Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/428/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge of the Upper Tribunal Miss E. Ovey

 

Decision:  The decision of the First-tier Tribunal given on 26^th November 2010 contained an error on a point of law.  For the reasons given below, I set it aside and remake the decision.  My decision is that the claimant’s appeal is dismissed, although I award the claimant a further 6 points. 

 

 

REASONS FOR DECISION

 

 

1. This is an appeal by the claimant against the decision of the First-tier Tribunal given on 26^th November 2010.  By its decision the tribunal dismissed the claimant’s appeal against the decision of the decision-maker made on 4^th February 2010 that as from that date he did not have limited capability for work and was not entitled to employment and support allowance.

 

2.  That decision was based on an assessment following a medical examination by a health care professional which took place on 28^th January 2010 and superseded a previous decision awarding employment and support allowance from 3^rd November 2009.  It appears from section 4 of the Secretary of State’s submission to the First-tier Tribunal that the award was on the basis that the claimant was suffering from anxiety, depression, drug misuse, incontinence and asthma.  The papers contain no material to explain the award further.  Given the dates I have set out, however, I infer that the decision of 4^th February 2010 was the first determination of whether or not the claimant had limited capability for work and that prior to that date he was treated as having limited capacity for work under reg. 30 of the Employment and Support Allowance Regulations 2008, S.I. 2008 No. 794.  If that is so, the relevant evidence was no doubt the medical evidence required by reg. 30(2)(a).

 

3. On 24^th December 2009 the claimant, with the assistance of his sister, completed a limited capability for work questionnaire.  In that questionnaire he identified some difficulties with controlling his bowels, but no other physical difficulties.  As respects his mental functions, he said that his medication made him drowsy, giving rise to difficulties with learning or comprehension and awareness of hazard or danger.  He also identified difficulties with memory and concentration, execution of tasks and initiating and sustaining personal action, although without attributing his need for help to a specific cause.  He said he was not often confident enough to leave home and go to places he knew on his own because he could not cope in big places and had panic attacks in crowded places, he was often anxious or scared at the thought of meeting new people or going to new places, his behaviour to other people sometimes caused problems because he had a very short temper and he had difficulties dealing with other people because he found it very hard to talk to people he did not know and got frustrated because he found it hard to explain himself.

 

4. As I have said, on 28^th January 2010 the claimant had a medical examination.  The health care professional recorded that conditions of anxiety and depression, drug misuse, incontinence and asthma had been medically identified, and that the claimant was taking methadone as a heroin substitute and salbutamol and salmeterol for his asthma.  He was using no medication for his anxiety and depression and incontinence.  She said that there were no reported side effects due to medication, although later in the report it appears that the claimant in fact attributed his loose stools and urgency of bowel to his medication.  The claimant’s medical conditions other than incontinence were all of some years’ standing.  He had stopped work ten years earlier because of his drug use.  The claimant said that he suffered from a number of symptoms every day which were usually troublesome, namely, difficulty in sleeping, low mood, poor concentration, irritability, loss of appetite and loss of enjoyment.  He did not like crowded places and felt everyone was looking at him.  He also suffered from panic attacks once a week which were usually troublesome.

 

5. The report also contains many statements, from the bottom of page 3 to the top of page 5, under the heading “Description of a typical day”, which are apparently statements made by the claimant to the health care professional.  I will return to these later. 

 

6. As I have said, the only physical function with which the claimant had said he had difficulty was controlling his bowels.  As to that, the health care professional has recorded:

 

“Prominent Features of Functional Ability Relevant to Daily Living

 

Client states that:

 

Says he has loose stools and has an urgency of bowel and thinks it is the medicine that’s “doing it”

Is not incontinent of bowel during day light hours

Goes shopping for cigarettes at the local shop occasionally

 

Relevant Features of Clinical Examination

 

Has an urgency of bowel and sometimes has loose stools

Does not suffer with episodes of incontinence of bowel.”

 

She concluded that the claimant did not have any physical health problems which affected continence.

