Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/261/2013

ADMINISTRATIVE APPEALS CHAMBER

Before: A Ramsay Judge of the Upper Tribunal

REASONS FOR DECISION

1. The claimant’s appeal is allowed.  The decision of the Chesterfield tribunal given on 8 October 2012 (the tribunal) is erroneous in point of law.  I am not able to make sufficient findings of fact to be in the position to substitute my own decision for that of the tribunal, and accordingly the appeal is remitted to a differently constituted tribunal for rehearing.  The appeal should be referred to a salaried judge for relisting directions. The tribunal conducting the rehearing will need a further submission from the Secretary of State. This should address the points outlined at paragraph (17) below.

2. The claimant is in his early forties and has for many years suffered with severe psoriatic arthropathy.  He has had both knees replaced, and was due to have a shoulder joint replaced.  In addition, he has undergone arthrodesis of at least one ankle and fusion of some bones in his feet.  His hands, in particular, are deformed by the arthropathy, as is illustrated in some of the photographs which were supplied in connection with his appeal.  There is no doubt that the claimant is at the more severe end of the range of disability associated with this condition. 

3. For a number of years the claimant was in receipt of incapacity benefit.  The conditions for receipt of incapacity benefit are very different from those for employment and support allowance. He remained on this benefit because he satisfied the personal capability assessment. However, the new test which applied to him on conversion from incapacity benefit was one which considered whether he had limited capability for work or limited capability for work related activity. In the fullness of time, his case was considered for conversion to an award of employment and support allowance (ESA).  Though in the past there have been submissions made on the vires of this process, the Upper Tribunal has recently ruled that the process is lawful.  In any event, no point was raised on this in the present appeal.

4. On 7 September 2011 a questionnaire in the form ESA50 was completed on the claimant’s behalf by a friend, the claimant’s limitation in the use of his hands being said to be such that completion of a form of this length would be difficult.  The Secretary of State sent the form ESA113 to the claimant’s GP, who confirmed that the claimant’s mobility was limited because of his psoriatic arthropathy, but expressed the view that the claimant would be able to travel to an examination centre by public transport or taxi.  Helpfully, the GP has supplied a summary of practice notes for the last two years or so in respect of the claimant.  As well as the arthropathy, it was evident that he was also suffering from stress related problems and besides being prescribed Diazepam for occasional use for the relief of anxiety, he was also prescribed Sertraline, an antidepressant, at a 50 mg strength.

5. In addition to this summary, the GP attached some copy hospital letters, and an X‑ray report.  The X‑ray report dated 8 December 2010 was of particular interest.  The claimant’s left forefoot had been X‑rayed, and the report notes no fracture was seen, but there was evidence of a severe erosive arthropathy.  I also note from another report supplied that the claimant would have been only 30 years old when he had bilateral knee replacements. This gives some indication of the extent to which his disease had progressed.

6. The ESA50 questionnaire noted that the claimant needed to use a walking stick when his condition was particularly severe, and also had various aids to make things easier.  He expressed the view that he could walk more than 50 metres before he needed to stop, but said his ability to mobilise more than 200 metres varied.  He added, “can walk but with discomfort due to arthritis in feet, ankle and knees.  Don’t usually use a walking stick but need to at times”.

7. I will not summarise the entire contents of the ESA50 questionnaire, but as the next tribunal no doubt will note, the claims made in it are comparatively modest and not indicative of any degree of exaggeration.  However, it is clear that several descriptors are potentially at issue.  On 26 October 2011 the claimant underwent an examination carried out by a registered physiotherapist, who was an approved health care professional for this purpose.  A detailed history was taken from the claimant, and he was said to manage a range of activities because he had adapted the way he undertakes tasks, and in this way was able to manage many of the tasks incumbent on a person who lives alone (as he does).  The health care professional did not find that the claimant met any of the descriptors in Schedule 2.  The Secretary of State accepted this report and on 12 January 2012 found that the claimant did not have limited capability for work from that date.

