IN THE UPPER TRIBUNAL Case No  CE/2323/2010

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Attendances:

For the Appellant: Mr Brian O’Mullane, Stockport MBC Welfare Rights

For the Respondent Mr Stephen Cooper, Solicitor

Decision:  The appeal is dismissed.  Although the decision of the First-tier Tribunal sitting at Stockport North on 17 May 2010 under reference 944/09/01790 involved the making of an error of law, in the exercise of my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 I decline to set its decision aside.

REASONS FOR DECISION

1. On 6 May 2009 the claimant was found not to have limited capability for work.  Her appeal was initially disallowed on 14 December 2009 but that decision was set aside.  The matter came before the First-tier Tribunal (“FtT”) again on 17 May 2010.  It is against that decision which she appealed to the Upper Tribunal, with my permission.

2. An oral hearing was held at Manchester on 30 March 2011, at the start of which Mr Cooper, for the Secretary of State, sought an adjournment to provide an opportunity to submit Parliamentary and pre-Parliamentary material bearing on the issues.  I directed that the hearing was to proceed but that I would consider providing an opportunity for written submissions in response to his request which was supported by Mr O’Mullane.  I subsequently gave directions accordingly on a provisional (de bene esse) basis.  The Secretary of State needed an extension of time to respond.  It has then taken longer than I would have wished for me to be in position to issue this decision, owing to pressure of work, and I apologise to the parties for the delay.

3. Meanwhile two other decisions of the Upper Tribunal have been issued which bear on the same, central, point: KN v Secretary of State for Work and Pensions (ESA) [2011] UKUT 229 (AAC) (Judge Wikeley) and KP v Secretary of State for Work and Pensions [2011] UKUT 216 (AAC) (Judge Mesher).  Both went against the Secretary of State and so far as I can see, no attempt has been made to appeal either of them and any application to do so would now be out of time.

4. The claimant was experiencing symptoms of ME.  In her Form ESA 50 she had referred to problems in relation to descriptors 1, 2, 5 and 11 of part 1 and 15 (execution of tasks) and 18 (going out) of part 2 of schedule 2 of the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”).  Her representative submitted to the First-tier Tribunal that at the relevant time the applicable descriptors were 15c or 15d and 18c or 18d and added a claim based on 14c (memory and concentration).  It is with the descriptors in part 2 that this decision is concerned.

5. In her Form ESA50 there were references to variable difficulty with execution of tasks due to fatigue and pain and a reference to low mood. Before the First-tier Tribunal, there was written evidence from the claimants CFS/ME Therapist at her local Primary Care Trust that:

“[The claimant] experiences constant mental and physical fatigue which increases through the day.  She experiences post exertional fatigue which is particularly apparent after work when she returns to bed to sleep.  She also experiences constant muscle and joint pain as well as feelings of weakness and numbness in her legs.  The claimant’s ability to walk is affected by fatigue, muscle pain and weakness and sometimes she will need to stop and rest when walking or on her worst days does not go out of the house at all. . She experiences disturbed, unrefreshing sleep and sleeps in response to increases in activity. The claimant also has cognitive difficulties such as difficulty thinking clearly, poor concentration, poor short term memory and difficulty making decisions…[The claimant’s] ability to carry out activities of daily living [is] significantly affected by her symptoms.”

6. The claimant gave apparently brief oral evidence to the First-tier Tribunal of her difficulties.

7. The tribunal dealt with the Part 2 descriptors in the following way:

“With regard to the mental health descriptors the Employment and Support Regulations state that the claimant’s incapability to perform these activities must arise from a specific mental illness or disablement.  At the medical examination the appellant reported physical problems only and there was no evidence of a mental health problem.  She was also on no medication for mental health.

The problems referred to in Part 2 of the ESA were caused by physical difficulty and were not due to mental health problems.  The Tribunal found that the appellant did not have mental health problems and none of the mental health activities applied.”

It will be noted that the tribunal makes no findings in respect of the difficulties claimed but considered any there might have been to be ineligible because they were “caused by physical difficulty”.

8. I respectfully agree with Judge Mesher in CE/1222/2010 where he observed:

“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.”

9. In that case Judge Mesher observed that there had not been extended argument on the point.  There has been rather more in the present case and in deference to it I would accordingly add the following points.

