Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/633/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Judge of the Upper Tribunal: E A Jupp

Decision:  The decision of the First-tier Tribunal given on 16 December 2010 under registration 227/10/01863 was erroneous in law.  Accordingly, the claimant’s appeal succeeds.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts & Enforcement Act 2007 I set aside the tribunal’s decision and remit the appeal for reconsideration by a differently constituted First-tier Tribunal of the Social Entitlement Chamber.

Directions: My directions and guidance are set out in paragraphs 18 to 21 below.

REASONS FOR DECISION

1. The claimant is a man born on 30 May 1958.  He was awarded employment and support allowance (ESA) on 5 January 10 on the basis that he was suffering from diabetes, neck problem, visual problem and hypertension.

2. He completed the questionnaire form ESA 50 on 1 February 2010, indicating that his ability varied with regard to standing and sitting, bending or kneeling, reaching, picking up and carrying and manual dexterity, because of pain in his neck and left arm.  He also indicated variable problems with the mental health activities of memory and concentration, execution of tasks and dealing with other people.

3. On 25 February 2010, he was examined by an approved disability analyst (ADA), a registered medical practitioner.  The ADA reported that the claimant’s neck problem was mild, he had not seen a specialist for his problem and the medication used was of average strength.  Overall, he was unlikely to have a significant level of disability affecting the upper body or upper limbs (page 69).  The ADA found no evidence for mental health problems which would affect the claimant’s cognition, concentration, memory and comprehension and he was unlikely to have a significant level of disability affecting these areas or with the ability to learn, awareness of danger, ability to initiate or complete tasks or to complete them within a reasonable time.  He recorded that the claimant reported pain in the first two fingers that spread up the arm to the shoulder but that this distribution did not first a nerve root pattern.  There was no evidence of muscle wasting in the shoulders, arms, upper arms forearms and hands (page 95).

4. The decision maker decided that the claimant did not score any points on either the physical assessment or the mental cognitive and intellectual functions assessment and superseded the claimant's award of ESA from 1 March 2010.  The claimant appealed, giving details of disc problems and nerve entrapment in his neck.  He asserted that the ADA had not taken all the facts into account.  The decision was reconsidered but not revised, and the appeal proceeded. 

5. The tribunal was held on 16 December 2010, the claimant being present.  The tribunal confirmed the decision of the Secretary of State to supersede the award, but did award the claimant 12 points, six each for difficulties with sitting and standing, and manual dexterity.  It recorded on the decision notice that regulations 29 and 35 were not satisfied and no descriptors were awarded under Schedule 3 of the Employment and Support Allowance Regulations 2008.  I should make plain here that this appeal arises under the legislation as in force prior to the amendments made by the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work Related Activity (Amendment) Regulations 2011, although I see no reason why my decision, where relevant, should not apply to the legislation as amended from that date.

6. The claimant appealed with my permission, on the grounds of the inadequacy in the tribunal’s reasons for not awarding points in respect of descriptor 5(c) as then in force:

“Cannot pick and move a light but bulky object such as an empty cardboard box, requiring the use of both hands together.”

An award under this descriptor would have attracted a further six points, enabling the claimant to attain 18 points, and thus satisfy the minimum requirement of 15 points for physical descriptors to obtain entitlement to benefit.

7. The claimant’s representative noted that in paragraph 9 of the statement of reasons, the tribunal had come to the conclusion that:

“On that basis the tribunal does credit that there are problems beyond a mild disability with the neck, shoulder and left arm/hand, which reasonably caused significant problems as detailed below.”

In paragraph 13, the tribunal had then commented in respect of descriptor 5(c):

“The movement required however, is not particularly dependent on grip as such but also pressure and movement requiring the use of both hands together.”

In the representative’s submission, descriptor 5 (c) is not simply concerned with the claimant's ability to use both hands/arms when lifting a bulky object.  It would also include shoulder movements and the need to raise or move the arm away from the side of the body and at the same time using some pressure to lift and move the object.

8. Further, given the comments in paragraph 9 of the statement of reasons, it was assumed that the tribunal had disagreed with the ADA's assessment of the level of disability, yet in paragraph 13 the tribunal had seemed to agree with his clinical findings.  It was therefore submitted that the tribunal had erred in law by giving inadequate and conflicting reasons for not awarding points in respect of descriptor 5(c).

9. The Secretary of State does not support the appeal.  In paragraph 5 of his submission, his representative draws attention to an extract from the guidance issued to health care professionals by the Department for Work and Pensions (DWP) in the Training & Development ESA Handbook in respect of Activity 5:

“Scope

This activity relates mainly to upper limb power, however joint movement and co-ordination may also have to be considered.  It is intended to reflect the ability to pick up and transfer articles at waist level, i.e. at a level that requires neither bending down and lifting, nor reach upwards (these activities are covered by other areas).  It does not include the ability to carry out any activity other than picking up and transferring, i.e. it does not include ability to pour from a carton or jug.  All the loads are light and are therefore unlikely to have much impact on spinal problems.  However, due consideration should be given to neck pain and the associated problems arising from cervical disc prolapse and marked cervical spondylitis.  These conditions may be aggravated by lifting weights in exceptional circumstances.  The ability to carry out these functions should be considered with the use of any prosthesis, aid or appliance.”

