Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/3857/2012

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with the permission of a Judge of the First-tier Tribunal, against a decision of a First-tier Tribunal sitting at Birmingham on 20 July 2012. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal.

2. The Claimant is a woman now aged 57 who suffers from agoraphobia, and who had been entitled to income support by reason of incapacity for work since 31 October 2007. The First-tier Tribunal’s decision was to dismiss the Claimant’s appeal against a decision, made on 6 January 2012, superseding and removing with effect from 25 January 2012 the Claimant’s award of income support, on the ground that the Claimant did not qualify for conversion of her award to an award of employment and support allowance because she did not have limited capability for work in accordance with the limited capability for work assessment.

3. The decision maker had considered, adopting the opinion of the approved disability analyst (a registered nurse) that the Claimant did not score any points under the limited capability for work assessment. The First-tier Tribunal found, however, that the Claimant scored 9 points under descriptor 15(b) (“is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person.”) 

4. The First-tier Tribunal made its decision on the papers, the Claimant having opted not to have an oral hearing.

5. The Secretary of State does not support the appeal.

6. The evidence before the First-tier Tribunal in relation to the Claimant’s ability to leave her house was not wholly consistent. A letter from a clinical psychologist dated 1 February 2008 states that at that time the Claimant was able to walk as far as the local shop alone, walk her dog to the end of the road and back and go to the doctor’s surgery or local hospital alone, if she went by taxi. However, the Claimant’s evidence in her ESA 50 questionnaire, to the approved disability analyst and in her appeal form was that she could only leave her house if accompanied by someone.

6. The First-tier Tribunal, having in para. 11 of the Statement of Reasons referred to the psychologist’s letter of 1 February 2008, stated in para. 12 that “on balance we accepted that undertaking longer journeys such as to the supermarket may have involved being accompanied by her daughter.” That looks like a finding that there were some short journeys which the Claimant could manage alone. But in para. 14 the First-tier Tribunal went on to say that “we have accepted [the Claimant’s] own account that she was unable to go to familiar places on her own, as she has consistently reported this in all the information she has provided.”

7. In his submission in this appeal the Secretary of State’s representative argues that the evidence suggests that “the award in respect of descriptor 15(b) was misplaced”. However, it seems to me that it was one which the First-tier Tribunal was entitled on the evidence to make, and that it sufficiently explained its reasons. It was entitled to attribute greater significance to the Claimant’s own contemporaneous evidence than to that of her psychologist several years previously.

8. The first ground on which I gave permission to appeal was that the First-tier Tribunal might have gone wrong in law in relation to activity 16 (coping with social engagement due to cognitive impairment or mental disorder). The only descriptor in activity 16 which fell to be considered on the facts of this case was descriptor 16(c), because it was clear that neither 16(a) nor 16(b) were satisfied. 16(c) reads:

“Engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual.”

9. Again, there was some inconsistency in the evidence. As noted above, the psychologist recorded that the Claimant could attend the doctor’s surgery and the hospital alone, provided she went by taxi. He further recorded that she could go to the supermarket with relatives, and then wander round the supermarket on her own, provided that she knew her family were still close by. The Claimant’s evidence in her ESA 50 was that she could not leave her house on her own. However, she went to the medical examination with her daughter, but her daughter stayed in the waiting room during the assessment. In a letter received by the First-tier Tribunals Service on 15 June 2012 (p.52) the Claimant said that “if I have to go to the doctor’s or hospital I have to get a taxi from my house to the hospital or doctor’s door. I can do that because if I go dizzy or feel faint I am in the right place. I cannot go in crowded places because my head goes heavy and I go sweaty.”

10. The First-tier Tribunal’s decision that no points were scored in respect of activity 16 was explained in para. 16 of the Statement of Reasons:

“[The Claimant] claims that she is unable to cope with social situations. However we note that she is able to cope with seeing her family, to attend her doctors on her own if she catches a taxi there, that she could cope with shopping at the supermarket and pay (as long as her daughter accompanied her), was able to go to her local shop, and was able to undergo the medical.”

