Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/3650/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I remit the matter for rehearing before a new tribunal in accordance with the directions given below.

The claimant should appreciate that the new hearing will be concerned only with his situation at the date of the original decision at the beginning of September 2011.  If his present condition and abilities are worse than at that time, he should consider making a fresh application for benefit.

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 following a hearing on 5 April 2012.  That decision dismissed the claimant’s appeal from a decision of the Secretary of State made on 2 September 2011 which superseded from that date an earlier award of employment and support allowance. The supersession decision followed an examination by an approved disability analyst (a registered nurse) who found that the claimant scored no points on the Work Capability Assessment.  The tribunal disagreed with the decision maker and the nurse to the extent that it awarded 12 points on the Work Capability Assessment, but this was not sufficient to enable the claimant to succeed.

2.      In granting permission to appeal, Judge Lloyd-Davies questioned whether the tribunal had adequately considered the question of picking up and moving and manual dexterity.  It is unnecessary for me to consider all aspects of this, because I am satisfied that in one respect at least the tribunal clearly failed to address a relevant descriptor.  That is descriptor 5(d) “Cannot use a suitable keyboard or mouse”.  The claimant’s evidence, which appears to have been accepted by the tribunal, was that “at the date of the Decision he was able to use his computer mouse although he could not type.  Activity was limited in the main to his left hand.”

3.     An earlier version of this descriptor, applicable until March 2011, read “Cannot physically use a conventional keyboard or mouse”.  This was considered by Judge May QC in DW v SSWP (ESA), [2010] UKUT 245 (AAC), where a claimant could physically use a keyboard using one hand but was unable to do so using two hands.  His ability to use a mouse does not appear to have been in question.   It appears to me that in the context of using a computer, a person generally needs to be able to use both the keyboard and the mouse, so that where the descriptor refers to a suitable keyboard or mouse, an inability to use either is sufficient to score points on this descriptor.

4.     Judge May held that the proper approach to this descriptor was to follow the approach set out by the House of Lords in Moyna, R(DLA) 7/03, and to take a broad view on whether the claimant could or could not satisfy the descriptor.  The fact that he could use it to a very limited extent did not mean that he could use it in the way in which it was intended to be used.  There are no absolutes by reference to which “can” and “cannot” are to be defined.

5.     I agree with this approach and in my judgment it applies equally to the present amended descriptor.  The dropping of the word “physically” permits regard to be had to other factors that preclude such use if a person has additional problems using the keyboard or mouse in addition to a relevant disease or disablement.  The change of wording from “conventional keyboard” to “suitable keyboard” would be potentially relevant if there was evidence of a suitable ergonomic keyboard which could be more easily operated with one hand that a conventional keyboard, or which permitted greater use of the claimant’s second hand than a conventional keyboard.  The keyboard would have to be one which the claimant could reasonably be expected to be able to learn to operate within a short time.  Whether there is currently such a keyboard I do not know.

6.     I note a comment in volume 1 of the Social Security Legislation volumes for 2012/13, at 9.388, which suggests that the new descriptor jars with the approach taken by Judge May because it was based on a view taken by the review body which produced the new descriptor that ability to do things with one hand showed capability to perform the specified activity.  I do not see any such conflict.  Judge May’s decision requires an overall view to be taken whether a person could use a conventional keyboard.  I have some difficulty is seeing why a person is necessarily unable to do so with only one hand and in particular, to take the matters put before Judge May,  I do not see why a person should be unable to use the shift key or the @ key if only one hand is used.  In writing this I am in fact using the @ key on a conventional keyboard with only one hand, holding down the shift key with another finger.  If I wish to use capital letters, I can either adopt the same approach as with the @ key, or I can use the caps lock key.   

7.     On the other hand, it would plainly be much harder to operate a keyboard with only one hand rather than with two.  At the very least such use would be much slower than use by a competent user with two hands and combinations of three keys, such as control, alt and delete, would seem to be excluded at least on a conventional keyboard.

8.     It is plain that on the evidence before the tribunal the claimant had problems with using a keyboard that brought this descriptor into play.  The tribunal therefore needed to address it and to make findings as to it.  There is the real possibility that it may have concluded, applying the test as set out in Moyna and by Judge May that the claimant could not properly be described as able to use a suitable keyboard using only one hand which would also need to operate the mouse.  The issue was not investigated and the tribunal was in error of law in failing to do so.

9.     As the descriptor carries 9 points, which the claimant might have obtained, and which would have taken his score well beyond the magic figure of 15, I must set aside its decision.  In those circumstances it is unnecessary for me to decide whether the findings which the tribunal made were sufficient to explain why it concluded that he could not transfer a light but bulky object such as an empty cardboard box.  It would be better, however, at the next hearing if the tribunal were specifically to consider and make findings as to this.

10. I note that the claimant had applied by letter of 17 March 2012 for the hearing on 5 April 2012 to be postponed so that an up to date medical report by a consultant orthopaedic surgeon whom he had just seen could be available to it.  The report was expected to be available within 2-3 weeks.  The application was refused by a registrar who observed that if the tribunal needed the report they could consider adjourning on the day to obtain it.  In that the report may well have been available for the hearing, I can understand the registrar refusing to postpone the hearing, but the point does not appear to have been considered again by the tribunal as it should have been.  In fact the report was not received by that date, but I note from the papers now before me that bears the same date as the hearing, 5 April 2012, so could have been available had there been a short adjournment and was, as the claimant put it in his letter to the tribunal, to “form the main part of my defence”.  Although prepared on the basis of an examination 6 months after the date of the decision, it could well have shone light on the claimant’s problems and abilities at around the beginning of September 2011.  As I am setting aside the decision on other grounds, it is unnecessary for me to consider this further, but the new tribunal will need to consider this report and two later expert reports obtained by the claimant in the context of a claim for damages against those said to be responsible for his injuries.  It will of course have to consider those reports only in the context of the claimant’s problems around early September 2011.  If there has been any deterioration in the claimant’s condition since then, he should consider making a fresh claim to cover the possibility of his present appeal, based on his condition and abilities at September 2011 failing.

(signed) Michael Mark

Judge of the Upper Tribunal

3 September 2013