Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No.  CE 108 2013

ADMINISTRATIVE APPEALS CHAMBER

MI v Secretary of State for Work and Pensions (ESA)

DECISION

The appeal is allowed.

For the reasons below, the decision of the First-tier tribunal is set aside.

I refer the appeal to a new tribunal to decide the appeal again in accordance with the directions below.

REASONS FOR DECISION

1 The claimant and appellant is appealing against a decision of the First-tier Tribunal sitting at Liverpool on 25 09 2012 under reference SC 067 12 00436. The appellant’s representatives, Merseyside Welfare Rights Advice Centre, put in lengthy grounds of appeal. A Judge of the Upper Tribunal granted permission to consider two grounds: use of a wheelchair, and failure to call for disability living allowance papers. A full submission for the Secretary of State did not agree with either ground and submitted that the decision of the First-tier Tribunal should be affirmed. I therefore deal with each in turn.

The disability living allowance papers

2 The First-tier Tribunal was told that the Secretary of State had recently decided on  specialist evidence that the appellant was entitled to the higher rate of the mobility component of disability living allowance for life. The tribunal refused to adjourn to obtain the evidence “on the basis that we had sufficient evidence available to us. However we agreed that if we had any doubts or questions that we would consider an adjournment for further evidence” (paragraph [4]).

3 This is wrong. The task of the tribunal is to decide the case on the evidence, not such of the evidence as it considers sufficient to reach a particular decision. What the tribunal decided, whether it intended to do so or not, was that it would consider some of the evidence and would not ask for the other evidence if it felt that the incomplete evidence was sufficient.  How could it know that without the other evidence? It may be in some cases that a representative has had opportunity to produce evidence but has not done so. If so, tribunal rules allow the tribunal to take the decision on incomplete evidence. That was not the basis on which this tribunal proceeded. It had some evidence of the award of the disability living allowance and it should have explored it further or at least taken note of it.

4 Instead, the tribunal ignored, or put no weight on, this evidence even though it was also given other evidence that the appellant both had had recent operations on his knees and awaited further surgery under specialist review.  It appears to have ignored that other evidence also. That is plainly inadequate on two counts: the failure to consider the disability living allowance award and if necessary to explore further the evidence held by the Secretary of State about it; and the failure to note the ongoing surgery that the appellant was receiving at the relevant date. In particular, the ESA85 recorded on 30 11 2011 that there was to be a further knee operation in December 2011. The relevant date of decision was 16 12 2011. Was the operation scheduled immediately before or immediately after the date of decision? The tribunal, taking a decision nine months later, does not comment. I agree with the grounds of appeal on this. While I note the issues raised for the Secretary of State in support of the tribunal’s decision, I do not consider they provide an adequate defence of the failure of the tribunal to deal with these issues. I therefore allow the appeal on that point. In doing so I take one point no further. The grounds of appeal for the appellant suggest that the tribunal had further consultant evidence put before it which is not now before me. If that was so, then it would further question the approach of the tribunal. I do not need to take that matter further. But that may be evidence that should be before the new tribunal.

“Mobilising … with a wheelchair”

5 Even if the tribunal had accepted that the appellant was virtually unable to walk on that evidence, it still had to consider use of a wheelchair as that was put in issue by the Secretary of State. I dealt with the interpretation and application of the mobility descriptor and the use of a wheelchair in my recent decision AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 417 (AAC). I adopt that decision here and do not repeat it. In so doing, I do not accept the submission for the appellant about, for example, purchasing a wheelchair. However, the submission for the Secretary of State in this case followed a different approach to that on which I commented in AR and I must consider it further.

6 This is another appeal where there is no mention in the ESA50 by the appellant that he has ever used a wheelchair. Nor is there any specific mention in the ESA85, where the use of crutches is mentioned. But the decision of the decision maker acting for the Secretary of State does raise the point in stating that:  

“He was not breathless on examination and no evidence of significant restriction of upper limbs, he would be able to mobilise using a self propelled wheelchair.”

