Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/869/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and remit the matter to be reheard by a new tribunal in accordance with the directions below.

If there have been significant deterioration in the claimant’s ability to mobilise, he should consider whether now to make a new claim for benefit if he has not already done so.  The claimant should also note that further evidence from his GP may assist him as set out in paragraph 12 below.

REASONS FOR DECISION

1.     This is an appeal with the permission of a Judge of the Upper Tribunal.

2.     The claimant has serious mobility and pain problems and also gave evidence that he suffered from panic attacks 2 to 3 times a month during which he became disorientated and was not aware of his surroundings.  The tribunal found that the claimant failed to score any points on the work capability assessment.

3.     In relation to mobility the tribunal found that the claimant could walk in excess of 200 metres in 5 minutes on level ground without stopping in order to avoid significant discomfort or exhaustion, and could do so with reasonable regularity and within a reasonable time scale.  It reached this conclusion despite medical evidence that the claimant had serious problems with his knees and his left thigh and chronic deep pelvic pain which had resulted in his being referred to a pain clinic during a period which included the date of the decision by the decision maker which was under appeal.

4.     The extent of the pain and discomfort suffered was described by specialists in letters dated 11 October 2011 and 4 July 2012 and by his GP in a letter dated 20 March 2012.  The GP’s letter described the pelvic pain as severe and stated that “The effect of his injuries [ie to his legs] has resulted in greatly reduced mobility and he is only able to walk a few yards with any degree of comfort.  He experiences constant and continual pain… He is currently attending a specialist in pelvic pain and was diagnosed with chronic pelvic pain syndrome.”  The letter also refers to a recent diagnosis of irritable bowel syndrome and to repeated operations on the claimant’s knees since an accident in 2005.

5.     The tribunal dealt with this evidence by preferring the evidence of the approved disability analyst, a nurse, whose evidence in support of her conclusion that he scored no points for mobility was that he had been observed to walk 10 metres with a stick to the examination room, that he had said that he had walked about 100 metres from his car to the examination centre at a slow pace, and that he  had said that he could walk about indoors without the help of aids and used a stick for outdoor mobility.

6.     The statement of reasons dealt with the GP’s evidence as follows:

“21. The tribunal did not accept the opinion of the GP regarding the disabling effects of the conditions particular [sic] regarding mobilising… The information from the GP does not explain how the conclusions have been arrived at.  Evidence is not provided to explain how the GP knows such effects apply to the appellant.  It is unlikely that the GP would have such knowledge of how a condition affects a person.  GP consultations tend to last a maximum of 10 minutes, deal with one medical issue at a time and to occur in the narrow confines of the surgery.  A GP is likely to have many thousands of patients and the time period between consultations could be weeks if not months.  In the absence of evidence from the GP to explain how it is known that the conditions have the effect complained of the tribunal was not prepared to accept the evidence of the GP.

22. The tribunal noted the additional medical information…”

7.     It does not appear to have occurred to the tribunal to enquire of the claimant how often he was seeing the GP or how the GP could have been in a position to express a view of how far he could walk.  Given the extent of the claimant’s medical problems, and the fact that any difficulties walking would manifest themselves and be noted by a good GP even if the consultation was about another problem, it would appear likely that the GP would have got to know this claimant and be aware of his walking difficulties.  Any doubts as to this could have been overcome by adjourning and directing the production of his medical records.  Once that was done, the GP could have been asked to explain his or her view.

8.     It appears to me that the tribunal was in error of law in failing to make proper enquiry on these questions, and in making inferences as to the extent to which the GP knew of the claimant’s condition and its effect on his ability to mobilise which could not be justified on the basis of the evidence before it. 

9.     I note that the tribunal also considered that the claimant could mobilise using a wheelchair but, no doubt because of its views on his ability to walk, made no proper enquiries or findings of fact relating to this of the type required by AR v SSWP (ESA), [2013] 417 (AAC).  I deal below with the enquiries and findings which the new tribunal will need to consider.

10. In relation to the claimant’s panic attacks, the tribunal recorded that these were claimed to result in the claimant becoming disorientated but continued “However, [the claimant] and his representative were unable to definitely state that he suffered lost or altered consciousness during an attack.”  It went on to note that “there was no evidence that a problem of lost or altered consciousness had been investigated or treated medically.”

