Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CE/3186/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Nicholas Warren

Attendances:

For the Appellant: Ms Mustafic

For the Respondent: Mr Cooper

Decision:  The appellant’s existing awards of benefit qualify for conversion into an award of Employment Support Allowance (ESA) from 7 January 2012 at the rate applicable to a person who has limited capability for work related activity.

REASONS FOR DECISION

1.             The appellant has been in receipt of benefits for many years because her poor health renders her incapable of work.  These benefits have been converted to ESA.  The question I have to decide is whether the appellant should be placed in what is referred to as “the support group”.  In legal terms, this translates into whether any of the categories in Schedule 3 ESA Regulations applies to her. 

2.             I need not go into detail concerning the appellants various health problems.  These are described in two medical reports from her GP at pages 32 and 36 of the evidence bundle.  The appellant has always stated that she has difficulty walking.  In a DWP questionnaire, she said that she was unable to manage the distance of 50 metres without stopping.  She added that it was rare for her to go out on her own.  If she left the house she preferred to lean on someone and mainly went out with her daughter for hospital appointments.  She uses a stick. 

3.             At the hearing, the appellant explained that she sometimes went to the pharmacy directly across the road.  She could also manage to walk alone with her stick from her GP’s car park to the surgery.  In a long detailed letter, her GP states:-

“ She is unable to walk without some support and cannot walk far (approx 50 metres) before she needs to stop due to the pain and discomfort and the more that she tries to extend this distance the more painful it becomes and the more exhausted she becomes.”

Since 1994 she has been in receipt of DLA higher rate mobility component on the ground that she is virtually unable to walk without severe discomfort.  This award has been reassessed several times.

4.             I am satisfied by this evidence that the appellant cannot mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort.  Nor could she repeatedly mobilise 50 metres within a reasonable time scale because of significant discomfort.  She thus comes within the first of the categories of Schedule 3, that of mobilising unaided. 

5.             The Secretary of State was represented at the hearing by Mr Cooper.  He declined an offer to cross examine the appellant and was content, after hearing the oral evidence, to offer no submission contrary to my conclusion.  The appellant’s daughter asked me to consider other categories in Schedule 3 and Mr Cooper drew my attention to the probable application, on other evidence which I heard, of Regulation 35(2).  I think it likely that the appellant additionally qualifies for the support group on other grounds but I need not explore those possibilities for the purposes of this decision.  I should however say something more about how this case came to be before the Upper Tribunal. 

6.             The appellant is one of a large number of people in receipt of long term incapacity benefits who are being reassessed to decide whether they qualify for ESA.  Typically, claimants receive a questionnaire to fill in.  Some are then called for a “face to face assessment” by a nurse or a doctor.  A person will qualify for conversion of their award to ESA if they are found to have “limited capability for work”.  This usually depends upon them obtaining a total score of at least 15 points in accordance with Schedule 2 of the ESA regulations.  In respect of each person reaching that score, it is then necessary to consider, as I have done in this case, whether Schedule 3 is also satisfied.  If it is, then the claimant receives slightly more money and is relieved of the obligation to attend interviews concerning looking for work. 

7.             The appellant completed her questionnaire in November 2011.  It was checked by a nurse who made a report on it and, according to the Secretary of State, he made a decision on 15 December 2011 in the following terms:-

“ Conversion Decision (LCW placed in WRAG)

  Having considered the available evidence I have determined that (the appellant) has scored at least 15 points from the appropriate descriptors and has limited capability for work/is treated as having limited capability for work.
I have also determined that by reason of her (physical and/or mental condition) none of the descriptors set out in Schedule 3 to the ESA regulations apply.  She does not have limited capability for work related activity.  She will be placed in the Work Related Activity Group.   
Her existing award(s) will be converted to an award of Employment and Support Allowance from and including 0701/12.”

8.             The appellant appealed the Schedule 3 issue unsuccessfully to the First Tier Tribunal.  Solicitors lodged on her behalf an application for permission to appeal to the Upper Tribunal on the ground that the First Tier Tribunal decision involved an error of law.  That application came before a District Judge of the First Tier Tribunal on 30 August 2012. 

