Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CE 3431 2012 

ADMINISTRATIVE APPEALS CHAMBER

EW v SSWP (ESA)

DECISION

The appeal is allowed.

For the reasons below, the decision of the First-tier tribunal is set aside.

I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

Directions for new hearing

A The new hearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision. The appellant and representative are in particular directed to consider whether they wish to produce any further submissions or evidence to the tribunal about mobilising with the use of aids.

These directions are subject to any later direction by a tribunal judge.

REASONS FOR DECISION

1 The appellant suffered serious injuries at work because of an incident many years ago when she fell down cellar stairs while carrying a large object. She suffered spinal and pelvic fractures. Following this she was awarded industrial injuries disablement benefit and disability living allowance in addition to incapacity benefit. This appeal arises from a consideration of her case for the award of employment and support allowance on conversion from incapacity benefit. No point was taken in the appeal about the conversion process as such.

2 In the ESA50 form sent by the appellant to the jobcentre she recorded limitations on walking and going up and down steps; on standing and sitting; on reaching; on picking up and moving things; on initiating actions; and on going out. However, the limitation on going out noted by her was physical and “not to do with mental disabilities”. Similarly, the limitation on initiating actions was “all down to pain and discomfort not mental disabilities”.

3 Following receipt of the form the jobcentre arranged for a medical examination of the appellant by a registered nurse at the local examination centre. The report of that examination is in the computer generated form of ESA85. It records that the appellant cannot either mobilise more than 200 metres on level ground without stopping or repeatedly mobilise for that distance within a reasonable timescale. In the relevant test that amounts to a limitation “scored” at 6 points. The nurse found no other physical or mental limitation. The decision maker acting for the Secretary of State in conducting the conversion exercise took the view on that evidence that the appellant did not qualify for conversion of her existing award to employment and support allowance. The then existing award was therefore ended on 6 12 2011.

4 The appellant appealed on two grounds. First, she could not believe that this decision was possible given her physical disabilities and mental anxiety. No account, she contended, had been taken of her mental health problems at all. Second, she complained about the medical examination. In preparation for the appeal she obtained and sent in a letter from her general practitioner. That confirmed problems of mobility and pain. It recorded a diagnosis of fibromyalgia and mood related issues arising from her pain syndrome.

5 The appeal was heard by a First-tier Tribunal on 19 06 2012. The appellant was present with her husband and a representative. There is a lengthy record of proceedings of the hearing, later issued in typed form. The tribunal confirmed the decision of the Secretary of State. It issued a full statement of reasons.

6   The grounds of appeal put to the Upper Tribunal raise three issues:

(1) Failure to make necessary findings of fact, in particular about mental health issues;

  (2) An error of law by the tribunal in interpreting the “sitting/standing” descriptor;

(3) An error of law or an inadequacy in dealing with the use of a wheelchair.

Mental health issues

7 This ground is unarguable, save for the descriptors below. I did not grant permission to appeal on this point and neither party has sought to dispute this.

Standing and sitting

8 This is about the interpretation in law of the “standing and sitting” descriptor in the physical disabilities test. It is in Schedule 2 to the Employment and Support Allowance Regulations 2008 as it applies after 27 03 2011. It arises because on a superficial reading the descriptor in paragraphs 2(b) and (c) in that schedule are ambiguous. They refer to “either standing … or sitting”. Does this mean that standing and sitting have to be assessed cumulatively or separately? The representative argues that they must be assessed separately. The tribunal expressly adopted the interpretation that the test was “a combination of both standing and sitting”. On that basis the tribunal could see no evidence that the descriptor was met.

9 This descriptor was considered in detail by Upper Tribunal Judge Wikeley in MC v Secretary of State for Work and Pensions, [2012] UKUT 324 (AC). After a full discussion the judge took the view that the approach adopted by the First-tier Tribunal in this case was the correct one. The Secretary of State’s representative respectfully agreed with that decision in the submission to me and made no further comment on that point. The appellant’s representative did not argue against it.

10 I agree with Judge Wikeley’s decision and adopt its reasons for this decision. I direct the First-tier Tribunal to follow it in this case should this point be re-opened when this appeal goes back to the First-tier Tribunal.

Mobilising with a wheelchair

11 The third issue is about the use of a wheelchair to assist mobilising. As I note below, the tribunal appears in this case to have gone straight to consideration of this in its reasons without making any finding about the extent to which the appellant could mobilise without use of a wheelchair.  

