Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/1992/2010

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with the permission of a Judge of the First-tier Tribunal, against a decision of a First-tier Tribunal sitting at Kettering on 10 February 2010. 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. The Secretary of State shall, within one month from the date of issue of this decision, send to the First-tier Tribunal for addition to the case papers the evidence on the basis of which the Claimant’s award of the higher rate of the mobility component of disability living allowance was made.

2. The Claimant is a woman now aged 57 who suffers from fibromyalgia, back pain and carpal tunnel syndrome.

3. The First-tier Tribunal’s decision was to dismiss the Claimant’s appeal against a decision, made on 12 August 2009, superseding and removing with effect from that date the Claimant’s award of employment and support allowance on the ground that the Claimant did not have limited capability for work, in accordance with the work capability assessment.

4. The First-tier Tribunal upheld the Secretary of State’s decision, which had been made on the basis of the advice of the examining doctor, that the Claimant did not score any points from the physical activities comprised in the work capability assessment. Mental health descriptors were not in issue.

5. The First-tier Tribunal’s decision was made following an oral hearing at which the Claimant gave evidence, and had the benefit of a representative from Corby Borough Welfare Rights and CAB, who had also made a written submission to the Tribunal on behalf of the Claimant.

6. In my judgment, notwithstanding the Secretary of State’s opposition to the appeal, the First-tier Tribunal’s decision was wrong in law in the following respects.

7. First, as the Secretary of State’s representative has emphasised in his submission in this appeal, the Tribunal did not find the Claimant’s evidence credible. The reasons for reaching that conclusion were summarised in paragraph 12 of the Statement of Reasons. The Tribunal there gave two examples of what it saw as inconsistency in the Claimant’s evidence. The second example was: “The appellant in her appeal claimed that she could not bend down; however in oral evidence the appellant said that she could bend most of the time.” However, the Secretary of State’s representative has drawn my attention to the fact that there does not appear to have been any claim by the Claimant that she could not bend down. This claim is said to have been made “in her appeal”. However, there was no such contention in the appeal form (p.9) or in the written submission (pp.63-5). On the contrary, in the submission it was stated that “[the Claimant] is able to bend from the waist but cannot, due to pain squat or kneel. However, she tires rapidly and would be unable to repeat this manoeuvre.” In her ESA 50 questionnaire the Claimant had said (p.20): “I can bend straight. I can’t squat or kneel.” I am unable, therefore, to understand where that particular inconsistency is said to arise; the claim for 6 points under descriptor 3(c) seems to have been made on the basis that she could not bend down with any degree of repetition, not on the basis that she could not do so at all. The Secretary of State submits, in effect, that that does not matter, because there are other inconsistencies in the Claimant’s evidence. However, although it is all a matter of degree, in this case the Tribunal in its reasoning relied on only two examples of inconsistency, and it was in my judgment significant that one of those appears to have been misconceived.

8. Secondly, it was noted in the written submission to the First-tier Tribunal on behalf of the Claimant (p.64) that the Claimant had an award, apparently made some 3 years previously, of the higher rate of the mobility component of disability living allowance. That would imply 15 points under descriptor 1(b). In my judgment the Tribunal should have had before it the evidence on the basis of which that award was made. Although the Claimant’s representative had not, it seems, made this point, the First-tier Tribunal should in my judgment have done so on its own initiative. The Secretary of State has had no opportunity to comment on this point, but I do not see what could have been said in answer to it.

9. Thirdly, the Tribunal should in my judgment have dealt expressly with the representative’s submission that reg. 29(2)(b) of the Employment and Support Allowance Regulations 2008 applied. It is submitted by the Secretary of State, in effect, that on the evidence before it the Tribunal could not have decided that the Claimant fell within reg. 29(2)(b). I agree that that seems unlikely, on the First-tier Tribunal’s other findings of fact, but the Claimant was in my judgment entitled to the Tribunal’s judgment and decision on the point.

10. In relation to bending or kneeling, the Tribunal’s reasoning included the following:

“The tribunal notes the appellant’s representative’s submissions as to the need to take into account the appellant’s ability to repeatedly and reliably undertake such actions. The tribunal rejects the submission to the effect that such considerations are a necessary aspect of assessment of this descriptor. The tribunal notes that the descriptors under the previous incapacity benefit scheme specifically made provision for “sometimes” not being able to undertake the activity of bending and kneeling. The present scheme has deliberately excluded the “sometimes” component of functioning in relation to bending, as well as recasting the descriptor as a whole. In those circumstances the reasonable inference is that under the new scheme (ESA) the inability to repeatedly undertake the bending as set out in the descriptor has been deliberately excluded from the definition of the bending descriptor.”

11. In my judgment the absence of the “sometimes” descriptor (6(c) of the incapacity for work descriptors) does not have the effect stated by the Tribunal. It means merely that there is no descriptor under which the claimant can score points merely because he is sometimes unable to perform the relevant activity. However, the need for the decision maker to take into account whether the claimant can perform the relevant activity with some degree of repetition (cf. in particular CIB/13161/96) in my judgment subsists in relation to the work capability assessment descriptors as in relation to the incapacity for work descriptors. In particular, if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account, both in relation to bending or kneeling and the other activities. The only “sometimes” descriptors in the personal capability assessment were in relation to the activities of rising from sitting and bending and kneeling, but it has never been doubted that the need to take into account whether the activity can be performed with a degree of repetition applies to all the activities.

12. A tribunal is of course unlikely to need expressly to consider this issue unless there is something in the facts which suggests that the claimant might not be able to perform the activity with some degree of regularity. It is likely to arise, in particular, in cases such as those of chronic fatigue syndrome. The Secretary of State submits that the Tribunal’s error in this case can have made no difference, in that there was no question of the Claimant satisfying any of the bending and kneeling descriptors in any event. However, the effect of fatigue was a theme in the Claimant’s answers in the ESA 50 questionnaire, and had been relied on in the written and oral submissions. I am unable to say that the Tribunal’s error could not have made a difference.

13. I therefore allow the appeal, with the consequences set out in paragraph 1 above. The new First-tier Tribunal will consider the appeal entirely afresh.

Charles Turnbull

Judge of the Upper Tribunal

7 February 2011