Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No.  CE 95 2013

ADMINISTRATIVE APPEALS CHAMBER

PL 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 Darlington on 23 10 2012 under reference SC 224 11 03022. 

2 The First-tier Tribunal refused the appeal by the appellant against a conversion decision that he was no longer to be regarded as having limited capability for work from and including 20 10 2011. The appellants’ representatives, Durham Welfare Rights, sought permission to appeal because of the approach taken by the First-tier Tribunal to the physical descriptor for mobilising. Permission to appeal was granted by a Judge of the Upper Tribunal for full consideration to be given to those grounds. The Secretary of State’s representative responded to the Upper Tribunal in support of the appeal, setting out fully the view of the Secretary of State about the proper approach to the mobilisation descriptor.

3 I recently considered the question of the proper application of the test of “mobilising unaided by another person with … a manual wheelchair … if such aid can reasonably be used” in my decision AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 417 (AAC). I adopt that reasoning in this decision without repeating it. The submission for the Secretary of State in that appeal was broadly similar to the submission in this appeal and I intend no discourtesy to the Secretary of State in not repeating that submission or my analysis of it.

4 However, this case is significantly different on the facts to the facts set out in AR. I can see nothing relevant to the use of a wheelchair to mobilise in the evidence put forward by the appellant in the ESA50. Nor is there any direct evidence in the ESA85 completed by a registered medical practitioner. However, there is evidence of some ability to walk and use of a shopping trolley and of ability to drive sometimes. Nor is there anything of direct relevance put forward in the formal submission from the Secretary of State. On that basis, there is nothing directly relevant by way of evidence or submissions in the papers that came before the tribunal when it first had the case listed on 17 05 2012.

5 The tribunal adjourned the case for further evidence to be obtained from the appellant’s general practitioner. This was obtained but again there is no evidence directly relevant to the appellant’s use of a wheelchair. The appellant’s representative stated that the appellant was not given a copy of the evidence from the general practitioner ahead of the hearing. This was important in this case because the general practitioner record contained information that was, in the appellant’s representative’s submission, plainly wrong. The First-tier Tribunal considered an application to adjourn at the full hearing on 23 10 2012 but dismissed it. I agree with the representatives that this ruling appears to shift the blame on to them for what appears to have been a failure of the tribunal administration properly to comply with Tribunal Procedure Rules. The initial direction by the First-tier Tribunal placed responsibility on the tribunal administration to obtain further evidence. That being so, it was for the tribunal to give the representatives proper notice of the evidence once obtained. Had I considered it necessary to do so, I would have investigated this further and would have set aside the decision if, as asserted, the evidence was not copied to the representatives. However, as both parties have agreed that the appeal should be allowed by reference to the issue of mobilisation, I take it no further.

6 I am concerned to note two issues in the record of proceedings of the First-tier Tribunal at the full hearing on 23 10 2012. The first is that the appellant (who attended with his representative) challenged aspects of the ESA85 report, and in particular gave evidence that expressly denied him ever having driven or even holding a driving licence. The second is that I can see nothing in the record of proceedings to show that the tribunal discussed the use of a wheelchair with the appellant and representative at the hearing. This is so although the representatives state that reference was made to the second issue during the hearing.

7 As my decision in AR states, the tribunal is required to apply two tests when considering use of a wheelchair in mobilising: whether this is normal and whether this is reasonable. There is no assertion anywhere in the papers before the tribunal that the appellant has ever used a wheelchair, so the answer to that question is clear. But that must be its starting point from which then to consider whether it is reasonable. The failure of the tribunal to consider this point of itself puts its decision in question.

8 This is therefore a case where the only mention of the use of a wheelchair to assist mobilising is to be found in the statement of reasons. On that basis, I have no hesitation in agreeing with both parties that the decision is inadequate. In paragraph [6], the only paragraph in which use of a wheelchair is considered, the tribunal finds that the appellant has full upper body and limb function and controlled asthma. It then finds that he can sit for at least half an hour

“… and on that basis he could repeatedly mobilise, utilise a manual self propelled wheelchair repeatedly for in excess of 200 metres within a reasonable timescale  

before the onset of significant discomfort or exhaustion”

9 I agree with both parties that that is not an adequate explanation of the tribunal decision when nothing else in the tribunal record supports it. The tribunal appears to have considered three issues: lower limb problems of the appellant; any upper limb problems; and respiratory problems. As discussed in AR, consideration must be given to all bodily functions involved in using a wheelchair – and particularly repeated use of it - and not just sitting in it. And there must be evidence for findings. Merely noting from (contested) ESA85 evidence that there are no upper limb limitations is not adequate. These do not test the functions necessary repeatedly to turn a wheel on a wheelchair manually. And there need to be findings about rising from sitting or similar evidence that the appellant can get into and out of a wheelchair unaided and that he or she can handle it as part of the process of using it to mobilise unaided. 

10 This appeal must therefore be reheard by a new tribunal. The question of use of a manual wheelchair is now on the record and both parties now have full notice that the tribunal may consider it. If either party wishes to put in any further submissions or evidence before the First-tier Tribunal on this or any other issue relevant to the appeal then it should do so promptly on receipt of this decision.

11 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 If either party has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

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

David Williams

Upper Tribunal Judge

10 09 2013

[Signed on the original on the date stated]