Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/1826/2011

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Carlisle on 24 March 2011. 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 an entirely differently constituted First-tier Tribunal.

2. The Claimant is a woman now aged 46 who suffers from a tremor and certain mental health problems.

3. The First-tier Tribunal’s decision was to dismiss the Claimant’s appeal against a decision, made on 19 May 2010, superseding and removing with effect from that date the Claimant’s award of employment and support allowance/credits on the ground that she did not have limited capability for work in accordance with the limited capability for work assessment. The decision maker, accepting the opinion of the examining doctor, considered that the Claimant did not score any points from either the physical or mental health activities comprised in that assessment.

4. The Tribunal, however, found that the Claimant satisfied descriptor 6(e) (“cannot physically use a conventional keyboard or mouse”), worth 9 points.

5. In the written submission to the Tribunal on behalf of the Claimant it was submitted (among other things) that the Claimant satisfied descriptor 5(b) (“cannot pick up and move a one litre carton full of liquid with either hand”), which would have been worth an additional 9 points. The Claimant stated, in her ESA 50 questionnaire, that she needed both hands to steady herself. That appears also to have been the effect of her oral evidence. The Tribunal’s reasoning in relation to activity 5 appears to have been confined to the last sentence of para 5 of the Statement of Reasons: “On her own evidence she could pick up and move things, when necessary using two hands.”

6. It is submitted on behalf of the Claimant that the Tribunal thereby erred in law in that descriptors 5(a) and 5(b), in referring to inability to pick up and move the specified carton full of liquid “with either hand”, require one to ask whether the claimant can perform the activity with either hand alone, and that the fact that the claimant could do it with both hands together does not prevent points being scored.

7. The Secretary of State, in supporting this appeal, appears to agree with that contention. On the whole I think that the contention is correct. It is arguable that those descriptors are merely looking at whether the claimant can pick up and move the carton, and that if he can do so using both hands, he should not score points. However, if that had been the case it would not seem to have been necessary to add the words “with either hand”. That point wouId seem to acquire additional force in the light of the wording of descriptor 6(i): “cannot pour from an open 0.5 litre carton full of liquid”. That would seem not to be satisfied if the claimant could pour using both hands (unless one takes the view that the activity of pouring is one which involves using only one hand, as the other is often necessary in order to hold or steady the receptacle). It seems to me that the addition of the words “with either hand” in descriptors 5(a) and (b) (as in descriptors 6(a), (b) and (c)) does indicate that the claimant’s ability is to be determined by reference to each hand used alone.

8. I note that the position is different under the version of Schedule 2 to the Employment and Support Allowance Regulations 2008 which came into force on 28 March 2011, where the words “with either hand” are removed from the equivalent descriptors.

9. The First-tier Tribunal does not appear to have made a finding that the Claimant could not pick and move a one litre carton with either hand alone, but merely that she could do so using both hands “when necessary”. I cannot therefore, in reliance on the First-tier Tribunal’s findings of fact, substitute a decision in the Claimant’s favour.

10. In view of my conclusion in relation to this first ground of appeal, it is unnecessary for me to express any view in relation to the two other grounds, which were also supported by the Secretary of State.

11. The new tribunal will reconsider the appeal afresh, but will apply the law as set out in paragraph 7 above.

Charles Turnbull

Judge of the Upper Tribunal

19 December 2011