Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/1147/2011

ADMINISTRATIVE APPEALS CHAMBER

Before E A Jupp: Judge of the Upper Tribunal

Decision: The decision of the First-tier Tribunal given on 2 November 2010 under registration No. 065/10/01898 did not contain a material error in law.  Accordingly, the claimant’s appeal cannot succeed.

REASONS FOR DECISION

1. The claimant is a woman born on 25 July 1957.  At some time prior to 17 April 2009, she claimed employment and support allowance (ESA) and completed her ESA50 questionnaire on that date.  She was awarded ESA (contribution based) and treated as having limited capability for work under regulation 30 of the Employment & Support Allowance Regulations 2008 (the ESA Regulations) until a full determination was carried out.

2. On 20 May 2009 she was examined by a health care professional (HCP), a registered medical practitioner.  The report did not recommend the award of any points.  The claimant herself asserted scores of 6 points for each of walking, standing and sitting, bending or kneeling and picking up and moving objects.  The decision maker accepted the HCP’s recommendation and on 29 June 2009 made a decision awarding no points.  No copy of the actual decision is in the papers, but the papers suggest that the award of ESA was superseded with effect from 29 June 2009.  The claimant appealed that decision to a First-tier Tribunal.

3. However, the claimant remained entitled to ESA because she was treated as having limited capability for work under regulation 30 of the ESA Regulations while her appeal against the decision of the 29 June 2009 to the First-tier Tribunal was pending.  It may be convenient here to set out the provisions of regulation 30:

“30(1) The claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined -

(a) whether or not the claimant has limited capability for work;

(b) whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulations; or

(c) …

(2)  The conditions are –

(a) that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and

(b) that it has not, within the six months preceding the date of claim, been determined, in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work under regulation 22 or 23 unless –

(i) the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination;

(ii) a disease or bodily or mental disablement from which the claimant is suffering at the time of that examination has significantly worsened; or

(iii)          in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation.

(3) Paragraph 2(b) does not apply where the claimant has made and is pursuing an appeal against the decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by an appeal tribunal constituted under chapter of part 1 of the Social Security Act 1998.” 

(The reference to “an appeal tribunal” has been amended to a “First-tier Tribunal” with effect from 11 April 2011 by Regulation 16(3) of SI 2011/674.)

Such an award would be made under regulation 30(2)(a) without the need for a claim, under regulation 3(j) of the Social Security (Claims & Payments) Regulations 1987. 

4. The tribunal was held on 17 February 2010.  That tribunal confirmed the Secretary of State’s decision of 29 June 2009, and disallowed the claimant’s appeal.  (This is not the decision under appeal.)

5. On 24 February 2010, the decision maker made a further decision (page 60) recording that the HCP’s report and other available evidence, including the decision of the tribunal of 17 February 2010, had been considered.  The decision maker decided that the claimant had not achieved 15 points from the appropriate descriptors and she was no longer assessed as having limited capability for work from and including 24 February 2010, and was therefore not entitled to ESA from that date.  The effect of this decision was to terminate the claimant's “pending appeal award” made to her under regulation 30 of the ESA Regulations.

6. The claimant also appealed the decision of 24 February 2010, challenging the findings of fact.  The decision was reconsidered but not revised, and the appeal proceeded.  (This is the decision under appeal.)

7. On 20 September 2010, a further tribunal was held but adjourned to give the claimant an opportunity to produce letters from a specialist continence nurse dated 9 July 2009 and 20 October 2009, and from her doctor dated 19 June 2009,which she asserted had been submitted previously but had not been taken into account.  The claimant produced further copies of these letters.

8. The tribunal was then held on 2 November 2010, and again the claimant's appeal was disallowed and the decision of the Secretary of State issued on 24 February 2010 was confirmed.

9. The claimant sought permission to appeal to the Upper Tribunal on the grounds of procedural errors, that the tribunal had ignored medical evidence on her problems with full voidance of her bladder and that it had not taken sufficient account of the number of different medical conditions from which she suffered.  Although there was delay in the submission of the application to appeal, an Upper Tribunal Judge gave permission to appeal, accepting that some of the delay was attributable to events beyond the claimant’s representative’s control and also on the grounds that the claimant’s case was arguable.

10. The Judge noted that from 29 June 2009 until 17 February 2010 the claimant continued to be entitled to ESA because she was treated as having limited capability for work under regulation 30 of the ESA Regulations while her appeal against the decision of the 29 June 2009 to the First-tier Tribunal was pending. He then made other observations to the effect that it currently appeared to him that the claimant was still entitled to be treated as having limited capability for work because regulation 30(2)(b) then applied to her and both the Secretary of State and the tribunal ought to have held that the claimant remained entitled to ESA.  He suggested that the Secretary of State should probably have also referred the claimant for a further examination and report.

11. The Secretary of State does not support the appeal.  He accepts that the pending appeal award continued until the appeal was heard on 17 February 2010.  Following the determination of the appeal, regulation 30(3) could no longer apply.  The effect of regulation 30(3) is to disapply the restriction in regulation 30(2)(b) which prevents a person from being treated as having limited capability for work, if there has been a previous limited capability for work determination within the 6 months preceding the date of claim. 

12. Further, submits the Secretary of State, the determination of the appeal on 17 February 2010 was not sufficient of itself to enable the decision maker to bring the pending appeal award to an end.  A claimant continues to be treated as having limited capability for work under regulation 30(1)(a) of the ESA Regulations until it is decided that that claimant does not have limited capability for work.  Thus, in this case, the pending appeal award remained current, despite the tribunal’s decision, until the decision maker made a determination of the question of whether the claimant actually had limited capability for work – the difference between being treated as having limited capability for work, which applied to her until the tribunal decision of 17 February 2010, and the decision of 24 February 2010 that she did not actually have limited capability for work.

