Upper Tribunal (Administrative Appeals Chamber)

 

 

 

THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

 

The appeal is allowed.

 

The decision of the First-tier Tribunal sitting in Edinburgh on 27 May 2011 (the tribunal) is wrong in law.  I set aside the tribunal’s decision and return the appeal to a new tribunal for a wholly fresh hearing.  The Upper Tribunal is not in a position to remake the decision under appeal as further findings of fact are required.  The appeal came before me for an oral hearing on 18 January 2012.  The appellant was represented by Mr Andrew Little, a Welfare Rights Officer with the Edinburgh Advice Shop.  The Secretary of State was represented by Mr Bartos, Advocate, instructed by  Ms Mhairi Reid, Solicitor, of the Office of the Solicitor to the Advocate General.  I am grateful to them both for their assistance.

 

 

REASONS FOR DECISION

 

The issues

 

1. The appeal to the Upper Tribunal raised two matters: first, the rationality of the tribunal’s reasons for refusing descriptor (20)(f) in Schedule 2 (prior to substitution of that schedule on March 28 2011) of the Employment and Support Allowance Regulations 2008 (ESAR) (SI 2008/794), which Schedule sets out the activities and descriptors relevant to the limited capability for work test; second, the sufficiency of the tribunal’s treatment of whether the claimant satisfied regulation 29(2)(b) ESAR.

 

The statutory provisions

 

2. Activity 20 of Schedule 2 to ESAR 2008 as at March 27 2011 read:

 

“20. Propriety of behaviour with other people

 

(a) Has unpredictable outbursts of aggressive, disinhibited,

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or  bizarre behaviour, being either:

 

(i) sufficient to cause disruption to others on a daily basis; or

(ii) of such severity that although occurring less frequently than on a daily basis, no reasonable person would be expected to tolerate them.

 

 

 

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15 15 15

(b) Has a completely disproportionate reaction to minor events or to criticism to the extent that the claimant has an extreme violent outburst leading to threatening behaviour or actual physical violence.

(c) Has unpredictable outbursts of aggressive, disinhibited or bizarre behaviour, sufficient in severity and frequency to cause disruption for the majority of the time.

 

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(d) Has a strongly disproportionate reaction to minor events or to criticism, to the extent that the claimant cannot manage overall day to day life when such events or criticism occur.

 

(e) Has unpredictable outbursts of aggressive, disinhibited or bizarre behaviour, sufficient to cause frequent disruption.

 

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(f) Frequently demonstrates a moderately disproportionate reaction to minor events or to criticism but not to such an extent that the claimant cannot manage overall day to day life when such events or criticism occur.

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(g) None of the above apply.”

 

 

3. Regulation 29 of ESAR 2008 reads as follows (and has not been subject to amendment):

 

“Exceptional circumstances

 

29. – (1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

 

(2) This paragraph applies if –

…

(b) The claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”

 

 

 

 

 

 

 

 

Discussion

 

Descriptor 20(f) of Schedule 2 to the Employment and Support Allowance Regulations 2008

 

4. In its statement of reasons for decision, the tribunal accepted that the claimant “has a problem with anxiety and depression” and “has a longstanding problem with abuse of alcohol”.  With respect to an argument under Activity 20, the tribunal reasoned:

 

“Activity 20 – Propriety of behaviour with other people

 

It was the appellant’s evidence to the tribunal that she has on occasion been abusive towards [Mr S], both physically and verbally, however, at the time of the medical report she was a lot calmer as she had not been drinking.  Her evidence to the tribunal being, however, that she can lose her temper over very minor things, when she is drinking she does not usually remember these events happening and it is only when she is told of them by [Mr S] that she feels regret.

 

Whilst noting the appellant’s evidence in relation to this the tribunal did not consider that this description of the behaviour given by the appellant met the test for an award of points in respect of descriptor 20(f).  In fact it was the appellant’s evidence that whilst she lost her temper, if she had been drinking she was unaware of doing so and, therefore, there could be suggestion that any disproportionate reaction by her to minor events or to criticism was having an effect on her overall day to day life, for this reason the tribunal did not consider that it was appropriate to award points in respect of descriptor 29(f).  The tribunal also considered whether the description of behaviour provided by the appellant met any other descriptors under activity 20 but having given full consideration to this did not consider that it was appropriate to award points in respect of any of the descriptors of activity 20.”

 

(I accept the point made by Mr Bartos that the word “no” should be inserted in the fourth line of the second paragraph of the above passage so that the text reads “there could be no suggestion …”;  the omission is clearly a typographical error).

 

4. Mr Little submitted that, in the light of her physical and verbal aggression, it was irrational for the tribunal to determine, without more, that there was no effect on the claimant’s overall day to day life.  In response, Mr Bartos said that, as any such aggression was when the claimant was drinking and she was unaware of it, necessarily there was no impact on her day to day life. 