 

7. For the reasons given later, I take the view that the claimant is not entitled to be awarded any points under the limited capacity for work assessment in relation to his incontinence, but I comment that:

 

(1) it is difficult to understand the relevance of the claimant’s occasional shopping for cigarettes (especially since he is recorded as having made many other statements about shopping which are not identified as relevant);

 

(2) it is difficult to see how the material set out under the heading “relevant features of clinical examination” can be the features identified on the examination conducted by the health care professional;

 

(3) as incontinence was apparently a condition which had been medically identified, it is difficult to see how she came to conclude that the claimant did not have any physical health problems which affected continence, at least in the absence of some qualification confining the statement to the particular functional descriptors of the limited capability for work assessment.

 

8. Turning to the mental functions assessment, inevitably the health care professional noted a large number of the statements made by the claimant.  She also recorded normal findings in relation to his appearance, behaviour, speech, mood, thoughts, perceptions, cognition (general), addictions and insight.  She noted that the claimant had not seen a specialist for his anxiety and depression and that he used no medication for that condition.  She concluded that his anxiety and depression was mild, but caused a mild disability with his ability to get to familiar places and to get to unfamiliar places.

 

9. Finally, the health care professional concluded that the claimant was not suffering from an uncontrolled or uncontrollable life-threatening disease or a disease or disablement by reason of which there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.  The effect of that conclusion was that in the view of the health care professional reg. 29 of the 2008 Regulations did not apply.

 

10. In the light of the claimant’s own questionnaire and the health care professional’s report, the decision-maker on 4^th February 2010 assessed the claimant as scoring 6 points for descriptor 18(d), namely, “is frequently unable to get to a specified place with which the claimant is familiar without being accompanied by another person”.  He scored no other points.  Under reg. 19 of the 2008 Regulations, the claimant needed to score at least 15 points in order to be determined to have limited capability for work.  He therefore failed to satisfy the test.

 

11. The claimant appealed against that decision on an appeal form dated 9^th February 2010, stating:

 

“I suffer from drug addiction, back pain, asthma.  I need to be accompanied when out of doors.  I become very anxious/panicky.  Cannot cope with crowds.  Cannot interact adequately.  I feel threatened.  No hobbies/social life.  Cannot go to new places or meet new people.  Cannot cope with stress.  Become withdrawn.  Do not cook or do daily tasks.  Always drowsy.”

 

12. The decision was reviewed but not revised in the light of the appeal.  It was noted that the claimant had not produced any medical evidence or raised any matters not known at the date of the decision.

 

13. In preparation for the appeal hearing, the claimant’s representative put in a submission to the effect that the health care professional had underestimated how the claimant’s condition affected his ability to carry out certain functions.  In that submission, it was stated that the claimant “disagreed” with certain statements of a typical day attributed to him, as follows:

 

·       Always able to begin and continue to complete getting washed, getting dressed, a trip to the shops and attending appointments without any help

·       Has no problems with social interaction or travelling to new location

·       Has no history of any form of disruptive behaviour

·       Is able to manage any changes in their daily routine and continue their day-to-day activities

·       Has no problem doing their routine chores.

 

It was argued that points could be awarded in respect of descriptor 18(c) or (d), 19(b) or (c), 20(f) and 21(f).

 

14. It was further submitted that reg. 29 would be satisfied, in that there would be the possibility of a substantial risk to the claimant’s health if he were found capable of work.  This was based on the statement that “He is a long term drug user, has poor concentration, no motivation, poor at interaction, easily agitated/stressed etc.”

 

15. It is unfortunately the case that although the claimant had asked for an oral hearing, he did not attend at the time given.  As the statement of reasons sets out, he was telephoned and stated that he had misplaced the appointment letter.  He asked the tribunal to proceed in his absence.  The claimant’s representative was also not present, having apparently explained that he was unable to attend because of his workload.  Having checked that the claimant had been appropriately notified of the hearing, the tribunal decided to deal with the case as a paper hearing on the basis that the claimant had chosen not to attend to give oral evidence.

