CE/1217/2011

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the claimant, brought with permission of a judge of the First-tier Tribunal given on 13^th April 2011, succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting in Newport (IoW) and made on 13^th April 2011 under reference 198/10/00510. I refer the matter to a completely differently constituted tribunal panel in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below.

Directions

2. The claimant should consider requesting the tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written medical or other evidence. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course. The new tribunal will have to consider afresh all of the evidence and make its own findings of fact.

Background and Procedure

3. The claimant is a man who was born on 5^th June 1961. He worked as a security officer until about April 2010 when he stopped work because of problems with his knee. So far as concerns the present appeal he was awarded employment and support allowance (“ESA”) from 1^st May 2010 because of these problems. On 4^th August 2010 the claimant completed form ESA 50. This is a 26 page questionnaire about limited capability for work and is reproduced in the Upper Tribunal file. The main difficulties to which he referred in his answers related to walking, standing and sitting and bending and kneeling.

4. On 7^th September 2010 the claimant was examined on behalf of the Secretary of State by Dr Gillan. On the basis of his report the Secretary of State decided on 10^th September 2010 that as from that date the claimant no longer had limited capability for work and was not entitled to ESA.

5. On 23^rd September 2010 the claimant appealed to the First-tier Tribunal against that decision of the Secretary of State. On 25^th October 2010 the claimant’s GP, who had been his GP for 23 years, reported as follows:

“[The claimant] had problems with his knee many years ago which had settled but, unfortunately, in 2008 he twisted and again injured his left knee. He received a menial meniscus tear in his knee and after much investigation had an arthroscopy and partial medial meniscectomy in March 2009. Subsequent to this, he has not made a good recovery that was expected, his knee continuing to lock and having difficulty in straightening and being painful.

Again, after a fall whilst at work, in June of 2010 [this date must be wrong?] he hurt his knee further. He was seen by the orthopaedic consultant who organised an MRI scan [which] showed the previous partial meniscectomy and also a possible linear tear in the inferior margin of the remnant menial meniscus.

He was seen in August when the notes suggest that his knee was improving, he came back to me in the surgery saying and showing to me that his knee was not improved being swollen, stiff, unable to straighten, unable to bend, unable to weight bear and very difficult to use stairs”.

6. The First-tier Tribunal considered the matter on 17^th February 2011. The claimant attended with a CAB representative. The tribunal confirmed the outcome decision that had been made by the Secretary of State and on 13^th April 2011 a judge of the First-tier Tribunal gave the claimant permission to appeal against the decision of that tribunal. The Secretary of State opposes the appeal and supports the decision of the First-tier Tribunal. Final written submissions from the parties were received on 3^rd October 2011 and the appeal was referred to me for decision on 18^th October 2011.

The Relevant Law

7. ESA was introduced by section 1(1) of the Welfare Reform Act 2007. Subject to the satisfaction of other conditions which are not relevant for the purposes of my decision, section 1(2)(a) of the Act provides that a claimant is entitled to ESA if he satisfies the “basic conditions”. The basic condition that is disputed in this case is defined in section 1(3)(a) as being that the claimant “has limited capability for work”.

8. Section 1(4) provides that:

1(4) … a person has limited capability for work if –

(a)   his capability for work is limited by his physical or mental condition, and

(b)  the limitation is such that it is not reasonable to require him to work.

Section 8 of the Act provides that whether a person’s capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations which provide for an assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or incapable of performing such activities as may be prescribed. Mental condition or disablement is not relevant in this appeal.

9. The relevant regulations are the Employment and Support Allowance Regulations 2008. Regulation 19 and Schedule 2 provide for the assessment. Regulation 19(2) describes the assessment as an assessment of the extent to which a claimant “who has some specific disease or bodily or mental disablement is capable or incapable of performing the prescribed activities. Regulation 19(3) provides that a claimant has limited capability for work if he obtains a score of at least 15 points in respect of descriptors listed in Schedule 2. Regulations 20 and 29 set out certain circumstances in which a claimant is to be treated as having limited capability for work regardless of the assessment score, but none of them applies in the present case. The relevant descriptors are set out in the submission of the Secretary of State to the First-tier Tribunal (pages G to S of the Upper Tribunal file). In the present case, Dr Gillan was of the opinion that the claimant had not scored any points. The First-tier Tribunal accepted that descriptor 3(b) applied in respect of bending and kneeling (page H). This carries nine points but that is still below the threshold. That matter is not disputed before me. The matter at issue is whether any points can be awarded in respect of limitations on standing and sitting activity 2 – pages G to H).

10. Regulation 19(4) of the 2008 Regulations provides:

19(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

The First-tier Tribunal

11. In its statement of reasons the First-tier Tribunal found as fact that the claimant:

“(3)(f) … would be able to put weight on his right leg when standing but had not been told to use a stick or crutch and did not try to do so. Despite this, he felt that he could have stood no longer than 30 minutes although the Tribunal considered that a stick or crutch would have been of assistance to him in allowing him to stand longer”.

The Issue

12. The basis of the appeal is that if a stick or crutch was not normally used by the claimant, then the First-tier Tribunal was wrong to assess him as though he did normally use such an aid, and that this is implicit in regulation 19(4).

13. Both parties have referred to my decision (sitting as a Social Security Commissioner) in CIB/14499/1996. That was a case under the incapacity benefit scheme (a forerunner of ESA) about a claimant undergoing PUVA treatment who had difficulty seeing after a session of treatment and had been told that she had to wear dark or coated glasses on those days on which she received treatment. The vision descriptor applied in relation to “vision in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn”.  I said (in paragraph 8):

“8. A literal interpretation of this would mean that a person who would be able to see perfectly well if prescribed glasses but who refused to wear glasses might thereby bring themselves within an appropriate descriptor … I cannot accept that that is right. The phrase “if such aid is normally worn” must be understood to refer to whether the aid is normally worn by people in that situation acting reasonably in all the circumstances. The parties might wish to produce evidence and argument on this point …”.

14. The Secretary of State supported using the same approach to the meaning of regulation 19(4) and argued (paragraph 9 of the submission of 3^rd August 2011):

“Why would such a person not use a stick? It would be likely to help in so many ways. I submit that the ways in which it could help do not need to be set out by the Tribunal in the statement of reasons: they are obvious, in the same way that it is obvious why a person with diminished visual ability would benefit from prescribed glasses”.

15. I agree that regulation 19(4) requires a similar approach but I also take the view that the Secretary of State’s approach conflates different questions. Further, my point in CIB/14499/1996 was predicated on the supposition that glasses had been prescribed. In the present case, notwithstanding a long history of medical consultations, there is no evidence that the use of a stick was ever suggested (in fact the evidence is to the contrary). In my experience it is often the case that people who use a walking stick without advice on whether and how to use one are a menace to themselves and to others.

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16. It seems to me that the correct approach to regulation 19(4) is as follows. If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it. If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it. If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same. However, I do not agree with the Secretary of State that in this latter case there does not have to be any explanation of how the aid or appliance could help the particular claimant and that the advantages are obvious. The degree of detail is a matter for the tribunal on the facts of each particular case, but in my view, in the absence of actual use or prescription, there does need to be some explanation.

17. For the above reasons this appeal by the claimant succeeds.

H. Levenson

Judge of the Upper Tribunal

20^th October 2011