Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/4000/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and remit the matter to be reheard by a new tribunal in accordance with the directions below.

REASONS FOR DECISION

1.     This is an appeal with the permission of a Judge of the Upper Tribunal from a decision of the First-tier Tribunal dated 14 August 2012.  That decision dismissed the claimant’s appeal from a decision of the Secretary of State dated 27 February 2012 which superseded from and including 1 March 2012 an earlier decision awarding ESA. 

2.     The claimant was born in 1950.  He had been in employment in a fairly senior position until 2010, when his employment had been terminated apparently on mental health grounds, although he has also had some physical problems as well.  He had completed form ESA50 in March 2011, had then been examined by an approved disability analyst, a registered nurse.  The nurse and the decision maker awarded him 12 points on the limited capability for work assessment, but, following a review he was awarded a further 6 points, so that his score rose to 18 points and he was awarded ESA accordingly.  The 18 points awarded were based on the descriptors then applying, and included 6 points for standing and sitting, 6 points for bending and kneeling and 6 points for continence. 

3.     A few months later, the claimant was again required to complete a form ESA50, which he did, enclosing further information and medical evidence.  He was then again examined by another registered nurse, who considered that he scored no points, and despite his additional evidence and his stating that his condition had worsened over the intervening period this view was adopted by the new decision maker who superseded the decision awarding him ESA.  The claimant appealed and his appeal was heard by the tribunal at an oral hearing which he attended and at which he was represented.  The tribunal concluded that the claimant scored no points on the physical descriptors in the new Schedule 2 to the Employment and Support Allowance Regulations 2008 (the 2008 Regulations), but awarded him 9 points on the basis that the claimant’s mental condition was such that he was precluded from engagement in social contact with someone unfamiliar to him always due to difficulty relating to others or significant distress experienced by him.

4.     As, however, the tribunal awarded him no other points, and found no other basis on which he could be treated as having limited capacity for work, it dismissed his appeal.

5.     The claimant had conceded at the appeal hearing, rightly as the tribunal found, that there were no physical descriptors on which he could seek to rely other than that relating to continence.  This was because the descriptors on which he had previously been awarded points no longer existed in the same form and the physical descriptors as revised were not such as to entitle him to any points.  The continence descriptor has also changed but not in such a way as to preclude him seeking to rely on it.  Nevertheless, the tribunal concluded that although he had some problems with continence, they did not entitle him to any points.  The tribunal also concluded, considering regulations 29 and 35 of the 2008 Regulations, that there would not be a substantial risk to the mental or physical health of the claimant if he were found not to have limited capability for work or for work-related activity.

6.     The claimant has appealed from that decision on the grounds that the tribunal misdirected itself as to the continence descriptor, and as to the application of descriptor 17, relating to the claimant’s behaviour, and failed to make sufficient findings of fact or give adequate reasons for finding that there would not be a substantial risk to the claimant’s mental or physical health if he were found not to have limited capability for work or work-related activity.

The continence descriptor

7.     In relation to the original assessment, the relevant continence descriptor to be considered in relation to the claimant was descriptor 10(a) in the then Schedule 2 to the 2008 Regulations.  The descriptor in respect of which the first nurse found he scored 6 points was that the claimant risked losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach a toilet quickly.  That descriptor was expressed to relate to “Continence other than enuresis (bed wetting) where the claimant does not have an artificial stoma or urinary collecting device”.

8.     The relevant continence descriptor in relation to the decision under appeal is under the heading “Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the presence of any aids or adaptations normally used.”  The equivalent provision to that for which the claimant had previously scored 6 points, and carrying the same number of points, was “At risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly.”

9.     The new descriptor thus requires not full evacuation or voiding but only extensive evacuation or voiding and that has to be sufficient to require cleaning and a change of clothes.  That must happen despite the presence of any aids or adaptations normally used.  In addition regulation 19(4) of the 2008 Regulations provides that in assessing the claimant’s capability to perform any activity listed in Part 1 of Schedule 2, he is to be assessed as if wearing any prosthesis with which he is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

10. In RP v Secretary of State, [2011] UKUT 449 (AAC), Judge Levenson gave guidance as to the proper approach to the use of aids and appliances as follows:

“16. It seems to me that the correct approach to regulation 19(4) is as follows. If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it. If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it. If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same. However, I do not agree with the Secretary of State that in this latter case there does not have to be any explanation of how the aid or appliance could help the particular claimant and that the advantages are obvious. The degree of detail is a matter for the tribunal on the facts of each particular case, but in my view, in the absence of actual use or prescription, there does need to be some explanation.”

