Upper Tribunal (Administrative Appeals Chamber)

 

 

THE UPPER TRIBUNAL

 

 

ADMINISTRATIVE APPEALS CHAMBER

 

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

 

The appeal against the decision of the First-tier Tribunal given at Kilmarnock on 8 February 2013 is allowed.  I set the decision aside and remit the case for a rehearing before a differently constituted tribunal.

 

 

REASONS  FOR  DECISION

 

 

1. The claimant has appealed against the decision by the tribunal given on 8 February 2013.  In that decision the decision of the decision maker of 11 October 2012 was confirmed and in applying the work capabilities assessment six points were scored from satisfaction of descriptor 2(c). The decision of the 11 October 2012 is recorded at page 60 and determined that the existing award of incapacity credits did not qualify for an award of employment and support allowance and that award and entitlement to the awarded credits was terminated from and including 31 October 2012.   It is to be noted that the application for permission to appeal related only to that decision.  I refer to page 81.  It was that decision in respect of which permission was granted.  The ground of appeal relating to a refusal by the First-tier to set aside its own decision is not one which is before the Upper Tribunal in this appeal.  I refer to that because of the third ground of appeal at page 83. 

 

2. The grounds of appeal are set out at pages 82 to 86.  The Secretary of State does not support the appeal for reasons set out at pages 110 to 112.  The claimant has responded to that submission at pages 133 and 134.

 

3. In the first ground of appeal the claimant states that the tribunal erred because it disregarded his evidence that he had recently had x-rays taken of his hips and was awaiting the results.  The appeal before the First-tier Tribunal is summary in nature.  It is for the claimant to fully prepare his case and to gather such evidence as he wishes to advance to the tribunal.  In the event that there are reasons to seek an adjournment of the appeal in respect of evidence which the claimant wishes to be placed before the tribunal and which is not available at the date of the tribunal hearing he should make a motion for an adjournment.  In this case,  although at page 67 he gave the evidence set out above, he did not seek an adjournment and I accept what is said by the Secretary of State in paragraph 6 of his submission that the tribunal were entitled to make a decision on the evidence before them. 

 

4. In respect of the ground of appeal in paragraph 4 at page 83 relating to the claimant’s diabetes the fact that he sees a specialist nurse at his GP’s practice does not mean that the tribunal erred in fact when it said he had not been referred to a specialist.  In any event the claimant does not relate the fact that he sees a specialist nurse to any of the statutory provisions which would have a material effect on the result.

 

 

 

 

5. There is no doubt that the claimant does have a disability which affects his mobility.  The question was the extent of that restriction and whether as a result a relevant points scoring descriptor is satisfied.  In assessing the evidence in respect of extent of the restriction the tribunal preferred the evidence of the Health Care Professional and set out a reasoned basis for that view.  It dealt with the General Practitioner’s report which was lacking in specification.  There was no obligation on the tribunal in light of that lack of specification, at its own hand, to seek further evidence from him. It clearly considered that it could determine the appeal on the evidence that was before it.  That was a matter within its province.  The fact that the claimant considers that he should be awarded 9 points does not demonstrate an error in law on the part of the tribunal.  It means only that the claimant disagrees with the decision.

 

6. In the seventh ground of appeal the claimant raised the issue of activity 5 which relates to manual dexterity. In paragraph 9 at page 74 the tribunal made the following findings in fact:

 

 

“9. Descriptor 5 the appellant has a tendon injury to his right index finger which causes the finger to become permanently contracted.  The health care professional’s examination confirmed that his pinch grip and power grip in both left and right hand were normal.  The appellant continues to drive.  There was no problems bathing, dressing or using a phone.  He had no difficulty completing the ESA 50 form.  He therefore did not qualify for any points in respect of this descriptor.”

