Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/103/2011

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the Claimant, brought with the permission of a Judge of the First-tier Tribunal, against a decision of a First-tier Tribunal sitting at Havant on 29 September 2010. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by a differently constituted First-tier Tribunal in accordance with the directions set out in paragraphs 35 and 36 below.

 

2. The Claimant was represented before the First-tier Tribunal by Ms Sarah Locke, of the Community Legal Advice Centre, Portsmouth, and the Claimant’s grounds of appeal to the Upper Tribunal were framed by Ms Locke. However, the Claimant has not had the benefit of any written submission from Ms Locke in reply to that of the Secretary of State in this appeal, because funding for such representation was withdrawn owing to a general cut in such funding.

 

3. Before turning to the First-tier Tribunal’s reasoning, and the parties’ submissions in this appeal, it is convenient to set out the facts and some analysis of the effect of the legislation in the light of those facts. I have found considerable difficulty is trying to work out the effect of the legislation.

 

The facts

4. The Claimant is a woman now aged 58 who suffers from musculoskeletal problems, including back pain, and anxiety and depression. She has not worked since 2006.

 

5. She claimed and was awarded employment and support allowance (ESA) on the basis of medical certificates from her GP, pending carrying out of a work capability assessment. On 30 April 2009 she was medically examined for the purposes of the work capability assessment. The examining doctor advised that the Claimant did not satisfy any point scoring descriptors, and on 26 May 2009 a decision was made superseding and removing the award of ESA with effect from that date.

 

6. On 3 June 2009 the Claimant appealed against the decision of 26 May 2009. Under reg. 30 of the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”) the effect of the appeal appears to have been that the Claimant, so long as she provided medical certificates, was required to be treated as having limited capability for work “until such time as it is determined – (a) whether or not the claimant has limited capability for work”. (see reg. 30(1)). A further effect of the appeal was that by reg. 3(j) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 the normal condition of entitlement to ESA that a claim must have been made did not apply. See also reg. 6 of the 2008 Regulations, relating to the continuation of the assessment phase. The Claimant appears to have continued to supply medical evidence, and was therefore treated as having limited capability for work, and awarded ESA from 26 May 2009.

 

7. On 1 February 2010 a First-tier Tribunal dismissed the Claimant’s appeal against the decision of 26 May 2009. However, the Tribunal did consider that she scored 6 points under descriptor 2f.

 

8. The effect of the dismissal of the appeal was that reg. 30(3) of the 2008 Regulations no longer applied – the Claimant was no longer “pursuing an appeal against” an adverse limited capability for work decision. That meant merely that the Claimant ceased to be exempt from one of the conditions for being treated as having limited capability for work, namely the condition (in reg. 30(2)(b)) there had not “within the 6 months preceding the date of claim” been a determination that she did not have limited capability for work.

 

9. It is not easy to determine the effect of that in relation to the award of ESA which had been made by reason of the Claimant’s appeal against the decision of 26 May 2009, because that award had been made without a claim. However, it seems to me that, in its application to such a situation, the “date of claim” in reg. 30(2)(b) must probably be read as referring to the date of the appeal which was made against the decision of 26 May 2009. It cannot in my view have been the intention that the condition in reg. 30(2)(b) could never become applicable, following the dismissal of the appeal on 1 February 2010, because there was no “date of claim.” The effect of the view which I prefer, therefore, is from 1 February 2010 the condition in reg. 30(2)(b) became applicable, and was not satisfied because it had, within 6 months before 3 June 2009 (the date of appeal – and therefore in my view the date of claim for this purpose) been determined that the Claimant did not have limited capability for work. The position was in my judgment therefore probably that from 1 February 2010 the Secretary of State was entitled to supersede and remove the Claimant’s award of ESA from that date on the simple ground that the Claimant no longer fulfilled the conditions for being treated as not having limited capability for work. (It is submitted, in para. 8 of the Secretary of State’s submission in this appeal, that the effect of reg. 30(1)(a) is that the Claimant continued to be entitled to be treated as having limited capability for work until such time as it was determined whether she actually had limited capability for work, and that the Secretary of State therefore could not bring the award to an end without determining whether the Claimant actually had limited capability for work. I am doubtful whether that is right. I would have thought that the intention must have been that an award made pending appeal can be superseded by reason of the fact that the appeal has been determined.