12 The tribunal commented at some length in its reasons about whether it was appropriate to consider the use by the appellant of aids she did not use. It made a number of assumptions about the availability of aids for her without any record of discussion at the hearing. It then found that as there were no significant upper limb restrictions and that as the appellant was able to sit for reasonable periods of time there was “no reason why she could not mobilise in a manual wheelchair”. However, it added that there “is some longstanding difficulty and she may struggle to repeatedly do it more than 200 metres”.

13 The appellant’s representative comments on this that “this is simply inadequate and fails to address the many issues regarding wheelchair use which is why there is a formal wheelchair assessment unit at [the local hospital] combining physios, psychologists, clinicians. This was raised at the tribunal and has been ignored.”

14 The test in paragraph 1 of the revised Schedule 2 refers to:

“Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.”

15 When I granted permission to appeal on this issue I pointed out that the proper interpretation of this test had been considered recently by Upper Tribunal Gamble in M v Secretary of State for Work and Pensions [2012] UKUT 376 (AAC).  Judge Gamble emphasised in this decision that the matter of reasonableness was “one requiring a broad exercise of their independent judgment to all the factors that are relevant in each individual case. Those factors should not be restricted to a consideration of a claimant’s physical ability to use a manual wheelchair.” Judge Gamble allowed the appeal for that reason.

16 I directed a submission from the Secretary of State’s representative on this point. In response, the Secretary of State supported the appeal. In the view of the Secretary of State the tribunal should have first found if the appellant normally used an aid or appliance. If not, the next issue is whether any aid or appliance that had been prescribed or advised for use.

The Secretary of State then suggested that the tribunal should consider if the wheelchair or other appliance would help the appellant, and if so whether there was a reasonable excuse why one was not being used. In the view of the Secretary of State the tribunal had failed adequately to consider all the relevant issues. For that reason the Secretary of State supported the appeal and requested that the appeal be sent for rehearing by the First-tier Tribunal.

17 Since then a Northern Ireland Social Security Commissioner has considered the same test as it applies in Northern Ireland, but in a factually different situation. The decision of Commissioner Stockman is MG v Department for Social Development [2013] NICom 359.

Although both parties to the case supported the decision of Judge Gamble as adopting the correct approach to the descriptor, Commissioner Stockman identifies a problem with that approach on the ground that in his view it departs from a purely functional analysis. He comments (at paragraph [40]):

“it seems to me that the reasonableness or otherwise of using an aid should be judged purely in the context of its potential use to enhance functional ability  … the basic question should be whether would be reasonable to use an otherwise appropriate aid in order to enhance function.”

The Commissioner then cautions against taking too wide a range of aspects of wheelchair use into account. I have added copies of his decision to the papers and direct the First-tier Tribunal to consider it alongside the decision of Judge Gamble in deciding this case. I do not consider it appropriate to engage in further analysis of the differences of approach of the two decisions in this case because on either test this tribunal erred in dealing with the matter inadequately. A fuller consideration of the descriptor in this case requires evidence I cannot see in these papers.

18 The tribunal should approach this descriptor, as any descriptor, on the basis of the evidence before it. I emphasise this because of the absence of relevant evidence in the record of decision in this case and a lack of factual findings. In particular I can see no finding made by the tribunal about the extent to which, if at all, the appellant can walk with or without aids. For example, would crutches or a walking or zimmer frame (perhaps with an added seat) be available and suitable to assist? It appears to have gone ahead to consider the use of a wheelchair without first deciding if in its view aids are reasonably needed by the appellant for mobility.

19 There is a very lengthy and thorough record of proceedings but little of relevance about this descriptor and no record of any discussion about the use of a wheelchair or other aids of the kind mentioned by the representative and undertaken in the statement of reasons. There is nothing directly relevant in the decision of the Secretary of State from which the appeal is brought. The appellant omitted answering the specific questions in the ESA50 (which does refer to a manual wheelchair). She confines her answer to a more general comment. In the ESA85 the nurse accepts limited mobility but makes no specific finding or comment about either wheelchair use or use of any other aid. I am unable therefore to consider the matter further on the basis of findings or evidence of the appellant’s ability to mobilise.  

20 This decision puts the appellant and representative on notice that the use of a wheelchair or other aid to mobility is expressly in issue in this appeal. They should therefore make any submissions they wish and produce any evidence they wish for the tribunal rehearing this case about this. For its part, the tribunal should in this case first make express findings about the ability to walk with or without any use of aids and then if relevant turn to other forms of mobility and any prescription for or expert advice about use of a wheelchair or other aid. And it should seek the views of the appellant about how the full descriptor should be applied reasonably to her.

David Williams

Upper Tribunal Judge

9 05 2013

[Signed on the original on the date stated]