 

 

The claimant in his oral evidence indicated that he had been awarded 15 points for the activity of manual dexterity on previous assessments.  He also gave specific evidence at page 64 about descriptors 5m(b) and m(c).  That evidence, which in relation to the use of a mouse was material, was not dealt with in the reasons. In these circumstances, as that descriptor attracts 9 points and it had made an award of 6 points for descriptor 2(c),  I hold that the tribunal’s decision is erroneous in law and set the decision aside.  Descriptor 5m(b) is “can pick up a £1 coin or equivalent with either hand”.  The claimant’s left hand is not injured.  Thus there is no basis on which this descriptor could apply.

 

7. Whilst the Secretary of State invites me to dismiss the appeal he does make the following submission:

 

 

“7. I do not accept the claimant’s argument that the tribunal were required to take into account previous medical reports in relation to his Incapacity Benefit (IB) claim.  Recent case law, for example in ST v Secretary of State for Work and Pensions (ESA) [2012] UKUT 469 (AAC), suggests that where the claimant was claiming ESA and the papers relating to an earlier WCA were not placed before the tribunal, it may be an error in law.  There were some circumstances fairly unique to the particular case in question, but the UT Judge’s general conclusions on what evidence the Secretary of State should present to a tribunal, as given in paragraphs 38 and 39 of that decision, are binding in all cases.

 

 

 

 

 

8. However, in the instant case the claimant was being reassessed for ESA from a position of being entitled to National Insurance (NI) credits by way of being found incapable of work under the old Incapacity Benefit (IB) scheme.  In order to continue receiving NI credits under that scheme, he needed to be found incapable of work under the Personal Capability Assessment (PCA), either by being found to have a specific medical condition which would have automatically allowed him to pass the PCA or passing a medical assessment.  However, the ESA Work Capability Assessment is a completely different assessment, based on different descriptors and with a different scoring system, and, whilst the clinical findings and observations made under the PCA may have ongoing significance to, for instance, a stable condition, its relevance overall is limited.  It should also be pointed out that PCA reports are becoming increasingly old as PCAs ceased on a widespread basis in 2011.  Thus while PCA reports are still available to decision makers and Health Care Professionals do consider such reports at file work or examination, such reports will only be presented to a First-tier Tribunal if their relevance as evidence is considered significant.

 

9. As a final point on this issue, I should state that there is an alternative view as to the relevance of IB papers to an ESA claim contained in CE/2796/12, where the Upper Tribunal Judge considers that PCA reports do not assist a tribunal at all and may even impede its reasoning.”

 

 

The claimant in his seventh ground of appeal does make reference to the fact that in two previous assessments, for incapacity credits, he was awarded 15 points for a descriptor relating to the activity of manual dexterity and this time he was awarded none.  In these circumstances it is I think necessary to deal with the authority referred to in paragraph 7 of the Secretary of State’s submission.

 

8. That authority dealt with supersession of awards of employment and support allowance by virtue of regulation 6(2)(r)(i) of the Social Security (Decisions and Appeals Regulations) 1999.  That regulation provides for a supersession on the basis that the decision to be superseded in an employment and support allowance decision where, since was made the Secretary of State has received medical evidence from a Health Care Professional approved by the Secretary of State.  The effect of supersession is to terminate the existing award. 

 

9. However in paragraph 34 of his decision the Upper Tribunal Judge (Wright) says:

 

 

“34. … If it was the case that it is the receipt of medical evidence from a defined person that of itself establishes the ground for supersession then the contents of the report are immaterial and can be ignored, which cannot be correct.  That would lead to the absurd result that it was irrelevant what the medical evidence/ESA85 report says even where it clearly and entirely justifiably established beyond argument that the claimant had very limited capability for work.  Moreover, it would leave unexplained the reasoned and rational basis for the Secretary of State’s decision that the person did not have limited capability for work.

