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 Bournemouth First-tier Tribunal dated 01 September 2011 under file reference SC168/11/01458 involves an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the appellant’s appeal against the Secretary of State’s decisions dated 14 October 2010 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

 

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

 

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The re-hearing will be at an oral hearing.

 

(2) The new tribunal should not involve the tribunal judge or medical member who sat on the tribunal that considered this appeal at the hearing in Bournemouth on 01 September 2011.

 

(3) The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal (namely 14 October 2010).

 

(4) If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of Her Majesty’s Courts and Tribunals Service (HMCTS) in Cardiff within one month of the issue of this decision.  Any such evidence will have to relate to the position as it was at 14 October 2010.

 

(5) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may end up reaching the same or a different result to the outcome of the previous tribunal.

 

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 

REASONS FOR DECISION

 

Summary of Upper Tribunal’s decision

1. The appellant’s appeal to the Upper Tribunal is allowed. The decision of the Bournemouth First-tier Tribunal (FTT) on 1 September 2011 involves an error on a point of law, despite the obvious care that the tribunal took. That tribunal’s decision is set aside. The case needs to be reheard by a new tribunal. 

 

The legal issue in this appeal

2. The legal issue in this appeal is a fairly narrow one. It may be summarised in this way: can a claimant who has been living in a residential treatment centre for those with gambling addictions, and then moves to “halfway house” accommodation, claim the benefit of regulation 25 of the Employment and Support Allowance Regulations 2008 (SI 2008/794)?

 

3. Regulation 25 is one of the “deeming provisions” which treats a claimant for employment and support allowance (ESA) as having limited capability for work where certain conditions are satisfied, even if that person does not reach the 15 points required by regulation 19 under the work capability assessment. Regulation 25(1), which is headed “Hospital in-patients”, applies “on any day on which that claimant is undergoing medical or other treatment as an in-patient in a hospital or similar institution, or which is a day of recovery from that treatment.” For these purposes, a “day of recovery” means “a day on which a claimant is recovering from treatment as an in-patient in a hospital or equivalent under paragraph (1) and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work on that day” (regulation 25(2)).

 

4. Regulation 25 was amended with effect from March 28, 2011 by regulation 3(2) of the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011 (SI 2011/228). This added a new sub-paragraph (1A) as follows:

 

“(1A) The circumstances in which a claimant is to be regarded as undergoing treatment falling within paragraph (1) include where the claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction.”

5. This amendment was made after the Secretary of State’s decision maker disallowed the Appellant’s benefit claim in the present case. For the reasons that follow, I conclude that, in and of itself, this is not fatal to the Appellant’s case – even though he cannot claim the benefit of sub-paragraph (1A), he may still, depending on the facts, qualify under the normal rule in paragraph (1), as elaborated by the definition in paragraph (2).

 

The factual background to this appeal

6. The Appellant, who had previously been a builder, had a nasty elbow injury which was giving him a lot of pain and making him depressed. He also had a very serious gambling addiction. He underwent an intensive seven-month specialist treatment programme for his gambling addiction run by a charity. He lived in the charity’s residential treatment centre for the first four months, and then moved to Halfway House for the following three months.

 

7. The chronology, as it intersected with his ESA claim and appeal, ran as follows. In June 2010 he went into the residential treatment centre. In August 2010 he completed his ESA50 questionnaire. In September 2010 he had an ATOS examination, leading to the doctor preparing an ESA85 report. On 9 October 2010 he moved to Halfway House. On 14 October 2010 the decision maker concluded that the Appellant scored nil points and so superseded the previous decision awarding ESA. In January 2011 the Appellant left Halfway House and moved into his own accommodation. In August 2011 the FTT heard his appeal, awarded him 12 points for physical functions (associated with his elbow injury), found that regulation 29 (exceptional circumstances) did not apply and dismissed his appeal.

 

8. The FTT, in what was in many ways a very carefully argued statement of reasons, focussed on the Appellant’s elbow injury and its effects. There was relatively little discussion of his gambling addiction. The FTT found as a fact that at the date of the Secretary of State’s decision, the Appellant was “in residential treatment for a gambling addiction” (in fact, he had just moved to Halfway House, which may or may not have counted as residential treatment, as shall be seen below). In a later passage, the FTT reached a potentially contradictory conclusion. It found that the Appellant had, by the date of the decision, “completed the programme” (i.e. the intensive programme at the residential treatment centre) and “had moved to a nearby Halfway House, so that he could get support from the Outreach Worker”.