8. The claimant appealed against this decision, accepting that he had no limitations regarding mental, cognitive or intellectual aspects of the work capability assessment, but he considered from a physical viewpoint he would be unable to work.  He made one point which should have alerted the tribunal to consider the exceptional circumstances criteria, namely that:

“… I would not be able to hold down a regular job as some days I am unable to even leave my house due to the severity of my ailments …”

He included photos which demonstrated the distortion of each hand. A local authority welfare benefits team acted as his representative.  Their letter of appeal noted that the claimant was in receipt of higher rate mobility and middle rate care components of disability living allowance (DLA), and invited the decision maker to infer from this that he would not be able to mobilise even in a wheelchair because of the deformity of his hands.  The decision was not revised, and accordingly the matter proceeded to the tribunal.

9. The claimant’s representative’s submission focused on limitations in mobilising.  As the claimant had said in the ESA50 questionnaire that he was able to mobilise for more than 50 metres, this did raise an evidential difficulty.  The tribunal tried to establish how far the claimant could walk, and then used Google maps to help it estimate the distance he described in oral evidence.  It considered the distance indicated by the claimant was in excess of 200 metres and so awarded no points on mobility.  The tribunal considered that the deformity in the claimant’s hands was such as to severely impair his manual dexterity, and awarded 15 points under activity 5(b) in Schedule 2.  This relates to his not being able to pick up a £1 coin with either hand.  Given the distortion in the claimant’s hands, this was an eminently reasonable finding.  However, the tribunal went on to consider whether any Schedule 3 descriptors were satisfied and found that they were not.  So far as mobility is concerned, that is no surprise as it had not accepted the extent of limitation argued in relation to mobility.  The schedule 3 test for manual dexterity, which again is activity 5, requires one or other of two conditions to be satisfied:  the first is that the claimant cannot press a button such as a telephone keypad, and the alternative is that the claimant cannot turn the pages of a book with either hand.  The claimant himself did not submit that he satisfied either of these conditions.  The tribunal considered there was no other Schedule 3 activity at issue. Accordingly, while the claimant’s appeal was allowed to the extent of finding he had limited capability for work, the representative’s submission that he had limited capability for work related activity was rejected.

10. The claimant’s representative appealed against this decision, objecting to the use of Google maps in the circumstances, and arguing that the tribunal had applied the wrong test to the activity of mobilising, because it not taken into account the ability to repeatedly mobilise more than 50 metres within a reasonable time scale because of significant discomfort or exhaustion.

11. A salaried judge granted permission to appeal on the question of whether it had been appropriate for the tribunal to use Google maps in the way that it did.  Though the Secretary of State supports the appeal, it is not on this basis.  The Secretary of State supports the appeal on the basis that the tribunal had failed to explain why it decided that most of the time the claimant could walk a distance of about 75 metres, given that the record of proceedings showed that the claimant said he could travel to the junction at the end of the road and then needed to stop, whereas the shop to which the tribunal took the measurements was further on.  The record of proceedings shows that the claimant said that he stopped when he needed to.  However, so far as using Google maps was concerned, the Secretary of State accepted that this was not completely accurate, but nonetheless suggested it did give a good indication of the distance between two points.

12. The representative appears to have put some weight on the fact that the claimant had an award of DLA higher mobility component and seemed to believe that this supported making a finding in the claimant’s favour concerning mobilising more than 50 metres.  However, this is the wrong test.  The mobility component of DLA takes into account whether or not a person can mobilise on foot in such a way that he is either unable or virtually unable to walk.  Activity 1 in the Schedule 2 and Schedule 3 is in some ways more demanding, because it takes into account whether or not a claimant can mobilise a certain distance using a wheelchair if he is not able to walk that distance.  It is a completely different test and both for that reason, and because it can unnecessarily put a claimant’s DLA entitlement at risk, should not be used to support an argument that activity 1 is satisfied.