 

19. The tribunal’s reasons for its decision may be found in the following paragraphs of the statement of reasons:

 

“6. Apart from the [questionnaire] and letter of appeal the appellant produced no further evidence, although a submission was received.  We found that the appellant had had plenty of time to provide further evidence, particularly as the appellant had sought advice.

 

7. The WCA assessment lasted for 32 minutes, and appeared to us to be a reasonable assessment of the appellant’s functional capacity at the relevant time.  All of the ESA descriptors had been adequately addressed.  We preferred this evidence to the evidence of the appellant, as we found it to be independent and not self-serving.

 

8. We found that the appellant was not on any current treatment for depression.  He takes methadone daily but tops this up with heroin.  We found he was not incontinent during daylight hours and that his asthma was well controlled.  The appellant stated that he could no longer inject heroin because of the state of his veins.  We found that his asthma was reasonably controlled.

 

9. We found that to a large extent the claimant had chosen his current lifestyle, and that there was no significant functional impairment for the purpose of ESA descriptors.  We found that the 6 points received were the maximum that could reasonably be awarded.  We found that any mental impairment was mild.

 

10. Where the evidence given by the appellant was in conflict with the evidence given in the examination for the purpose of the WCA the tribunal preferred the evidence of the WCA as being more probable and reliable.  This was because we found that the WCA was an assessment specifically directed to considering ESA descriptors, and we found it to be independent and not self serving, in contrast to the evidence of the appellant.

 

11. The tribunal considered regulation 29 and did not find that this should apply in this case.”

 

20. The claimant sought permission to appeal by letter dated 23^rd December 2010.  The grounds of appeal were essentially that the tribunal had not given adequate reasons for accepting the assessment of the health care professional in preference to the evidence of the claimant.  The claimant queried what exactly the tribunal meant in describing his evidence as “self-serving”.

 

21. Permission to appeal was refused by the tribunal judge on 31^st December 2011 but was granted on 8^th March 2011 by Judge Ward, who said:

 

“The application raises an arguable error of law.  Additionally, how can a WCA assessment be said to be any more independent than the claimant’s own evidence, when it is provided by someone acting under contract to the other party?  Clearly the ‘independent and not self-serving’ point loomed large in the tribunal’s deliberations as it is mentioned twice within a fairly short statement of reasons.

 

However, there are reasons why the WCA assessment could properly be preferred, especially since the claimant had not attended the hearing to allow himself to be cross-examined.  If the Upper Tribunal considers that there was an error of law, why should it not remake the decision in identical terms?”

 

22. The appeal is not supported by the Secretary of State, who has provided a written submission dated 17^th May 2011 drawing attention to previous decisions in which it has been accepted that a report provided by a medical professional in similar circumstances can properly be described as independent, expert and disinterested.  Commissioner’s decisions CIB/16401/1996 and CIB/15663/1996 are cited and it is suggested that the tribunal was not seeking to say anything different by the expression it chose to use.  It is contended, in summary, that the health care professional’s report was more detailed than anything produced by the claimant and that the claimant had failed to produce further evidence or a convincing argument in support of the assertions in his letter of appeal.  Accordingly, the reasons given for preferring the health care professional’s report were adequate.

 

23. The claimant has made brief observations in response, disagreeing with the Secretary of State and again querying the term “self-serving”.

 

24. In my judgment, the Secretary of State rightly regards CIB/16401/1996 as containing useful guidance.  That decision makes clear that there is no general rule that where there is a difference between the evidence of a medical professional producing reports for the use of the Department of Work and Pensions in making decisions as to social security benefits and the evidence of a claimant, the evidence of the medical professional should be preferred.  It may be a legitimate conclusion in a particular case that a medical professional’s view is to be preferred because it is more objective and independent, but that is a conclusion only to be reached after a consideration of the particular evidence, and the claimant should not be left in the dark as to what the tribunal made of his or her evidence:  that is, whether it was honest but inaccurate, was an unconscious exaggeration or was a deliberate exaggeration.

