Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CE/3808/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge PA Gray

The decision of the Upper Tribunal is to allow the appeal.  The decision of the Manchester Tribunal made on 8 August 2012 under number SC 946/12/02287    was made in error of law.  Under section 12 (2) (a) and (b) (ii) Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be re-heard in accordance with the following directions.

Directions

1. The hearing will take place before a freshly constituted FTT as an oral hearing, unless the appellant notifies the relevant FTT office within 14 days of the issue of this decision that he does not wish to attend.
2. The Secretary of State is directed to file a further submission dealing with the status of the decision under appeal, that is to say whether or not it will be revised following this decision setting aside the FTT decision to reflect the concession made during the course of the Upper Tribunal proceedings that the descriptor 17 (b) was applicable to the appellant, and that he had limited capability for work.  If not he should confirm the concession.  The issue of what might be expected from the appellant by way of work related activities must also be addressed. These submissions should be filed within 28 days of the issue of this decision. The appellant should file any response within 14 days of that document being sent to him.  He may not feel the need to respond, particularly if he is to attend an oral hearing.  The filing of further documents should not prevent the matter being listed at this stage for a date not earlier than 42 days after the issue of this decision.
3. The submissions of both parties in this appeal shall be added to the tribunal bundle for the benefit of the new panel.

In this decision I will initially set out the background to the appeals before the FTT and the Upper Tribunal.  I will then explain the way that each party put their case, and examine the legal issues raised. I will explain my conclusion that regulation 34(2) of the Employment and Support Allowance Regulations 2008 which states that “a descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or tries to undertake the activity described by that descriptor”  does not apply to a schedule 3 descriptor where the "majority of the time" approach would be inconsistent with the actual wording of the descriptor. Specifically in this case the phrase "on a daily basis" in the context of schedule 3 descriptor 14 (Appropriateness of behaviour with other people…) means more often than for the majority of the time, but  not literally every day, the essence being an enduring position which is happening regularly, constantly or continually. In each case it is for the tribunal to find the facts in relation to unacceptable behaviour, and consider its regularity in that context with their usual common sense. Finally I will deal with additional issues which may be of concern to the FTT rehearing the case.

REASONS FOR DECISION

1. This appeal to the Upper Tribunal arose from a decision made by the First-Tier Tribunal (FTT) that the appellant was not entitled to entry into the Support Group under schedule 3, or via regulation 35, the relevant non-functional descriptor.
2. The FTT had been considering a decision of the Secretary of State made on 16 January 2012.  That decision was that the appellant scored no points under the schedule 2 descriptors, and that he therefore did not have limited capability for work. 

The background

3. The appellant had previously been in receipt of incapacity benefit (IB). He was that time aged 42. 
4. I need only say as to his health that the original award was made as a consequence of depression which he had suffered since a breakdown. As part of the IB conversion process he completed a form ESA 85, the self assessment questionnaire, as part of the Work Capability Assessment (WCA) of Employment and Support Allowance. (ESA) He indicated physical problems in relation to making himself understood and understanding communication, but that may itself have been a misunderstanding; his problems may not be physical but relate to his mental health condition.  That, in so far as it is relevant, will be a matter for determination by the new FTT.
5. The major difficulties identified during the WCA process concerned the mental health descriptors, the appellant indicating variable problems with all of those.  As part of that process he was examined by a healthcare professional, a registered nurse, on 5 December 2011. Following that examination the decision was taken on 16 January 2012. The nurse had been of the view that he did not score any points under the Work Capability Assessment. The decision maker agreed with that assessment and made the decision under appeal.

The approach of the FTT

6. On 8 August 2012 the appeal was heard at Manchester. The appellant did not attend.   He had provided documentary evidence as to his mental health problems, including evidence about his previous award, which of course had been made under the then applicable regulations concerning IB which are different to those that govern the WCA; nonetheless his evidence was of relevance in explaining the nature of his ongoing problems.
7. The tribunal proceeded to hear the case in the appellant’s absence at his request. They clearly accepted much of the information that he had provided as they found that he merited 15 points under descriptor 17 (b), which led to their allowing his appeal and making a decision that he had limited capability for work. Descriptor 17 of schedule 2 deals with appropriateness of behaviour with other people; the appellant had explained in his written evidence that difficulties regarding this had been a feature of his working life. The activity heading for descriptor 17 is

"Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder."

Descriptor 17 (b) reads "Frequently has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace."

