Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/2585/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Attendances:

The Appellant appeared in person.

The Respondent was represented by Mr Stephen Cooper, solicitor.

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 19 May 2011 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be heard, subject to any further direction of the First-tier Tribunal, at the same time as his appeal registered as SC188/12/05611.

REASONS FOR DECISION

1. The claimant appeals, with permission granted by Judge Turnbull, against a decision of the First-tier Tribunal dated 19 May 2011, whereby it dismissed an appeal against a decision of the Secretary of State dated 29 October 2010 to the effect that the claimant did not have a limited capability for work and so was not entitled to employment and support allowance, or to “credits” on the ground of incapacity, from that date.

2. The case before the First-tier Tribunal turned on the number of points the claimant scored on an assessment under regulation 19 of, and Schedule 2 to, the Employment and Support Allowance Regulations 2008 (SI 2008/794).  The claimant needed 15 points for success.  The Secretary of State had awarded no points.

3. The First-tier Tribunal awarded 12 points: 6 because the claimant was unable to stand for more than 30 minutes, even if free to move around, before needing to sit down and 6 because he was unable to bend, kneel or squat as if to pick up a light object off the floor and straighten up again without the help of another person (see paragraphs 2(e) and 3(c) of Schedule 2 to the 2008 Regulations).

4. Those descriptors are not in dispute on this appeal but I would observe that it is not surprising that the First-tier Tribunal found them to be satisfied.  Apart from a descriptor in respect of continence, to which I shall come, they were the only descriptors the claimant claimed that he satisfied in his questionnaire and it is not obvious to me that the claim in respect of either of them was directly contradicted by the evidence gathered in the medical examination.  It seems to me that it might contribute to the avoiding of unnecessary appeals if decision makers were to concentrate on those descriptors where what is claimed by the claimant and what is accepted by the healthcare professional is different and were to consider whether the evidence gathered by the healthcare professional really justifies his or her conclusion.  In this case, that exercise would not have been helped by the scorecard on doc 73 having been wrongly completed in respect of bending, kneeling and squatting, where it was suggested that the answer on the questionnaire would not have scored any points.  I also accept that the appeal would not have been avoided altogether in the present case because the 12 points would not have been sufficient for overall success.  However, it is unclear to me why the Secretary of State did not award those 12 points and therefore why those descriptors should have been in issue before the First-tier Tribunal.

5. The question that does arise in this appeal is whether the First-tier Tribunal erred in law in not awarding any points under paragraph 10(a) of Schedule 2 to the 2008 Regulations in respect of faecal incontinence.   So far as is relevant, paragraph 10(a) provided at the material time for points to be scored as follows –

6. In his questionnaire, the claimant had ticked the box “sometimes” in answer to the question “Can you control your bowels so you do not need to change your clothes because of soiling?”  He gave oral evidence to the First-tier Tribunal.  The First-tier Tribunal’s reasons for not awarding any points in respect of incontinence were expressed as follows –

“Continence: [The claimant] told the Tribunal that he has bouts of irritable bowel syndrome and diverticulitis.  He told the Tribunal that he loses control of his bowels ‘occasionally/rarely’.  This happened on one occasion at the cinema when he was unable to get to a toilet in time. He said he thought it had happened twice in the last 6 months and that as a result he had had to shower and change clothes.  The examining doctor noted that [the claimant] gets constipation and loose motions, had been investigated and diagnosed with irritable bowel syndrome, but there was no loss of full bowel control, he normally goes to toilet no problems and no specialist input and no medication.  It was the Tribunal's view, on considering all of the evidence including the medical evidence, [the claimant’s] account and indeed their own knowledge of the condition, that [the claimant] does not satisfy the descriptors in this area.  Although [the claimant] has described losing control of his bowels, it was the Tribunal's view that the condition from which he suffers would not normally give rise to a ‘full evacuation of the bowel’.  [The claimant] also referred to these occasions being ‘occasional/rare’.  As regards the risk of losing control if not able to reach a toilet quickly, it was the Tribunal's view that [the claimant] is normally able to reach a toilet in time.  [The claimant’s] condition is of intermittent bouts of irritable bowel syndrome and he is normally able to reach a toilet in time.  It was also the Tribunal's view that if the issue of loss of control was a significant problem for [the claimant], he would have pursued some treatment and/or the use of aids.

