Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/4125/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I substitute my own decision that the claimant scores 15 points under the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008 and is therefore to be treated as having limited capability for work and is entitled to employment and support allowance accordingly.

REASONS FOR DECISION

1.     This is an appeal with the permission of a First-tier Tribunal Judge from a decision of the First-tier Tribunal dated 14 June 2012.  That decision dismissed the claimant’s appeal from a decision of the Secretary of State dated 18 December 2011 that the claimant’s existing award of incapacity benefit did not qualify for conversion to an award of employment and support allowance (ESA).

2.     Permission to appeal was originally given because an issue was raised as to validity of the notices served on the claimant in relation to the conversion process from incapacity benefit to ESA.  That issue has now been resolved in favour of the Secretary of State by a decision of a 3 Judge panel of the Upper Tribunal in JM v SSWP (ESA) [2013] UKUT 234 (AAC), and it is therefore no longer pursued by the claimant.  There are however other grounds for the appeal, relating to the tribunal’s findings in respect of the mental health descriptors in
Schedule 2 to the Employment and Support Allowance Regulations 2008 (the 2008 Regulations).

3.     The claimant was born in 1990 and had at the date of the decision in December 2011 three children aged 1, 2 and 4, with whom she lived.  Her boyfriend would visit daily and she also received support from her mother.  Unfortunately, she suffers from manic depression, although her medication appears only to relate to her depression.  She has been accepted throughout as scoring 6 points under descriptor 16(c) of Schedule 2 to the 2008 Regulations on the basis that engagement in social contact with someone unfamiliar to her is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by her.  She was awarded no further points by either the decision maker or the tribunal, which dealt with the matter on the papers as the claimant had stated that she did not want an oral hearing.  There is no suggestion that if this appeal were to be allowed and the matter remitted to a new tribunal the claimant would then want an oral hearing.

4.     On this appeal she contends that the tribunal failed to give adequate reasons for refusing to award her (1) 6 points under descriptor 15(c) on the ground that she was unable to get to a specified place with which she was familiar without being accompanied by another person, and (2) 9 points under descriptor 16(b) on the basis that engagement in social contact with someone unfamiliar to the claimant is always precluded due to difficulty relating to others or significant distress experienced by the individual.  The representative of the Secretary of State accepts that the reasons given in respect of descriptor 15(c) are inadequate, but contends that adequate reasons were given for rejecting descriptor 16(b), so that the claimant would still at best score 12 points and her appeal should therefore be rejected.

5.     In relation to descriptor 15 the tribunal found that the claimant‘s mother generally accompanied her to help her understand what was happening at appointments.  The claimant had difficulty visiting new places.  She did not like being in any crowded environment, and on one occasion when pregnant had a panic attack on a bus.  She shopped alone at Asda and was able to get to her doctor and pharmacy alone, which were both close.  She also attended counselling, support organisations, medical and hospital appointments on her own and on her son’s behalf.  She accompanied her children to school and to nursery. She preferred the company of her mother at some formal appointments.  The tribunal accepted that going to an unfamiliar place would cause the claimant to be anxious.  However, it found that the evidence did not suggest that she was unable to do so.  While she preferred support in formal environments, she was able to get to both familiar and unfamiliar places without being accompanied.

6.     As the representative of the Secretary of State points out, it is clear from the report of the approved disability analyst that the claimant had some difficulty coping with the medical assessment at an unfamiliar place even though she was accompanied by her mother.  She was described by the approved disability analyst as trembling and sweating and as having some difficulty coping with the interview.  There was no evidence that she ever did go alone to an unfamiliar place.  None of the supporting evidence referred to by the tribunal or the approved disability analyst provides any real support for the conclusion to which they came.

7.     I agree with the representative of the Secretary of State that evidence that the claimant had gone unaccompanied to familiar places and accompanied to an unfamiliar one where she was trembling and sweating does not support a finding that she could go unaccompanied to an unfamiliar place.  The claimant’s own written evidence was that she could not do this (p.16), stating at p.12 of the file that she got confused and did not feel confident enough to ask strangers for directions.  She has also indicated learning difficulties, including dyslexia, and needing to have her mother with her to help her understand what is being said to her, and has stated that she has panic attacks and got nervous talking to or explaining herself to new people and people in authority (pp.11, 14, 54) and could not cope with meeting strangers at all (p.17).