8. The FTT produced a statement of reasons for their decision on 23 August 2013. The brief findings of fact included that the appellant "can frequently appear hostile and aggressive in his relationships with other people." By way of explanation at paragraph 7 it was said that the appellant was prone to outbursts which others perceive as aggressive, but the evidence did not suggest that those episodes occurred "every day", therefore regulation 17 (b) of schedule 2 was merited, and not regulation 17 (a), which is a descriptor that would satisfy schedule 3, regulation 14 of schedule 3 being a mirror of regulation 17 (a) the wording of both being

" Has on a daily basis, uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any work place."

The further appeal to the Upper Tribunal

9. Following the issue of that statement the appellant sought permission to appeal on the schedule 3 descriptor 14 point.  On 27 September 2012 the District Tribunal Judge refused permission to appeal. The application was renewed before Upper Tribunal Judge Lane. 
10. The appellant's cogent submission on that application was that the FTT had fallen into error of law by failing to apply regulation 34 (2) of the ESA Regulations 2008 to the schedule 3 descriptor.  Regulation 34 (2) states

"a descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor."

11. The appellant's argument is that that the evidence does not have to suggest that his outbursts occur on a daily basis for descriptor 14 of schedule 3 to apply; due to the application of regulation 34 (2) it is sufficient if the outbursts occur "for the majority of the time" or "on the majority of occasions" that the activity is undertaken or attempted.
12. As part of the background he cites the problems that he has had in the workplace throughout his working life because of what he describes as his proneness to outbursts that others perceive as aggressive.  I note briefly in this context the Secretary of State's submission in this appeal at page 110 where it is said that "there is no evidence that he is the subject of any disciplinary action or that he has been dismissed for demonstrating unacceptable behaviour towards any of his colleagues."  The appellant says in his written evidence that he was always on "jankers" when he was in the Royal Air Force.  That is military slang for punishment.  The tenor of his evidence is that it was his behaviour that caused difficulties. Whether or not that amounts to the sort of behaviour envisaged by descriptor 14 of schedule 3 is not a matter for me, but there would appear to be a problem engaging with others if his account is accepted.  I should say, and I deal with this matter below, that the Secretary of State has resiled from his initial position that the tribunal's finding in respect of descriptor 17 (b) was erroneous.
13. The appellant also argues that the tribunal should have considered regulation 35 (2) (b) of the ESA regulations 2008, in that undertaking work related activity would be a substantial risk to his mental health. That part of regulation 35 reads

 "a claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34 (1) is to be treated as having limited capability for work-related activity if –

(a)  the claimant suffers from some specific disease or bodily or mental disablement; and

(b)  by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person is the claimant were found not to have limited capability for work-related activity."

14. Regulation 34 (1) refers to a person who satisfies at least one of the descriptors in schedule 3, and who has thereby limited capability for work-related activity. 
15. Judge Lane granted permission to appeal on 1812 2012. She put the legal point raised by the appellant like this

"What is the interrelationship between regulation 34 (2) and the actual wording of the descriptors?"

16. She also, and this has caused the appellant some consternation, considered that it was at least arguable that the tribunal had erred in law in finding that regulation 17 be applied to him (hence the finding of limited capability for work) since the full statement provided by the tribunal judge did not deal sufficiently with the issue and the appellant’s evidence did not appear to support that finding.  She pointed out that it would be open to a fresh FTT, if the matter were remitted by the Upper Tribunal, to come to a different conclusion and leave him worse off than he already was. That was not, as the appellant has perceived, a biased approach; it was a warning that it was fair and appropriate for the judge to give, however the matter has now been the subject of a concession by the Secretary of State upon which I have made the directions above and which I will deal with further below.  That observation initiated some correspondence from the appellant, but that seems to me no longer to be relevant.
17. Judge Lane directed submissions from the parties on the appeal itself

The submissions on the appeal

18. The Secretary of State did not support the appeal. In answering the question posed by Judge Lane as to the interrelationship between regulation 34 (2) and the wording of the descriptors the submission was in essence that regulation 34 (2) can only be applied to those descriptors that do not exclude the possibility of a "majority of the time" type finding. Where the descriptor itself is worded in such a way as to conflict with a “majority of the time" approach, then the descriptor wording prevails.
19. As to the interpretation of descriptor 14 of schedule 3 generally, he contended for the primary Oxford English Dictionary definition of "daily", and I will return to that point below.
20. The appellant filed a further submission which appears in the bundle at pages 122 -128. Many of the points that he makes, understandably for an unrepresented appellant, relate to the facts of the case, which are not matters for me.  He makes mention of an episode which occurred in February 2012, the details of which were before the FTT. He repeats his legal submissions as set out above.