 

 

 

 

 

35. Furthermore, and perhaps more fundamentally, it has to be borne mind that the outcome decision the Secretary of State, and then on appeal, the First-tier Tribunal, is concerned with is whether or not the claimant is entitled to employment and support allowance because he or she “has limited capability for work” under section 1 of the Welfare Reform Act 2007.  That question cannot be answered in full by saying simply “Well you don’t because I’ve received a medical report”, because that does not answer the question under section 1(3)(a) of the Welfare Reform Act: has this person limited capability for work?  That question can only be answered, in my judgement, by considering the contents of the ESA85 medical report and all other relevant evidence so as to decide whether on the facts and the law the person has “limited capability for work”.

 

 

He then goes on to say in respect of regulation 6(2)(r)(i):

 

 

“36. So, in this circumstance, receipt of the correct medical evidence is a necessary condition of the Secretary of State (and then on any appeal the First-tier Tribunal) superseding a previous ESA entitlement decision. But it is not the sufficient condition as well.  That depends upon the decision maker going further and saying why the contents of the ESA85 medical report, whether taken with or in preference to other relevant evidence, establish on the facts and under the ESA legal rules (usually Schedule 2 to the Employment and Support Allowance Regulations 2008) that the person does not have limited capability for work: see to similar effect CIB/1509/2004.”

 

 

For reasons that will become apparent I have reservations about this analysis.

 

10. In the instant case the question is somewhat different.  It is whether in the context of the Health Care Professional’s report and the other evidence in the case the existing awards of incapacity credits qualify for conversion into an award of employment and support allowance or credits.  If it does not then the decision is simply that the award of credits terminates in this case from 31 October 2012.  The nature of supersession of an award of employment and support allowance or credits under regulation 6(2)(r) and the conversion process from incapacity benefit or credits to employment and support allowance or credits is to bring about the termination of existing awards, in the former case of employment and support allowance  or credits and in the latter case of incapacity benefit or credits. The whole scheme and intention of the legislation in both cases is to enable the decision maker, and, if his decision is appealed the tribunal, to take a fresh look as to whether or not the conditions for the allowance or credits are satisfied without being burdened with whether or not there has been a change of circumstances such as improvement in the claimant’s medical condition or a mistake or ignorance as to a material fact. A different view will suffice.   

 

11. However when the terms of regulation 6(2)(r)(i) are strictly read it is the receipt of the certificate which is the ground for supersession.  The Upper Tribunal Judge reads into the statutory provisions the necessity for what he calls the sufficient condition. He does so under reference to CIB/1509/2004 which related to similar provisions in 6(2)(g) for incapacity benefit.  There the Commissioner said:

 

“8. There are two ways that a decision-maker can use regulation 6(2)(g).  I suspect that the way it works in practice in this.  The evidence relevant to the claimant’s capacity for work is collected.  This will typically consist of the claimant’s self-assessment, a report from the claimant’s GP and the medical adviser’s report.  The evidence is put to the decision-maker, who considers it and decides whether the claimant is still incapable of work.  If the claimant is still incapable of work, the decision-maker leaves the award in place and makes no decision on supersession.  Regulation 6(2)(g) is irrelevant.  But if the claimant is no longer incapable of work, the decision-maker undertakes a supersession. Regulation 6(2)(g) authorises that process.  It does not dictate the outcome of the supersession.  That is determined by the decision-maker’s analysis of the evidence and the conditions of entitlement.

 

9. The other possibility is that the evidence is referred to a decision-maker who always undertakes a supersession on the authority of regulation 6(2)(g).  If the claimant remains incapable of work, the decision taken is not to supersede the existing award.  If the claimant is no longer incapable of work, the decision taken is to terminate that award.

 

10. On either approach, regulation 6(2)(g) merely authorises a supersession procedure.  It does not determine the outcome.  It merely recognises that evidence has been produced that may, or may not, show that the operative decision should be replaced. The outcome is determined by the conditions of entitlement for an award.”