11. The issue which I raised when giving permission to appeal was whether, if a claimant can usually only engage in social contact with someone unfamiliar to her if she is accompanied to the destination, the claimant satisfies descriptor 16(c). However, I accept the Secretary of State’s submission that difficulty, from a mental point of view, in simply getting alone to the destination does not fall to be taken into account under activity 16 (unless the difficulty getting there is itself due to problems with engaging in social contact (e.g. on public transport)). In other words, a claimant does not qualify for points under activity 16(c) merely because he could not put himself in most of the situations where he might engage in social contact with someone unfamiliar, because he could not leave the house unaccompanied in order to do so.

12. However, 16(c) requires no more than that engagement in social contact is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual. The “difficulty relating to others” alternative caters for the situation where it is the need to engage with others which itself causes the problem. However, the other alternative – i.e. “significant distress experienced by the individual” does not in my view require that it is the need to interact with others which per se causes the distress. In my view the wording is satisfied whatever the immediate cause of the distress may be, provided that it is due to cognitive impairment or mental disorder, and that it is sufficiently severe and occurs on sufficient occasions to prevent the claimant engaging with others “for the majority of the time.”

13. Thus, if the effect of having to leave his home unaccompanied, or to enter unfamiliar buildings, is to cause distress which prevents the claimant then being able to engage with someone unfamiliar, in my view 16(c) could apply, even if the claimant would have been perfectly capable of engaging with that unfamiliar person if he had been accompanied by friend or family, or if he had been in familiar surroundings.

14. Thus, the Claimant in the present case was not in my judgment prevented from satisfying 16(c) merely because it was not the process of interacting with unfamiliar persons per se which caused her difficulty. On her own evidence she was capable of social engagement to the extent necessary during, for example, a hospital appointment, and during the interview and examination by the approved disability analyst. If she was anxious about being in places where she might get into difficulties if she was unaccompanied by a friend or relative and fainted, and that anxiety prevented her from engaging with others, that would in my judgment be capable of bringing her within 16(c), although the “majority of the time” requirement would of course need to be satisfied. I therefore think that para. 16 of the First-tier Tribunal’s reasons (see para. 10 above) was wrong in law in that the Tribunal appears to have assumed that, provided that the Claimant had the ability to engage with others, the fact that her anxiety could only be allayed by having a friend or relative within easy reach could not bring her within 16(c).

15. The second ground on which I gave permission to appeal was that the First-tier Tribunal might have gone wrong in law in failing to consider whether reg. 29(2)(b) of the Employment and Support Allowance Regulations 2008 applied. In my judgment a decision maker or tribunal will almost inevitably need to consider reg. 29(2)(b) in a situation where descriptor 15(b) (worth 9 points) is the only one which is found to be satisfied. Inability, for mental reasons, to get to a specified place with which the claimant is familiar without being accompanied inevitably raises the question what the effect on the claimant’s mental health would be if he or she were found not to have limited capability for work. The same is true of 16(b), and probably also 15(c) and 16(c). The First-tier Tribunal therefore in my judgment also went wrong in law in this respect. The Secretary of State’s submission is to the contrary, on the footing that on the evidence the award of points under 15(b) was not justified, and therefore it was not sufficiently likely that reg 29(2)(b) applied to require the First-tier Tribunal to consider it. I think, with respect, that what the Secretary of State’s submission really amounts to is an invitation to ignore the First-tier Tribunal’s actual reasoning and to look at the evidence with a view to making my own findings of fact, and in particular to give greater prominence to the psychologist’s report of February 2008 than the First-tier Tribunal appears to have done. In order to follow through the Secretary of State’s reasoning I think that I would have to set aside the First-tier Tribunal’s decision as wrong in law, and then re-make its decision, with different findings of fact. I do not think that that would be appropriate. Apart from anything else, I have concluded that the First-tier Tribunal’s decision was not wrong in law in relation to its finding that 15(b) applied. Whether the new tribunal will also find it to be satisfied is of course a different matter.

16. The new tribunal will reconsider the appeal entirely afresh, but applying the law as set out above, in so far as material in the light of its findings of fact.

Charles Turnbull

Judge of the Upper Tribunal

25 June 2013