Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/3464/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:   The appeal is allowed.  I set aside the decision of the tribunal and remit the case to be reheard by a new tribunal in accordance with the directions given below.

REASONS FOR DECISION

1.     This appeal is brought with the permission of a First-tier Tribunal Judge from a decision of the First-tier Tribunal given on 9 February 2011.  The Tribunal dismissed the appeal of the claimant from a decision of a decision maker dated 1 November which superseded an earlier award of employment support allowance (ESA) from that date on the ground that the claimant did not have limited capacity for work.  The earlier award was made from and including 26 August 2009 on the claimant’s application for benefit and the supersession followed a medical examination of the claimant by an approved disability analyst, a medical practitioner, on 27 October 2009.  The disability analyst concluded that the claimant scored no points on the work capability assessment and the decision maker came to the same conclusion.  The tribunal awarded the claimant 6 points for his problems walking, but as he needed to score 15 points on the assessment, that was insufficient to change the decision of the decision maker.

2.     The claimant was born in 1955.  As a child he suffered from club feet and required several operations.  His claim for ESA was based on his having significant restrictions in his mobility as a result of the problems with his feet and also to severe back pain and ankle problems.  In 1998, following an appeal to a tribunal, the claimant had been awarded 17 points under the old personal capability assessment for incapacity benefit and had been awarded incapacity benefit indefinitely.  It would appear that at that time he was not suffering from back pain (p.2 of the file).  He contended that his mobility problems had since deteriorated with time and that the decision awarding him no points must be a clerical error.

3.     I note from p.2b of the file that the 1998 award was based on medical evidence from a consultant orthopaedic surgeon and the advice of a medical assessor.  The tribunal awarded points under the old descriptors 1d/2d, 4d and 5c.  This meant that it found that the claimant could not walk more than 200 metres without stopping or severe discomfort or walk up and down a flight of 12 stairs without holding on (for which he scored 7 points in total), could not stand for more than 30 minutes before needing to sit down (7 points) and sometimes could not rise from sitting without holding onto something (3 points).

4.     The claimant’s award of incapacity benefit was terminated from 28 May 2008 because he was found fit for work as he did not attend a medical examination (p.12e).  There was no appeal against that decision.  Notice of the medical examination had been sent to his home by letter dated 2 May 2008 (p.12f).  The claimant was unaware of the medical examination and of the decision because he was undergoing imprisonment or detention in legal custody from 22 April 2008 until he was released on 24 July 2009 (p.13a).  While that would have provided a reasonable excuse for the claimant not to attend the medical examination, had he been aware of it, it also meant that from the start of his imprisonment or detention he was disqualified from receiving incapacity benefit by s.113(1) of the Social Security Contributions and Benefits Act 1992 (the 1992 Act).  Any appeal from the decision of 2 July 2008 had to be made within 13 months of the date of the decision, and I have seen no evidence that that was done.  In any event, (1) the tribunal was not dealing with that issue but the appeal from the decision concerning ESA, and (2) even if the claimant were successfully to set aside the decision regarding non-attendance at the medical examination, he would still find that as a result of his imprisonment he ceased to be entitled to incapacity benefit.

5.     Although s.113(3) of the 1992 Act enables regulations to be made which provide for a person in such a position to be treated as if entitled to the benefit for the purposes of any rights or obligations which depend on his entitlement other than the right to payment of the benefit, no regulations have been made which affect convicted prisoners in the position of the claimant.  Rather, under regulation 4(1)(b) of the Social Security (Incapacity Benefit) Regulations 1994, for the purposes of incapacity benefit a day is not to be treated as a day of incapacity for work if it is a day on which a person is disqualified from receiving incapacity benefit during a period of imprisonment or detention in legal custody if that disqualification is for more than 6 weeks.  It follows that the claimant was not to be treated as incapable of work from the date of his imprisonment until his release.

6.     The claimant does not appear to have notified the benefits office of his imprisonment, and despite the arrangements which are supposed to be in place for HMPS to provide that information, the DWP does not seem to have become aware of it.