7. Judge Turnbull granted permission to appeal on the ground that the First-tier tribunal might have misunderstood the meaning of the descriptors because it appeared to have considered that descriptor 10(a)(v) could only apply if the loss of control would give rise to a full evacuation of the bowel, whereas, he suggested, the correct meaning might be that it applied if the claimant occasionally lost control to an extent which gave rise to any significant degree of uncontrolled evacuation.  However, the Secretary of State’s written submission did not support the appeal, contending that the descriptors did apply only if the loss of control would give rise to a full evacuation of the bowel.  An oral hearing was directed at the claimant’s request.  At the hearing before me, the claimant did not oppose the Secretary of State’s argument that the descriptors applied only where there was a full evacuation of the bowel.  His contention was that in fact there was full evacuation of the bowel when he lost control.  He submitted that he had not been allowed fully to put his case to the First-tier Tribunal and that in fact, although not every loss of control of his bowel resulted in a full evacuation, it did so at least four times a month.

8. I accept the Secretary of State’s submission that the descriptors in force at the material time came into play only where there was a full evacuation of the bowel.  He relied on NH v SSWP (ESA) [2011] UKUT 82 (AAC) and CP v SSWP (ESA) [2011] UKUT 507 (AAC).  The descriptors were oddly worded – perhaps “prevent” would have been a better word than “control” in the second place where “control” appeared in each of heads (iii), (v) and (vii) – but the reference to “full evacuation” would be otiose on any other construction.  The rationale, as I understand it, was that where there was only stress incontinence, a claimant could be expected to manage it by voluntarily evacuating his or her bowels at convenient times.  Schedule 2 to the 2008 Regulations has been completely substituted from 28 March 2011.  The new paragraph 9 is more clearly laid out than the old paragraph 10 and it refers to “loss of control leading to extensive evacuation of the bowel … sufficient to require cleaning and a change of clothing”.  This, of course, does not affect the claimant’s case, which had to be determined in accordance with the law as it stood at the time of the Secretary of State’s decision.

9. However, consideration of the claimant’s case draws attention to the First-tier Tribunal’s approach to other aspects of the descriptors.  It did not in fact make a clear finding as to whether or not loss of control did lead to a complete evacuation of the bowel in the claimant’s case.  It referred to evidence against the claimant and it considered that the claimant’s condition did not normally give rise to such a loss of control but it did not have to reach a firm conclusion on the point in the light of its approach to the construction of heads (v) and (vii).  The First-tier Tribunal found that, whatever the extent of the loss of control, it was not, in the light of the claimant’s evidence, something that occurred “occasionally” and that there was also no risk of loss of control if the claimant did not reach a toilet quickly.

10. Its approach to those issues was, as Mr Cooper conceded, erroneous in point of law.  While an occurrence may be so infrequent as not even to be “occasional”, it seems to me that, on a scale where an occurrence once a month scores 15 points, and an occasional occurrence scores 9 points, twice in six months must amount to “occasionally”.  It is possible that the First-tier Tribunal regarded the claimant’s use of the word “rarely” in his evidence as suggesting that the occurrences were less frequent than the twice in six months he also mentioned, but that is not clearly stated.  Secondly and even if that were wrong, the First-tier Tribunal clearly erred in its approach to descriptor (vii), satisfaction of which would have been sufficient to take the claimant to a total score of over 15 points in this case.  To say that the claimant “is normally able to reach a toilet in time” was no answer to the question whether there was a risk of his losing control of his bowel “if he is not able to reach a toilet quickly”.  Indeed, to say that he normally reaches a toilet in time implies an acceptance that sometimes he was not able to reach a toilet quickly and did lose control of his bowel, at least to some extent, which plainly implies a risk.  Therefore, it was important in this case for there to be a clear finding as to whether or not the claimant did lose, or at least was at risk of losing, control of his bowels to the extent that there was a full evacuation.  As I have said, no clear finding on that point was made.

11. Accordingly, the decision of the First-tier Tribunal must be set aside.  The claimant asked me to substitute a decision in his favour on the basis of his evidence.  Mr Cooper drew my attention to the inconsistency between what the claimant told me and what he is recorded as having told the First-tier Tribunal.  Despite that discrepancy, which I did not explore, I would be prepared to accept that there was at the material time at least a risk of the claimant losing some control of his bowel if he did not reach a toilet quickly and, in the circumstances of this case, that is far as it would be necessary to go if it were accepted that the loss of control would result in a full evacuation of the bowel.  However, I am not prepared to make a finding as to whether or not the loss of control would be that extensive in the absence of detailed medical evidence.  That seems to me to be a question that would be better answered by a panel of the First-tier Tribunal that has a doctor among its members, particularly as the claimant already has another case pending before the First-tier Tribunal.  Accordingly, I remit this case to be heard with the claimant’s other case.

12. I record that the claimant told me that he had now obtained a job – I think only part-time and one which he said he struggled to do – which will obviously have some bearing on his entitlement to employment and support allowance during recent weeks if his appeals are otherwise successful.

Mark Rowland

20 August 2012