10. The Secretary of State correctly points out that this guidance is not binding on decision makers or tribunals.  He also notes that the ADA might have been influenced by the fact the claimant had not seen a specialist to consider that his disability was milder than it was.  Although the Secretary of State does not mention this, the tribunal did note that the claimant said that he had an MRI scan and was awaiting an appointment with a specialist, and that the ADA seemed to have overlooked this.

11. In the Secretary of State’s submission, the claimant’s representative’s submission that the tribunal’s observations in paragraphs 9 and 10 of the statement of reasons are inconsistent with those in paragraph 13 is ill founded.  He submits that it is clear from the tribunal’s reasoning in paragraph 13 that it had considered the ADA's report and had questioned the claimant further about aspects on which it was unsure, before finding as a fact that the claimant had sufficient grip to be able to pick up and hold an empty cardboard box and move it, giving very careful consideration to the nature of the restriction required by the wording of the descriptor and that the tribunal had reached a conclusion it was entitled to make on the evidence.  The claimant’s representatives repeat their submission that inadequate reasons were given in respect of descriptor 5(c).

12. On descriptor 5(c) the tribunal said:

“13. As regards picking up and moving or transferring by the use of the upper body and arms the appellant confirmed that he could use his right hand without difficulty but probably not with his left hand as it would cause a lot of pain.  However all the subdivisions of the descriptor relates to using either hand apart from 5c which relates to the moving of an empty cardboard box.  The appellant thought that this might be difficult as he can’t grip with his left hand.  The movement required however is not particularly dependent on grip as such but also pressure and movement requiring the use of both hands together.  Given the indications given by the appellant himself and also the clinical findings of the ADA that there is only limited restriction with grip the tribunal are satisfied that the amount of grip available to the appellant would be sufficient to pick up and hold an empty cardboard box and move it.  The tribunal note that further confirmation of the ability to use the left-hand, albeit restricted, was evidenced by the appellant taking hold of and opening a booklet as observed by the ADA during the course of the examination (page 65).  The tribunal did not find that any of the descriptor is satisfied.”

13. I have repeated in paragraph 7 above what the tribunal recorded in paragraphs 9 and 10 of the statement of reasons.  The fact that it identified the areas where it regarded significant problems as being caused and that these were at odds with the ADA’s own conclusion, for reasons which it set out, does not mean that the whole of the ADA’s report was therefore to be disregarded and that the tribunal’s overall reasons contain a conflict.  The ADA’s clinical findings were accepted by the tribunal, in conjunction with the evidence given by the claimant himself, with regard to the restriction on grip and I see no difficulty with the tribunal’s findings on this point. 

14. However, activity 5 as described in the Employment and Support Allowance Regulations 2008 refers to the “use of the upper body” as well as the arms, a fact noted by the tribunal at the beginning of paragraph 13.  It then limited its consideration of the claimant’s potential difficulties with descriptor 5(c) to problems with his left hand and did not consider the accepted problems with his shoulder. 

15. The DWP guidance set out by the Secretary of State’s representative refers to due consideration being given to neck pain and the associated problems arising from cervical disc prolapse and marked cervical spondylitis in connection with this activity.  Whilst recognising that this document is guidance only and not binding, it should also be noted that, for each descriptor within this activity, the legislation includes the use of the “upper body” as well as the arms.  Bearing in mind that the relevant descriptor is “the picking up moving or transferring of a light but bulky object such as a large cardboard box requiring the use of both hands together”, this includes the need to consider the use of the claimant's shoulder and neck in this process and how they would be affected by the claimant's limitations which the tribunal had already accepted.

16. The tribunal accepted that there were “problems beyond a mild disability with the neck, shoulder and left arm/hand” and that these caused significant problems, leading to awards of six points each under descriptors 2f and 6g.  It is, of course possible that notwithstanding its findings under these two descriptors the tribunal could have found that the movements required would not be sufficiently affected by the claimant's particular neck and shoulder problems to score points under descriptor 5(c).  Nonetheless, by failing to make a finding at all, the tribunal erred in law. 

17. It is therefore appropriate for its decision to be set aside for inadequacy of findings and reasons for the decision and for the case to be remitted to a differently constituted tribunal.

DIRECTIONS

18. The new First-tier Tribunal must hold an oral hearing and conduct a complete reconsideration of the issues that arise for decision in this appeal, together with any others which merit consideration, subject to the discretion provided by section 12(8) of the Social Security Act 1998.  It must make and record full findings of fact on all necessary points, with reasons for its acceptance of the evidence which is preferred and why the other evidence is rejected. 

19. It must not take account of circumstances which did not obtain at the date of the decision appealed against, 1 March 2010, but must take account of any evidence which came into existence after that date, but which relates to the circumstances as at that date.  If the claimant is minded to submit further evidence, he will appreciate that this must relate to whether or not he satisfied the descriptors which he contends applied to him at 1 March 2010 and not at the date any report is given.  It may be that the consultant’s report after the appointment which was expected at the time of the tribunal will assist.

20. The claimant is advised to attend the new hearing if at all possible. 

21. The claimant will bear in mind that my decision is limited to matters of law; the new tribunal will make its decision on the evidence before it and the outcome may not be different or more helpful to him.

22. For the reasons stated, the claimant’s appeal succeeds.  As further findings of fact are necessary I am not in a position to remake the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, I remit the appeal for reconsideration.

(Signed on the original) E A Jupp

Judge of the Upper Tribunal

(Dated) 16 November 2011