IN THE UPPER TRIBUNAL Case No  CE/1295/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision:  The appeal is allowed.   The decision of the First-tier Tribunal sitting at Durham on 26 January 2011 under reference 225/10/01280 involved the making of an error of law and is set aside. 

 

Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007, I substitute the decision which the First-tier Tribunal ought to have given, namely:

 

The decision dated 31 March 2010 of the Secretary of State is not upheld.

 

While the Secretary of State was entitled to supersede the decision of the decision maker awarding Employment and Support Allowance from and including 4 January 2010, as he had received a report from a healthcare professional, the claimant met the following descriptors:

 

17 (c) - 6 points

20 (d) – 9 points

21 (e) – 6 points.

 

Consequently he met the threshold of limited capability for work.  He was not disentitled from receiving Employment and Support Allowance from 31 March 2010 on the ground of failure to meet the threshold.

 

REASONS FOR DECISION

 

1.  The claimant asserted problems with both his physical and mental health.  By a decision dated 31 March 2010, taken following a medical examination by a healthcare professional, he was assessed as scoring 0 points.  He appealed, writing a letter which, as I need to refer to it below, I set out in full (block capitals in original):

 

“I HEREWITH APPEAL AGAINST YOUR DECISION BECAUSE IT IS WRONG AND UNJUST, AND I AM ILL AND NOT WELL ENOUGH AT THE MOMENT TO GO INTO EMPLOYMENT.  YOUR DECISION IS NOT CORRECT, IT IS WRONG, VERY WRONG.  I AM NOT WELL, I AM ILL, YOUR DECISION IS NOT CORRECT, IT IS WRONG AND VERY UNJUST, SO I APPEALED AGAINST IT, BECAUSE I AM ILL.”

 

The decision was upheld by the First-tier Tribunal.  Following an oral hearing of the claimant’s application held at Doncaster County Court on 17 October 2011 I gave permission to appeal.  The Secretary of State does not support the appeal.

 

2. The claimant seeks a further oral hearing of his appeal.  However, I do not consider that one is necessary in order to decide the case and so I do not agree to the request.  He has already had the chance to tell me where he thinks the previous tribunal went wrong and to give oral evidence so I know what he would have said if the tribunal had asked more questions than it did.  The Secretary of State, who has received my record of the claimant’s evidence set out in my determination giving permission to appeal, has not sought an oral hearing in order to challenge the claimant's evidence or for any other reason. 

 

3. This is not an easy case.  It highlights the difficulties that there may sometimes be in forming a view as to whether a person meets the mental health descriptors for ESA.  In particular, the context of a particular piece of evidence may be very important.

 

4. I need say no more about the claimant’s physical difficulties: they were not such as to score points under the Work Capability Assessment and no challenge is made to the tribunal’s conclusion to that effect.

 

5. The claimant had received treatment from psychologists and counsellors until September 2009 for depression which, he said, they had never got to the bottom of.  By the time of the hearing (January 2011) he was on the waiting list for counselling again.  He remained on medication throughout (Venlafaxine).

 

6.The claimant had however been able to care for his elderly parents with whom he lived until the deaths of first his mother (in April 2009) and then his father (in December 2010).  He had physically assisted his mother with all aspects of her daily self care as well as doing the housework, shopping and gardening.  He told the tribunal that his mother “was the centre of my life for so long”.  Following her death he then continued to keep house and carry out supervisory care for his father, which he was doing down (apart from a short holiday) at the date of the DWP’s decision.  The claimant indicated that his relationship with his father had generally not been good.   

 

7. The tribunal noted that the claimant had indicated that he was unable to attend for medical examination on a Monday because it was his shopping day or on a Thursday because that was his art class.  At the date of decision, while his sister cared for his father, he had been on holiday on his own, camping and walking in the Lake District, driving a car to get there and back and had been for an 8 hour walk a few days before the medical examination.

 

8. The tribunal’s conclusion was summed up in para 5 of its decision:

 

“Taking into account all of the evidence and on the balance of probability, the tribunal found that [the claimant] had no significant problem with any of the physical activities and, although he has a history of mental health problems, he had been discharged from psychiatric care, and completed a course of counselling, by September 2009 and by the date of the decision under appeal he was able to lead a normal active life.  By July 2010 he was able to begin employment in a café.”

 

9. I infer from that that the tribunal did rely on the fact that the claimant was able to work in a café in July 2010 as evidencing that he was free from limitations resulting from his mental health condition at 31 March 2010.  I agree that the ability to hold down a job after the date of decision could be evidence of circumstances obtaining at the date of decision (depending on the circumstances) and so not fall foul of section 12(8) of the Social Security Act 1998.  But it all depends on the facts found.  As to the café, the tribunal merely found that the claimant had been able to visit the café (by implication around the date of decision), had begun to work there by July 2010 and at the date of hearing was working there full-time. 

