IN THE UPPER TRIBUNAL Case No  CE/2643/2011

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Rochdale on 15 June 2011 under reference SC947/10/03810 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 9 of the Reasons. 

REASONS FOR DECISION

1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. This was a case in which the claimant’s appeals in relation to employment and support allowance (ESA) and disability living allowance (DLA) were heard in a single session.  As regards DLA, the tribunal’s decision was to remove the lowest rate of care component which had previously been awarded.  So far as I am aware, no appeal has been made against that decision.  So far as ESA was concerned, by a decision  dated 2 September 2010 the claimant had been awarded 12 points, being 6 for walking and 6 for standing/sitting.  Her identified medical difficulties were recorded as musculoskeletal problem, irritable bowel syndrome, hypertension and anxiety and depression.  The claimant appealed, alleging that (among other matters) the points awarded did not reflect the impact of her anxiety and depression on her ability to perform the activities covered by the descriptors.

3. Numerous issues may arise where ESA and DLA cases are heard in a  single session.  A number of these are due to be examined in the Autumn by a three judge panel of the Upper Tribunal.  However, the issues in the present case are not those, but are in essence those of adequacy of reasons.

4. The operative part of the reasons in the ESA appeal was very short, as follows (grammatical infelicities are in the original):

“2. These reasons should be read in conjunction with the reasons given regarding her linked appeal for Disability Living Allowance (DLA) under number SC947/111/00461.

3. The Tribunal had regard to the evidence given in relation to that appeal and also to the further oral evidence given by the appellant in relation to this appeal.  Again, the Tribunal did not accept the appellant’s assessment in relation to her mobility limitations and considered that the assessment with regard to her being able to walk 200 metres, the more realistic assessment than the appellant’s 50 metres, but were unconvinced in relation to the points awarded for standing.

4. There was a submission in relation to this appeal given to the Tribunal to consider that the appellant could not walk more than 50 metres nor stand for more than 10 minutes.  The reasons given in the related appeal the Tribunal did not accept that.

5. In relation to the mental health descriptors, the Tribunal found the appellant’ evidence unconvincing in relation to execution of tasks, getting about and coping with social situations and of the view that no further points could be awarded.”

5. The evidence in the DLA appeal had included a medical report from the claimant’s GP.  Though dated 1 October 2010 (and so shortly after the date of

decision on the ESA case), there is no suggestion that the claimant's condition had changed during that four week period.  In a careful report, the GP had observed that “anxiety and depression – still a problem despite medication – especially anxiety”.

6. The statement of reasons in the DLA case was much longer.  While there were obvious areas where the DLA reasons might have been relevant to ESA, notably in relation to walking, they go wider than that.  I am concerned that a generalised invitation to read the statement of reasons for one benefit in conjunction with that  on another may serve to obscure rather than enlighten the reader as to the tribunal’s reasons for its decision on the first benefit. 

7. However, the grounds on which I am setting the decision aside may be put more narrowly.  First, neither the ESA nor the DLA statement  indicates what the tribunal made of the claimant’s GP's evidence  that anxiety (in particular) and also depression remained a problem despite medication.  The issue of the impact of her mental health on her ability to perform the descriptors had been put in issue by the claimant.  Secondly, neither statement of reasons, even when they are read together, explains to any significant extent why the claimant’s evidence was found to be “unconvincing”.

8. The Secretary of State has very properly raised a further point concerning the adequacy of reasons in failing to explain why, apparently, the medical member (in the DLA statement of reasons, incorporated by reference into that for ESA) took a different view as to the interpretation of an MRI scan from that apparently taken by the claimant’s GP.  If that was an error, it, along with any other error on a point of law that the tribunal may have made, will be subsumed by the rehearing.

9. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the (ESA) appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (2 September 2010) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.  While the tribunal’s decision on DLA will stand (if I am right in my belief that it has not been appealed), its findings of fact are not conclusive for the purpose of the remitted ESA appeal: see section 17 of Social Security Act 1998, there being no regulations which “so provide” for the purposes of section 17(2) in relation to the matters the subject of the present appeal.

10. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)

C.G.Ward

Judge of the Upper Tribunal

3 August 2012