 

The parties’ submissions and the error of law in the FTT’s approach

9. Ms Denise Taylor, who acts for the Secretary of State in these proceedings before the Upper Tribunal, argues that the FTT erred in law because it failed to make sufficient findings of fact and then apply regulation 25 properly. In particular, the FTT did not consider whether, at the time of the Department’s supersession decision, the Appellant was “undergoing medical or other treatment as an in-patient in a hospital or similar institution” (emphasis added).

 

10. The Appellant has argued his case clearly and forcefully. On the regulation 25 point, he says that before the change in the law (see paragraph 4 above) claimants on drug and alcohol rehabilitation programmes were being taken off ESA and made to sign on for jobseeker’s allowance, even though they were trying to complete their treatment. The law was accordingly amended in March 2011. However, he reports that a drug and alcohol rehabilitation worker advised him that all her clients on residential programmes were already winning their appeals in the 12 months before March 2011. This was the basis for his appeal – “I really, really, do not understand what is different about myself”.

 

11. I agree with Ms Taylor. The FTT’s decision involves an error of law and must be set aside for that reason. There will have to be a fresh hearing before a new tribunal, given the lack of information about the nature of the particular programme on which the Appellant was placed.

 

Directions to the new First-tier Tribunal

The questions the First-tier Tribunal must ask

12. The new First-tier Tribunal should ask itself the following two, or if necessary three, questions:

 

(1) in the first four months of the programme, when the Appellant was at the residential treatment centre, was he “undergoing medical or other treatment as an in-patient in a hospital or similar institution”?; and, if so,

(2) at the date of the Secretary of State’s supersession decision, when he had just moved to Halfway House, was the Appellant still “undergoing medical or other treatment as an in-patient in a hospital or similar institution”?; and, if not,

(3) at that date, when the Appellant had been at Halfway House for just five days, was he undergoing “a day of recovery from that treatment”?

 

(1) Was the Appellant “undergoing medical or other treatment as an in-patient in a hospital or similar institution” at the residential treatment centre?

Introduction

13. The case papers include no details as to the nature of the programme during the first four month phase in the residential unit. The new FTT will need to establish the facts in the context of the three component parts of this first question. The first sub-question is whether the Appellant was undergoing “medical or other treatment”. This expression must be understood in the light of a partial statutory definition and also the case law.

 

“Medical or other treatment”

14. According to regulation 2(1), “‘medical treatment’ means medical, surgical or rehabilitative treatment (including any course or diet or other regimen), and references to a person receiving or submitting to medical treatment are to be construed accordingly.”

 

15. As to the case law, the meaning of the expression “medical or other treatment”, albeit in a different context, was considered by the Court of Appeal in Secretary of State for Work and Pensions v Slavin [2011] EWCA Civ 1515; [2012] AACR 30 (upholding Judge Turnbull’s decision in AS v SSWP [2010] UKUT 482 (AAC). The claimant there was a resident in a specialist care home (not a nursing home) for people with autistic spectrum disorders, paid for by the NHS. The specific issue in that appeal was whether he was “maintained free of charge while undergoing medical or other treatment as an in-patient … in a hospital or similar institution under [the National Health Service Act 2006]”, within the meaning of regulation 12A of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890). If so, he was not entitled to the mobility component of disability living allowance (DLA).

 

16. The context and the statutory scheme, therefore, were different. In Slavin it was in the claimant’s interests not to be found to be “undergoing medical or other treatment as an in-patient … in a hospital or similar institution”. In the present appeal it would be in the Appellant’s interests to fall within that expression. However, these are simply different consequences on the circumstances of each case. The fact that the legislative language is the same means it must be assumed that the same meaning attaches to the phrase within both sets of regulations with the broader social security system.

 

17. The Court of Appeal in Slavin, for reasons that need not concern us, had to proceed on the assumption that the claimant did not receive treatment from, or under the supervision of, doctors or professionally qualified nurses. On that basis the Court decided that the claimant was not “undergoing medical or other treatment as an in-patient … in a hospital or similar institution”. This was because, proceeding on the assumption outlined above, the claimant was only “undergoing medical or other treatment” if the care provided at the home amounted to nursing care. However, the home in question did not purport to provide nursing care. According to Richards LJ, “its staff are trained to handle challenging behaviour and to support in other ways the particular needs of residents; ... But they do not have professional qualifications or training as nurses, nor do they work under the supervision of qualified nurses” (at paragraph 55). Furthermore, in a reference to Minister of Health v Royal Midland Counties Home for Incurables at Leamington Spa [1954] Ch 530, “there is nothing in the nature even of the ‘palliative treatment’ referred to in the Leamington Spa case. The management of challenging behaviour is no doubt a demanding aspect of the care provided, but of itself it does not seem to me to constitute nursing.” Both Davis LJ and Pill LJ agreed with that analysis (at paragraphs 67 and 75 respectively).