 

25. Further useful guidance is to be found in Commissioner’s decision CIB/2308/2001.  Mr. Commissioner Willliams there said:

 

“20 The tribunal should then have done what Commissioners have repeatedly told tribunals to do: weigh the evidence on the issues in the case. In this case, as in too many others, the tribunal took the short cut of preferring the evidence of the examining medical practitioner as a whole to that of the claimant as a whole (see its reasons set out above). Having dismissed the claimant’s evidence as exaggerated, it then assessed the examining medical practitioner’s report against the general practitioner’s report and preferred the examining medical practitioner report to that of the general practitioner because it directly answered the questions that the tribunal had to answer, and the general practitioner did not. That approach is fundamentally wrong. The tribunal did not assess the evidence from all sources together in one “weighing” exercise on the issues in dispute. Instead, it adopted a sequential approach to the sources of evidence, cutting out the evidence of A by reference to B, then C by reference to B, etc, so ending up only with the evidence of B. In so doing, it concentrated on the sources of evidence rather than on the relevant conflicts in the evidence. Although it states that it “carefully considered and weighed” all the evidence, its statement gives no evidence of that. There is no comparative analysis of the evidence on any of the seven physical descriptors expressly put in issue by the claimant in her grounds of appeal to the tribunal.”

 

That case was of course different from the present case, in that there was also the evidence from the claimant’s general practitioner to be considered, but the point that the evidence on the various issues must be weighed and there must be some reflection of the analysis in the statement of reasons is equally applicable here.

 

26. When one looks at the reasons given by the tribunal in the present case, it seems clear that this is another example of the short cut referred to by Mr. Commissioner Williams.  Wherever there was a conflict of evidence, the tribunal preferred the evidence of the report, because it was an assessment specifically directed to the descriptors and was independent and not self-serving.  Although the claimant’s representative had challenged certain of the recorded statements and had specifically identified four descriptors for consideration (with alternatives for two of them), the tribunal made no attempt to address any of the descriptors individually, except by finding that the 6 points awarded were the maximum which could reasonably be awarded.

 

27. In the present case, that approach faces particular difficulties, as follows:

 

(1) as I have said, in reaching her conclusions on the mental health assessment the health care practitioner inevitably had regard to many of the statements made by the claimant, although equally inevitably she had regard to her own observation of the claimant during the examination.  It seems, therefore, that it  must have been part only of the claimant’s evidence (presumably that contained in his questionnaire and his representative’s letter) which the tribunal regarded as self-serving, but no attempt was made to explain that;

 

(2) descriptor 18(d), in respect of which the claimant was awarded 6 points, is very similar to descriptor 18(c), the difference being that the former refers to being “frequently” unable to get to a specified place without being accompanied and the latter to being “for the majority of the time” unable to do so.  The claimant’s representative specifically asked that descriptor 18(c) be considered, but the tribunal did not give any specific explanation for regarding 6 points as the maximum;

 

(3) while descriptor 18 is concerned with the ability to go to familiar places, descriptor 19 relates to the ability to engage in normal activities, including going to new places and engaging in social contact.  The tribunal was asked to consider whether the claimant was precluded from normal activities by overwhelming fear or anxiety either for the majority of the time or frequently.  That descriptor was not specifically addressed at all, although as a matter of common sense if the claimant needs to be accompanied to go to a familiar place it might be thought he would equally have difficulty with going to an unfamiliar place.  Indeed, the health care professional stated in her summary of functional ability that “mental state examination suggests the client’s Anxiety and Depression causes mild disability with their ability to get to familiar places and get to unfamiliar places.”  It was said in JE v. SSWP [2010] UKUT 50 that there is here a potential overlap which again requires adequate fact finding.  I agree;

 

(4) the report itself is open to some criticisms.  See, for example:

 

(a) the point just made as to the claimant’s ability to get to unfamiliar places;

 

(b) the point made in paragraph 4 as to side effects from medication;

 

(c) the points made in paragraph 7 as to the way in which the claimant’s incontinence was considered.

