Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/1172/2010

ADMINISTRATIVE APPEALS CHAMBER

Before: Judge S M Lane

The decision of the tribunal heard on 11/1/10 under reference 208/09/01119 is SET ASIDE and RE-MADE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 because its making involved an error on a point of law. 

The decision is that the appellant does not have a limited capability for work from and including 16/7/09 and is therefore not entitled to ESA (Income Related) from that date. This is because he scores 12 points from the physical descriptors of the LCWA as found by the First‑tier Tribunal.

REASONS FOR DECISION

1. The appellant appeals the decision of the First‑tier Tribunal heard on 11/1/10 under reference 208/09/01119 with my permission.  The tribunal confirmed the decision that the appellant was not entitled to ESA because he was not incapable of work, having scored insufficient points to pass a limited capability for work assessment (LCWA).  However, they awarded the appellant 12 points in respect of descriptors 1e (walking, 6 points) and 2e (standing, 6 points) instead of the nil points given by the decision maker.

2. The appellant’s representative raises only one ground of appeal against the tribunal’s decision: that the tribunal dealt inadequately with the appellant’s asserted bladder incontinence.  He acknowledges, quite rightly, that the tribunal chaired by Mr Henderson‑Smith, went to great effort to consider all of the appellant’s disabilities very carefully.  Indeed, apart from this one ground, I found the Statement of Reasons to be exemplary. 

3. To fill in the background facts, the appellant’s health problems include diabetes controlled by tablet and insulin, cirrhosis of the liver, high blood pressure, a heart problem and fatigue.  He has had laser surgery for his eyes due to his diabetes, but his corrected vision is normal.  On examination by the approved health care professional (AHCP) there was no swelling in his ankles.  The appellant stated in his ESA50 (self-assessment questionnaire) that he could control his bladder without difficulty.  It is important to note that he made this statement while taking bendroflumethiazide 2.5 mg, a mild diuretic.  The appellant did not mention incontinence to the AHCP who completed the ESA85.  He first raised it in his appeal against the Department’s decision, where he said he suffered with urinary urgency, especially when under stress.  He produced detailed letter from his GP which did not mention a problem of incontinence.  At the hearing, he only gave evidence about a bladder problem when prompted by his sister.  He said that he ‘gets urgency – has to go for a pee’.  The appellant told his representative that he was sure he told the tribunal when asked if he wet himself ‘No, not when I’m at home’.  I consider this to be most unlikely in light of the detail in the Record of Proceedings and the great care taken in the Statement of Reasons.  Had the appellant said this, I have no doubt whatever that this tribunal would have recorded it. 

4. Only one continence descriptor, 10a (vii), worth 6 points, was potentially applicable.  Had the tribunal accepted that the appellant fulfilled the descriptor, he would have passed the LCWA.  The way in which they dealt with the descriptor was accordingly crucial to the outcome of the appeal.

5. Descriptor 10a (v ii) – continence other than enuresis (bed wetting) where the claimant does not have an artificial stoma or urinary collecting device reads:

(vii) Risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach the toilet quickly.

Since this appeal only concerns the bladder I will refer specifically to this aspect of the relevant descriptor hereafter.

6. The tribunal made a finding that the only secondary effect of the appellant’s diabetes was on his eyes, and dealt with incontinence at [16]:

‘he gets a feeling of urgency when he has to go and urinate, but he does not wet himself.  The relevant descriptor requires that a claimant risks losing control of bowels or bladder, so that he cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach a toilet quickly.  Whilst [the claimant] may have some difficulty in this respect, there was no evidence that the problem is anything like so severe as to satisfy that descriptor.  We do not accept that it is satisfied and he does not score any points for the activity of continence’

7. The representative submitted that the tribunal failed to make sufficient findings of fact.  As he rightly pointed out, a person could have a bladder problem even though he did not wet himself.  He argued that the tribunal should have investigated the situations (and the number of times they occurred) in which the appellant could not reach a toilet and therefore risked voiding his bladder because he could not do so.  For example, the representative says the appellant told him (after the hearing, it seems) that if he was out driving and could not get to a toilet, he would stop as soon as possible at the nearest lay-by or grass verge and urinate.  He did not, however, tell this to the tribunal.  The representative submitted that it was wrong for the tribunal simply to ask whether he had wet himself. 

8. The Secretary of State did not support the appeal.  He submitted, first, that the descriptors dealing with the incontinence in the former PCA (Personal Capability Assessment) were different from those in the LCWA and sought to distinguish CIB/1433/96 and CIB/2092/2000.  Those cases dealt with bowel and urinary incontinence respectively and held that ‘losing control’ can comprehend a situation where someone does not actually mess or wet himself due to severe urinary urgency, but only because he is able to rush to a toilet in time.  In the Secretary of State’s view, these PCA cases on incontinence did not encompass the requirement that any loss of control had to lead to a full voiding of the bladder.  That is true, and the current activity of continence marks a significant change from the PCA in that respect.  But descriptor 10(a) (vii) specifically incorporates the principle that a claimant can satisfy the descriptor if his urgency is such that, unless he is able to reach a toilet quickly, he will void his bladder, albeit that now the risk must be that he will of fully voiding his bladder. 