 

5. However, both these submissions seem to me to miss the point.  It is unsurprising to me that the content of descriptor 20(f) has been dropped in the amendments in force from March 28 2011.  When one compares the text of 20(d) with 20(f), on a plain reading it is only the former which requires any impact on day to day life.  All that is necessary, in effect, under 20(f), is a frequent demonstration of a moderately disproportionate reaction to minor events or to criticism;  as  expressly  this does not have to be such that she then “ … cannot manage overall day to day life …”, consideration of that matter is redundant under 20(f), albeit critical under 20(d).  The only purpose of the words from “but not …” onwards in 20(f) seem to be to point the distinction with 20(d).

 

6. The written submission on behalf of the Secretary of State to the Upper Tribunal dated 27 September 2011 said this:

 

“7. Descriptor 20(f) ‘frequently demonstrates a moderately disproportionate reaction to minor events or to criticism but not to such an extent that the person cannot manage overall day to day life when such events or criticism occur’, is intended to reflect difficulties in social behaviour which might be encountered by people with psychotic illness or other conditions such as brain injury that result in lack of insight, as well as the difficulties people with autistic spectrum disorder may have in social behaviour.  It is intended to reflect the effects of episodic relapsing conditions such as some types of psychotic illness, as well as conditions resulting in consistently abnormal behaviour.

 

8. The wording ‘reaction to minor events’ is intended to reflect difficulties that may be encountered by people with autistic spectrum disorder and other conditions in which minor adverse events  causes (sic) a moderately disproportionate or significant reaction than might normally be expected.  There should be evidence of a disorder of mental function for this descriptor to apply.  This may be as a result of a specific mental illness or a condition, whether mental, physical, or sensory resulting in cognitive or intellectual impairment of mental function.”

 

7. What, however, the descriptor was intended to mean by the drafters is in no sense definitive if it is not the result achieved.  Reading Activity 20 as a whole, and having regard to the terms of each descriptor and the pointage each attracts, the Secretary of State’s suggested restrictions are unduly restrictive and not justified by the plain language.  What is being put forward on behalf of the Secretary of State may well be in the guidance given to Health Care Professionals, and is relevant therefore as a matter of evidence, but it is in no sense prescriptive.

 

8. As I said at paragraph 11 of CE/191/2010:

“The starting point with respect to the application of any descriptor is regulation 19(2) of the Employment and Support Allowance Regulations 2008 which provides:

‘The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities’.

 

It is against that background that a tribunal, using its expertise, applies individual descriptors.  The primary condition is thus that there is a specific disease or bodily or mental disablement which causes the inability to perform the particular activity or task in issue”.

 

9. Very careful fact-finding is required, having regard to all the essential terms of any particular descriptor.  Under descriptor 20(f), “frequently”, while it denotes that something happens often, cannot require that it happens for “the majority of the time” as that latter phrase is already used in 20(c); “moderately” is usually a synonym for “mildly”; “disproportionate” is the opposite of “proportionate” and is a matter of fact and degree having regard to the circumstances against which one is reacting; “minor” is the opposite of “major” and, again, has to be judged depending on the circumstances of the events in question; as there is another  “to” before the word “criticism”, “minor” does not qualify that noun.   The result does not have to be “to such an extent that the claimant cannot manage overall day to day life when such events or criticism occur”  so it is otiose to consider that, which only has relevance under 20(d).  The tribunal therefore erred in law in considering that the claimant had to establish that “any disproportionate reaction by her to minor events or to criticism was having an effect on her overall day to day life”.

 

10. Thus, for 20(f) the new tribunal requires to be satisfied that the claimant has established a mental disablement such that it leads on a frequent basis to her exhibiting a moderately disproportionate reaction to minor events or to criticism; she does not have to show a “strongly” disproportionate reaction because that is covered by 20(d).  In addition to the evidence of verbal and physical abuse given at the hearing, there is other potentially relevant evidence already on file: on her ESA50 health questionnaire (at page 39), albeit in answer to some unhelpful questions (for example:  “Do other people get upset with you because of the way you behave? … do they shout, lose their temper, argue or threaten you”, which on the face of it, seems to have little connection with the terms of the descriptors), the claimant used the space given to her to say:

 

“I do not get violent but can be argumentative.  I get very upset and my day can be disrupted and routine is affected”;

 

the claimant wrote a letter (at page 14) expressing her concerns about the ESA medical assessment, although on the face of it, that examination seemed quite a sympathetic one;  the community mental health charge nurse describes her as “angry” when the claimant was sent back to the Alcohol Problems Service without her knowledge and without any discussion (page 15); the doctor at that ESA medical assessment dated 15 November 2010 describes her (at page 59) as “trembling”, “tense” and “irritable”, so that further investigation of what causes this, and when, might be relevant under the descriptor in issue.

