Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CE/3117/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 17 May 2011 under reference 044/10/01430 is SET ASIDE because its making involved errors on points of law.

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1     The appellant brings this appeal with the permission of a salaried First-tier Tribunal judge.  The ground on which he granted permission to appeal related to what may be best described as a breach of natural justice resulting from a failure by the Tribunal to explain its powers to the appellant to remove points given by the decision maker, which worked to his prejudice.  I raised a further point in my Observations on the Appeal relating to whether the Tribunal applied the wrong test in assessing whether the appellant fell within either of the descriptors for standing in Activity 2 of the Work Capability Assessment.

2     As regards the latter, both parties agree that the decision must be set aside.  The appellant’s representative agrees that no further reasons are required on this matter, though he would like me to substitute my own decision.  It is plain from the Secretary of State’s submission that does not require reasons.  However, since I fear that the error made by the Tribunal may be a common one, I have decided to give brief reasons on it. 

3     The appellant suffers from back problems and says his legs hurt.  He said in his ESA50 (self assessment questionnaire) that he could stand without the support of another person, but would not be able to do so for at least half an hour before sitting down.  He had variable difficulty with bending/kneeling (Activity 3) and sometimes could not do so.  The approved health care professional (AHCP) recorded the appellant’s evidence that he engaged in a number of daily activities, such as walking for 25 minutes once a week in the supermarket and 15 minutes most days, getting in and out of the bath without aids, getting in and out of his car and driving it, generally being able to put on his socks on his own, dressing himself (leaning on objects or sitting), loading the car after shopping, pushing a trolley in the shops, queuing, carrying light shopping and driving without difficulty.  The AHCP’s clinical findings revealed no abnormality with the lower back or legs, except that the appellant appeared only able to bend to his knees.  However, when his straight leg raising was tested, his back function was normal, which may indicate that his ability to bend was better than observed when bending whilst standing up.  The AHCP concluded that he had a moderate problem with his back but was unlikely to have a severe disability with standing.  He awarded 6 points for descriptor 2e (cannot stand for more than 30 minutes…before needing to sit down), but no problems with any of the bending/kneeling descriptors. 

4     The Tribunal recited the AHCP’s opinion that the appellant ‘was unlikely to have a severe disability of standing’ and, taken in conjunction with his evidence that he could walk about the supermarket using a trolley, concluded that standing was not a problem and removed the 6 points awarded. 

5     The Tribunal’s interpretation of the AHCP’s opinion that the appellant was ‘unlikely to have a severe disability of standing’ must be (a) a misunderstanding of what the AHCP was saying in the context of the two descriptors relating to standing and (b) an error in the Tribunal’s understanding of the meaning of severity in relation to them. 

6     Descriptor 2a (cannot stand, unassisted by another person, for 10 minutes…before needing to sit down) manifestly denotes a functional limitation which is not only severe, but is more severe than that in 2e (cannot stand for more than 30 minutes, even if free to move around, before needing to sit down).  Descriptor 2a attracts 15 points, enough to pass the WCA.  An inability to perform descriptor 2e denotes a less severe functional limitation, but it is still sufficiently severe to attract 6 points.  The Tribunal was illogical, therefore, to say that he could not satisfy 2e because his condition was ‘unlikely to be severe’.  The question was whether it was severe enough to meet the descriptor.

7     The Tribunal also went wrong in its approach to the appellant’s use of a trolley to support himself while standing.  This could have provided a basis for inferring that, with the support of an appropriate aid, he could perform the descriptor 2e, but this is not what the Tribunal did.  It decided that because he could use a trolley, he did not score any points.