The hearing

21. I heard the case as an oral hearing in Manchester in the absence of the appellant. The appellant had, prior to the hearing, indicated that he did not know how he wished to pursue the appeal, or whether he would do so. This is probably as a consequence of a direction of Judge Lane’s very proper observation that if the matter were remitted to another First-Tier Tribunal, the facts would be at large. 
22. The Secretary of State's decision at the outset had been that the appellant scored no points, and did not have limited capability for work. As I have said above during the course of this appeal the Secretary of State conceded the applicability of descriptor 17 (b).  I will return to the legal position that will pertain on my setting aside the decision and remitting the appeal bearing in mind that concession at the end of this decision.
23. The appellant's indecision led him to apply to postpone the oral hearing. I refused that application. He then chose not to attend the hearing which I proceeded with in his absence. The Secretary of State was represented by Mr Cooper, who did not confine himself to the position adopted in the Secretary of State's submission.  I am grateful to Mr Cooper for his attendance, his fair and impartial stance and his argument. 
24. I had observed at the oral hearing that the reference in the full statement to "every day" may indicate that the tribunal had arguably applied too high a test in respect of descriptor 14, the wording of the descriptor being "on a daily basis", and there being arguably some doubt as to whether the behaviour needed to occur every day in order for the descriptor to be applicable. In summary his submissions on the meaning of "on a daily basis" inclined towards the view that I finally adopted.  
25. On the issues of the applicability of regulation 34 (2) Mr Cooper was clear in his view that where the activity or descriptor wording was clear, that prevailed.  The compelling phrase that he used was that "the general gives way to the particular". It was only where periodicity was not specified, that there needed to be reliance on regulation 34 (2). 
26. Regulation 35 was not the subject of the Secretary of State’s written submission, but I was assisted on that topic also in oral argument by Mr Cooper, who did not feel that this was a case in which regulation 35 was raised. Accordingly, the omission to deal with it was not a material error of law.
27. Overall he was of the view that, although the FTT could perhaps have expressed themselves better if they had stuck to the wording of the descriptor their approach did not lead to findings of fact which were manifestly unreasonable, accordingly of the decision was sustainable. If I disagreed with that, he felt that I could substitute a decision to the same effect as the FTT, since even upon an expanded version of the term "on a daily basis" the appellant's behaviour did not satisfy schedule 3 descriptor 14.

The regulation 34 (2) issue

28. In TB-v- SSWP(ESA)[2013] UKUT 408 (AAC) I decided, on a related point, that regulation 19 (4) of the ESA Regulations 2008 which imported a requirement into the descriptors of assessment using any aid or appliance "normally worn or used" (a mirror of regulation 34 (3)) was not applicable where the wording of the activity heading (in that case activity 1, mobilising unaided) provided a clear and different basis upon which the evaluation was to be made. Under that activity heading the assessment was to be made using an aid or appliance “if such aid is normally, or could reasonably be, worn or used". I found that regulation 19 (4) was not of application in such circumstances, the answer to the process existing in the title to the descriptor. An analogous situation is where the descriptor itself provides the key to the way in which the evaluation is to take place.
29. That brings us to the apparent tension between the schedule 3 descriptor in question, number 14,  where the relevant level of inappropriate behaviour as set out is prescribed as being "on a daily basis" and the regulation 34 (2) approach, which demands satisfaction of the descriptor "for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or tries to undertake the activity described by that descriptor “.
30. There is some straining of language in considering descriptor 17 of schedule 3 "appropriateness of behaviour with other people ..." as an "activity". It is not an activity to be accomplished, but an approach to dealing with others. To describe it as an activity involving interacting with people in a workplace is strained, but would be possible.
31. There is a decision of Upper Tribunal Judge Parker  KB-v-SSWP [2013]UKUT 152 (AAC)) also in relation to schedule 3, which may be some assistance.  This is extensively quoted by the Secretary of State in his submission.
32. She had been considering regulation 13 schedule 3 in which

"engagement in social contact with someone unfamiliar to the claimant is always precluded ...",  

 This provision is identical to schedule 2 descriptor 16 (a), satisfaction of which scores 15 points, and thereby entry into the support group because of the mirror provision.  Descriptor 16(b) under schedule 2 scores 9 points if satisfied, and deals with engagement in social contact being similarly "always precluded", but with someone unfamiliar to the claimant. This is contrasted with the lower scoring descriptor at 16 (c) (6 points) under which "engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time ...".