 

Regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008

 

11. Mr Bartos conceded, contrary to the lack of support on this point in the earlier written submission on behalf of the Secretary of State,  that the tribunal failed to give clear and adequate reasons why the conditions under this paragraph were not met.  I agree with that concession.  The tribunal said only the following, which was much too brief:

 

“As requested by the appellant’s representative the tribunal also gave consideration to Regulation 29(2)(b) but the tribunal did not consider that there was sufficient evidence before it to persuade them that it was appropriate to apply Regulation 29(2)(b), there being no evidence that there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work”.

 

12. The proper approach to the test under regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995, which has the same wording as regulation 29(2)(b) ESAR, was set out by Moses L J, with whom the other members of the Court of Appeal agreed, at paragraph 38 of Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42:

 

“ … In order to determine whether there is any health risk at work or in the work place it is necessary to make some assessment of the type of work for which the claimant is suitable.  The doctor, the decision-maker and, if there is an appeal, the Tribunal, should be able to elicit sufficient information for that purpose.  The extent to which it is necessary for a decision-maker to particularise the nature of the work a claimant might undertake is likely to depend upon the claimant’s background, experience and the type of disease or disablement in question …”

 

Additionally, as recognised by the Court of Appeal in Charlton,  the causal link between a finding of limited capability for work and a substantial risk to health can arise not simply in the nature of the claimant’s work and work place but also having regard to the necessary journey to or from work. 

 

13. Firstly, in the present case  therefore, there is a question whether there might be a significant deterioration in the claimant’s mental health on being told that benefit was refused;  anger and upset is insufficient.  A tribunal has next to consider whether and what is the range of work the claimant could do without a substantial risk to her health.  This involves a consideration, not just of work which her qualification and skills (or lack of them) enable her to do, but also having regard to work of a type which her health allows yet without substantial risk to that health or to the health of others.  As it was well put by Upper Tribunal Judge Mark at paragraphs 9 and 10 of I J v Secretary of State for Work and Pensions (IB) [2010] UKUT 408 (AAC) (a case lodged by Mr Little):

 

“9. There was, however, no investigation by the tribunal about the claimant’s background to form a view on the range or types of work for which he was both suited as a matter of training or aptitude and which his disabilities did not render him incapable of performing.  As a result there was no decision as to whether within that range there was work he could do without the degree of risk to health envisaged by regulation 27(b).  In making that assessment the tribunal would have to take into account both the risk to the claimant as a result of his mental health problems and also the limits on the work he could do because of them, including any alcohol dependency he was found to have.

 

10. Further, the test is not limited to whether there would be a substantial risk to the claimant from any work he may undertake.  The test is as to the risk as a result of being found capable of work.  If he was found capable of work, he would lose his incapacity benefit, and would very possibly need to seek work and apply for jobseeker’s allowance.  That would involve his attending interviews, and going through all the other steps that would be needed to obtain and keep jobseeker’s allowance.  In the present economic climate, a claimant who is 62 years old with mental health problems, and who has not worked since the early 1990’s is unlikely to find work quickly and would very possibly never find it.  His GP’s assessment that it is inconceivable that he would ever be able to earn his living may be right.  The tribunal would then have to determine how this change from his being in receipt of incapacity benefit would affect the claimant’s mental health, looking not at some work he may do, but at the effect on his mental health of fruitless and repeated interviews and the possibly hopeless pursuit of jobs until he reached retirement age.  These factors were not considered by the tribunal, and indeed they did not elicit the information necessary to enable them to be considered, such as whether he had in fact applied for jobseeker’s allowance and if not, how he was coping or would cope.”

 

14. In the present case, even if the claimant satisfied descriptor 20(f), unless she succeeds under other descriptors, her total pointage does not reach the threshold.  But a consideration of regulation 29(2)(b) only ever comes into play where a claimant does not have such a functional limitation as to justify a score reaching the necessary threshold of fifteen points under schedule 2.  However, because one is, nevertheless, taking account of her disabilities, both in determining the limits on the work she could reasonably do because of her impairment, as well as in evaluating the direct risk to herself and others in work as a result of them, what, if any, descriptors a claimant satisfies is important to determination of the test under regulation 29(2)(b).

 

15. In the present case, therefore, whether the claimant does or does not satisfy particular mental health descriptors, and depending on which descriptors those are, will play a part in the analysis under regulation 29(2)(b).  A new tribunal will also have to consider the claimant’s previous work history and her present skills, alongside her mental state,  in order to determine if there is a range of work she could do without the degree of risk to health envisaged by regulation 29(b)(2).  I note that in an undated letter from her general practitioner (page 17), he or she states:

 

“I certainly do not believe she is fit to work at present given her fragile mental health.  I would expect it to be a period of some further months before her depression is fully treated … “.

 

Those advising her will doubtless wish to consider whether a date for that letter could be verified for the benefit of the new tribunal.

 

 

 

 

 

 

Summary

 

16. The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised it will be a complete rehearing on the basis of the evidence and arguments available to new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits it is entirely for them.  Although there has been success in this appeal limited to issues of law, the decision on the facts of the case remains open.

 

 

 

 

 

 

(Signed)

L  T PARKER

Judge of the Upper Tribunal

Date: 20 January 2012