 

28. In the light of the matters considered in the last two paragraphs, I conclude that the tribunal did not give adequate reasons for its decision and thus made an error on a point of law.

 

29. Under s.12(2) of the Tribunals, Courts and Enforcement Act 2007, that conclusion empowers, but does not oblige, me to set aside the decision of the First-tier Tribunal and, if I do so, requires me either to remit the case or to re-make the decision.  The error of law I have identified is in my view of sufficient significance in the context of this case for it to be unjust to the claimant to allow the decision to stand and I therefore set it aside.  It appears to me, however, that I have sufficient material to be able to re-make the decision and that I should do so rather than add to the delay and uncertainty experienced by the claimant by remitting the case to the First-tier Tribunal.

 

30. In reaching that conclusion, I have borne in mind the possibility that if the claimant had attended the tribunal hearing he could have provided further evidence which would have led to a different conclusion.  If it can be said that the tribunal also erred in proceeding to decide the appeal rather than adjourning to enable the claimant to give oral evidence, it might be argued that similarly I ought not to proceed on the basis of the evidence in front of me.  As I have already said, however, much of the material on which the tribunal relied, and on which I have relied, to reach a conclusion adverse to him consists of undisputed statements which he himself made.  He would thus have been in a position of some difficulty at the tribunal if he had given oral evidence which appeared significantly different from those undisputed statements.  I have nevertheless considered whether the tribunal ought properly to have adjourned the hearing rather than continued with it, although it was apparently the claimant’s wish that the tribunal should do so.  I note that this case was different from the cases of MH v. Pembrokeshire CC [2010] UKUT 28 (AAC) and AT v. SSWP [2010] UKUT 430 (AAC), which consider the approach to be adopted by a tribunal when faced with a choice of a paper hearing by the claimant.  In the present case a properly notified oral hearing had been fixed and the claimant failed to attend the hearing without an obviously good excuse.  The tribunal clearly had power under rule 5(3)(h) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, S.I. 2008 No. 2685, to adjourn the hearing and further had to apply the overriding objective of dealing with cases fairly and justly in doing so.  An adjournment would cause delay to the claimant’s own case and might have a small adverse impact on the tribunal system more generally, in circumstances in which it was not obvious that oral evidence from the claimant would enable the tribunal better to address the issues.  Given those factors, it does not seem to me it can be said that the only proper decision for the tribunal was to override the expressed wish of the claimant that the tribunal should proceed to deal with his claim.  I therefore conclude that I can properly proceed to re-make the decision on the basis of the material before the tribunal.

 

31. I deal first, and briefly, with the only physical descriptor which was ever in issue, namely descriptor 10(a) (continence).  Although I have expressed reservations in paragraph 7 about the way in which the health care practitioner dealt with this descriptor, and although I bear in mind that incontinence has been diagnosed, the claimant’s statements to the health care practitioner do not, in my view, amount to a statement of a functional disability falling within descriptor 10(a), although his statements on the questionnaire appear to do so.  Given that this is not a point raised in his original appeal form or his representative’s letter, I conclude that the point is not pursued and, on the evidence available, rightly so.

 

32. Turning to the mental health descriptors, I have set out in paragraph 13 the statements challenged by the claimant.  He did not, however, challenge the following:

 

·       Gets out of bed without difficulty

·       Has no problems in the bathroom

·       Has no problems with dressing

·       Usually manages to make snacks for themselves

·       Often able to use kettle, turn taps, use toaster, use knives, use tin opener and open packaging

·       Has no problems maintaining safety in the kitchen

·       Goes out to buy his drugs sometimes and other times they come to him

·       Has no problems following written or verbal directions

·       Often able to queue at the pharmacy, without the help of another person, for about 10 minutes before needing to move around

·       Goes to the chemist every day for his methadone

·       Acquaintances come to his house often

·       Has no difficulty communicating with others

·       Has not suffered any serious accidents or near misses recently

·       Has developed a short temper, and this leads to verbal outbursts of anger occasionally

·       Has no difficulties getting to their local shops and their GP surgery independently

·       Describes their panic attacks as episodes, occurring in certain situations, where symptoms such as anxiety, sweating, shaking and dizziness are experienced for less than a few minutes, but finds these do  not affect day to day function

·       Reacts normally to mild provocation and is unaffected day to day

·       Communication ability and self-awareness do not give rise to symptoms, and allow interaction with others.