9. The Secretary of State also submitted that, as the claimant had never suffered a full voiding of the bladder as a result of loss of control, it was unclear how it would be possible to assess a level of risk for an event that has never actually happened to the claimant; and that this was made even harder by the fact that the medical conditions from which the appellant suffered are not conditions that inevitably have total loss of bladder control as a symptom. 

10. If the Secretary of State is correct in his argument, the descriptor which is lowest in severity in the hierarchy in activity 10a and which attracts the lowest possible number of points, is also the most difficult to prove.  This cannot be right.  It seems to me that the Secretary of State has focussed too much on whether the event (the full voiding of the bladder) actually occurred, rather than on the risk of the event occurring to the required extent.  The assessment of risk is a common task for doctors and lawyers, though not necessarily an easy one.  In drafting the descriptor as the Department did, it is plain that it is an assessment that tribunals were meant to make. 

11. The three factors in the analysis here are:

the risk of losing control

so that the claimant cannot control full voiding of the bladder

if not able to reach a toilet quickly.

12. A risk is a chance.  It may exist without it ever actually occurring.  The risk must be of losing control over those muscles involved in preventing the outflow of urine from the bladder.  The loss of control is likely to arise from a physical disease or disablement, or perhaps as a result (which must be direct) of some medication or treatment which affects such control (regulation 19(5)), but this decision does not need to explore the outer limits of incontinence under the LCWA.  Unless, however, the condition plays a material part in a claimant’s inability to control himself from fully voiding his bladder, it is not relevant:  The facility which a claimant must be able to reach must be a toilet, not a roadside verge or other such makeshift. 

13. A tribunal will probably need ask itself a series of questions in deciding whether an appellant satisfies this descriptor.  The starting point is whether he suffers from a condition (or conditions) which, in the tribunal’s medical experience, may lead to a loss of bladder control.  If so, a risk of losing control clearly exists. 

14. Next, is the loss of control likely to be such that the appellant cannot control the full voiding of the bladder?  This seems to be asking no more than, if the appellant starts to urinate, will he be able to stop before his bladder is completely empty.  The tribunal is most likely to be able to arrive at a reasoned conclusion on this by applying its expert knowledge to the surrounding evidence including the ESA50, GP and medical reports provided by the appellant or obtained by the tribunal, ESA85 (particularly the typical day) and lifestyle.  While it is impossible to dictate what questions should be asked, the following may be of help:

a.                What did the appellant say about the problem in the ESA50?

b.               How does the appellant describe the extent of his problem?  The tribunal may well need to ask fairly intimate questions about the appellant’s bladder control.

c.               Is there evidence from the GP to support the appellant’s claim?  If a person is unable to stop himself from completely emptying his bladder, his GP is likely to know about it, to have prescribed appropriate medication and probably incontinence pads (which are otherwise expensive).

d.               Does the appellant go out and about without any obvious restrictions and precautions? 

e.                Does the evidence of his typical day as recorded by the AHCP or given in oral evidence reflect concerns about the risks of incontinence?

15. Although the descriptor is about risk and not the materialisation of the risk, it will generally be relevant to find out whether the claimant has ever unexpectedly emptied his bladder fully.  If he has not, it may be because he never goes far from a toilet.  On the other hand, if he has a normal lifestyle and still has never lost full control of his bladder, it may be that there is no real risk of it happening.  If he has lost control fully but infrequently, it may be that the appellant has learned techniques to minimise the risk to the point where it is too trivial to be legally significant, or that the instances of loss of control did not materially involve the condition of which he complains. 

16. Did the tribunal err in this appeal?  I have come to the conclusion that the tribunal did make an error of law by failing to give sufficient reasons for finding that the appellant did not satisfy this descriptor.  The simple fact that the appellant never actually wet himself is not enough to answer the question of whether there was a risk of losing control so that he voided his bladder fully.  The appellant might never have gone far from a toilet. 

17. I have decided, however, that this is an appeal in which I can substitute my own decision.  There is sufficient evidence in the bundle to enable me to do so.  My decision is to the same as that of the tribunal. 

18. I have already set out the background facts in paragraph 3.  I adopt these facts. The tribunal found, in addition, that the only complication of the diabetes related to the appellant’s eyes.  While it is well known that diabetes causes urinary frequency, it does not necessarily cause urgency or loss of bladder control let alone total voiding of the bladder.  There is no particular association of incontinence with the other conditions from which the appellant suffers though I see that the manufacturer’s instruction leaflet states that one of the side effects of bendroflumethiazide 2.5 may be greater frequency of urination in a larger amount.  It does not mention urgency.  The frequency is related to low potassium.  There is no evidence that the appellant suffers from that problem.  In all of these circumstances, I do not consider that there was any credible evidence of a loss of bladder control to the extent required by the descriptor.

19. The result of the appeal is that the outcome is the same. 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 24 February 2011