 

18. It is entirely a matter of fact for the good judgment of the new tribunal in the present case as to whether the Appellant was indeed undergoing “medical or other treatment”. The statutory definition of “medical treatment” is fairly broad, including “rehabilitative treatment (including any course or diet or other regimen)”, which may well be sufficient to cover the Appellant’s case. There may also be a material distinction between the facts of his case and those in Secretary of State for Work and Pensions v Slavin. It would appear that the Appellant was admitted to the residential programme for the prime purpose of treating his gambling addiction, and then resuming independent living, whereas in Slavin the claimant ultimately was being “cared for” in the long-term and not being “treated” with a view to leaving the care home.

 

19. The FTT will need to explore a number of issues in the process of its fact-finding. How was the Appellant referred to the residential treatment centre? Who admitted him and what were their professional qualifications? Who had overall charge of the centre and the Appellant’s programme (and, again, what were their qualifications)? The tribunal will need to ask questions to find out the terms of the occupancy and living arrangements at the centre, the daily routine and the nature of the therapeutic or other treatment to address gambling addiction, and whether it was delivered wholly on site or partly off site. The answers to those questions may also assist in addressing the other two components of this first question.

 

“… as an in-patient…”

20. The second sub-question is whether the Appellant was undergoing such treatment “as an in-patient”. The proper meaning to be attached to “in-patient” was the subject of the recent decision by Judge Williams in CJ v Secretary of State for Work and Pensions (ESA) [2012] UKUT 201 (AAC). In that case the claimant had had a knee operation by way of day surgery but had not stayed in hospital overnight. Judge Williams concluded (at paragraph 23) that there were two (cumulative) tests for identifying whether an individual was receiving hospital treatment as an “in-patient”: (1) had the claimant been admitted to hospital, and (2) was he or she occupying a bed (other than very briefly, e.g. for the purposes of a medical examination)? Accordingly, day patients were not necessarily included or excluded from the definition of “in-patient”. It all depended on the facts. Moreover, “in practice, the two tests will often be two ways of looking at the same thing, one being the administrative process while the other reflects the kind of treatment given” (at paragraph 24).

 

21. In Secretary of State for Work and Pensions v Slavin Richards LJ expressed the view that the because the care home was not providing medical or other treatment to its residents, then it followed that they were not “in-patients”. His Lordship added: “I might, however, have taken a different view of the matter if I had concluded that it was providing medical or other treatment to its residents” (at paragraph 58). Davis LJ agreed that it was “very strained to describe the [claimant] as an ‘in-patient’” (at paragraph 68).

 

22. In the present case the nature of the treatment was a long way from knee surgery in CJ v Secretary of State for Work and Pensions (ESA). But it appears that he was receiving some form of rehabilitative treatment, in contrast to the claimant in Secretary of State for Work and Pensions v Slavin. In the last analysis the issue of whether the Appellant was an “in-patient” at the residential treatment centre is a question of fact. The new FTT will need to consider in particular the nature of his admission for treatment and the basis of his long-term occupancy.

 

“…in a hospital or similar institution”

23. The third sub-question is whether or not the Appellant was “in a hospital or similar institution”? That expression is not defined by social security legislation, but there is case law authority that it should be construed as defined in the National Health Service Acts (see White v Chief Adjudication Officer (1993), Court of Appeal judgment of 21 July 1993, also reported as R(IS) 18/94, per Ralph Gibson LJ).  As Richards LJ noted in Secretary of State for Work and Pensions v Slavin (at paragraph 9), the “definitions in s.275(1) of the National Health Service Act 2006, as amended by the Mental Health Act 2007, include the following:

 

“‘hospital’ means –

(a) any institution for the reception and treatment of persons suffering from illness,

(b) any maternity home, and

(c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation …

 

‘illness’ includes any disorder or disability of the mind and any injury or disability requiring medical or dental treatment or nursing.”

 

24. The Court of Appeal in Slavin was satisfied that, given there was no medical treatment or nursing care, the home in that case did not come within the ambit of the phrase “hospital or similar institution” (per Richards LJ at paragraph 58 and per Davis LJ at paragraph 68; Pill LJ did not need to decide the issue, but acknowledged, at paragraph 79, that “A finding on that may often be determined by the finding on the treatment issue”). In the present case, I doubt that the charity running the gambling addiction programme would describe its residential treatment centre as a “hospital”, even if on one reading that establishment might fit the above statutory definition. However, whether or not the centre was a “hospital”, it might qualify as a “similar institution”.

