DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Preston First-tier Tribunal dated 06 April 2011 under file reference SC068/11/01788 involves an error on a point of law.  The First-tier Tribunal’s decision is set aside.  The Upper Tribunal is able to re-make the decision under appeal. The decision that the First-tier Tribunal should have made is as follows:

The appellant’s appeal against the Secretary of State’s decision dated 28 October 2010 (at page 58 of the papers) is allowed.  That decision is accordingly revised.

The correct decision is that the appellant has both limited capability for work and also has limited capability for work-related activity and so qualifies for the “Support Group”.

She has limited capability for work because she scores more than 15 points under Schedule 2.

She has limited capability for work-related activity because she meets both of the conditions for the rising from sitting and transferring activity (function 2 in Schedule 3).

It follows that she is entitled to employment and support allowance (ESA) and should be placed in the “Support Group” not the “Work-related Activity Group”.

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

REASONS FOR DECISION

The Upper Tribunal’s decision in summary

1. The appellant’s appeal to the Upper Tribunal is allowed.  The decision of the First-tier Tribunal dated 06 April 2011 following a “paper hearing” at Preston (under file reference SC068/11/01788) involves an error on a point of law and is set aside.  Its decision is of no effect.

2. The usual outcome for appeals that succeed before the Upper Tribunal is that the claimant’s original appeal needs to be reheard by a new First-tier Tribunal. However, for the reasons that follow that is not necessary in the particular circumstances of this case.  I therefore both allow the appellant’s appeal to the Upper Tribunal and also re-make the decision that the First-tier Tribunal should have made.

The proceedings before the Upper Tribunal

3. In giving permission to appeal, following an oral hearing of the application at Manchester on 20 October 2011, I commented as follows:

‘3 I have considered the various points that you have made on the UT1 Form and in your correspondence, as well as at the hearing.  The question for the tribunal in Preston was not whether you were unfit for work, as you clearly scored more than 15 points.  The issue for the tribunal was whether you met the stricter conditions for the so-called “support group”.  This covers people who are not only unfit for work, but also do not need to take part in e.g. work-related activities like interviews and retraining programmes.  The detailed rules are in regulation 34 of, and Schedule 3 to, the Employment and Support Allowance Regulations 2008 (SI 2008/794; the “ESA Regulations 2008”).

4. Looking first at the “fit for work” question under Schedule 2, the DWP accepted that you scored points for difficulties you have with walking (9 points), standing & sitting (6 points), bending & kneeling (6 points) and manual dexterity (9 points).  That obviously came to more than 15 points and so you were found unfit to work under Schedule 2 to the ESA Regulations 2008.

5. The question as to whether you also qualified for the support group under Schedule 3 is more complex.  In order to qualify for the support group on the basis of walking, your mobility would have to be limited to as little as 50 metres, which your Schedule 2 score would suggest was not the case at the time in question.  Bending & kneeling does not feature at all in the Schedule 3 list of qualifying conditions.  The manual dexterity test is also very strict and again your Schedule 2 score would suggest that you did not qualify for the support group on that basis at the time in question.

6. That leaves the question of standing & sitting, which we discussed at some length at the oral hearing in Manchester.  At the time in question – the law has been changed since – this ability was defined more narrowly as “Rising from sitting and transferring from one seated position to another”.  A person met the Schedule 3 test for this activity if they could not complete both of the following activities:

“(a) rise to standing from sitting in an upright chair without receiving physical assistance from someone else; and

(b) move between one seated position and another seated position located next to one another without receiving physical assistance from someone else.”

7. In your case it would appear that condition (a) was met.  The examining doctor said that you could not rise from sitting without assistance and this was consistent with your condition (see e.g. page 53 of the tribunal file).  It was also consistent with what you said on the ESA claim form (page 15).

8. So the critical question was whether condition (b) in paragraph 6 above was also met.  The examining doctor seemed to think it was not met – at page 34 the doctor recorded that you had said that you could move independently from sitting on a bed to a chair, when they were next to each other.  At page 46 he expressed the view that you should be able to rise and transfer yourself independently.  However, there was contrary evidence.  On your ESA claim form, you had stated that you could not move from one seat to another nearby without help from another person (page 15).