 

33. I have already referred sufficiently to descriptors 18(c) and (d) and 19(b) and (c), which were put in issue in the representative’s letter.  The remaining descriptors put in issue were 20(f) (“frequently demonstrates a moderately disproportionate reaction to minor events or to criticism but not to such an extent that the claimant cannot manage overall day to day life when such events or criticism occur”) and 21(f) (“the claimant misinterprets verbal or non-verbal communication to the extent of causing himself or herself significant distress on a frequent basis”).

 

34. I turn to consider the specified descriptors having reminded myself that the claimant’s diagnosed mental condition is anxiety and depression, for which he receives no medication and for which he has not been referred to a specialist, although at the time of the examination he had recently begun counselling.

 

35. Starting with descriptor 18, the tribunal accepted that the claimant is frequently unable to get to a specified familiar place without being accompanied by another person.  There was clearly evidence that the claimant suffers from panic attacks, does not like crowded places and is usually accompanied by his sister when he goes shopping.  The health care professional referred to panic attacks “in certain situation” without identifying the situations, but there is evidence in the questionnaire that the panic attacks occur in crowded places when there are other people around and that the claimant looks to his sister for support in such circumstances.  In my view, the health care professional’s assessment of that descriptor on this point was justified.

 

36. The real question is whether the claimant falls within descriptor 18(c), as being unable for the majority of the time to get to a specified familiar place without being accompanied.  His statements to the health care professional about his ability to go to the pharmacy without being accompanied and to go to the local shops and his general practitioner independently, coupled with the health care professional’s assessment of the degree of his anxiety and depression (based on the examination as well as the claimant’s statements), coupled with the lack of medication and the lack of specialist referral in my view mean that the claimant does not satisfy descriptor 18(c).

 

37. This material is sufficient also to show that the claimant satisfies descriptor 19(c).  If the claimant suffers panic attacks even in familiar places if they are crowded, it seems to me highly likely that he would also have great difficulty in such normal activities as visiting new places and engaging in social contact, particularly with unknown people.  This is what the claimant says in his questionnaire and the representative’s letter and, as pointed out in paragraph 27(3) above, it appears in part to be supported by the health care professional.  The claimant has disputed the statement that he has no problems with social interaction or travelling to a new location and it therefore cannot be regarded as conclusive against him.  Fear and anxiety which is sufficient to cause a panic attack weekly when the claimant does engage in a normal activity such as going out (a statement by the claimant which the health care professional seems to have accepted, since she relied on it as supporting medical evidence in another context) is, in my view, sufficient to fall within the expression “overwhelming fear and anxiety” used in the descriptor and so is very likely frequently to preclude the claimant from a variety of normal activities involving going out or social contact or various kinds.  The evidence is clearly not sufficient, however, to show that the claimant is precluded from normal activities for the majority of the time. 

 

38. There does not appear to me to be evidence sufficient to satisfy descriptor 20(f).  While there is consistent evidence that the claimant has a short temper, he has not disputed the statement that his “verbal outbursts of anger” occur “occasionally” or that he reacts normally to mild provocation and is unaffected day to day.  This does not show that he frequently demonstrates a moderately disproportionate reaction to minor events or to criticism.  I bear in mind that he disagrees with the statement that he has no history of any form of disruptive behaviour, but there is no positive statement that he does have such a history and a fortiori no statement as to the form or frequency of any such behaviour and whether it is current.  I also note that in his representative’s letter the claimant says he can be verbally or physically aggressive and that he has difficulty in coping with stress or confrontation and loses his temper.  Here again, however, there are no details which would cast doubt on the undisputed statements I have mentioned.  I therefore conclude that the claimant does not bring himself within descriptor 20(f).

