14 to be more appropriate to a fading of concentration after five hours or so. If so, it would have been unsatisfactory that the activity being considered was not made clear. However, the reasons given for rejection might then have been adequate if the tribunal had been correct in law that the causal link only to bodily disease or disablement, and not to mental illness or disablement, excluded qualification under any of the activities in Part 2 of Schedule 2.

 

19. I do not accept the submission for the Secretary of State, in the written submission of 12 January 2011 and repeated by Mr Cooper at the oral hearing, that there can only be qualification for a descriptor under Part 2 if the relevant problems stem from a mental health problem, whether existing completely independently or resulting itself from a physical disablement. I fear that that submission did not get much further than the assertion that that had to be so because the descriptors under Part 2 referred to limitations on activities that stemmed from mental health problems. The problem with that submission is that some of the descriptors in Part 2 refer to things that could also stem from physical problems. It was also thought necessary in some instances to make a specific reference to mental illness or disablement, sometimes of a specific kind (see, for example, paragraphs 15, 16 and 19), which points against the existence of the general condition put forward for the Secretary of State.

 

20. It seems to me first that the contrast between the headings to Parts 1 and 2 of Schedule 2 is very significant. The heading “Physical disablement” points to the underlying cause of the effect on physical function tested in the descriptors in Part 1. The heading “Mental, cognitive and mental function assessment” points to the nature of the function that is affected, regardless of the underlying cause, suggesting that if one of those functions is affected in a way that meets the terms of a descriptor there is no need to embark on the horrendously difficult task of separating out mental and physical origins. Second, the terms of regulation 19 of the ESA are very significant. Regulation 19(5) merely provides that there is qualification for points under the whole of Schedule 2 only if the incapability to perform the activity in question arises from some specific bodily disease or disablement, some specific mental illness or disablement or from the treatment of such conditions by a medical practitioner. There was the plain opportunity to connect Part 1 to physical disease or disablement and Part 2 to mental illness of disablement, which was not taken. In my judgment, the Secretary of State’s submissions involve the adding of words to the ESA Regulations that are not there. That could be justified only in cases of manifest absurdity or mistake or where there was a clear intention in the context of the Regulations as a whole that there should be an interpretation to that effect. The circumstances fall a long way short of that. Accordingly, in my judgment, if the tribunal was considering paragraph 14 of Schedule 2, it failed to give an adequate reason for not looking further at its conditions.

 

21. Since the tribunal did not ask the claimant specific questions about the conditions in paragraph 14 of Schedule 2 to do with the successful management of day to day life and did not make any findings of fact about that, the error of law cannot be dismissed as immaterial on the basis that the only possible outcome could have been the award of no points under paragraph 14. The claimant had from the ESA50 questionnaire onwards mentioned concentration problems, with an at least implied effect on his day to day life, and the tribunal apparently accepted the existence of those problems. It is true that the claimant ticked the ESA50 box 14 for being able to manage his daily routines without difficulty. But that is not to be held against him, as any claimant could reasonably think, as the claimant has said that he did, that Part 2 of that questionnaire was restricted to things related to mental illnesses and disabilities. The introductory notes to Part 2 of the questionnaire say that:

 

“By mental, cognitive and intellectual functions we mean things like mental illness, learning difficulties and the effects of head injuries.”

 

The reference to the effects of head injuries begs the question addressed in paragraph 19 above. Is it a recognition that mental etc functions may be affected by the results of physical disablement or does it assume that some metal illness or disability exists that stems from a prior physical illness or disablement? But what seems to me overall a fundamentally confused message could leave many claimants in doubt about how to complete the questionnaire.

 

22. I have also considered whether I need to reach a conclusion on the question of law in paragraphs 19 and 20 above, since the errors of law identified in paragraphs 12 to 15 above are sufficient on their own to justify setting aside the decision of the tribunal of 20 January 2010. Mr Cooper told me that the difficulty had been mentioned in a number of other decisions of the Upper Tribunal (without identifying them), but that none had decided the question. There was not extended argument on the point in the present case, but the opposing views can be fairly simply expressed. The Secretary of State was given very clear notice of the point in Judge Rowland’s reasons for giving permission to appeal and had full opportunity to support his view both in writing and at a hearing, where there was the opportunity to respond to the matters mentioned in paragraphs 19 and 20. I have concluded that, because I can have no idea what view of the facts the new tribunal will take, I ought to give it a clear direction of law for the purpose of the present case, which might potentially be crucial to the eventual outcome. Therefore, I have stated a definite conclusion.

 

Conclusion and directions

23. For the reasons given above, the decision of the tribunal of 20 January 2010 is set aside. The claimant's appeal against the Secretary of State's decision of 25 April 2009 is remitted to a First-tier Tribunal for reconsideration in accordance with the following directions. No-one who was a member of the tribunal of 20 January 2010 is to be a member of the new tribunal that reconsiders the claimant's appeal. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any findings made or conclusions expressed by the tribunal of 20 January 2010.

 

24. The Secretary of State is to make a further written submission saying whether or not the question of medical evidence mentioned in paragraph 2 above is any longer relevant and what ground or grounds of supersession are relied on in consequence. The time for doing so should be set in directions to be given by a judge of the First-tier Tribunal.

 

25. I direct the new tribunal to apply the principles of law set out above in relation to the interpretation of paragraph 10 of Schedule 2 to the ESA Regulations and to the absence of any general restriction of Part 2 of Schedule 2 to incapability to carry out any activities in that Part arising from a mental illness or disablement. I need give no more directions of law. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal. The decision on the facts in this case is still open.

 

 

 

 

(Signed on original):  J Mesher

  Judge of the Upper Tribunal

 

Date: 1 June 2011