9.             She identified a different error of law in the Tribunal decision.  In her view the Secretary of State’s decision on 15 December 2011 had been made without lawful authority.  She considered that the record of the decision was wholly misleading, and that points from the descriptors in Schedule 2 had not been scored.  They were not included in any decision, nor had they been identified by the decision maker. 

10.         She went on to say that this practice was widespread.  Her own view was that decisions which did not indicate the points which had been scored were a nullity.  The Tribunal could not proceed and the claimants in those cases retained entitlement to their previous incapacity benefit.  Other tribunals referred claimants for medical examinations dealing just with the Schedule 3 issue; some investigated the merits of the Schedule 2 determination.

11.         For these reasons, the District Judge reviewed the First Tier Tribunal decision in this appellant’s case.  She set it aside.  She then referred the matter to the Upper Tribunal under Section 9(5)(b) Tribunal Courts and Enforcement Act 2007 asking for a ruling on the lawfulness of the departmental practice and for guidance as to the approach which tribunals should take to such decisions.  I need to deal with this issue because if the District Judge’s analysis is correct then I do not have jurisdiction to make the Schedule 3 decision in the appellant’s case. 

12.         In my judgement I do have jurisdiction and the decision of the Secretary of State is not a nullity.  I say this for two reasons.

13.         First, the duty of the Secretary of State on a conversion decision is the same as his duty when deciding a claim under Section 8 Social Security Act 1998.  (See Regulation 6(3) ESA (Existing Awards) (No 2) Regulations 2010.)  That duty is to give an “outcome decision” which, broadly speaking, is one which decides whether the claimant is entitled to benefit and, if so, how much and for what period.  There is no obligation under Section 8 to explain the reasoning behind the decision.  Second, I accept that the decision dated 15 December 2011 has obvious imperfections; but then many decisions do.  It does not follow that the decision is void.  On the contrary it was a valid authority for the payment of benefit and sufficient to give a right of appeal on the merits to the First Tier Tribunal.  This, in my judgement, follows from R(IB)2/04, a decision of a Tribunal of Social Security Commissioners.  Sometimes, very rarely, there may be something purporting to be a decision made by the Secretary of State which has so little coherence or connection to the case or to his legal powers that it does not amount to a decision at all.  In such a case, it may be right for the Tribunal to simply set aside the purported decision.  Otherwise, the duty of the Tribunal is to go ahead and to make what it considers to be the correct decision.  That is the approach which the First Tier Tribunal should take to decisions such as that which is under appeal here.

14.         The District Judge raises the question of Schedule 2.  Whatever the form of the decision under appeal, it has always been the case that, providing the matter is dealt with fairly, a tribunal is entitled to consider the Schedule 2 issue on what is ostensibly a Schedule 3 appeal.  This may be necessary in order to give the correct decision.  However, in cases such as this, busy tribunals probably need no encouragement from me to exercise their discretion to deal only with the issue which is before them.  A tribunal which feels duty bound to enter Schedule 2 territory would almost certainly be acting unfairly unless it first adjourned the case for a full submission on the issue from the Secretary of State and the opportunity of a face to face assessment. 

15.         Adjournments for medical evidence are also referred to by the District Judge.  Whilst it is not for me to interfere with the discretion given to each individual tribunal I venture to suggest that in cases such as these an adjournment for a face to face assessment in respect of Schedule 3 will rarely be necessary.  The Tribunal has available to it the expertise of the medical member.  Moreover, there is at least an implication, given the Secretary of State’s award of ESA on the basis of the appellant’s statement in the questionnaire, that there is no challenge to the claimant’s own evidence.  Tribunals would perhaps be assisted if, when opposing these appeals, the Secretary of State in his response stated whether the claimant’s evidence is accepted.  If any of it is not accepted, then the response should explain why. 

Nicholas Warren

8 March 2013