Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/1899/2010

ADMINISTRATIVE APPEALS CHAMBER

1. These are appeals by the Claimant, brought with my permission, against (i) a decision of a First-tier Tribunal sitting at Carlisle on 6 May 2010 and (ii) a decision by the chairman of that First-tier Tribunal, dated 24 May 2010, refusing the Claimant’s application to have the decision of 6 May 2010 set aside. For the reasons set out below those decisions were in my judgment wrong in law. I set aside the decision of 6 May 2010 and remit the appeal to an entirely differently constituted First-tier Tribunal. It is therefore unnecessary for me to set aside the decision of 24 May 2010.

2. The Claimant is a woman now aged 46. The First-tier Tribunal’s decision of 6 May 2010 was to dismiss the Claimant’s appeal against a decision, made on 19 October 2009, superseding and removing with effect from that date the Claimant’s award of employment and support allowance (ESA) on the ground that the Claimant did not have limited capability for work in accordance with the work capability assessment (WCA).

3. The Claimant’s primary relevant disability was a stress related illness which had been caused by the circumstances in which she had been dismissed from her previous employment, in about April 2009.

4. The First-tier Tribunal’s decision of 26 May 2010 was made at an oral hearing at which the Claimant appeared and gave evidence, and was represented by her husband (Mr A).  

5. An appeal to the Upper Tribunal lies only on the ground of error of law.

6. I consider in turn the grounds which have been relied upon by the Claimant, in his letters of appeal and in support of the request to have the decision set aside.

7. First, it is contended that Mr A was not permitted properly to represent the Claimant. More specifically, it is said that he was told by the chairman that he would be allowed to address the Tribunal after they had finished questioning the Claimant, but that he was not in fact given that opportunity. However, para. 4 of the Statement of Reasons says:

“The Tribunal took evidence from the Appellant and her husband as to the extent of the appellant’s disabilities. There was no restriction imposed on the appellant’s husband and he was fully involved in the appeal process.”

The Record of Proceedings records Mr A as intervening, or answering questions, on at least 3 occasions. I do not accept that Mr A was not given a sufficient opportunity to say what he wanted to say.

7. Secondly, it is contended that the Claimant was questioned, in particular by the medical member, in a manner which unreasonably prevented her from giving her evidence. Tribunals are of course required to attempt to establish the true position, and they are entitled to ask probing questions. I do not accept that there is sufficient evidence that the nature of the questioning was unfair. Particular objection is taken to the medical member having stated that “you should be over this by now”. It does not seem to me that, if that was said, it indicates an unfair approach to the evidence.

8. One ground on which I gave permission to appeal arose from the fact that, as recorded in paras. 2 and 3 of the Statement of Reasons, the Claimant’s husband apparently started the hearing under the misconception that the applicable points system was the personal capability assessment (relevant to incapacity benefit) when in fact this was an appeal relating to ESA, so that the points system is the different one relating to the work capability assessment. The question which I raised when giving permission to appeal was whether the First-tier Tribunal should have considered whether to adjourn the hearing on this ground. The written submission to the First-tier Tribunal on behalf of the Secretary of State did not set out, (as the submissions in incapacity benefit cases normally do, and as the written submissions in ESA cases sometimes do), the relevant descriptors and the points which each scores. However, the submission did refer to the sources of the relevant law (i.e. regulation 19 of and Schedule 2 to the Employment and Support Allowance Regulations 2008). Indeed, the submission did not even say (as many submissions do) that the law can be looked up in some public libraries and on the internet. If, as appears to have been the case, the Mr A did not take any steps to look up the law, this was arguably his own fault.

9. However, this point links up with another one, which is that Mr A objected at the hearing (see Record of Proceedings p.69) that he had not received a copy of the ESA 50 questionnaire (in which the Claimant had answered that she did not have any problem with any of the descriptors). He has also said in this appeal that he had not seen a copy of pages 55 to 56, which records the decision maker’s points scores.

10. The Claimant ought to have been sent, at the outset of the appeal to the First-tier Tribunal, a copy of the Secretary of State’s written submission to the First-tier Tribunal and the bundle of attached documents. It is difficult to understand how the Claimant could have received some of these documents and not others. For example, she seems undoubtedly to have received a copy of the examining doctor’s report. She did receive the Enquiry Form from the First-tier Tribunal, because she returned it on 10 December 2009. It is possible, I suppose, that she obtained a copy of the examining doctor’s report separately.

11. The ground on which I allow the appeal, albeit with considerable reluctance, is that it seems to me that there may well have been insufficient exploration, both at the main hearing and at the time of the application to set aside, of whether the Claimant and Mr A had in fact been hampered in presenting the appeal by not having received documents. I am not clear what documents they had and had not received. It is possible that they had not received the Secretary of State’s submission. The Tribunal could have made a clear finding that they had in fact received the submission and accompanying documents, but it did not. The ground for refusing the set aside, namely that “none of the conditions in Rule 37(2) [of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008] is satisfied” was not correct if they had not received a copy of the ESA 50 questionnaire.

12. I say that I allow the appeal with reluctance because, as the Statement of Reasons noted, the answers given to the ESA 50 questionnaire very strongly suggest that no points could properly be awarded. However, that itself does not sit very easily with the fact that the First-tier Tribunal itself did award 9 points under descriptor 18(c).

13. As regards the questions of principle about the activity 18 (“getting about”) descriptors which I raised when giving permission to appeal, I would give the following guidance to the new tribunal. It is given in the context that the First-tier Tribunal’s findings were that “she is fearful of seeing anyone involved with her former work and also does not like to see any reminders of her former employers: vans or lorries. She would not, therefore, be able to visit her former employer’s premises – a specified place – at all or, at best, accompanied” (para. 8);  “the appellant would not travel to her former employer’s premises but there are other places with which she is familiar where she is able to travel alone” (para. 9); “descriptor 18(c) would apply when the appellant has to travel to a place where it is possible she will see a reminder of her former employers. To more local familiar places the appellant can travel alone …..” (para. 11).

14. I do not think that the First-tier Tribunal made any error of principle in the way in which it approached this activity. Its reasoning seems to have been that the majority of journies to places with which the Claimant is familiar would be ones which she is unable to undertake alone because she would fear coming across people involved with her former employer, or their vans etc. That may seem a somewhat surprising finding, as a matter of fact, but it was open to the Tribunal to make it.

15. The mere fact that the Claimant would never feel able to travel to her former employer’s premises does not in my judgment bring her within either descriptor 18(a) or (b). The words “cannot get to any specified place ……” in 18(a) in my judgment clearly mean that there is no place with which the claimant is familiar (or would be familiar with if she went out) which she could get to on her own. The words “is unable to get to a specified place …….without being accompanied by another person on each occasion” in 18(b) in my judgment mean that the claimant always needs to be accompanied when getting to a familiar place.

16. I leave open the question whether any of these descriptors can apply if the claimant’s only problem is in entering a building at the destination, as opposed to getting there. My initial reaction was that the Secretary of State’s representative in this appeal was right in submitting that the descriptors are only concerned with ability to get to the destination - “getting about”. But I do not think that I need to decide the point because, as I have said, it would not be enough for the Claimant to establish even that she cannot get to her former employer’s premises, if that is the only place which she cannot get to: see para. 15 above. A fortiori, therefore, it could not be enough to establish that she could not enter her former employer’s premises.

17. The new First-tier Tribunal will consider the appeal entirely afresh. It will not of course be bound to award any points under descriptor 18. It will not be entitled to take into account any change in the Claimant’s condition after 19 October 2009.

Charles Turnbull

Judge of the Upper Tribunal

21 February 2011