11. Following this decision, which was concerned with the use of a stick when there had been no medical advice to use a stick, guidance was issued to decision makers by the DWP (Memo DMG 24/12).  In relation to those physical descriptors which specifically refer to the use of aids, including continence, it observes that decision makers should apply the test in a way that displays consistency between the work capability assessment as a whole and the assessment of each descriptor in particular (para.6).  It goes on to state that the decision maker should establish whether the claimant normally uses an aid or appliance, and if not, whether the use of it has been prescribed or advised.  If a claimant does not have an aid or appliance which they have been prescribed or advised to use, the decision maker should establish whether it would help the claimant, why they are not using one and whether the explanation is reasonable.

12. The guidance goes on to state that the decision maker must consider all the circumstances in deciding whether it would be reasonable to assess the claimant as using an aid that they have not been prescribed or that they have not been advised to use.  Factors identified include whether (1) the claimant possesses the aid or appliance;  (2) the claimant was given specific medical advice about managing their condition, and it is reasonable for them to continue to follow that advice; (3) the claimant would be advised to use an aid or appliance if they raised it with the appropriate authority such as a GP or occupational therapist; (4) if it is medically reasonable for them to use an aid or appliance; (5) the health condition or disability is likely to be of short duration; (6) an aid or appliance is widely available; (7) an aid or appliance is affordable in the claimant’s circumstances; (8) the claimant is able to use and store the aid or appliance; and (9) the claimant is unable to use an aid or appliance due to their physical or mental health condition.

13. It appears to me that these are all useful matters to be considered in appropriate cases, and, as the DWP guidance makes clear, they are not the only factors that may be relevant. 

14. I note that as the requisite loss of control has to lead to extensive evacuation or voiding, it appears to exclude dribbling post urination even if that might lead to a change of clothes and cleaning being required.

The claimant’s continence problems

15. The claimant has claimed that he has urgency with his bladder due to diabetes, which he told the first nurse had got worse since being on high blood pressure tablets (p.52).  He told her that he sometimes wanted to go and found that he could not.  He carried a specialist container in his car but had accidentally wet himself a few weeks earlier whilst in a traffic jam and he could not get the device quickly enough.  He was also complaining of some urgency at his examination.  On that occasion the nurse concluded that the claimant did have mild bladder problems controlling his bladder which he had discussed with his GP.  There is no record whether any aid or appliance was suggested by the GP.  The nurse accepted that the claimant was at risk of losing control of his bladder so as to entitle him to 6 points on the continence descriptor as it then was.

16. In his second ESA50, the claimant states (p.86) that he had had two bowel accidents within the previous 4 to 5 months and bladder accidents could occur anytime if he could not access a toilet.  He also stated at p.97 that his irritable bowel syndrome had become worse over the past few years and that he also suffered from an urgency to urinate when his blood sugar level was high and this had become worse since he was prescribed diuretic tablets for hypertension.  He carried a urine well in the car but it was not always practicable to use it as he had to find a suitable place to stop.  He often had to take a risk and urinate in a quiet public place such as a car park or back lane but found this distressing.  In addition he referred to dribbling in his underwear just after urinating due to a prostate problem, which resulted in his changing his underwear during the day.

17. The second nurse reported at p.127 that the claimant had urgency and frequency of urine and had been diagnosed with an enlarged prostate.  He carried a urine well in his car.  He had had incontinence 5-6 times in the previous 6 months.  He did not wear pads.  He had never seen a continence adviser and was not incontinent enough to justify wearing pads.  She also referred to his persistent diarrhoea and to his having 3 episodes of bowel incontinence since the end of October, the examination being on 7 February.  This led that nurse to conclude that there was no risk of loss of control sufficient to score any points.  As to this I note that she makes no reference to the alleged cause of urgency being the diabetes and diuretic medication.  She also fails to identify the extent of the urinary incontinence on the 5-6 occasions referred to, although she does explain why pads would have been able to cope with the faecal incontinence at p.145.  It is plain from p.145 that the 5-6 occasions of urinary incontinence referred to were the result of not being able to reach the toilet in time and not the result of post urination dribbling, and that it was in relation to this that the claimant is said to have commented that it did not happen enough to warrant the use of pads.  She has not carried out the enquiries recommended by the DWP itself in Memo DMG 24/12, although in fairness to her this may be because that guidance was only issued later and she had not been trained at that stage as to what was required.  Nor has she given any reasons, as she did with the faecal incontinence, why the pads, if used, would have been sufficient to contain the urine so as to avoid the consequences prescribed by the descriptor.