10. I think it is therefore arguable that the tribunal may have erred in law.  The tribunal did not really examine the evidence on the relevant test under Schedule 3 – if they did, they should have spotted this difference.  I am also not at all sure that the evidence recorded by the doctor actually relates directly to the proper legal test.  The doctor referred to moving from sitting on a bed to sitting on a chair, while the legal test appears to be about moving from a seat to another seat.  It may be possible to manage the former but not the latter.  I am also unsure whether the tribunal seriously considered whether you could do this activity on a regular basis (see also regulation 34(2)).

11. For all those reasons I give permission to appeal.  The tribunal’s very brief statement of reasons makes me question how thoroughly these issues were considered. I therefore propose to allow the appeal also, and either decide the Schedule 3 matter myself or send the case back for re-hearing.  The basis for allowing the appeal would be that the tribunal erred in law by (i) failing to give adequate reasons for its decision; (ii) failing to investigate fully and make findings of fact in relation to the activity of rising from sitting and transferring.  I am making further directions accordingly.

12. These directions ask you whether you agree with the approach suggested above.  The Upper Tribunal office will write to the DWP with the same question.  I shall then consider both responses.’

4. I am repeating this passage here mostly for the benefit of the previous tribunal, so they understand why their decision has been overturned.  I should also clarify that those observations were not numbered correctly, so there is no missing paragraph 9.

5. Ms Lesley Worrall, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, does not object to the decision of the First-tier Tribunal (FTT) being set aside on this basis.  The appellant has also agreed. I therefore formally find that the FTT’s decision involves an error of law for the reason set out at paragraph 11 in the extract above when I gave permission to appeal. 

What happens next?

6. The usual practice when an appeal to the Upper Tribunal is allowed is to send the case back for re-hearing on the facts before a new FTT.  However, I do not think that is necessary in this case.  I had the opportunity to speak to and observe the appellant at the oral hearing of the application for permission, and so have some understanding of the difficulties that she faces (although of course the original appeal was made at an earlier date when her condition may have been rather better).  It is highly unlikely that any new evidence is going to come out now about how she was back in October 2010, when the original decision was made.  It is therefore appropriate for me to go ahead and decide the case on the basis of the evidence that we do have.

7. My conclusion is that at the relevant time (October 2010) the appellant met both of the criteria for the “Rising from sitting and transferring from one seated position to another” function in Schedule 3.

8. The first condition ((a)) is that you could not “rise to standing from sitting in an upright chair without receiving physical assistance from someone else”.  This conclusion is supported by your own statement on the questionnaire (page 15 of the file) and by the examining doctor’s statement in his report (at page 53).

9. The second condition ((b)) is that you could not “move between one seated position and another seated position located next to one another without receiving physical assistance from someone else”.  This conclusion is supported by your own statement on the questionnaire (page 15 of the file) and by the examining doctor’s findings of severe arthritis in both knees and severe disability due to impairment in both hips and knees (page 37), along with findings of loss of function due to pain and stiffness in the arms and severe arthritis in the right wrist (pages 50-51).  I disregard the examining doctor’s view that you should be able to rise and transfer yourself independently (page 46) on the basis that it is simply inconsistent with the weight of the evidence.

10. It follows that at the relevant time you met both the conditions for the rising from sitting and transferring activity (function 2) in Schedule 3 to the Regulations. On that basis (see regulation 34) the FTT should have found that you not only had limited capability for work, but you also had limited capability for work-related activity, and so qualified for the “support group”.

11. The decision that the First-tier Tribunal should have made, and which I now make, is therefore as follows:

The appellant’s appeal against the Secretary of State’s decision dated 28 October 2010 (at page 58 of the papers) is allowed.  That decision is accordingly revised.

The correct decision is that the appellant has both limited capability for work and also has limited capability for work-related activity and so qualifies for the “Support Group”.

She has limited capability for work because she scores more than 15 points under Schedule 2.

She has limited capability for work-related activity because she meets both of the conditions for the rising from sitting and transferring activity (function 2 in Schedule 3).

It follows that she is entitled to ESA and should be placed in the “Support Group” not the “Work-related Activity Group”.

Conclusion

12. The decision of the First-tier Tribunal involved an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). I also re-make the tribunal’s decision (section 12(2)(b)(ii)) in the terms set out above. 

Signed on the original Nicholas Wikeley

on 09 February 2012 Judge of the Upper Tribunal