 

10. The Secretary of State argues that the job is not relevant, in that (a) the Work Capability Assessment does not look at the ability to carry out an actual job and (b) if regulation 29 be relevant, again one does not on the authorities have to look at an actual job.  However, neither was how the tribunal was using the job.  Rather, it was using the ability to do it, as a tribunal might use other aspects of human activity, to draw inferences as to the extent of the effects of the claimant’s ill-health at the material time.

 

11. The tribunal did not make a finding as to the hours when he started, even though evidence had been given that it was a part-time job for 15 hours only at that point.  That was one of a number of findings which the tribunal should have made, but did not.  The claimant represented himself in the tribunal.  He is a man who with his mental health difficulties has not at all times found it easy to maintain the sense of proportion that others might.  It was reasonable therefore to expect the tribunal, if it proposed to place reliance on his café work, to adopt an inquisitorial approach so that evidence was given to enable it to find the necessary facts.

 

12. Had it done so, it would have established that:

 

a. The place where he works is a privately owned café run by a little team of five people, “like a family”.  The claimant makes coffees, clears tables, takes money and prepares food. 

 

b. He had been a customer of the café since it opened.  It was the first proper coffee shop in the town where he lives.  He had known the people running the cafe since the beginning of 2009 and they knew him.  This personal knowledge was very important to him in terms of taking the job.  Having been very close to his mother as her carer until she died, he had found her death very hard to cope with.  (This bereavement was superimposed on a pre-existing mental health problem.)  He found dealing with strangers hard and would panic about strange places on occasions, thus knowing the place and people he would be working with was an important factor. 

 

c. The idea of the job arose when one of the workers in the coffee shop had had to go home ill leaving two on duty.  The shop was very busy and the staff were overrun.  The claimant started to help and they saw his potential.  When the vacancy arose in July 2010 he asked the boss   if he could work there. 

 

d. When he started in the café in July 2010 he did part-time hours (variously expressed as 15 or 18 – the difference is not material for this decision), only going to full‑time work on 4 December 2010.  In July 2010 he had not known whether he would be up to working in the café and the boss had said “let’s start slowly and see if you can cope.” 

 

e. In the early days there were misunderstandings with colleagues and customers.  The claimant took things too personally.  For instance one of his colleagues told him he was not making the cappuccinos quite right and he went very quiet, “shutting the doors” as he put it, which was not good for the atmosphere in the café.  It took him a few weeks to get over this and realise that people were not having a go at him personally but just telling him how the work needed to be done.  As his colleagues there knew his situation they were able to help him to handle this sort of difficulty.

 

13. The task for the tribunal was to decide how the claimant had been in late March 2010.  Far from suggesting that he was able then to lead a normal active life the evidence about the café suggests that even a little over three months later familiarity with the place and people was important; even then, people who knew him from his being a visitor were unpersuaded that he could cope; that he had been able to get started in an environment where he had first been able to try out the work by helping out; that he only worked part-time; that even then, there were difficulties, including the example given where it took the claimant “a few weeks” to get over the sort of comment that would be routine in a work situation; and that it was his supportive colleagues who knew about him from his time as a customer who were prepared to help him, even though the manifestations of his mental illness cannot have helped the climate for the business.

 

14. In my view, had the tribunal asked the right questions and made the necessary findings, it would have recognised that the claimant was fortunate enough to have been offered work which, although real enough, was therapeutic for him, carried out as it was in an environment where the kindness and solidarity of others created a supportive environment in which he could move forward.  It did not mean that at the date of decision he was free of disability resulting from his mental ill-health.  Nor can it be inferred from the many things which the claimant was able to do that he did not experience scoring limitations on any of the mental health descriptors.  It follows that the tribunal’s failure to adopt an inquisitorial approach and to make the necessary further findings was material and an error of law.

 

15. While it would be open to me to remit the case for re-hearing I am reluctant to do so.  It was clear from the permission hearing that the claimant had to a degree been able to move on from his difficulties and I would not lightly wish to cause him to have to revisit a difficult time for him.  Further, the impact of commencing first part-time and then full-time work on his ESA claim is yet to be determined but may have the effect of limiting the period for which this decision makes a meaningful difference.  I therefore propose to substitute a decision if I properly can.