13. I see no objection to a tribunal using Google maps, or any scaled map, to give it a general indication of the area within which a claimant regularly mobilises.  A claimant’s own assessment of the distances involved in traversing their own locality on foot is, in my experience, generally unreliable. While most people have an idea of how long it takes to walk to a certain place known to them, very few are able to give an accurate estimate of the distance involved. However, even having established the physical parameters within which a claimant mobilises does not answer the question posed by the legislation, which is whether mobilisation for more than 50 metres can be achieved without stopping to avoid significant discomfort or exhaustion. Even where a claimant is able to do this, the question is whether that activity can be repeated within a reasonable timescale. If a person is unable to do so because of significant discomfort or exhaustion, then he or she becomes entitled to the relevant points.  Accordingly, while having a general idea of the area over which mobilisation takes place is helpful, the duty of the tribunal to satisfy itself as to the question posed by the legislation remains, and is not answered by looking at a map to see the distances over which mobilisation is achieved.

14. However, there is in my view a more important reason why the claimant’s appeal should be allowed, and that goes back to the words used by the claimant in his letter of appeal which I reproduced at paragraph (8) above, namely:

“… I would not be able to hold down a regular job as some days I am unable to even leave my house due to the severity of my ailments …”

This put squarely at issue the exceptional circumstances provision.  As the tribunal found that the claimant did satisfy Schedule 2 and obtained sufficient points from descriptors, it did not then need to consider regulation 29(2)(b) ESA Regulations.  However, having found that the claimant did not satisfy any Schedule 3 activities, it was then, given the specific terms of the letter of appeal, incumbent on it to consider whether the claimant should be treated as having limited capability for work related activity.  Regulation 35(2)(b) provides that a claimant is to be treated as having limited capability for work related activity if by reason of his disease or disablement there would be a substantial risk to the mental or physical health of any person if the claimant was found not to have limited capability for work related activity.

15. It seems to me that the significance of the exceptional circumstances provisions is that they enable a tribunal to look at the individual claimant as a whole person or system of interrelated functions and abilities. The sum of the disabilities may exceed their individual parts. In some circumstances it is not enough to measure the ability to engage in each activity in turn, and then exclude limitations insufficient to score points.  The activities in the schedule examine the ability to perform an isolated function.  For example, the person who, as the tribunal found the claimant could, can mobilise more than 50 metres, can use the keypad on a telephone, and turn the pages of a book, will not get the relevant points which enable that person to be found to have limited capability for work related activity.  While consideration of the individual activities does not permit a decision maker or tribunal to take account of limitations below the score threshold, this is what regulations 29(2)(b) and 35(2)(b) permit. They permit account to be taken not only of a claimant’s physical and mental attributes, but also the extent of what might be extreme variability. Regulation 34(2) ESA Regulations encapsulates the ‘reasonable regularity’ test established in previous case law, but it may not be sufficient to cope with what might be extreme variability, which may not occur regularly. An example might be where a claimant is subject to infrequent, but not rare, periods of severe exacerbation. 

16. In the claimant’s case he clearly put in contention not only the severity and unpredictability of his conditions, but surely also the extent to which interrelated disablements would limit him.  In his appeal letter he related this to being capable of work.  But depending upon what those tasks are, the same is likely to apply to work related activity.

17. I am not in a position to make my own findings of fact sufficient to enable me to substitute my own decision for that of the tribunal, and for that reason this matter must go back to a different tribunal for rehearing.  While all matters are at large before the new tribunal, it will need to consider not only the activities put in issue, but also regulation 35(2)(b) ESA Regulations. However, the Secretary of State will need to produce for the benefit of the next tribunal an account of the type of work‑related activity that the claimant would be required to engage in.  Without this the tribunal will not be answer the question whether not being found to have limited capability for work related activity would be a substantial risk to the claimant’s mental or physical health.

(Signed on the Original)

A Ramsay

Judge of the Upper Tribunal

25 July 2013