 

10. On 10 February 2010 a decision was made in the following terms:

 

“[The Claimant] has not supplied medical evidence of her limited capability for work from 27 January 2010.

 

I have superseded the decision of the decision maker awarding ESA from and including 26 May 2009.

 

The Decision Maker has considered the Healthcare Professional’s report dated 30 April 2009 and the other available evidence and has decided that on the balance of probabilities [the Claimant] would not achieve 15 points from the appropriate descriptors.

 

She is no longer assessed as having limited capability for work from and including 27 January 2010 and she is not entitled to ESA from that date.”

 

11. That decision did not purport to be made simply on the ground that the Claimant’s appeal against the decision of 26 May 2009 had been dismissed by the First-tier Tribunal, but on the ground that it was improbable that the Claimant scored the necessary 15 points as from 27 January 2010 (the date when she had ceased to supply medical certificates). Although the Secretary of State could have made a decision terminating entitlement simply by reason of the fact that the appeal had been dismissed on 1 February, I do not think that there was anything to stop the Secretary of State making a decision as to the whether the Claimant actually had limited capability for work. Further, the terms of reg. 21(1)(b) and (c), and reg. 21(2), would appear to have entitled the Secretary of State to make such a determination without requiring the claimant to fill in a further ESA 50 questionnaire, or submit to a further medical examination.

 

12. The Claimant was notified of that decision by letter dated 11 February 2010.

 

13. Meanwhile, it appears that on 8 February 2010 the Claimant’s GP had signed a Med 5 certificate advising that she should refrain from work from 15 January 2010 for one month by reason of musculoskeletal pains and depression. On 11 February 2010 he signed a Med 3 certificate advising her to refrain from work for 3 months by reason of “1. general arthralgia – chronic LBP  2.  depression”. It is not clear when these were first submitted to the DWP. They were resubmitted by a letter from the Claimant’s representative dated 28 May 2010.

 

14. On 17 February 2010 the Claimant, apparently on the advice of her then representative, made a further claim for ESA. That claim was disallowed by a decision made on 19 February 2010, in the following terms:

 

“I am unable to give a decision on the claim for ESA made on 17 February 2010 for the period from 9 February 2010 to 10 February 2010. This is because a claim for ESA for that period was decided by the decision dated 10 February 2010.

 

[The Claimant] cannot be treated as having limited capability for work (LCW) from and including 11 February 2010. This is because in the 6 months preceding 11 February 2010 it has been determined that she did not have LCW.

 

As she has not shown that her incapacity has changed or significantly worsened since that decision was made, on the balance of probabilities she would achieve the same score as before.

 

Therefore [the Claimant] does not have limited capability for work and cannot be treated as having LCW from and including 11 February 2010.

 

As a result she is not entitled to ESA from and including 11 February 2010.”

 

15. On 15 March 2010 the Claimant’s representative sent a letter to the DWP appealing against the decision of 10 February 2010 (i.e. the decision notified in the letter of 11 February 2010). The ground of the appeal was that in determining whether the Claimant was incapable of work the decision maker had wrongly taken into account the First-tier Tribunal decision of 1 February 2010:

 

“…….. when a client appeals a decision and it goes to an independent tribunal they can only look at their health at the time of the decision (in this case this would have been [the Claimant’s] health at the time of May 2009) and not his/her health at the time of the tribunal hearing. The tribunal panel has to decide that the original decision was correct and the outcome of this should not be taken into account when the client makes a new claim for benefit following this appeal – especially if it was in relation to a decision that was made over 6 months ago.”

 

16. On 7 June 2010 a decision maker reconsidered the decision of 19 February

2010. That decision maker appears to have considered that the appeal was against the decision of 19 February 2010, rather than against that of 10 February 2010.

 

17. The DWP submission to the First-tier Tribunal also treated the decision under appeal as being that dated 19 February 2010. It made no express mention of the decision of 10 February 2010, although that decision was of course referred to in the decision of 19 February.

 

18. The written submission from the Claimant’s representative to the First-tier Tribunal in response to that of the DWP was made in a letter dated 15 July 2010. The substantive point made was that the question whether the Claimant had limited capability for work, in relation to her fresh claim, should be determined by a “fresh limited capability for work assessment.” The representative referred to paras. 22 to 24 of the Guidance Memo DMG 07/10. Paras. 23 and 24 read as follows:

 

“23. Where the claimant can no longer be treated as having LCW as in para. 2, because the appeal has been allowed or dismissed, the DM must go on to make a determination about LCW. The question of whether the claimant has, or can be treated as having, LCW must be determined afresh.