Use of a wheelchair is also noted at the end of the record of proceedings, where the representative is recorded as submitting:

“Mobilising and wheelchair – would it be reasonable to buy own or would expect NHS to buy. Only do if needed in and out. He can get around inside.”

So it was clearly relevant to the tribunal’s decision.

7 The tribunal dealt with use of a wheelchair as follows:

“[8] We found he would be able to self propel a manual wheelchair without assistance. He has no serious condition affecting his upper limbs as he agreed at assessment. All upper limb findings on examination were normal …”

There is nothing further in the tribunal record on this issue.

8 The appellant’s representative subjects this to an extended challenge, not least by reference to the decision of Judge Gamble in DM v Secretary of State for Work and Pensions [2012] UKUT 376 (AAC) to which I referred in AR.

9 In contrast to the submission of the Secretary of State put forward in AR, the submission for the Secretary of State is put on a much narrower basis here. It starts by accepting, as was accepted in AR, that the decision of Judge Levenson in RP v Secretary of State for Work and Pensions (ESA) [2011] UKUT 449 (AAC) is correct. This requires the application of regulation 19(4) of the Employment and Support Allowance Regulations 2008 to each of the descriptors. I agree. The Secretary of State submits that that requires the tribunal to consider three issues: does the appellant normally use a wheelchair? If not, has it been prescribed or recommended? If not, is it reasonable to expect that one would normally be used by people in the same situation as the appellant? Again, I agree.

10 It is the third of those tests that applies here. The only comment for the Secretary of State on the tribunal’s reasoning about that third test is:

“In terms of considering whether or not the person could reasonably use a wheelchair, the HCP must consider their upper limb function and cardio-respiratory status. The examination revealed no problems with upper limb movements. There was no mention of problems with cardiac, respiratory or vascular functions and there was no obvious loss of power in either arm.”

The implication is that this is an adequate basis for the First-tier Tribunal decision. I disagree.

11 I do so because, as I emphasised in AR, the test of “mobilising unaided … with a wheelchair” is a functional test involving not only sitting in it but also getting into and out of it and handling it. The starting point is whether the appellant in fact mobilises with a wheelchair. The tribunal makes not comment on that, although it should have done so to explore both the first and second tests set out above. Instead it turned without consideration of those points directly to its view of what was reasonable. In this case the standard ESA85 report records as medical evidence of upper limb use: “client has no problems with these activities” (that is, of course, the specific functions tested by other descriptors and I assume is based on the ESA50). There is no indication on the face of the ESA85 that the practitioner considered other forms of upper limb use, such as repeatedly turning a wheel. The only relevant informal observation is that the appellant had slight difficulty rising from sitting while the medical evidence about lower back records that the appellant declined to crouch down and stand up and could bend forward to touch knees.

12 It is plain that the tribunal dealt with the question of mobilising with a wheelchair inadequately. While it was, for reasons I explained in AR,  not relevant to consider if the appellant could afford to buy a wheelchair, it was appropriate to consider any medical advice and the full functioning necessary to mobilise with a manual wheelchair and to make factual findings about those functions. I do not agree with the Secretary of State’s representative that the ESA85 report in the form seen here provided adequate findings in this case. This is because (a) the consideration of upper limb functioning did not include all relevant functions and (b) other relevant aspects of functioning, such as getting into and out of a chair, were not clear on the ESA85 evidence and were not separately considered by the tribunal. I allow the appeal on this ground also.

13 A copy of AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 417 (AAC) is to be issued with this decision.

Directions for new hearing

A The new hearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D The parties are directed to produce to the tribunal, within one month of receipt of this decision, details of the most recent relevant awards of disability living allowance to the appellant and the evidence on which those awards were made.

These directions are subject to any later direction by a tribunal judge.

David Williams

Upper Tribunal Judge

10 09 2013