8.     A senior family support worker has confirmed that she and her family receive weekly one to one support at home because the claimant finds group situations extremely difficult to cope with (p.56) and a senior practitioner in the family support team has confirmed that the claimant has a phobia of meeting new people and attending meetings or groups to the extent that she struggles to pick her own daughter up from school.

9.     The decision of the claimant not to attend a hearing, which was communicated to the tribunal is at least consistent with her not wanting to go to unfamiliar places alone or at all.

10. It appears to me that the tribunal failed to give adequate reasons for its conclusion in this respect.  Since for the reasons given below I reject the contention of the Secretary of State in relation to descriptor 16(b) and find that the tribunal erred in that respect as well, I set aside the decision of the tribunal in relation to this descriptor and award the claimant a further 6 points on the basis that the evidence of her need to be accompanied by her mother and her conduct even when so accompanied at the medical examination, coupled with the professional evidence as to her difficulties with unfamiliar people and situations, supported her claim that she should score these points under descriptor 15(c).  That raises her score to 12 points which by itself would still not qualify her as having limited capability for work related activity.

11. I turn to consider the claim under descriptor 16(b), which if successful would lift her score to 15 points.  That descriptor requires that engagement in social contact with someone unfamiliar should always be precluded. 

12. I note that in KB v SSWP, [2013] UKUT 152 (AAC), the representative of the Secretary of State contended, in relation to descriptor 13 in Schedule 3 to the 2008 Regulations that, notwithstanding the wording of regulation 34(2) of those Regulations (which qualifies the circumstances in which a Schedule 3 descriptor applies to a claimant) where the words “is always precluded” appears in a descriptor, it means that it is not possible to consider whether or not the descriptor applies to the claimant for the majority of the time.  It is, it was submitted, an all or nothing test.  Judge Parker concluded that some meaning had to be given to regulation 34(2) if this was at all possible without a strained construction.  She concluded that “always precluded” as used in this descriptor and in descriptor 13 in Schedule 3 to the 2008 Regulations meant repeatedly or persistent or often.  While a majority could only be 50.1% of the possible occasions, a greater frequency was required by the use of the word “always”.  It was a question of degree for the fact finding tribunal.  While there is no equivalent to regulation 34(2) in relation to Schedule 2 descriptors, the words “is always precluded” in regulations 16(a) and (b) are identical in relation to descriptors which in this respect are not materially distinguishable from descriptor 13 in Schedule 3.

13. With respect to Judge Parker, it does not appear to me that the meaning of “always” has to be interpreted as she did to accommodate regulation 34(2).  The question posed by the combination of regulation 34(2) and descriptor 13 of Schedule 3 is whether for the majority of the time the relevant social engagement is always precluded.  If it was an all or nothing test, as was submitted in that case on behalf of the Secretary of State, anybody who attended the medical examination and engaged fully and appropriately, while suffering considerable distress in the process, would necessarily fail to score any points because the distress would not have been sufficient one that one important occasion to preclude the social contact.  I see no reason to interpret the descriptor in this way, and regulation 34(2) means that that is not necessary for the purposes of Schedule 3.  The descriptor would be satisfied if for the majority of the time, engagement in social contact is always precluded.

14. For that reason, I do not feel able to hold that “always” in descriptor 16(a) and 16(b) of Schedule 2 can mean often, which is no more than for the majority of the time, the descriptor in 16(c).  Insofar as always means persistently or repeatedly, if this means every time social contact is contemplated, then it would appear to be the equivalent of always.  If, on the other hand it meant that a person who can sometimes engage in social conduct but for the most part cannot, then that again would appear to cover cases falling within descriptor 16(c).

15. By way of example, if a person was so stressed or otherwise disabled 6 days a week that engagement in social contact was always precluded during that time, but they could obtain sufficient relief from stress one day a week that some limited social contact was possible, then for most of the time engagement in social contact is always precluded, and the fact that limited contact one day is possible prevents the claimant scoring points under descriptor 16(a) or 16(b) as appropriate, but would not prevent the claimant from satisfying descriptor 13 when regulation 34(2) is taken into account.   

16. On the other hand, it does appear to me that the tribunal is required to form an overall picture of the claimant’s ability to engage in social conduct over a period and it does not appear to me that occasional very limited engagement in such conduct need prevent a tribunal concluding that overall the claimant is always unable to do so.  To take an extreme example, a person in a coma who surfaces occasionally and is able to engage briefly during that period with familiar and unfamiliar persons before lapsing into unconsciousness should nevertheless be found in this context always to be unable to engage in social contact. 