 

24. Unless there had been a change since the award was made (see paragraphs 14-16), or since the First-tier Tribunal made its decision, the DM should assess LCW and LCWRA in accordance with the evidence used to make the decision under appeal, or the evidence used by the First-tier Tribunal, as appropriate. There is no need to refer to Medial Services for a questionnaire or examination and report.”

 

19. No additional medical evidence, other than the GP’s certificates referred to in para. 14 above, was put before the First-tier Tribunal. Further, the Secretary of State did not put before the First-tier Tribunal a copy of the document which had constituted the fresh claim made on 17 February 2010. Nor did the First-tier Tribunal have a copy of the full report of the medical examination on 30 April 2009, but only of one page of it, although it did have a copy of the Decision Notice stating the First-tier Tribunal’s decision of 1 February 2010.

 

 

 

The First-tier Tribunal’s decision

20. The First-tier Tribunal which sat on 29 September 2010 considered that the decision under appeal was that dated 19 February 2010. Its Decision Notice reads as follows:

 

“The appeal is disallowed.

 

The decision of the Secretary of State issued on 19 February 2010 is confirmed.

 

The Tribunal is satisfied that the decision dated 10 February 2010 was a determination within the meaning of Regulation 30(2)(b) and as it was made within 6 months of the claim [the Claimant] cannot be treated as having limited capability for work during the new assessment period.”

 

21. The essence of the grounds for this appeal, framed as I have said by the Claimant’s then representative, was that the First-tier Tribunal had erred in treating the decision of 10 February 2010 as being a decision that the Claimant did not actually have limited capability for work, when in fact it was only a decision that the Claimant could no longer be treated as having limited capability for work.

 

“Pending an appeal a claimant is treated as having LCW (regulation 30(1)). It is a separate claim from the original claim. If the appeal is unsuccessful they can no longer be treated as having LCW so the award made pending appeal is superseded and that claim ends.”

 

The effect of that contention is said to be that when the fresh claim was made, and at the time of the decision on 19 February 2010, it had not been determined within the previous 6 months that the Claimant actually had limited capability for work.

 

22. As noted above, the decision which the Claimant actually appealed to the First-tier Tribunal appears to have been the decision dated 10 February 2010. But the parties and the First-tier Tribunal appear to have proceeded throughout on the footing that the decision under appeal to the FTT was that dated 19 February 2010.

 

23. The First-tier Tribunal appears to have considered that the issue before it was whether, in relation to the claim made on 17 February 2010, the Claimant was entitled to be treated as having limited capability for work pending a decision as whether she actually had limited capability. Thus, it said in para. 9 that “the only issue is, therefore, whether within the 6 months preceding the date of claim it had been determined that she does not have limited capability for work; it is not suggested that there had been a decision treating her as not having such limited capability under Regulations 22 or 23.” In para. 11 the First-tier Tribunal concluded as follows:

 

“…… the decision of 10 February 2010, regardless of whether it should or should not have been made was in fact a determination by the Secretary of State made within 6 months of the date of claim that [the Claimant] does not have limited capability for work from 27 January 2010. There has been no attempt to challenge that decision by appeal or otherwise and it still stands. This is the short answer to the appeal.”

 

24. However, the First-tier Tribunal then went on to (in para. 12) to say that “on the basis that the Tribunal does have power to go behind [the decision of 10 February 2010] and consider the adequacy of the grounds on which it was made the Tribunal would still accept it as a valid determination”.  It concluded that that decision “in all the circumstances was a reasonable decision which the Decision Maker could properly make on the evidence before them.”

 

Analysis and conclusions

25. I consider that I must set aside the First-tier Tribunal’s decision as wrong in law on two grounds. First, it omitted to notice that the Claimant’s appeal had in fact been against the decision of 10 February 2010. In view of the fact that both parties had treated the appeal as being against the decision of 19 February, the only safe course was in my judgment to treat both the decision of 10 February and that of 19 February as being under appeal.