7.     At one point, the claimant sought to assert that he remained entitled to incapacity benefit by reason of the 104 weeks linking provision.  That provision, in regulation 5A of the Social Security (Incapacity Benefit) Regulations 1994, only applies to welfare to work beneficiaries, as defined in regulation 13A of the Social Security (Incapacity for Work)(General) Regulations 1995, and the claimant, while imprisoned, plainly did not fall within that definition.

8.     The initial tribunal hearing had been adjourned to enable the claimant to take legal advice whether he could rely on the 104 weeks period and at the adjourned hearing on 9 February 2011, he is said to have told the tribunal that he had been advised that he could not rely on it.  While it may well be that he was abandoning the point in the light of that advice, and that the tribunal may well have been entitled therefore not to deal with the point, if that was the case the tribunal should have recorded the fact more clearly.  If the tribunal is told that a point is being abandoned, then it is no longer raised by the appeal within the meaning of section 12(8)(a) of the Social Security Act 1998, and accordingly it need not be considered by the tribunal.  That means that it does not have to be considered, but the tribunal retains a judicial discretion whether to consider it or not.  If, on the other hand, it is raised on the appeal and all that the claimant (particularly when acting in person) says about is that he has been advised that it does not help him, then in the absence of clear abandonment of the point (as to which the tribunal should make a finding) the tribunal should deal with it.  I am satisfied that in the present case, although the point is clearly wrong, it should have been dealt with by the tribunal for that reason unless it was clearly abandoned and the tribunal was satisfied that it was rightly abandoned.

9.     The Secretary of State’s representative on this appeal has submitted that for that reason I should substitute my own decision for that of the tribunal although it is also said that my decision should be to the same effect as that of the tribunal.  In the absence of any other issue, I am satisfied that it would be sufficient to uphold the tribunal’s decision, at the same time dealing with the point about the linking period, as I have done.  The claimant was not entitled to incapacity benefit, not only because of the decision of which he was unaware which terminated it, but because he was disqualified from receiving it by reason of his imprisonment.  I would add that he was presumably (although I do not base my decision on this) under a duty to disclose the fact of his imprisonment to the benefits office but failed to do so.

10. I turn therefore to consider other points raised on this appeal.  Another preliminary point has been raised by the judge giving permission to appeal, which is whether a two person tribunal including a medical member has jurisdiction to determine non-medical issues such as the linking point.  I have no doubt that they have such jurisdiction.  Under Regulation 2(1) of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008, the number of members of the tribunal who are to determine any matter that falls to be decided by the First-tier Tribunal must be determined by the Senior President of Tribunals in accordance with paragraph (2).  Paragraph (2) provides that the Senior President of Tribunals must have regard to, in effect in relation to incapacity benefit, provisions for tribunals hearing incapacity benefit cases involving the personal capability assessment to include a medical member.  The Senior President issued a Practice Statement providing for the composition of tribunals in social security and child support cases in the social entitlement chamber after 3 November 2008.  Paragraph 5 of the Practice Statement provided, subject to certain exceptions that do not apply here, that where the appeal involves the limited capability for work assessment, as this appeal did, the tribunal must consist of a tribunal judge and a medical member.

11. The tribunal had therefore to consist of a tribunal judge and a medical member.  This is so, even though there were additional issues before the tribunal in addition to the limited capability for work assessment,  Not only, therefore, did the two person tribunal have jurisdiction to determine the non-medical legal issues but it had to do so.

12. The claimant has also raised an objection to the constitution of the tribunal in that he has complained that the tribunal judge was not qualified to act.  I see no basis for this assertion.  He also complains that whereas the tribunal judge was Miss C.A. Terry, it was “TJ Terry” who was directed to produce a statement of reasons.  TJ is short for Tribunal Judge, and the direction was address to Miss C.A. Terry, the Tribunal Judge.  He further complains that the judge made a false statement of facts about his health condition.  The tribunal has the job of deciding on the balance of probabilities what the relevant facts are on the basis of the evidence put before it.  Its decision concludes the matter unless there are grounds for an appeal on the basis that there was a mistake of law.  The fact that the claimant thinks that the tribunal got the facts wrong does not give him any rights.  Indeed, unless he can show an error of law on an appeal he has no right to complain about the tribunal, even if can subsequently be proved that the tribunal was wrong on the facts.  I have no jurisdiction to make any findings of fact unless I first set aside the tribunal’s decision as wrong in law.