 

It seems to me that what is said there by Mr Commissioner Jacobs and approved by Upper Tribunal Judge Wright is a pragmatic solution to enable a fresh look at entitlement to incapacity benefit (or credits) or employment and support allowance (or credits) and avoiding the consequence of applying the statutory provisions as they are written.   My view is fortified in that regard because paragraphs 8 and 9 of Mr Commissioner Jacob’s decision are expressed as alternatives, thus demonstrating uncertainty as to the proper course.   As the application of regulation 6(2)(r)(i) does not fall within the scope of the appeal to me I do not need to reach a concluded view on whether this approach has a proper foundation in law.  This explanation is important as it explains in supersession cases how the decision maker and in the event of appeal the tribunal is able to look at the merits as to whether the claimant satisfies the conditions.

 

 12. The Upper Tribunal Judge following on from the views he expressed in relation to the nature of supersession under regulation 6(2)(r) seeks to place obligations on the Secretary of State as to the provision of evidence in appeals against decisions where supersession has been made under that regulation.  What he says is:

 

 

“37. However, once it is recognised that the decision to be reached is the substantive one of whether the person has limited capability for work, and that depends on weighing the evidence in the ESA85 medical report along with all other relevant evidence, then the ESA85 report cannot be the only relevant evidence.  What other evidence is relevant will depend on the facts of each case.  However, where, as here, it is plain from what is being said by or on behalf of the claimant that she is no better (and maybe even worse) since she was last awarded ESA or was last subject to a limited capability for work assessment, and where (as here) there has been no relevant supervening event such as a change in the law or a successful medical operation, I cannot see any lawful basis for the Secretary of State or his decision makers denying to the First-tier Tribunal the previous ESA85 medical reports concerning the appellant (or at least the knowledge that such existed, and the ESA decision(s) made subsequent to them, if they are lost and no longer in his possession).

 

 

 

 

 

He then goes on to say:

 

 

“38. Does this then oblige the Secretary of State to provide to the First-tier Tribunal in the appeal response all documents he holds in his possession about an appellant?  No.  It is only the documents that are relevant to the decision under appeal that this obligation attaches to.  Here, the decision is a supersession of an ESA entitlement decision based on the limited capability for work assessment.  That ought to provide the correct focus for what is relevant.  For example, the level of the appellant’s capital is unlikely to be relevant to such an appeal but a previous ESA85 medical report falling within the same ESA award period is likely to be relevant.

 

39. It is for the Secretary of State’s decision maker to decide what is relevant, as it is he who is responsible for the appeal response.  However, he must do so bearing in mind (a) his and the tribunal’s obligation under article 6(1) of the Convention to decide the appeal fairly, and (b) that the tribunal will not know what else the Secretary of State has in his possession that may be of relevance. In these circumstances it seems to me that the Secretary of State and his decision makers ought in all appeal responses to at least refer the First-tier Tribunal to all the documentary evidence in the Secretary of State decision maker’s possession that he considers may be relevant, whilst always providing that tribunal with copies of previous ESA85 medical reports (if still in the Secretary of State’s possession) in the circumstances referred to in the closing sentence in paragraph 37 above.”

 

 

13. The Secretary of State’s submission to me is to the effect that what the Upper Tribunal Judge said in paragraphs 38 and 39 of that decision is binding in all cases.  However, it is not clear to me whether the submission includes cases such as the present relating to conversion or whether in the light of what he says in paragraph 8 only supersession of existing awards  of employment and support allowance under regulation 6(2)(r).  Whilst I accept in conversion cases that the medical reports used for decision making are related to a different assessment, based on different descriptors, with a different scoring system it is logical that if what the Upper Tribunal Judges says in S T v SSWP  is right it would apply to conversion cases as well as supersession under regulation 6(2)(r)(i), though it is quite clear from that authority that the Upper Tribunal Judge is dealing only with supersession cases. The reason for that is that such reports will deal with diagnosis and function.  The claimant will also have been clinically examined for the purpose of the report. 