33. The wording of that descriptor is a helpful context in which to consider the principle because of the congruence of the test in regulation 34 (2) with the wording of descriptor 16 (c).  A lesser scoring descriptor must, as a matter of logic, be easier to satisfy than a higher scoring descriptor.
34. Judge Parker takes the view that regulation 34 should be given some content in its application to the schedule 3 descriptors if that is possible without a strained construction. I take a more definitive approach but any difference between us on that is not material in this case.
35. She proceeds to look at the definition of the term "always precluded " coming to the view in paragraph 14 that

“always precluded”, as used in activity 13 of Schedule 3, and likewise as used in activity 16 of Schedule 2, is not an all or nothing test; rather, it means “repeatedly” or “persistent” or “often”.

36. Despite the appellant’s well argued submission I agree with the Secretary of State that the terminology of the descriptor in question excludes the application of regulation 34 (2), in that it cannot apply to qualify the meaning of the words "on a daily basis" to mean "the majority of the time" or, "on the majority of occasions that the claimant undertakes or tries to undertake the activity", which would in logic lead to satisfaction of the test if it was satisfied on more than half of the days or attempts.  That would drive a coach and horses through the descriptor, rendering the inclusion of any reference to the word "daily" pointless. That cannot be what was intended. Regulation 34(2) does not apply to a schedule 3 descriptor where the "majority of the time" approach would be inconsistent with the actual wording of the descriptor.  I turn now to the way in which "on a daily basis" should be construed.

"On a daily basis"

37. Here, the issue is for something to happen “on a daily basis” does it mean that the behaviour must occur literally every day, or is some lesser test of regularity appropriate. In particular should there be an importation of the concept set out in regulation 34 (1) that the frequency aspect is confined to those occasions upon which the activity is undertaken or attempted?
38. To contend for the approach of literally every day would be to posit absurdity, and Mr Cooper did not argue for that approach. Somebody who consistently exhibits uncontrollable aggressive or disinhibited behaviour with other people may have days where they see nobody at all.  Even if only those occasions upon which the activity was attempted were included there might still be rare occasions upon which the behaviour did not occur. Would that preclude satisfaction "on a daily basis"?
39. Daily, I am told in the submission of the Secretary of State, is defined in the concise Oxford dictionary as "done, produced, or occurring every day or every weekday (adjective); every day (adverb). The secondary meaning set out there, however, is omitted. If dictionary definitions are prayed in aid it is appropriate to set out the relevant part of the entry in full. In that dictionary the secondary meaning of daily is constant, regular.  The secondary meanings may be of some relevance here, but the dictionary definition is of itself a secondary issue in matters of statutory interpretation. As has been said by Upper Tribunal Judge Jacobs

The correct approach was explained by Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163, at 1171:

It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament.

40. I adopt that approach. The mischief that the descriptor must be intended to remedy is the creation of an unsafe or otherwise unacceptable work environment for co-workers.  The way in which the avoidance of that is accomplished is to exclude from the workplace those who, due to their mental health condition exhibit certain behaviour. If on virtually every day that they were at work they displayed such behaviour, would the fact that there were very rare days on which they did not prevent them from falling within the meaning of the descriptor? To answer "yes" to that question would not be to address the mischief. The descriptor must, then, be interpreted more widely than literally every day. 
41. I fortify myself in this view because the ordinary meaning of the words "on a daily basis" seem to me to connote a lesser test than "every day" . The phrase is not confined to events which happen literally every day. Someone might be said to read a particular newspaper on a daily basis even though there were periods when they did not, such as where they were abroad on holiday when it was not available. Walking the dog on a daily basis is an activity which may be interrupted by the ill-health of either dog or walker, but a short break would not change the very regular nature of the activity or make that description inapt. 
42. The words "on a daily basis", then, in the context of schedule 3 descriptor 14, and its mirror descriptor under schedule 2, regulation 17 (a), means certainly more than for the majority of the time, that being the regulation 34 (2) test, and must mean more than frequently, that being the test of periodicity in regulation 17(b), but it does not mean literally every day or even on every working day.  The essence is of this being an enduring position; one which is happening regularly, constantly or continually.  It is for the tribunal to find the facts as to the frequency of the behaviour set out in the descriptor, and then apply this approach to those facts with their usual common sense. 