10. Much of the relevant part of the regime for employment and support allowance has been adopted from the previous statutory regime of incapacity benefit.  Regulation 19 of the 2008 Regulations is to a large extent a direct lift from the equivalent provisions of the Social Security (Incapacity for Work)(General) Regulations 1995/311 (“the 1995 Regulations”).  It is not necessary to set the legislation out verbatim. However, as Judge Mesher noted, there was a clear opportunity in regulation 19(5) to limit part 2 to conditions arising from some specific mental illness or disablement, which was not taken.  Such a link existed in regulation 25(3) of the 1995 Regulations and, when so much was carried across from regulation 25 to regulation 19, I can only conclude that the omission of the link was deliberate.  This is particularly so as the link in the 1995 Regulations had been specifically created by an amending regulation (the Social Security (Incapacity for Work)(Miscellaneous Amendments) Regulations 1999/3109), thus the significance of the point under the 1995 Regulations was there to be seen  and, if thought fit, the point adopted, but it was not.

11. I accept that the wording of regulation 19(3) which sets out, in three sub-paragraphs, points thresholds before limited capability for work can be established does so in terms that suggest that there might be a difference between part 1 and part 2 (as there was for incapacity benefit) but in fact as the position is that the 15 point target can be met either from part 1, or from part 2, or from parts 1 and 2 together, it is presently a distinction without substance.  Insofar as it has a purpose, it is in my view to facilitate (in the sense that it would make for a simpler legislative amendment) the process, should it be desired at a future date, of setting different points targets in respect of descriptors under part 1 and part 2.  However, there is as they stand a distinction between the two parts as their cross headings  “Physical Disabilities” and “Mental, Cognitive and Intellectual Function Assessment” proclaim and that distinction might itself be a reason why it might be thought appropriate to set different points thresholds under the various sub-paragraphs of regulation 19(3).  It does not follow from that distinction (even with the help of the structure of points thresholds retained by regulation 19(3)) that part 2 is concerned with assessing such functions only insofar as problems with them arise from a specific mental illness or disablement.

12. In my view the meaning of the legislation is plain, rather than ambiguous or obscure.  Nor does it lead to absurdity, in that in the case of conditions such as chronic fatigue syndrome and ME there may be sound practical reasons for considering the functional difficulties experienced by a claimant, rather than having to explore elusive questions as to whether the source of that limitation is mental or physical in origin.  Thus the test for permitting reference to Hansard as set out in Pepper v Hart [1992] UKHL 3; [1993] AC 593 in my view is not met.  The other material provided does not contain anything providing material assistance, nor do the extracts from Hansard provided to me in any event contain any clear statement directed to the very issue.

13. Consequently the First-tier Tribunal created a barrier to the claimant’s ability to meet descriptors 14, 15 and 18 which was not justified by the 2008 Regulations.  Further, it erred by finding that there was “no evidence” of a mental health problem when, given the evidence from the CFS/ME therapist, there clearly was some evidence.  However, I invited Mr O’Mullane to suggest how on the evidence any of those descriptors could be found to be met even without the errors.  He did not seek to persuade me that they could and I consider that they cannot.

14. There were other grounds of appeal to the Upper Tribunal respect of the First-tier Tribunal’s decision.  It was said that the tribunal erred by failing to apply itself sufficiently to the question of the date of decision.  Although the tenses used in its decision are not entirely consistent, from paragraph 10 of the tribunal’s decision that it was focussing on “the relevant time” and from the description in the statement of its reasons of the faints which the claimant was experiencing it is clear, referring back to the record of proceedings, that what was being talked about was the time around the date of decision in May 2009.

15. It was common ground between Mr Cooper and Mr O’Mullane that the tribunal’s reasons (that the claimant had useful warning) for finding that there was no “significantly disrupted awareness or concentration” for the purposes of descriptor 11 could not be supported.  However, the highest number of points for which Mr O’Mullane argued in respect of this descriptor was 6.

16. There was no challenge based on any other descriptor.

17. Consequently, on the available evidence and having heard from Mr O’Mullane on the claimant’s behalf, I am satisfied that on the available evidence she could have scored no more than 6 points on any view.  The claimant was represented at the hearing and gave evidence. There is no challenge based on anything having precluded relevant evidence from being given.  The purpose of an appeal on a point of law is not to provide a second opportunity for giving evidence that could have been given the first time round.  Consequently, as the appeal against the DWP’s decision cannot succeed in the result on the basis of the available evidence, though I find that the decision of the First-tier Tribunal was in error of law, in the exercise of my discretion I decline to set its decision side.

CG Ward

Judge of the Upper Tribunal

19 October 2011