 

26. Secondly, the First-tier Tribunal seems to have considered that the only issue before it was whether the Claimant had been entitled, pending determination of the claim made on 17 February, to be treated as having LCW, whereas both the decisions of 10 and 19 February had purported to make determinations as to whether the Claimant actually had limited capability for work. Although in para. 12 it went on to consider whether the Claimant actually had LCW, it did so by reference to whether the decision maker had been entitled, in the decision of 10 February, to take the view that he did. The First-tier Tribunal did not therefore itself give any consideration to whether the Claimant actually had limited capability for work at the material times. That may have been an understandable approach in view of the way in which the whole matter was presented to it, and the evidence which was put before it, but nevertheless it was not strictly correct.

 

27. Having set aside the First-tier Tribunal’s decision on those grounds, the question is then whether I can re-make the decision, and if so in what terms.

 

The appeal against the decision of 10 February 2010

28. I have stated my view in para. 11 above that, although the Secretary of State was entitled to supersede and terminate the award of ESA which was then on foot on the simple ground that the appeal had been dismissed by the previous First-tier Tribunal on 1 February 2010, the Secretary of State was also entitled to make a decision as to whether the Claimant actually had limited capability for work, and did purport to make such a decision.

 

The appeal against the decision of 19 February 2010

29. As regards the decision of 19 February 2010, which was made as a result of the fresh claim on 17 February 2010, the Claimant was not in my judgment entitled to be treated as having limited capability for work, pending a LCW assessment, (i.e. in respect of the days 11 to 18 February) because there had been a decision regarding the Claimant’s capability for work within the 6 months preceding the date of claim (i.e. on 10 February 2010). The First-tier Tribunal was right to reject the submission to the contrary made on behalf of the Claimant. The submission made to the First-tier Tribunal on behalf of the Claimant (see para. 18 above) in my judgment in any event overlooked the fact that the decision of 19 February 2010 was also a decision that the Claimant did not have limited capability for work, and that the Secretary of State was entitled to make such a decision without a further questionnaire or medical examination, if he considered it appropriate. That is indeed expressly referred to in para. 24 of DMG 07/10, on which the Claimant’s representative had relied.

 

30. But in the appeals against both decisions the First-tier Tribunal was further required to decide whether the Secretary of State’s determinations that the Claimant did not actually have limited capability for work as at 10 and 19 February 2010 were right. I would similarly be required to do so if I were to remake the First-tier Tribunal’s decision.

 

31. It would have been open to the Claimant, on the appeal to the First-tier Tribunal, to submit further medical evidence showing that she had had limited capability for work as at 19 February 2010 – i.e. in effect evidence showing either that the view of the examining doctor at the medical examination in April 2009 had been wrong, or that her condition had deteriorated since that examination.  However, the Claimant did not submit any such evidence, beyond the certificates which I referred to in para. 14 above, which were so general and brief as to be of little or no weight in this context. On the evidence before it the First-tier Tribunal could not, it seems to me, realistically have done other than to find that the Claimant did not have limited capability for work. It could of course have adjourned for additional evidence, but the Claimant’s representative did not ask it to do so. It could have questioned the Claimant herself further as to her condition at the relevant time, but again the Claimant’s representative could have asked those questions.

 

32. The Secretary of State submits in this appeal as follows:

 

“16. As a result, I submit, the claimant could not be treated as having LCW pending the determination of LCW. This though is not, I submit, grounds for disallowing the claim. There were I submit two possible courses open to the DM:

 

A. To decide that there is enough information from the earlier WCA to make a fresh determination that the claimant does not have LCW. This is permitted under Regulation 21. If this route is taken, it is a full, points-scored, determination of LCW, that needs to be backed up by evidence and reasons. If the claimant then appealed, she could be paid a pending appeal award, and it counts as an LCW determination when looking at the previous six months for the purposes of Regulation 30(2)(b).

 

OR

 

B. To decide that there is not enough information from the earlier WCA. The Decision Maker would not treat the claimant as having LCW because of the provision of Reg. 30. The DM cannot make an award of ESA, so refers the claim for a WCA. This is not a disallowance. If the claimant is found to have LCW after the WCA, the award of ESA will start from the date of claim.

 

17. Therefore, while I submit that the First-tier Tribunal was correct to decide that the determination dated 10 February 2010 was an LCW determination, it erred in law by agreeing that the claim dated 17 February 2010 should have been disallowed because of it.