18. The claimant responded to the report in writing (p.163) stating in relation to continence that he did not wear pads because he felt ashamed with the problem at his age and would rather take the risk of changing his clothes than wear pads permanently.  He went on to refer to his dribbling problem due to his prostate, and then to his sometimes having wet himself when he was not able to find somewhere to urinate  when he had high blood sugar and needed to urinate frequently.  He had told the nurse that he had sometimes wet himself in the car.  He is recorded at p.173 as giving similar evidence to the tribunal orally. 

19. In its statement of reasons, the tribunal referred to his evidence at paragraph 6 and 9, observing that he did not wear pads.  It then went on at paragraph 10 to state that even on his own evidence he did not satisfy the “at risk” descriptor, concluding that “The Appellant had an aid which he told us he used”.  This is a clear reference to the urine well.  I note that there is no finding that the claimant ought to have used pads and no investigation in relation to them on the lines indicated by RP v Secretary of State and the subsequent guidance of the DWP.  Nor is there any finding as to the extent of the voiding of the bladder.

20. Insofar as the tribunal purports to rely on the use of the urine well, it is plain from the evidence that it can only be used when the need to urinate arises while the claimant is in his car and that even then, on the claimant’s evidence, it is often inadequate either because the claimant cannot get to it in time or because he is not in a quiet place where he can use it.  These possibilities are disregarded by the tribunal.  It is also plain that, applying the DWP’s own guidance, the claimant cannot reasonably be expected to use an appliance in circumstances which involve him exposing himself in a public place when others are around and may see. 

21. I conclude that the tribunal’s findings and reasoning are inadequate and that it was consequently in error of law and I set aside its decision.

22. With regard to the use of pads, I would also observe that while it is clear how these would assist with post-urinary dribbling, I am less clear how they would assist in cases of urgent need, and in addition to considering their adequacy in the case of extensive evacuation of the bladder, in considering whether it is reasonable to expect the claimant to use them, the tribunal should consider , in addition to the factors set out by the DWP, whether in the more common cases where the claimant could reach a toilet in time they may actually cause accidents because they might increase the time required for the claimant to prepare himself to urinate.

Regulations 29 and 35

23.  The tribunal considered without reasons that they could see no substantial risk to the mental health of physical health of the claimant if he were found not to have limited capability for work.  There are cases where such a sweeping statement will be justified without more, but the tribunal does need to consider the effect on the claimant in the particular case of being found not to have limited capability for work, bearing in mind both the work the claimant might be found fit to do (Charlton v Secretary of State, [2009] EWCA Civ 42) and the effect on him of being found fit for work.  This was a 62 year old man, who had broken down and wept at both medical assessments and before the tribunal, who had a social phobia as accepted by the tribunal, and whose fluoxetine prescription had been doubled at some point between March 2011 (p.39) and his completion of the second form ESA50 in November 2011 (pp.101-102).  Relevant considerations include the effect on his mental state of his loss of benefit  and the possible need for him to seek work, possibly without any real prospect of success, and apply for, and retain, jobseeker’s allowance or, in relation to regulation 35 to carry out work-related activity in accordance with the sort of action plan which ought to be prepared by the Secretary of State and notified to him pursuant to regulation 5 of the Employment and Support Allowance Regulations 2011 (see IJ v Secretary of State, [2010] UKUT 408 (AAC) and CF v Secretary of State, [2012 UKUT 229 (AAC)). 

24. I am unable to understand how the tribunal came to its conclusion that it could see no substantial risk to the claimant’s mental health if he were to be found not to have limited capability for work or indeed limited capability for work-related activity, which would depend on what was required of him by way of work-related activity and its effect on his mental state.

25. On that account also the tribunal was in error of law.  I do not consider that I can substitute my own decision for that of the tribunal and I therefore remit the case to be reheard by a new tribunal which will need to properly investigate and make findings as to the matters to which I have referred.

(signed) Michael Mark

Judge of the Upper Tribunal

19 July 2013