17. I note in this context that Judge Ward in AR v SSWP, [2013] UKUT 446 (AAC) disagreed with Judge Parker as to the scope of “social contact”, stating at paragraph 18:

“In my view, social contact in this sense is not the same as contact for business or professional purposes.  If one goes to a medical examination, or a tribunal hearing, the rules are firmly established by the process and/or the person conducting it, and are typically clearly defined, often in writing.  If the person being examined or whose case it is does not respond in a way that a person without disability might, the person conducting it may because of their professional responsibilities be expected within generous limits to accommodate the non-conforming response and certainly not, as it were, to take a poorer view of, or attempt to avoid further contact with, the person because of it.  That is precisely what is lacking in the social sphere, where people are free to interact on their own terms and to accept the behaviour of another or to reject it, and largely do so on the basis of the sort of unwritten rules to which the National Autism Society guidance makes reference, an inability to respect which could, in the words of the descriptor, be an indication of “difficulty relating to others”.”

18. I agree with Judge Ward that merely attending a medical examination or tribunal hearing does not establish an ability to engage in social contact, but it does not follow that in the course of that examination or hearing the party will not demonstrate an ability to respond appropriately and engage in limited social contact despite the distress that the meeting is causing and that such contact causes.  The fact that a person is not so far along the autistic spectrum as to be wholly unable to engage in social contact does not mean that a person might not experience significant distress if required to engage in such contact.  A tribunal needs to assess the ability to engage in social contact, which can be in any context, the extent to which a person has the capacity so to engage, the distress it causes when engagement occurs and the impact of that distress on the ability so to engage.

19. It is unnecessary for me to consider further the meaning of engagement in social contact because it appears to me that there is no evidence of the claimant engaging in social contact with persons with whom she is unfamiliar, except for the possible interchanges that may have taken place with the approved disability analyst on one isolated occasion that caused the claimant observable distress.  Seeing and passing unfamiliar people in the street or when collecting her children from school and paying cashiers at supermarket checkouts does not amount to social contact for this purpose.

20. I note that the tribunal refers to the claimant generally needing her mother with her when she meets new people.  There is no evidence of her meeting new people without her mother.  Nor does she appear to have met any new people around the time of the decision or to have engaged in social contact with anyone before they become familiar to her.  In any event, if she did meet any new people around this time, they would appear to have been professionals, who because of their professional expertise would have been expected, as Judge Ward points out, to understand and allow for the claimant’s problems in this respect.

21. As the tribunal dealt with matters on the papers, I see no reason why I should not substitute my own decision for that of the tribunal.  For the reasons already given, I am satisfied that the claimant scores 6 points on descriptor 15(c) and 9 points on descriptor 16(b).  She therefore scores a total of 15 points and is to be treated as having limited capability for work.

22. I would add that if, as the tribunal appears to have assumed, the claimant would have needed to seek work if found not to have limited capability for it, I have some difficulty in identifying what work might have been sought and how this claimant might have been expected to cope with seeking such work, apparently accompanied all the time by her mother, and dealing with interviews by unfamiliar people.  The question does not arise, however, both because she has now scored 15 points and because, as a lone parent having children under the age of 5, she would qualify for income support under regulation 4ZA of, and paragraph 1 of Schedule 1B to, the Income Support Regulations 1987 and would not need to look to obtain jobseeker’s allowance.

23. Finally, as none of the descriptors in Schedule 3 apply, I turn to the question whether by reason of the claimant’s mental health problems there would be a substantial risk to her mental or physical health if she were found not to have limited capability for work-related activity (regulation 35 of the 2008 Regulations).  Work-related activities are provided for in regulation 3 of the Employment and Support Allowance Regulations 2011, but, by virtue of regulation 3(2)(b), they do not apply to the claimant as she is a lone parent with a child under 5 who is a member of the same household and for whom she is responsible.   

24. If therefore the claimant is found not to have limited capability for work-related activity, as at the date of the decision and indeed up to and beyond the present time, she would still not be required to undertake that activity.  In those circumstances, I can see no risk to her mental health at the date of the decision if she is found not to have such limited capacity. 

(signed) Michael Mark

Judge of the Upper Tribunal

8 November 2013