 

14. I have indicated in paragraph 11 that I consider that the Upper Tribunal Judge’s view as to what constitutes the ground of supersession is a pragmatic way of being able to look at the merits as to whether the claimant satisfies on supersession the conditions for entitlement.  His pragmatic view as to what constitutes the grounds for supersession appears to have been accepted and the tribunal was able to consider the merits as to whether the statutory conditions for the allowance are met.  However he goes too far in seeking to impose the obligation on the Secretary of State contained in the last sentence of paragraph 39.  I do not consider that in determining an appeal on a point of law from a tribunal in one case it is open to the Upper Tribunal to impose general obligations on the Secretary of State in respect of the provision of evidence in other cases.  That seems to me to go way beyond the powers given to the Upper Tribunal in determining appeals by section 12 of the Tribunal Courts and Enforcement Act 2007.  I am further not persuaded if the Secretary of State did not provide such reports to a tribunal that would render that tribunal’s decision erroneous in law if it proceeded to determine an appeal without them.  This is particularly so because the intention of supersession under 6(2)(r)(i) is to enable the decision maker to have a fresh look as to whether the conditions are satisfied and in conversion cases to look for the first time as to whether the claimant satisfies the statutory conditions.  The absence of previous reports both for the purposes of employment and support allowance and incapacity benefit in my view only becomes an issue if it is asserted by either of the parties or is considered by the tribunal that the content thereof is material to the decision that requires to be made.  Absence, and indeed the reasons for their absence, is something that requires to be considered by the tribunal when determining how to proceed.  If such reports are before the tribunal then whether they would impede the tribunal as suggested by the Upper Tribunal Judge in CE/2796/2012 in paragraph 10 would be a matter for the tribunal to determine.  In the instant case the tribunal considered that there was sufficient evidence to determine the appeal without such reports.  That was a matter which was within its province and I can find no error in law on its part for determining the appeal on the evidence which was available to it.  In reaching that conclusion I have had regard to the fact that the previous assessments in relation to incapacity credits were not before the tribunal,  their absence was not referred to in the letter of appeal to the tribunal at pages 13 and 14 or in the claimant’s letter dated 18 July 2013 at pages 63 and 64 and the fact that a reference to receiving 15 points previously is recorded in the record of proceedings along with a note that the claimant was recorded as saying:

“No problem reaching, picking up cardboard box.”

 

The approach suggested by the Upper Tribunal Judge is wrongly prescriptive and runs contrary to the intention of the statutory provisions both in relation to supersession and conversion.  Paragraph 37 comes very close to suggesting that a change of circumstances is required, when applying 6(2)(r)(i).

 

15. In the eighth ground of appeal the claimant raises restriction in walking caused by COPD.  The tribunal dealt with that in their reasons on the evidence which was before them.  It was not for the tribunal to request a test.  They were entitled to determine the effect of this disability on the evidence before them.  The Health Care Professional identified COPD in the medical conditions suffered by the claimant at page 36 and in expressing his opinion in respect of walking had regard to this condition.  On the evidence accepted by it the tribunal reached a conclusion to which they were entitled.

 

16. In the ninth ground of appeal the claimant made reference to a deterioration in his diabetic condition. The conclusion reached in respect of altered consciousness was one which the tribunal were entitled to reach, on the basis of the evidence as a whole at the time when the decision was made. It was not asserted in any event that the claimant suffered from an involuntary episode of lost or altered consciousness at least once a week.  It is suggested in the grounds of appeal that it is once or twice a month.  Even if that had been accepted by the tribunal he would not have gained sufficient points to cross the threshold.  Further, in respect of deterioration, I accept what is said in paragraph 11 of the Secretary of State’s submission. 

 

17. In giving directions to the freshly constituted tribunal it will be apparent that the previous reports in relation to incapacity benefit have been referred to by the claimant.  It is for the tribunal, if the Secretary of State does not lodge them, to consider whether to ask for them.  Whether they are lodged or not it is for the tribunal to consider their materiality when assessing the evidence in the context of submissions which are made to it thereon by the parties.  The tribunal should follow what I have said in respect of such reports and should not follow what is said in S T v SSWP referred to above.

 

 

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 28 August 2013