 

25. In this context it should be noted that the World Health Organisation’s ICD-10 Classification of Mental and Behavioural Disorders recognises pathological gambling as a habit and impulse disorder (F63.0), defining it as “frequent, repeated episodes of gambling which dominate the individual's life to the detriment of social, occupational, material, and family values and commitments” (p.165). DSM-IV also classifies pathological gambling as an “Impulse Control Disorder Not Elsewhere Classified” (312.31).

 

26. The Decision Makers’ Guide (DMG) offers the following observation (at Volume 8, chapter 18, paragraph 18033):

 

“A hostel or residential care home providing accommodation and social care to former alcoholics or drug addicts is not a similar institution to a hospital. An institution caring for former alcoholics, drug addicts or psychiatric patients which provides a degree of medical treatment or rehabilitation by trained nursing staff may be a similar institution to a hospital.”

 

Taking a holistic approach

27. The example in the DMG seems to me a helpful illustration of two examples which may fall either side of the line. It may be that the new tribunal ends up concluding that the residential unit is a “hospital or similar institution” whereas Halfway House is not, but it all depends on the facts.

 

28. Although this first question has been broken down into three elements for the purposes of exposition, the new FTT, once it has established the facts, will need to stand back and ask itself the composite question: was the Appellant, when at the residential treatment centre, “undergoing medical or other treatment as an in-patient in a hospital or similar institution”? Davis LJ in Slavin stressed the importance of adopting a holistic view of the statutory expression (at paragraphs 66 and 68).

 

(2) At Halfway House, was the Appellant still “undergoing medical or other treatment as an in-patient in a hospital or similar institution”?

29. The Appellant had just moved to Halfway House by the date of the Secretary of State’s supersession decision. The new FTT will need to decide whether at that point the Appellant was still “undergoing medical or other treatment as an in-patient in a hospital or similar institution”. The tribunal will need to explore the same sorts of issues as are identified at paragraph 19 above, but in the context of the new arrangements at Halfway House. Even if the Appellant was still “undergoing medical or other treatment” as part of an integrated therapeutic programme to address his gambling addiction, it may well be more difficult on the facts to find either that he was an “in-patient” or that Halfway House constituted a “hospital or similar institution” (emphasis added), given that it was presumably a ‘stepping stone’ to fully independent living. However, that is for the new FTT to determine.

 

(3) At Halfway House, was the Appellant still undergoing “a day of recovery from that treatment”?

30. If the Appellant came within regulation 25 when at the residential treatment centre, but not when at Halfway House, he might still be treated as having limited capability for work if, after his move, he was undergoing “a day of recovery from that treatment”. The notion of a “day of recovery” is defined by regulation 25(2) as “a day on which a claimant is recovering from treatment as an in-patient in a hospital or equivalent under paragraph (1)”. It also vests the Secretary of State with a discretion – such a day or days will count so long as he “is satisfied that the claimant should be treated as having limited capability for work”. Furthermore, as Judge Pacey observed in CE/2692/2010, regulation 25(2) is “not confined to those recovering in hospital or equivalent” (at paragraph 6), and so could include the situation where a claimant was recovering at home after an operation in hospital.

 

31. On one rather strict reading, however, the Appellant may not have been undergoing “days of recovery” when living at Halfway House. The gambling addiction programme was presumably devised as an integrated whole, starting with some sort of assessment stage, moving on to an intensive residential phase and then continuing with the outreach support provided at Halfway House until the end of the seven months, by which time the individual would be ready to return to fully independent living. On that basis, the days at Halfway House were not for recovery but part and parcel of the overall treatment package. This is, in my view, ultimately a question of fact on which the new tribunal will have to take a common sense view. In another context, a person might undergo knee surgery, be discharged from hospital very quickly, possibly even on the same day, and then be recuperating at home. The fact that the individual would still be receiving treatment post-discharge, e.g. by way of physiotherapy, would not necessarily stop each day of recuperation being a “day of recovery from that [hospital in-patient] treatment”.

