IN THE UPPER TRIBUNAL Case No  CE/1839/2010

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.   The decision of the First-tier Tribunal sitting at Darlington on 22 April 2010 under reference 224/09/01800 involved the making of an error of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraphs 17-22 of the Reasons.

REASONS FOR DECISION

1. The claimant underwent a medical for the purposes of Employment and Support Allowance (“ESA”) on 13 June 2009.  On 2 July 2009 a decision was taken to supersede the previous decision on his ESA claim and to award zero points.

2. In the present appeal, we need be concerned only with the claimant’s back condition and with the activity of walking.

3. At the tribunal:

a. there was evidence from the GP, who had said in October 2009 that the claimant had “more or less constant low back pain with radiation to both legs” and referred to the claimant’s “inability to walk long distances”.  Some three weeks later, he particularised this in response to an enquiry from the claimant’s representative as being that in his view the claimant could not walk more than 100 metres on level ground without stopping or severe discomfort.

b. There was evidence from a physiotherapist  that in March 2009 s/he considered  the claimant’s overall limitation of movement to be “severe” and then in April 2009, following a course of treatment after the March report, that “we have had no real impact in improving what appears to be quite a chronic situation.”

c. There was evidence from the claimant that he was “always in some pain calf and back” and that it was “painful to walk. The more I do the worse it is.”

d. There was evidence from the Health Care Professional who concluded that “although the low back problem causes some impairment of function the typical day, observations and examination indicate he can manage all lower limb activities to an adequate level most of the time. Significant disability unlikely.”

4. The claimant’s representative submitted at the hearing that what mattered was not walking alone but what could be accomplished without severe discomfort and that the claimant was “walking through pain” and “going beyond severe discomfort.”

5. The tribunal upheld the original decision.  It found that the claimant could “walk in excess of 200 yards without stopping” and in a paragraph which I need not set out it explains its approach to the evidence.  Neither there, nor anywhere else, however, does it in terms address the issue of walking without severe discomfort.

6. Permission to appeal was given by a district tribunal judge of the First-tier Tribunal.

7. Section 8(1) of the Welfare Reform Act 2007 states that:

“(1) For the purposes of this Part, 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.”

8.  By regulation 19 of the Employment and Support Allowance Regulations 2008/794:

“(1) For the purposes of Part 1 of the Act, whether a claimant's capability for work is limited by the claimant's physical or mental condition and, if it is, whether the limitation is such that it is not   reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

…

(5) In assessing the extent of a claimant's capability to perform any activity listed in Schedule 2, it is a condition that the claimant's incapability to perform the activity arises from—

(a) a specific bodily disease or disablement;

(b) a specific mental illness or disablement; or

(c) as a direct result of treatment provided by a registered medical practitioner, for such a disease, illness or disablement.”

9. Schedule 2 provides, so far as relevant:

10. In his submission to the Upper Tribunal, the Secretary of State does not seek to argue that the tribunal did address severe discomfort.  Rather, he argues, that it was not necessary for the tribunal to do so, because on the evidence the claimant was in pain even before the walking began.  He also mentions, effectively as an alternative contention, though he does not put it in that way, that the claimant had a “non-debilitating level of pain”, which I read as saying that it was a level insufficient to amount to ”severe discomfort”.

11. The Secretary of State argues that the pain is “constant” and that “the implication of constant pain is that it is there the whole time and is unconnected with whether he is walking or not. So, while he may well suffer pain the whole time, he can in fact walk 400 yards.”  For this reason, he argues that CIB/3013/1997 can be distinguished. There Mr Commissioner Angus said in relation to the predecessor benefit, which involved a similar statutory test:

“I accept the claimant’s argument that to demonstrate that it has applied the descriptors (c)   and (d) properly a tribunal must make it   clear that it has considered not only the point in distance at which the   claimant stops walking because of severe discomfort but also the point at which the onset of severe discomfort occurs.  No doubt some claimants will stop walking at the first point at which severe discomfort is experienced but others will keep going until forced to stop.  It is easy for a busy tribunal to overlook the distinction when considering evidence but, nevertheless, for the proper application of paragraph 1 of the schedule it must be observed.  The tribunal’s failure to apply the Schedule properly is an error in law on account of which I have set its decision aside.”