13. The claimant states that he does not like the idea of solicitors being paid from public funds to sit as judges making his decisions on his health matters as they have no knowledge of the subject.  The claimant may not like the idea, but there are many part-time judges in this position, and their lack of medical knowledge is why they must sit in this type of case with medical members. 

14. He also complains that he has not had a fair hearing, but as far as I can see this complaint is based on his assessment of the Tribunal Judge’s competence and partiality, and possibly on the question whether the tribunal has all the relevant documents.  I see no merit in the allegations of partiality and incompetence and the tribunal appears to have had all the documents to which the claimant has drawn attention even if they returned two of them to him.  The additional evidence which the claimant has sought to adduce on this appeal in relation to his medical condition was not put before the tribunal, which cannot be criticised for failing to take such evidence into account.

15. Finally, I turn to the question whether there was any error law in the way in which the tribunal approached the claimant’s health issues in relation to the limited capacity for work assessment.  This assessment is different from that which used to be used in incapacity benefit cases.  As it was in 2009, a claimant would score 6 points for being unable to walk (with a walking stick or other aid if such aid is normally used) more than 200 metres on level ground without stopping or severe discomfort.  The tribunal awarded 6 points to the claimant for that descriptor.  To obtain more points, the claimant would have to satisfy the tribunal that he could not walk more than 100 metres on that basis (9 points) and would only get 15 points if he could not walk more than 50 metres on that basis.  So far as stairs are concerned, the claimant would now only score points if he could not walk up or down two steps even with the support of a handrail.  It is plain from the claimant’s application form, signed on 21 September by the claimant and received by the DWP on 25 September 2009 (see pp.3 and 3y of the file) that the claimant could do this. 

16. With regard to standing and sitting, there are no longer points for sometimes being unable to rise from sitting without having to hold onto something, and the claimant would only score 6 points if he was unable to stand for more than 30 minutes, even if free to move around, before needing to sit down.  There was no express reference in the incapacity benefit descriptor to his being able to move around freely and the test was interpreted as being how long a person could stand before needing or having to move around or sit down (R(IB) 6/04).  The new test appears to be how long a person can stay on their feet, moving around freely, but without having to sit down.

17. The claimant stated that he could not walk more than 200 yards, adding that sometimes he had to stop for a short time as his ankles (mostly his left ankle) went numb for no apparent reason and he had to check his balance.  Although asked to state how far he could walk, he said nothing to suggest that he could not normally walk more than 100 metres, and indeed the form suggests that he would only sometimes have to stop after less than 200 metres.  The claimant also told the disability analyst (p.4a) that he walked to the local shops taking about 10 minutes, and used a walking stick whenever he had to walk a long distance. There is no indication how far away the local shops were or how many stops he had to make or how much discomfort he suffered, or what he regarded as a long distance.

18. In relation to standing, the claimant stated in his application form (p.3n) that his ability to stay standing up for at least half an hour before he needed to sit down varied.  He stated “To stand for half an hour and then after sitting to rest and getting up again is when I suffer pain”.  It would appear from this that the claimant could stand for half an hour at least once in a day although he may have problems if he tried to do it again.  The claimant also told the disability analyst that he had difficulty with prolonged standing (p.4a).

19. The only other evidence from the claimant as to walking and standing, apart from the consultants’ reports of 1997 and 1998 at pp.2c-2d and the very brief medical note at 2f, is in the record of the proceedings at pp.13b-13g.  This is not wholly legible but appears to read near the top of p.13b “this winter have worsened this yr. last xrays last summer showed [illegible] just came out 15 mths closed not suffer rain cold getting down to 50% can’t do what did do before detainment”.

20. The decision notice dated 9 February 2011, the date of the hearing, stated “On his own admission his situation had become 50% worse since [1 November 2009].”  The statement of reasons is undated but followed a direction dated 30 March 2011 for the Tribunal Judge to prepare a full statement of reasons.  It had plainly not been received by the claimant when he wrote his lengthy letter of 8 May 2011 and I note that permission to appeal was only granted on 2 November 2011. 