 

32. In answering this question, the new tribunal should adopt a purposive approach. In CJ v Secretary of State for Work and Pensions Judge Williams analysed the structure of Part 5 of the 2008 Regulations (at paragraphs 5-8, with the relevant statutory provisions included in an appendix). I respectfully agree with the Judge’s conclusion that (emphasis added):

 

“22. It is also important to have in mind, as Mr Wall [the claimant’s representative] emphasised, the significance of defining “in-patient” lies not so much in the specific day or days in hospital but in the days of recovery. For that reason, the provision should in my view be seen in its context with the other exceptions to the need for a capability for work assessment. As the appendix shows, other forms of medical treatment are specifically identified as giving rise to a potential need for days of recovery. This includes treatment by way of: chemotherapy; radiotherapy; kidney dialysis; blood purification; and intravenous or other non-oral or assisted feeding or drinking. Separately there are exemptions for: the terminally ill; those with uncontrollable or uncontrolled medical conditions that are life-threatening; pregnant women, and those whose medical condition is such that exposure to work would create a substantial risk to health. It is plain from this that the intention is that regulation 25 should apply only to those with medical conditions requiring hospital treatment such that there can be assumed to be a serious limitation on capability for work during, and resulting from, that treatment without the need to test capability specifically.”

 

The significance of the amendment to regulation 25 in March 2011

33. The Appellant has raised the issue of the amendment to regulation 25 in March 2011 (see paragraph 4 above). This does not assist him, for two reasons. The first is that the amendment came into force after the date of the decision which he was appealing against. The second is that on its own terms it does not cover his situation. The new regulation 25(1A) covers those claimants “attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction”. There may well be some similarities between drug, alcohol and gambling addiction, but there are also some differences, and the wording of the amendment does not cover the Appellant’s case, even if it had been in force at the material time.

 

34. However, it might be thought that the very fact the amendment was made might suggest that any such residential rehabilitation programmes, regardless of the type of addiction involved, fell outside the ambit of regulation 25 before March 2011. The official Explanatory Note to the amending regulations advised as follows (at paragraph 7.12):

 

“The Regulations clarifies that the existing provision which allows hospital in-patients to be treated as having limited capability for work (LCW) includes claimants attending a residential programme of rehabilitation for the treatment of drug or alcohol misuse.”

 

35. This would imply that the official understanding was that drug or alcohol programmes were not necessarily excluded from the scope of regulation 25, but that the point needed to be made clear. However, the Explanatory Note also advised as follows (at paragraph 7.18):

 

“The existing Regulations ensure that in-patients in a hospital or similar institution can be treated as having limited capability for work but does not include residential rehabilitation centres for drug and alcohol misuse where there are no on-site medical staff. As individuals on such residential programmes are unlikely to be able to work at that time, this instrument broadens the definition so that they can also be treated as having limited capability for work.”

 

36. It may be that this amendment was in part a response to Judge Turnbull’s decision in AS v SSWP, subsequently upheld by the Court of Appeal in Slavin. Alternatively, as the Appellant suggests, it may have been a response to a recognised problem in that claimants who were trying to turn their lives round were finding themselves being forced off ESA and onto JSA, disrupting the completion of their residential programmes.

 

37. The policy background is now irrelevant. The fact is that the March 2011 amendment does not help address the question as to whether this Appellant was entitled to claim the benefit of regulation 25 on 14 October 2010, when he had just moved to Halfway House. That question is to be answered by considering the three questions set out above and analysed at paragraphs 12-32.

 

38. I note from the Appellant’s submissions that he appears to be under the impression that the key date is the date of his medical examination (when he was certainly living at the residential treatment centre). That is a misunderstanding – what matters is the position as at the date of the Secretary of State’s decision (Social Security Act 1998, section 12(8)(b)).

 

The subsequent award of benefit

39. In the course of these proceedings it has come to light that in March 2012 a different decision maker, based at another office, as the Appellant had moved, had decided that the Appellant was entitled to ESA from 11 June 2010 through to 12 March 2012 (with the exception of one day that cannot be accounted for). This appears to have been because the new decision maker was unaware of this outstanding appeal. There is no suggestion that the Appellant was in any way at fault. He was paid at the standard ESA assessment phase rate on the new award. He was not paid the work-related activity component or the support group component. If the remitted appeal is allowed, the new FTT should for completeness refer to that subsequent award in its decision.

 

40. It appears that the Appellant has since re-trained as an electrician and is working on a self-employed basis. He is advised to make every effort to attend the new tribunal hearing. If he is unable to do so, it would doubtless assist if he could provide details in writing of the arrangements at both the residential treatment centre and at Halfway House to deal with the questions raised at paragraph 19 above.

 

Conclusion

41. For the reasons explained above, the FTT’s decision involves an error of law.  I must therefore allow the appeal and set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for rehearing by a new First-tier Tribunal subject to the directions listed above (section 12(2)(b)(i)). 

 

 

 

 

Signed on the original Nicholas Wikeley

on 25 February 2013 Judge of the Upper Tribunal