 

18. If the Upper Tribunal agrees with my submission I submit that remittal to the First-tier Tribunal would not achieve the most satisfactory outcome in this case, because the proper disposal of the claim dated 17 February 2010 requires a determination of LCW that has not yet been made. I submit that it might, given the length of time that had passed since the earlier medical examination, require a further medical examination and WCA to achieve that, so submit that remittal back to the Secretary of State to make a fresh determination might be appropriate.”

 

33. I think that I must disagree with someof that submission. As I have said, it was, as a matter of statutory power, open to the decision maker on 19 February 2010 to take the view he had sufficient information, without a further ESA 50 enquiry form or medical examination, to undertake a further work capability assessment. I note the Secretary of State’s submission (with reference to the decision of 19 February 2010) “that it is a full, points-scored, determination of LCW, that needs to be backed up by evidence and reasons”. However, I do not really see the basis for distinguishing, in this respect, between the LCW determination made in the decision dated 10 February 2010 and that made in the decision dated 19 February 2010. The degree of explanation which it is appropriate for a decision maker to give must depend on all the circumstances. It seems to me that the decision maker gave a sufficient explanation in this case. In any event, I am not concerned with the adequacy of the reasoning given by the decision maker, but with whether I can properly substitute a decision for that made by the First-tier Tribunal. On appeal a First-tier Tribunal considers for itself whether the Claimant had limited capability for work at the material time, not whether the decision maker was entitled to reach the decision he did, or whether the decision maker’s reasoning was adequate. If the Tribunal considers that additional evidence is necessary, it can direct it.

 

34. On the whole, in view of the Secretary of State’s submission I do not consider that I should substitute a decision simply dismissing the Claimant’s appeals against the decisions of 10 and 19 February 2010. However, for the reasons given above, neither do I think it appropriate to substitute a decision setting aside the Secretary of State’s decision of 10 or 19 February and remitting the matters to the Secretary of State for redetermination of whether the Claimant actually had limited capability for work during the material periods.

 

35. In my judgment the appropriate course is to remit the appeals to the First-tier Tribunal for redetermination. It follows from my reasoning above that:

 

(a) the First-tier Tribunal will treat both the decisions of 10 and 19 February 2010 as being under appeal;

 

(b) as regards the decision of 10 February 2010, the issue before it will be whether, in respect of the period from 27 January 2010 (the date on which the Claimant apparently ceased to supply medical certificates, and so ceased to be entitled to be treated as having LCW), the Claimant actually had LCW.

 

 (c) as regards the decision of 19 February 2010 the FTT will:

 

(i) uphold the first two paragraphs of the decision (as set out in para. 14 above); that is because, whatever the new First-tier Tribunal’s decision in relation to the decision of 10 February, there is no doubt that the decision of 10 February 2010 was a decision that the Claimant did not have limited capability for work

 

(ii) redetermine for itself, on all the evidence before it, whether the Claimant had LCW between 11 and 19 February 2010.

 

36. The Secretary of State should put before the new First-tier Tribunal a copy of the further claim for ESA which was made on behalf of the Claimant in February 2010, and of the work capability assessment report dated 30 April 2009, if still available, and of any further evidence in relation to the Claimant’s capacity for work which it has received since.

 

37. I should make clear that my decision says nothing, one way or the other, about whether the Claimant will have entitled, between 15 March 2010 (the date of appeal) and the date of the new First-tier Tribunal’s decision, to be treated (if she has been submitting medical certificates) as having had limited capability for work by reason of pursuing an appeal against the decisions of 10 and/or 19 February. It does not seem to me that either I or the First-tier Tribunal have had jurisdiction to determine that, because the appeal was not made until after the dates of both the decisions which were under appeal to the First-tier Tribunal (s.12(8)(b) of the Social Security Act 1998).

 

Postscript

38. As I indicated in para. 3 above, I have found this appeal very difficult. I have considered inviting further submissions, possibly at an oral hearing. However, reg. 147A of the 2008 Regulations has been enacted with effect from 28 June 2010. Had it been in force at the time of the decisions under appeal to the First-tier Tribunal, it might have led to a different analysis. This decision may be of no continuing significance in relation to other cases, and I have therefore decided against seeking any further submissions.

 

 

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

26 September 2011