IN THE UPPER TRIBUNAL Case No  CE/110/2012

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Manchester on 17 October 2011 under reference  SC946/11/02426 involved the making of an error on a point of law and is set aside. 

Acting under section 12(2)(b)(ii) of Tribunals, Courts and Enforcement Act 2007, I remake the decision in the following terms:

The claimant’s appeal against the Secretary of State’s decision issued on 11 February 2011 is allowed.

The following descriptors apply to her:

18(d) = 6 points

20 (f) = 6 points

21 (f) = 6 points

Consequently, as at 11 February 2011, she had limited capability for work.

REASONS FOR DECISION

1. Both the claimant’s representative 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.  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 and with the difference in view between the parties as to how I should dispose of the case.

2. I have set the tribunal’s decision aside, because the tribunal made insufficient findings and/or gave insufficient reasons in support of its conclusion that descriptor 18(d) but not (as contended) descriptor 18(b) applied; and that it gave insufficient reasons and/or misdirected itself in declining to hold that the claimant satisfied descriptor 21(f).  The case deals with the pre-March 2011 descriptors.

3. As to the first of these grounds, it seems to me that the tribunal’s findings are conflicting and unclear.  The statement of reasons says, on the one hand, that “The appellant was frequently unable to get to a specified place without being accompanied by her mother” (which suggests that on at least some occasions the claimant could manage it), but, on the other, that “only if her mother was with her  was she able to get about”, which suggests a difficulty in more absolute terms.  The claimant’s representative understandably latches onto the latter of these sentences, but it is at least possible that the second sentence merely refers to and emphasises the first.  Nor can I work out that one rather than the other interpretation should be preferred from reading the record of proceedings, as there is a suggestion in it that can be read as saying that the claimant could get to the GP unaided.  For this reason, while I am in no doubt that the tribunal’s decision was in error of law, I would not be prepared to substitute a decision based on these findings (as the claimant’s representative invites me to do) and would have considered, if this was the only point at issue, that the matter would have to be remitted for a further hearing (as the Secretary of State invites me to do).

4. However, it is not the only point at issue.  The tribunal found that “the appellant thought people talked about her.  She reported an incident where she had to be restrained by her Mum as she had attacked some people who she thought were talking about her.  She said that this had happened 2 or 3 times...She had had verbal altercations with people in the street on 2/3 occasions since Christmas” [it was by then October].  The tribunal rejected her claim under descriptor 21 not on the grounds of infrequency (and I consider the tribunal’s approach correct in the result on this point for reasons below) but because the result of her misinterpreting the non-verbal communications of others was to make the claimant angry rather than distressed.

5. As to frequency I consider that the tribunal was correct.  It is not unreasonable to infer that anything as extreme as verbal or physical altercations in the street represented the tip of the iceberg.  The claimant had written “I don’t like to be around anybody, I don’t like talking to anybody and I don’t like the way people look at me.”  I infer therefore (and find accordingly) that the verbal and physical altercations were outward manifestations of underlying emotional difficulty,  caused by the claimant’s tendency, as the result of her mental ill-health, to misinterpret the non-verbal communications of others, and that the underlying emotional difficulties were frequently experienced when the claimant came into contact with others, or would be, if she did not take steps to avoid doing so.

6. I am not a psychologist, but it seems to me that I do not need to be.  I can accept as a matter of human experience the submissions on behalf of the claimant that “anger and distress are not mutually exclusive emotions” and that, in any event, much of the claimant’s bravado was belied by the evidence of her doctor, her oral evidence and the distressed and tearful way (vouched by the record of proceedings) in which some of that evidence was given.  The tribunal thus erred either by concluding that because she was angry, that could not amount to “distress” for the purposes fo activity 21 or alternatively by failing to explain why on the facts of this case the claimant’s anger did not amount to “distress”.

7. Because of the view in the two previous paragraphs, I am able to find that the claimant at the material time did qualify for 6 points under descriptor 21(f) which, together with the points awarded by the tribunal, which (as a minimum) were justified for the reasons it gave, mean that the claimant met the

threshold of limited capability for work.

(signed)

C.G.Ward

Judge of the Upper Tribunal

7 August 2012