The claimed distinction is that in the present case the pain is there before the walking begins.  In my view this is a distinction without substance.  Mr Commissioner Angus was simply not concerned with the situation where a person is in severe discomfort from the outset.  It is preferable to turn to the relevant legislation.

12. The purpose of the schedule 2 questions is defined by section 8.  It is to establish 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.  The schedule creates a series of yardsticks to assess capability to work. The legislation does not say that the severe discomfort must have been brought on in consequence of the walking.  If it had meant that, it could have said so. 

13. Nor is the view that there is not a limitation such as the Secretary of State argues for repugnant to the stated purpose, or the efficacy, of the scheme. A person who cannot walk 50 metres without severe discomfort will be at a disadvantage in attempting to work whether the severe discomfort is there from the outset or comes on after a few steps. Indeed, it would be odd if a person who could not walk at all without severe discomfort was in a worse position than someone who could manage a few steps. (Though I do not seek to directly read across a decision between Disability Living Allowance and ESA because of their different statutory contexts, it does seem to me that the reasoning applied by Mr Commissioner Bano when a not dissimilar issue presented itself in R(DLA)4/04 may be equally relevant here.)

14.  What the legislation does say, in regulation 19(5), is that it is a condition that (so far as relevant) “the claimant’s incapability to perform the activity arises from a specific bodily disease or disablement.” The claimant is said to have disc wear at L4/L5 disc level.  That seems to me to be capable of being “a specific bodily disease or disablement”, so if the claimant can establish an incapability, arising from that disease or disablement, to perform the activity of walking to the requisite extent of the descriptor, that seems to me to be the end of the statutory test.  The Secretary of State’s approach, by contrast, involves reading in a further requirement which is not there either expressly or by necessary implication.

15. It follows that the inability to walk without severe discomfort was relevant.  The tribunal either failed to apply the correct legal test or, if it did not, as the point had expressly been put in issue by the representative, the tribunal’s duty to give reasons required it to explain its conclusions on this point.

16. The Secretary of State’s apparent fall-back position may or may not prove to be the case.  The tribunal made no findings about the pain suffered and was not in a position to, and did not, explain whether this amounted to severe discomfort or not.  I am not in a position to make findings about the claimant’s pain and the case will have to be remitted for a rehearing.  If the Secretary of State wishes to argue that the claimant could walk, in pain but not amounting to severe discomfort, for a distance sufficient to disqualify him from meeting the relevant descriptors) it is at the rehearing that he must do so.

17. I direct therefore that the question of whether the claimant satisfies the Work Capability Assessment is to be looked at by way of a complete re-hearing in accordance with the legislation and this decision.

18. Unless otherwise directed, the claimant or his representative must ensure that any further written evidence is filed with the First-tier Tribunal no less than 21 days before the hearing date.

19. The tribunal will need to make full findings of fact on all points that are put at issue by the appeal.

20. If the tribunal rejects evidence submitted by or on behalf of the claimant, it must provide a sufficient explanation why it has done so and must give adequate reasons for its conclusions.

21. The tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on

2 July 2009 - see section 12(8)(b) of the Social Security Act 1998 - but may have regard to subsequent evidence or subsequent events for the purpose of drawing inferences as to the circumstances obtaining at that time: R (DLA) 2/01 and 3/01.

22. These directions are subject to any further directions which may be given by a District Tribunal Judge.

23. While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing.

24. The decision on the re-hearing is a matter for the First-tier Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.

CG Ward

Judge of the Upper Tribunal

16 February 2011