21. Regulation 34(5) of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008 provides that if a party applies within the time provided for a statement of reasons, “the Tribunal must, subject to rule 14(2) (withholding information likely to cause harm), send a written statement of reasons to each party within 1 month of the date on which it received the application or as soon as reasonably practicable after the end of that period.”  While the claimant did not formally apply for a statement of reasons, he was plainly complaining about the decision and seeking to appeal.  The Tribunal Judge giving the decision notice dated 30 March 2011 rightly directed the Tribunal Judge who heard the appeal to prepare a full statement of reasons, and it is clear that, by analogy with the requirement in rule 14(2) that should have been prepared at latest within one month of that decision notice or as soon as reasonably practicable thereafter.  It is very important that statements of reasons should be prepared reasonably speedily after a hearing, particularly where there is another member of the tribunal, as the Tribunal Judge has to give not only his or her reasons for the decision but also have regard to the reasons of the other member.  Also, memories fade with the passage of time and it is all too easy for the precise reasons to be forgotten, leading to inadequate or inaccurate findings of fact and reasons being set out in the statement.

22. I note that there was at least one further letter from the claimant, which is referred to in an internal note at the end of October 2011 seeking expedition of the decision on the claimant’s application for permission to appeal, and I also note that the undated statement of reasons refers to the claimant’s “several letters” without giving their dates.  I am not satisfied that there was any good reason for the statement of reasons to be undated.  Nor am I satisfied that that statement of reasons was prepared as soon as reasonably practicable.  I also note that it makes no reference to the statement mentioned in the original decision notice that the claimant’s condition had become 50% worse since the date of the decision maker’s decision, and the claimant’s statement on this appeal in his letter received on 7 March 2011 (p.15) that he did not admit that his situation had become 50% worse since 1 November 2009 but that it had become 50% worse since the decision of 25 November 1998 awarding him incapacity benefit.  That letter also complains about papers being left out of the file and appears to be one of the letters referred to on this topic in the statement of reasons.  In those circumstances, I find it surprising that the Tribunal Judge in providing the statement of reasons did not comment on this or include any further reference to the 50% point as set out in the original decision notice of 9 February 2011. 

23. Given in addition that the record of proceedings refers to the 50% deterioration as getting down to 50% in the context of a deterioration since the claimant’s imprisonment, I am not satisfied that I can rely on the statement of reasons as an accurate record of those reasons or that I can rely on the claimant’s evidence in this respect being accurately recorded in the decision notice.

24. The statement of reasons is further in error of law in that it fails to consider the question of reasonable regularity in relation to the descriptors, bearing in mind in particular the claimant’s evidence in his application form as to his problems with standing.  There is also evidence from the claimant, recorded in the statement of reasons, but as to which there is no finding, that he would suffer pain when walking and tried to walk his way through the pain.  In the absence of any findings as to whether this evidence was accepted, or as to proportion of good days walk 200 metres and bad days when he could only walk 100 metres, I am unable to understand the reasons for the tribunal’s conclusion that he could walk for up to 200 metres without stopping or severe discomfort.

25. I therefore conclude that the tribunal’s reasons are in error of law.  In addition the apparent lengthy and unexplained delay in dealing with the statement of reasons coupled with the possible error as to the 50% evidence which could have been, but was not dealt with in the statement of reasons after the point had been raised by the claimant, means that there has been a failure of natural justice in dealing with this appeal.  Accordingly, the decision must be set aside and the appeal reheard by a new tribunal.

26. The new tribunal will need to consider all the evidence and, having regard to the claimant’s medical evidence both as to his condition in 1997/8 and any further medical and other evidence he may produce as to his condition and ability to perform the relevant descriptors, it will need to decide how much he had deteriorated, if at all, since 1998, and what his condition was, and what his ability to perform the various descriptors was at around the time of the decision in November 2009.  Evidence of any further deterioration since then may be relevant in assisting the tribunal to make findings as to his condition at that time.  The tribunal will need to bear in mind that by virtue of regulation 34(2) of the Employment Support Allowance Regulations 2008, the test using the descriptors is whether the descriptor applies to the claimant for the majority of the time, or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by the descriptor.

(signed) Michael Mark

Judge of the Upper Tribunal

21 September 2012