Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/56/2013

ADMINISTRATIVE APPEALS CHAMBER

Appellant: NT

Respondent: The Secretary of State

DECISION OF THE UPPER TRIBUNAL

A RAMSAY

JUDGE OF THE UPPER TRIBUNAL

ON APPEAL FROM:

Tribunal: First-tier Tribunal (Social Security and Child Support)

Tribunal Case No: SC142/12/01246

Tribunal Venue: Norwich

Hearing date: 5 July 2012

IN THE UPPER TRIBUNAL Case No.  CE/56/2013

ADMINISTRATIVE APPEALS CHAMBER

Before: A Ramsay Judge of the Upper Tribunal

REASONS FOR DECISION

1. It is with some reluctance that I set aside the decision of the tribunal given on 5 July 2012 in Norwich (the tribunal).  The claimant did not elect an oral hearing of his appeal, and not having done so, he is poorly placed to criticise the tribunal’s findings, all of which were based on what he himself had said both in his questionnaire (ESA50) and to the health care professional, a physiotherapist, who examined him on 21 November 2011 for the purpose of deciding whether he had limited capability for work.  Permission to appeal in this case was granted by an Upper Tribunal judge, and it is supported by the Secretary of State on the point of whether or not the claimant could reasonably be expected to use a wheelchair.  This is a matter to which I will return below.

2. The claimant is now aged 57.  In October 2010 he underwent a total replacement of the right knee and, as his GP has subsequently confirmed, this procedure was not successful inasmuch as it has left him with significant restrictions of his right lower limb.  He claimed and was awarded employment and support allowance (ESA) from 26 February 2011.  If his own assessment in the ESA50 questionnaire completed on 17.7.2011 had been accepted, he would have been awarded 15 points on mobilising. However, the health care professional who examined the claimant on 21.11.2011 did not consider that any activity points were satisfied. As the Secretary of State accepted the report of the health care professional, the decision which followed was that the claimant did not have limited capability to work from 2 December 2011.

3. The claimant’s letter of appeal against the Secretary of State’s decision, written the same month as the Secretary of State’s decision was made, is unlikely to represent a significant change in circumstances.  Nonetheless, in this he again says that he finds it hard to walk anywhere, and that he and his son had moved from the house in which they living at the time of the ESA85 examination into a ground floor flat. This was said to be because he was unable to use the stairs.  The tribunal was bound to consider his circumstances as they were at the date of the decision under appeal, and this was 2 December 2011.  Accordingly, any further worsening since that date cannot be taken into account in deciding whether the decision given on 2 December 2011 was correct.  This is the effect of section 12(8)(b) Social Security Act 1998. However, this move, even if it took place after the date of decision, is still clearly relevant, because it relates to restrictions already in existence.

4. In the ESA50 questionnaire the claimant is asked to give his own assessment of the limitations encountered in performing certain activities.  On 17 July 2011 the claimant reported that his knee replacement had not been very successful and he still had to walk with crutches, and that there was a lot of housework his teenage son had to do because he himself was not fit for it.  In addition, his son had to help him with certain personal tasks, such as putting on socks and trousers.  He said he was on morphine sulphate 30mg in the morning, and the same quantity again in the evening.  At this point it appears he was told that his knee would take time to recover.  His remarks since indicate that perhaps the outcome has been less successful than he had hoped.  In the questionnaire he said he had to walk with crutches and he was not able to drive because of his knee. As noted above, had the claimant’s own response been accepted to the questions about moving around and using steps, he would have obtained 15 points, and he would have been found to have limited capability for work – or even, limited capability for work related activity, as the activities in schedule 2 (1)(a) are the same  as for Schedule 3, activity 1.  However, it is not clear that he was likely to obtain points from the other activities concerning which questions were asked. His responses indicated either that he could do them, or where he indicated a difficulty, it was not a relevant difficulty.  For example, though he said he could pick up and move things he added in the space below on the questionnaire, “it would be hard for me to bend my knee to get down to this box” (this being a reference to picking up and moving a large light object).  However, this activity does not require consideration of whether a person can bend, and therefore, even if the limitation had been accepted, no points would have been awarded.  The claimant did not indicate that he had problems with any other physical function, and recorded that he had no problems with mental, cognitive, and intellectual functions.  .

5. The claimant attended the ESA85 examination alone.  Given that his imitations were (on his own account) solely because of his knee, the examination being carried out by a physiotherapist would seem to be appropriate.  The range of activities described to the health care professional did not suggest a major degree of limitation.  The claimant said  he had difficulty with the stairs in his home (there were two flights).  He said that sometimes he had to ask his son to help him with dressing, but his account was that most of the time he could manage this if he did it sitting down.  The only  consistent limitation described was relating to socks, with which he said he always needed help.  He also said he was not able to stand very long because of his knee.  He described being able to make meals and hot drinks despite the pain.  He had particular difficulty moving around the house because of the two flights of stairs. However, he had a walk‑in shower and appeared to cope with this and other routine tasks in the bathroom.  If he did not take a taxi to his GP appointment, he told the health care professional that he caught a bus from the stop nearby.  He appeared to be able to sit for quite long periods of time as he seemed to spent a lot of time on the computer as well as watching television.