8     There is nothing in the entry for the activity of Standing and Sitting in column 1 of Schedule 2 of the Employment and Support Allowance Regulations 2008 (ESA Regulations) to indicate that aids or equipment are not to be taken into account in deciding whether a person can accomplish the activity; and there is nothing in the entry for descriptor 2(e) in column 2 to indicate that aids or appliances should be taken into consideration.  However, regulation 19(4) provides that:

19(4)  In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

9     Thus, the Tribunal would be entitled to consider whether an aid or appliance which is normally worn or used would enable a claimant to perform a descriptor.  The correct approach to the use of aids and appliances for the purposes of the WCA is in Judge Levensons’s decision in CE/1217/2011: 

16. It seems to me that the correct approach to regulation 19(4) is as follows. If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it. If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it. If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same. [emphasis added].  However, I do not agree with the Secretary of State that in this latter case there does not have to be any explanation of how the aid or appliance could help the particular claimant and that the advantages are obvious. The degree of detail is a matter for the tribunal on the facts of each particular case, but in my view, in the absence of actual use or prescription, there does need to be some explanation.

10 It is reasonably certain that a shopping trolley is not normally prescribed or recommended for people in the appellant’s situation.  However, a person who can use a trolley to assist his walking or standing (for example while examining items on shelves or for resting while walking) may be assisted by the use of a walking stick or perhaps a wheeled frame.  These are commonly prescribed or recommended aids/appliances for people with back trouble. 

11 As the Secretary of State pointed out, however, this appellant suffers from carpal tunnel syndrome which might affect his ability to use his hand to grasp a stick.  On the Tribunal’s present finding on manual dexterity, he was right to raise this point:  the Tribunal found that the appellant’s carpal tunnel syndrome was sufficiently severe to merit 6 points for an inability to pick up a coin (descriptor 6h), so this was a factor which should have been analysed in deciding whether the appellant could reasonably have been expected to use a walking stick.  . 

12 The Tribunal which rehears the appeal is in no way bound by that finding (or any of the findings) of the instant Tribunal.  There is evidence, for example, that the appellant was able (apart from his assertion that he could not sometimes bend to do so) to put on his socks, use a washing machine grip a steering wheel, perform activities involved in driving a manual car, pack the car with shopping, surf the web, and dress himself, all of which require a pincer grip or something close to it at various stages; and was observed by the AHCP to have no difficulty handling papers and opening a door with his right hand.  These are evidential issues the appellant and his representative may wish to

13 I do not feel it would be appropriate for me to substitute my own decision on standing.  The Upper Tribunal does not have the benefit of medical expertise.  My doubts might not be shared by a First-tier Tribunal sitting with a medical member.

14 The natural justice ground is somewhat redundant in the circumstances, but it may be helpful to tribunals to have guidance. 

15 The issue arises through the Tribunal’s decision to remove points awarded by the decision maker, without making the appellant aware of its powers to do so. 

16 From a technical standpoint, a person who does not score sufficient points to pass the WCA, the outcome decision is simply not incapable of work.  It makes no difference whether he misses the 15 point threshold by a small margin or a gulf.  He is not ‘holding’ a handful of points.  He is not holding anything. 

17 Laymen, however, do not necessarily understand this.  It is a common misconception that the points they have been awarded by the decision maker are ‘in the bag’.  They may not, therefore, come prepared to argue about points which they believe to be safe.  Unless, therefore,  the Tribunal explains its powers to change the decision for the better or the worse, including the power to add to, vary, reduce or remove the descriptors and points awarded for them, an appellant may be seriously prejudiced. 

18 There is nothing in the Record of Proceedings to indicate that the Tribunal explained its powers to the appellant or that the AHCP’s opinion on standing and the decision maker’s award of points were in doubt.  Had the Tribunal given an explanation at the outset and an indication that it was concerned about aspects of the AHCP’s report, the appellant might have addressed them.  This was especially so given that that Tribunal saw fit to award 9 new points which – had the 6 points originally awarded survived – would have been enough to pass the WCA.

19 In the circumstances, it seems to me that there was a breach of natural justice in the Tribunal’s failure to explain its powers and its concerns, which the appellant had no opportunity to address. 

20 As I am unable to substitute my own decision, I remit the appeal to a freshly constituted First-tier Tribunal to rehear. 

21 The appellant should be aware that success before the Upper Tribunal is no indication of the outcome of the appeal before the First-tier Tribunal. 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 4 September 2012