 

ESA 50

 

16. Before turning to the specific descriptors which I regard as being in issue, I note, as it is relevant to the evidence I have to consider, the claimant’s observations under “Other Information” on the form regarding the difficulties that the information-gathering process via the questionnaire in Form ESA50 caused him:

 

“I was very unsure about all the questions.  They are not easy to answer, and not easy to understand.  I was very anxious just looking at this form.  I had nobody to help me fill the form in. I would look at it every day, read the questions, and I didn’t know how to answer them, most of them do not apply to me, and some made me feel really stupid, so I put it down again and again; but I knew I would have to fill it in eventually.”

 

Descriptor 21: Dealing with other people

 

17. The claimant had marked the boxes on the form to indicate that he often got upset because he could not get on with other people and that he found himself getting annoyed with other people very quickly.  In the narrative box he indicated:

 

“It happens a lot, or I keep myself to myself if I can, but that isn’t what I want, or that upsets me even more. I just don’t know what to say, or how to say it.”

 

I find corroboration for this in the terms of his appeal letter, quoted at [1] above.  In that short letter, the decision is said to be wrong four times and unjust twice and the claimant is said to be ill three times and not well twice.  The claimant is an intelligent man and a fluent English speaker.  The contrast between the letter of appeal, with its heavy, unnecessary repetition and use of capitals on the one hand and the reflective quality of the extracts from the ESA50 quoted suggests that at that time, the claimant was indeed very quick to anger and disproportionate in the manner in which he would pursue a point if he did so.  There are other examples in the papers too.

 

18. There is also evidence of a degree of conflict with siblings in relation to their father’s house.  While that would be post-decision, it is entirely consistent with such a disposition having existed at the date of decision.

 

19. I find that the claimant was unaware of the impact of his own behaviour, in the sense that he would often not get on with other people and not understand why this was so.  I have no doubt that over the course of a prolonged period such as a week, such incidents would occur.  It seems to me that if a person manages the incidence of such episodes by keeping away from others (as did the claimant to some extent) , they should not be worse placed in complying with the descriptor than those who are more exposed to the society of others.  I find descriptor (e), carrying 6 points, to be made out. 

 

Descriptor 20 Propriety of behaviour with other people

 

20. The questions on form ESA50 do not appear to be closely directed to the terms of this descriptor.  In my view the most telling evidence is provided by the claimant’s reaction to being told that he was not making the cappuccinos quite right.  That is the routine stuff of being employed and to take several weeks to get over it does indeed constitute “a strongly disproportionate reaction to minor events or to criticism”.  Is it to the extent that the claimant cannot manage overall day to day life when such events or criticisms occur? In my view, shutting the doors, as the claimant put it, to the detriment of the atmosphere in a workplace where customers go to relax, and doing so for a prolonged period, is not managing day to day life.  When people are told to do something differently at work in a minor respect, they may initially be annoyed or frustrated, but they generally manage it by realising they have to accept it and move on.  It is clear that the claimant, because of his mental ill-health, was not able to do this in a conventional timeframe and was only able to do it at all because of the support of his understanding colleagues.  There is no reason to suppose that this aspect of his behaviour would have been any different at the date of decision from how it was a few months later when this incident must have occurred.  I therefore find descriptor (d), carrying 9 points, to be made out.

 

Descriptor 17 Coping with Change

 

21. I am also prepared to infer that the claimant achieved descriptor (c), attracting a further 6 points.  He had latterly led a life in which routine was very important.  Such is indeed often a hallmark of having significant caring responsibilities.  But it went further than that. He was reluctant to go to a medical on Monday (because that was his shopping day).  As he lives on the edge of a town, there was no objective reason (e.g. limited availability of public transport) why he could not have gone shopping on another day.  He could not go to a medical on Thursday because that was his art class.  While I can readily understand that he enjoyed his art class and found it helpful, it is difficult to see why one session could not be missed for the important purpose of undergoing a medical examination for benefit purposes.  When taken together with the claimant’s tendency to get annoyed very quickly and to express himself in a poorly judged manner as a result, thus risking prompting a negative reaction from others, I consider that his reaction to minor, unforeseen changes in routine would have been likely to have the effect that overall his day to day life would be made significantly more difficult.  His own evidence on from ESA50 was that he could “usually” cope with change but felt unsure and unsafe if his routine changed too much.  Bearing in mind what he said in [16] above about the ESA50 process, I consider that he was only able to manage change to the extent that he did  by minimising the scope for it to occur.

 

Subsequent changes

 

22. This decision is of course only concerned with the correctness of the decision about whether the work capability assessment was met at 31 March 2010.  I have found that at that time the claimant did meet the threshold of limited capability for work.  Since then, of course, much has changed, including his commencement of first part-time and subsequently full-time work.  The effect of that for ESA purposes will have to be determined by the DWP on a fresh decision, taken on supersession.  The claimant will have fresh appeal rights if he disagrees with it.

 

 

CG Ward

Judge of the Upper Tribunal

12 July 2012