13. Regulations 19ff of the ESA Regulations contain provisions as to how the decision maker is to make such a determination.  By regulation 21 he is permitted to ask for more information if he does not have sufficient information already, including sending a claimant for a medical examination.  However in this case, on 24 February 2010 the decision maker decided he had sufficient information, based on the previous examination of 20 May 2009, to decide that the claimant did not have limited capability for work and he terminated the claimant’s award from that date.  The Secretary of State submits that this is the decision under appeal, namely whether the tribunal of 2 November 2010 erred in law in upholding the decision of 24 February 2010.  He continues:

“17. I agree with the Upper Tribunal Judge that the decision of 24 Feb 2010 ought not have been based on the medical report from May 2009.  That report had already been used as the basis for one decision and a subsequent appeal, and the Decision Maker should have noted, I submit, that the claimant wished to appeal against that Tribunal’s decision.

18. However, there are no time limits or other circumstances laid down after which it is unreasonable to rely on a Health Care Professional’s medical report; the Decision Maker is however permitted by Regulation 19(8) to refer a claimant for a fresh Work Capability Assessment after three months in the absence of any changes other than the passage of time.  I submit though that because the circumstances of cases can be so varied a strict time limit would not necessarily be helpful.  Where the claimant’s circumstances and symptoms are very stable over a long period of time I submit that it is conceivable that it might be reasonable for the DM to rely on a nine month old medical examination.  The Tribunal on 2/11/10 made no comment in its statement of reasons that the medical examination was nine months before the date of the decision, or that it was the second time the same medical examination had been used as the basis for a decision that had subsequently been appealed.  If they erred in law I submit that their error was to fail to consider whether the evidence could properly be used to support the decision.  In the absence of time limits though, I am not sure that such failure is an error.

19. On the question of whether the Tribunal ignored medical evidence, the principal evidence of full uncontrollable voiding that the claimant now relie[s] on seems to be the letter from [JR] dated 22/12/10 (page 77) which could not have been before the DM on 24/2/10, nor before the First-tier Tribunal on 2/11/10.  Even with the overview derived from hindsight that it is possible she possesses, [JR]’s letter is quite imprecise about the timing and frequency of full voiding.

20. While I entirely support the ideas that (a) there have been errors in the processing of this appeal (b) it seems possible that an intended appeal by the claimant has been missed altogether, and (c) that it would have been desirable if the DM had submitted the claimant for a fresh WCA on 24/2/10 rather than relying on the WCA from 20/5/09, I submit that it is not clear that any of these concerns mean that the Tribunal erred in law in how they dealt with the appeal before them.”

14. In response, the claimant’s representative submits that the tribunal erred by not considering the medical evidence provided to support the grounds of appeal, being the three letters dated 9 July 2009, 20 October 2009 and June 2009.  These were all available in February 2010 and November 2010.  The letter from [JR] appeared to be confirmatory, only, that the problems were ongoing.  As the Secretary of State had noted, the claimant is now in receipt of ESA support from 20 November 2010, and this decision was based on the evidence supplied in connection with incontinence.  It is submitted that this evidence is the same evidence that was used for that appeal. 

15. Although I accept the Secretary of State’s submission that it may be that the claimant intended to appeal further against the decision of 29 June 2009 after the tribunal of 17 February 2010, her grounds of appeal are general and largely on matters of fact.  The claimant did not formally seek to appeal further.

16. The decision under appeal to the First-tier Tribunal was therefore that of 24 February 2010.  I accept the Secretary of State’s submission that what is in issue therefore is the claimant’s actual capability at the date of the decision of 24 February 2010.  Once the tribunal made its decision on 17 February 2010 in respect of the claimant having been treated as having limited capability for work from 29June 2009, it was necessary for the decision maker to decide on her actual capability for work from the date of his decision, 24 February 2010.

17. As pointed out by the Secretary of State at paragraph 18 of his submission, repeated at paragraph 13 above, what evidence and information is necessary for a decision maker to make his decision on actual capability for work is within his discretion.  DMG07/10 issued in February 2010 and therefore just possibly considered by the decision maker when he made his decision, instructs the decision maker to rely on the existing medical report.  Whilst it would be quite possible to commission a new health care professional report, this could only be relevant in this case at 24 February 2010.  Any new report would therefore be prepared some time after that date and it is not clear that it would be more reliable than relying on the existing report from May 2009.  The claimant's representatives consider [JR]’s letter of 22 December 2010 to be evidence of an ongoing problem.  Given that the decision maker has a discretion, I do not find that the tribunal erred in not investigating this further.

18. It is of course possible that the tribunal was not entirely sure as to the point at issue before it, see, for instance the first paragraph of the statement of reasons.  Nonetheless it considered the medical evidence as to the claimant's actual capability in some detail.  At page 116 the claimant’s representative refers to the three letters of June, July and October 2009 and suggests that the tribunal erred in not considering the medical evidence.  However, it is plain from the statement of reasons that the tribunal did consider, and weigh, this evidence, two of the letters being specifically referred to by date.  Thus, in essence, the tribunal considered the right issue, namely the claimant’s actual capability at 24 February 2010.

19. Whilst I understand that the claimant has since been given an award on what is said to be the same evidence, despite its now being somewhat older, it is, of course, possible for two tribunals to reach different decisions with the same evidence, without there being an error of law.

20. For these reasons, I conclude that the tribunal did not make a material error in law in its decision, and the claimant’s appeal cannot succeed.

(Signed)

E A Jupp

Judge of the Upper Tribunal

(Date) 10 May 2012