11. This is not an appropriate way of dealing with the question of lost or altered consciousness.  It was for the tribunal to make findings as to how frequently the claimant had panic attacks and as to how they affected him.  For this they needed to obtain details from the claimant.  He had stated that he became disorientated and was not aware of his surroundings.  He had not stated that he had lost consciousness.  The tribunal needed to make further enquiries as to his disorientation and lack of awareness of his surroundings to an extent necessary to determine whether (a) they amounted to or involved altered consciousness and (b) this resulted in significantly disrupted awareness or concentration.  On the face of it a serious panic attack could have that effect and could lead to the awarding of points.  There is nothing in the descriptor which prevents altered consciousness from being the result of a panic attack.  As pointed out in the Training and Development ESA Handbook, the nature of the episodes and their effect on function must be explored to see if they fulfil the criterion of the descriptor.  It is not for the claimant or his representative to state whether what the claimant experiences amounts to altered consciousness.  It is for the claimant to describe his experience and for the tribunal, after proper enquiry, to determine whether it amounts to altered consciousness and if so whether it results in significantly disrupted awareness or concentration, as explained by Judge Ward in BB v SSWP, [2012] AACR 2; [2011] UKUT 158 (AAC). 

12. On both counts, therefore, the tribunal was in error of law and I set aside its decision and remit the matter to be reheard by a new tribunal.  It is unnecessary for me to give any guidance in relation to the claimant’s ability to walk, except to note that the tribunal may be assisted if the claimant’s medical records around the period under review are directed to be produced and if the GP can be persuaded by the claimant or the tribunal to explain the basis for his or her evidence as to the limited ability of the claimant to walk more than a few yards around February 2012.  It may also help if the GP can express a reasoned opinion on the use of a wheelchair at that time by the claimant.

13. If the new tribunal concludes that the claimant scores no points in relation to mobilising because he can repeatedly walk over 200 metres, the question of wheelchair use may not arise.  It will, however, need to be considered if he would otherwise score points on that descriptor.  Conflicting views as to the proper approach have been put forward by various Upper Tribunal Judges in recent decisions, which are summarised by Judge Williams in AR v SSWP, [2013] UKUT 417.  My own interpretation of the descriptor, differs from Judge Williams and broadly agrees with Judge White in AB v SSWP CE/4267/2012 and Judge Gamble in DM v SSWP, [2012] UKUT 376. 

14. The context of the work capability for work test is an attempt to assess who is going to be able to undertake work of some sort.  For that being able to mobilise in fact rather than in theory is important.  It does not make sense to say that somebody has or does not have limited capacity for work based on a hypothetical ability to mobilise with an aid that he or she does not have and cannot for practical reasons obtain and use.  I disagree therefore with Judge Williams that the test is a freestanding one independent of the question whether the claimant can in fact reasonable be expected to have access to a wheelchair on a daily basis.  It is not a notional test or thought experiment such as the cooking test in DLA where it is immaterial whether a person needs to cook or not or has the equipment or not.

15. The test in my judgment is whether the aid, the wheelchair, can reasonably be used by this claimant in his daily life.  The use includes not merely mobilising once for any particular distance, but being able repeatedly to mobilise and to do so not just on one day but over a period of time.  A claimant cannot reasonably use a wheelchair without having access to one, and I do not see how his ability to store one and to get to and from it can be disregarded in determining whether he can reasonably be expected to use it, in the same way as his ability to get in and out of it unaided would be relevant.  It is even possible that inability to afford a wheelchair may be relevant, although it is would not normally be so given their relative cheapness and their availability from the NHS and charities where reasonably required. 

16. I would add that even if I am wrong as to this, in assessing the impact on the claimant for the purposes of regulation 29 of his being found not to have limited capacity for work, he must plainly be taken as he is, and not with some aid that in real life he does not have and cannot reasonably be expected to obtain.  If, for example, a claimant lives alone at the bottom of a hill with no way of getting to the only bus stop, which is at the top of it, then that is something that the tribunal must take into account in determining the effect on him of not having limited capability for work.  The issue in that respect is not simply what work might he do, but what would happen to him in terms of seeking, obtaining and retaining jobseeker’s allowance, or not being able to do so, and taking the necessary steps to seek work (IJ v SSWP, [2010] UKUT 408 (AAC); CF v SSWP, [2012] UKUT 29 (AAC).

(signed) Michael Mark

Judge of the Upper Tribunal

11 October 2013