Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/2191/2011

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Birmingham on 22 March 2011. 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.

2. The Claimant is a man now aged 52 who suffers from depression.

3. The First-tier Tribunal’s decision was to allow the Claimant’s appeal against a decision made on 13 July 2010. That decision had superseded and removed the Claimant’s entitlement to employment and support allowance with effect from that date on the ground that the Claimant did not have limited capability for work in accordance with the work capability assessment. The decision maker, adopting the opinion of the approved disability analyst, considered that the Claimant scored no points from the physical or mental health activities comprised in that assessment.

4. The First-tier Tribunal, however, following the receipt of evidence from a psychologist and a psychiatrist, and after an oral hearing at which the Claimant was represented and gave evidence, considered that the Claimant scored a total of 21 points from the mental health activities, namely under descriptors 16(d), 18(c) and 19(c).

5. The written submission to the First-tier Tribunal on behalf of the Secretary of State had requested the Tribunal, in the event of it deciding that the Claimant did have limited capability for work (LCW), to go on to decide whether or not he had limited capability for work related activity (LCWRA).

6. The Claimant’s representative had also put before the First-tier Tribunal a letter to him from the Claimant in which the Claimant contended that he satisfied the following descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008: 15(c), 16(b), 17(c), 18(b), 19(a) and 21(b). In the Statement of Reasons the First-tier Tribunal said that “in addition to the functions raised i.e. 16, 17, 18, 19 and 21 the Tribunal was asked to consider Regulations 29 and 35.” That appears to be borne out by the Record of Proceedings.

7. Having stated the Tribunal’s decision that the Claimant scored a total of 21 points under the Schedule 2 descriptors referred to in para. 4 above, the Decision Notice continued as follows:

“The Tribunal was invited to consider Regulation 29 and 35 but there was no need to apply Regulation 29 because the Tribunal had already scored him sufficient points for his mental health problems under Schedule 2, and the Tribunal did not consider that based on the medical evidence before it, that Regulation 35 was applicable.”

8. The Statement of Reasons set out brief reasons why the Tribunal considered that the Schedule 2 descriptors referred to in para. 4 above applied. It then went on in the last paragraph to state as follows:

“The tribunal consider that Regulation 35 did not apply. The Tribunal considered the medical evidence in his support and noted in particular at page 88 paragraph 4 that his mood was improving and he was doing more. There was no evidence to suggest that there would be a substantial risk to the mental or physical health of any person if he was found not to have [LCWRA].”

9. The grounds for this appeal are that the First-tier Tribunal went wrong in law in (a) not considering whether any of the Schedule 3 descriptors applied and (b) not sufficiently explaining why it did not consider that Regulation 35 applied. The Secretary of State does not support the appeal. The wording of the various descriptors applicable in this case is that which was in force down to 27 March 2011.

10. It is correct that the Tribunal did not in the Statement of Reasons in terms go on to consider whether any of the Schedule 3 descriptors applied, and neither had the Decision Notice contained any express decision about that (although there might be said to be an implicit decision that none of them did, because it was only if none of them did that Regulation 35 could have been relevant). A Tribunal which finds that the claimant does have LCW will generally need to go on to consider whether the claimant also has LCWRA. If it decides that he does not, it may or may not need to give any separate consideration, in the Statement of Reasons, to some or all of the Schedule 3 descriptors. It will generally not need to do so if (i) it is clear that the claimant does not contend that any of them are satisfied or (ii) its reasoning in relation to the Schedule 2 descriptors is sufficient to explain why it did not find that any of the Schedule 3 descriptors was satisfied.

11. In the present case only mental health activities were in issue. There were 3 activities in Schedule 3 relating to mental health: paras. 9 (learning or comprehension in the completion of tasks), 10 (personal action) and 11 (communication).

12. The Tribunal did not need to deal expressly with para. 9, because the Claimant had not claimed that any of the descriptors relating to the equivalent activity in para. 12 of Schedule 2 were applicable.

13. However, as regards para. 10 of Schedule 3, the Claimant had contended that para. 16(b) of the equivalent activity in Schedule 2 was applicable. That was equivalent to descriptor 10(b) in Schedule 3. As I have said, the Tribunal found that para. 16(d) of Schedule 2 applied. That had no direct equivalent in Schedule 3. The difference between para. 16(b) and (d) of Schedule 2 was merely that whereas 16(b) required that the claimant “cannot ……………. initiate or sustain personal action  without requiring daily verbal prompting given by another person in the claimant’s presence”, 16(d) substituted the word “frequent” for the word “daily”. (It may also be relevant to note that 16(c) was in the same terms as 16(b), but with the word “daily” omitted and the words “for the majority of the time” added at the end). The fact that fewer points were scored for 16(d) than for 16(b) implies that in this context “frequent” was considered to be capable of being less often than “daily”. Given that the Tribunal found that the Claimant required “frequent” prompting, it is not obvious, in the absence of express explanation, why it did not also find that he required “daily” prompting. There is in my view nothing in the evidence which enables one to say what the Tribunal’s reasoning in this respect must have been. In my view the Tribunal therefore went wrong in law in not expressly explaining this in the Statement of Reasons.

14. As regards para. 11 of Schedule 3, the Claimant had claimed descriptor 21(b) in the equivalent activity in Schedule 2, which equated to para. 11(c) of Schedule 3.  The First-tier Tribunal did not explain why it did not find that any of the descriptors in para. 21 of Schedule 2 were satisfied, and nor in my judgment is it obvious from the evidence what the explanation was. It follows that the Tribunal in my judgment therefore went wrong in law in not explaining why it did not find that para. 11(c) of Schedule 3 was satisfied.

15. Given my conclusions so far, it is not in my judgment necessary for me to decide whether the explanation which the Tribunal gave for finding that Regulation 35 was not satisfied was sufficient. I incline to the view (in agreement with the Secretary of State’s submission in this appeal) that it was, but it is unnecessary for me to decide that.

16. The new tribunal will consider the appeal entirely afresh. It will not of course be bound to find that the Claimant had LCW, let alone LCWRA. The Claimant may therefore end up worse off than he was under the First-tier Tribunal’s decision.

Charles Turnbull

Judge of the Upper Tribunal

27 June 2012