6. Based both on examination and what the claimant had said, the health care professional found that his mobility was not limited to a sufficient extent to obtain any points from activity 1.  Despite his having said he had no upper limb disorder when completing the questionnaire, the health care professional nonetheless did make an examination of his hands and arms and no abnormal findings were indicated.  Because it is not relevant to the points which have been argued subsequently, I will not go through the rest of the ESA85 report.

7. The claimant had obviously forgotten that he had not elected an oral hearing and made  a setting aside application when he received the tribunal’s decision.  The salaried judge considering this matter, quite correctly, decided there was no basis for setting the decision aside because he had not elected an oral hearing: his election to that effect is in the file before me.  The claimant persisted with this matter, writing to say in July 2012 (see page 60 of the bundle) that “I have more different problems which find it hard with daily life like having arthritis in my fingers which unable me to do jobs round the house so my son have to help me more”  (sic).

8. This in part accounts for my reluctance to allow the appeal.  Unless he was prepared to stand by what was stated in the ESA50 questionnaire, and what he is recorded as saying at the ESA85 medical examination, it is obvious that the claimant should have elected an oral hearing. I think the tribunal did the best it could with the limited evidence it had, and it did so at the claimant’s request, however ill advised that may have been.  Secondly, I read much of what he now says as indicating that he has become worse since the date of decision.  If that is the case, he must reconcile himself to the fact that the tribunal will be looking at him as he was at the date of the decision against which he appealed,  which was 2 December 2011, and not any deterioration which took place during the year 2012.

9. A statement of reasons was produced at the claimant’s request.  This, of course, was based on very limited evidence available from the papers.  The tribunal invariably was called upon to speculate on certain features of mobility.  It accepted that the claimant needed to use the two crutches to mobilise. The tribunal’s finding that the claimant could if necessary use a manual wheelchair to mobilise was based on the ESA85 report, which indicated normal power and strength in the upper limbs. 

10. An Upper Tribunal judge has granted permission to appeal because the tribunal in its decision has not shown that it considered the reasoning in the Scottish case CSE/151/2012 [2012] UKUT 376  (AAC).  In that case, a copy of which has been sent to the claimant, and a copy which will before the new tribunal, Upper Tribunal Judge Gamble considered that the tribunal had erred in law by finding that a claimant could reasonably be expected to use a wheelchair when it had not specifically enquired as to whether it would medically and otherwise be considered suitable for him. The present claimant was not using a wheelchair. Upper Tribunal Judge Gamble was concerned with questions such as whether a wheelchair would be medically advisable, whether the claimant’s home would be suitable for use of a wheelchair indoors, or otherwise practicable in view of the claimant’s living arrangements. However, I must admit to some doubts about this approach. The medical advisability of using a wheelchair seems to me to be a therapeutic question, whereas the test in the regulations is arguably one of practicability, either outdoors or in the work place. There are many with mobility disorders who do not use a wheelchair indoors, but do so outdoors. The distances in question in the schedule far exceed the likely dimensions of even the most spacious home, so it would seem reasonable to consider these questions either outdoors or in the workplace.

11. Although Judge Gamble’s decision has been widely cited and approved, I am not sure that it reflects the intentions of the legislature. Where legislation fails to make its meaning clear, judges and other decision makers in applying the principles of statutory interpretation may, without error, end up with divergent ideas on the application of the legislative test. However, my understanding of the test set out in the legislation is whether a manual wheelchair or other such aid can reasonably be used, not whether the claimant’s doctor or consultant would recommend its use for him.  The words of the actual provision in the regulations are few and sparse and do not indicate if the words ‘can reasonably be used’ are to be considered in the context of a work day, in which case a level surface indoors other than the home would be what was in contemplation, or whether it relates to therapeutic considerations. Whether in fact the claimant would be able to use a wheelchair does not in my view involve consideration of whether it could be used indoors in his home, but it would involve consideration of whether the claimant has a hallway, garage or other secure space in which a wheelchair could be kept available for trips outside the home; on this Judge Gamble and I are not far apart.

12. The new tribunal will not be faced with an easy task. In this respect the new tribunal will note that the claimant’s GP now suggests,  though this is not mentioned anywhere else in these papers, that the claimant has arthritis of the small joints of his hands.  If this was a factor at the date of decision, it may (depending on the severity of the condition) affect the question of whether the claimant would be physically capable of using a manual wheelchair over the distances at issue in this appeal.

13. This appeal should be referred to a salaried judge for directions on relisting.  It is very important that the claimant attends an oral hearing, and in view of the doubts which have now been raised concerning his ability to use a wheelchair, obtaining GP records is likely to be important. I would suggest that GP notes and relevant hospital letters for the period from October 2010, when the knee replacement surgery took place, to the present time would be useful as this would help the tribunal to decide the limitations which existed at the time that the decision was given.

14. I hope that the claimant understands the importance of attending the next tribunal and giving oral evidence.  The fact that his appeal has been successful here is no indication as to the ultimate outcome, but it is in his interests to make sure that the tribunal is in possession of as much information as possible to help it reach its decision.

(Signed on the Original)

A Ramsay

Judge of the Upper Tribunal

26 July 2013