The regulation 35 point

43. If a finding is made that descriptor 14 of schedule 2 is not satisfied, I dam of the view, contrary to Mr Cooper's argument, that the application of this non-functional descriptor is raised, and requires consideration.  The regulation relates once more to safety in the workplace, and behaviour which may not of itself be sufficient to disqualify an appellant from the workplace or work-related activities under schedule 2 or 3 would need to be reconsidered, perhaps with other relevant issues, in the context of whether the engagement of a person in work-related activities would be likely to pose a substantial risk to their health or that of others. A difficulty which has been highlighted by other Upper Tribunal decisions on the point is the somewhat nebulous concept of work-related activity. In the absence of what is expected being put forward  by the Secretary of State, there must be a wide interpretation of the circumstances in which an appellant might be directed to engage, and that would of necessity include participation in group work with others.
44. Building on a recent decision MT-v- SSWP CE/973 /2013  in which I review and agree with decisions by Upper Tribunal Judges Jacobs and Wright in AH-v-SSWP [2013] UKUT 118 (AAC) and MN-v- SSWP[2013] UKUT 262 (AAC)) it will be important for the FTT rehearing the case to know what the Secretary of State envisages in relation to work related activity for the purposes of regulation 35 which may need to be considered dependent upon the view of the fresh tribunal as to whether the appellant satisfies descriptor 14, or indeed any other schedule 3 descriptor.  MT-v- SSWP at paragraphs 29-33 offers guidance to an FTT in this position. 

Are the errors of the FTT material?

45.  I believe they are. I do not agree with Mr Cooper's backstop position that I could remedy the situation by making a finding that schedule 2, but not schedule 3 or regulation 35 were satisfied. There are insufficient facts found by the FTT from me to be able to substitute my decision with any real fairness. The issues are still quite wide, and it seems to me just for the appellant to be able to make his submissions (I would hope by attending a hearing although that is a matter for him) as to how the behaviour that he told the FTT about satisfies the rather higher test that I have found exists, contrary to his position that a majority of the time approach was legally appropriate.  It is right for me to remit the case for further decision.

Additional matters

46. It seems to me that the issue of immediate concern to the appellant is likely to be that although he has won his appeal here, Judge Lane has warned him that at a fresh hearing the schedule 2 eligibility involving limited capability for work will be at large, so he could find himself worse off than under the decision of the first FTT.
47. Since Judge Lane made those comments the Secretary of State has resiled from the view expressed in the submission that descriptor 17 (b) of schedule 2 was not in fact applicable.  It is open to the Secretary of State to revise the original decision on that basis following my setting the FTT decision aside, bearing in mind his concession during these proceedings.  I am directing that he file a further submission for the fresh hearing to provide any up-to-date information as to whether that decision has been revised, and confirming the concession made, if not.  In view of the concession the appellant should not be going into the fresh hearing disadvantaged by this decision.
48. In support of his initial submissions the appellant had explained about a worsening of the situation since the incident in February 2012 in which he was injured. Whilst accepting that the incident took place after the decision on appeal, he cited the case of SW-v- SSWP [2012] UKUT 76 (AAC), decided by Judge Lane, in which she stated that the tribunal "can and must take into account evidence which, although from a later date than the decision, casts light on the circumstances as they stood at that time."
49. Whilst I wholly accept and endorse that principle, it does not assist the appellant at this stage of the appeal. I am not able to take a view about evidence, whether taken into account by the FTT or otherwise, in order to expand upon the findings of fact made.  I must consider the way in which the FTT interpreted the law, accepting the facts that they found unless they are findings which were wholly untenable on the evidence before them.  It seems to me on reading the statement of reasons that the FTT did take the events of February 2012 into consideration, although arguably upon the wrong legal basis.  They say that the behaviour was continuing, and that it resulted in an incident in which the appellant suffered significant injuries on 4 December 2012, before the date of reconsideration.  It is unclear whether the FTT took that evidence into account as evidence obtaining at the date of the decision under appeal, or whether it was of the view that, although it was evidence of an event which occurred after the date of the decision, it cast light upon the position prior to that date.  The new FTT would be able to take it into account in that latter context, but not in the former, because the reconsideration, like an appeal to the FTT, is confined to matters that pertained at the date of the original decision, and not at the date of the reconsideration; the decision under appeal being the original decision or, where relevant, the original decision as revised.
50. Descriptor 13, coping with social engagement, is also potentially in issue under schedule 3.  If a finding is necessary upon that descriptor it will be for the tribunal, which may be assisted by the decision of Judge Parker quoted above and attached to the submission of the Secretary of State, to consider the available evidence. The matter is again one of fact, and therefore is for the FTT and not me.
51. Also before the FTT the appellant gave as an example of his difficult behaviour with people in relation to shouting at the person on the phone from the DWP who communicated the decision of 16 January 2012. He explained in detail the effect that the decision had upon his health.  If is accepted that is evidence which the tribunal may consider to be relevant in relation to any consideration of regulation 35 (2).
52. I remit the appeal to the FTT accordingly.

(Signed on the original) PA Gray

Judge of the Upper Tribunal

11 November 2013