 

39.  Similarly, there is no evidence sufficient to satisfy descriptor 21(f).  The claimant has not challenged the statements that his communication ability and self-awareness allow interaction with others, that he has no difficulty in communicating with others, that acquaintances come to his house often and that he receives visits from his sister most days and his mother every week.  There is nothing to show he frequently misinterprets communications to such an extent as to cause himself significant distress.

 

40. I have also considered whether the claimant might be able to satisfy any of the other mental descriptors, although no other descriptors were relied on in the representative’s letter.  The remaining descriptors relate to learning or comprehension in the completion of tasks, awareness of hazard, memory and concentration, execution of tasks, initiating and sustaining personal action and coping with change.  The claimant has challenged three statements which might support the conclusions the health care professional reached on these descriptors but, as is apparent from paragraph 31 above, many other statements remain unchallenged.  I do not need to set out all the possible descriptors in detail; it is sufficient for me to say that while it may well be the case that the claimant in practice benefits from help from his sister the overall undisputed evidence of what he can and does do on his own does not enable him to satisfy any of the descriptors when their precise terms are carefully considered.

 

41. The effect of what is said in paragraphs 35 to 40 above is thus that the claimant is awarded 6 points in respect of descriptor 18(d) and 6 points in respect of descriptor 19(c).  This makes a total of 12 points, which is insufficient to enable him to satisfy the limited capability for work test.

 

42. Finally, I turn to consider reg. 29.  As I have said in paragraph 14 above, it was argued in the representative’s letter that there would be the possibility of a substantial risk to the claimant’s health if he were found not to have limited capability for work.  Reference was made to the decision of Mr. Commissioner Williams in Charlton v. Secretary of State for Work and Pensions, upheld by the Court of Appeal in [2009] EWCA Civ 42.

 

43. Reg. 29 requires first that the claimant should be shown to be suffering from a specific disease or bodily or mental disablement.  Misuse of drugs, as such, is not in my view a specific disease or bodily or mental disablement, although it may give rise to both physical and mental illnesses.  It is not suggested that the claimant’s incontinence or asthma give rise to a substantial risk to his health if he is found not to have limited capability for work.  The question is thus whether his accepted anxiety and depression do so.  The principle of Charlton is that if reg. 29 is to apply, the risk must arise as a consequence of the work the claimant might be found capable of doing, and that in order to make a decision on reg. 29 the decision-maker must assess the range of work the claimant might do as far as is necessary to decide whether there would be likely to be a substantial risk to his health (or, if appropriate) the health of others if he undertook that work.  In Charlton itself it was found that the Commissioner had made adequate findings by finding that the claimant was capable of performing the kind of work to which a person with no physical limitations, no qualifications, no skills and no experience might be directed and that he could undertake straightforward and structured, unskilled work.

 

44. The claimant in Charlton suffered from alcohol dependency, used tranquillisers and cannabis every day, had recorded dizzy spells and had recently caused a minor fire through lack of concentration.  He did, however, manage to keep himself clean, dress himself, cook ready meals and tidy up.  He lived with his grandmother.

 

45. The claimant here has had some experience working as a factory hand.  On his own evidence he can manage to get up, use the bathroom, get dressed and usually to cook at least snacks.  As I have said, it is not suggested that he suffers from relevant physical limitations.  In my view he would be capable of performing the sort of straightforward and structured unskilled work as the claimant in Charlton.  Accordingly, he does not fall within reg. 29.

 

46. For those reasons, in the exercise of my power to re-make the decision, I dismiss the claimant’s appeal against the decision of the decision-maker made on 4^th February 2010., save for the award of a further 6 points in respect of descriptor 19(c).

 

 

 

(Signed)

Judge of the Upper Tribunal

 

(Dated) 21^st September 2011