DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

The decision of the Darlington First-tier Tribunal dated 05 March 2012 under file reference SC224/11/01521 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the Appellant’s appeal against the Secretary of State’s decision dated 27 April 2011 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below. 

This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the hearing:

(1) The appeal should be considered at an oral hearing at a venue convenient for the Appellant. 

(2) The new First-tier Tribunal should not involve the tribunal judge or medical member who was previously been involved in considering this appeal on 05 March 2012.

(3) The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 27 April 2011).

(4) If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal office in Newcastle within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above). 

(5) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

The Upper Tribunal’s decision in summary and what happens next

1. I allow the Appellant’s appeal to the Upper Tribunal. The decision of the First-tier Tribunal involves an error on a point of law. I therefore set aside the tribunal’s decision.

2. The case now needs to be reheard by a new First-tier Tribunal (FTT). I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts.

3. So the new tribunal may reach the same, or a different, decision to that of the previous tribunal. It all depends on the findings that the new tribunal makes.

The background to this appeal to the Upper Tribunal

4. On 5 March 2012 the FTT heard but dismissed the Appellant’s appeal against the disallowance of his claim for employment and support allowance (ESA). That appeal was heard together with a separate (but also unsuccessful) appeal against a decision on his earlier claim to disability living allowance (DLA). The Appellant has now appealed both the ESA decision and the DLA decision to the Upper Tribunal. I have dealt with the DLA appeal separately under file reference CDLA/2366/2012. I am dismissing the DLA appeal but allowing this ESA appeal.

The proceedings before the Upper Tribunal

Introduction

5. I gave permission to appeal to the Upper Tribunal in the ESA case for two reasons. The first concerned the proper constitution or membership of the FTT. The second concerned the tribunal’s approach to the bending or kneeling descriptor under the ESA Regulations.

6. The proceedings in this appeal have unfortunately been delayed while the issue about the proper constitution or membership of the FTT was clarified in another ‘lead’ or ‘test’ case. The Upper Tribunal three-judge panel has now issued its decision in MB v Secretary of State for Work & Pensions (ESA and DLA) [2013] UKUT 111 (AAC) on the practice of hearing concurrent ESA and DLA appeals.

The tribunal practice of hearing ESA and DLA appeals concurrently

7. The reasoning of the majority judges in MB v Secretary of State for Work & Pensions (ESA and DLA) means that in the present case it was an error of law for the FTT to proceed as it did on the ESA appeal. At paragraph 34 of its decision in MB the majority held as follows:

“34. It must therefore follow that if there is a concurrent hearing of both an ESA appeal and a DLA appeal there is an error of law in relation to the ESA appeal. We include in the category of a concurrent hearing cases in which the hearings in each appeal are conducted separately if there is no announcement of the decision on the first appeal before proceeding to the hearing of the second. In such a case the parties can have no clue as to the view that has been taken by the members of the tribunal of the evidence and submissions on the first appeal or whether that view might alter as a result of something raised in the second appeal. Accordingly, we see no difference in substance between such a case and what might be called a fully concurrent hearing where all issues in both appeals are discussed together.”

8. Mr Michael Page, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports the appeal from the ESA decision of the FTT for that reason. He points out that it is clear from the FTT record that the disability qualified member (whose role was limited to the DLA appeal) was present during the hearing of the ESA appeal when she should not have been. That, Mr Page argues, is a plain error of law in the light of MB v Secretary of State for Work & Pensions (ESA and DLA). I agree. He is content on that basis that the matter is remitted (or sent back) for re-hearing to a new tribunal.

9. The Appellant has not replied to the most recent submission on behalf of the Secretary of State. However, it is clear that he still disputes the ESA decision under appeal.

10. I formally find that the FTT’s decision involves an error of law for the reason outlined above. I therefore allow the appeal and set aside the FTT’s decision on that basis, and direct a re-hearing. Before giving directions for the re-hearing of the appeal, I should deal with the other reason why I gave permission to appeal in the first place.

The bending or kneeling descriptor

11. The Secretary of State’s original decision of 27 April 2011, based on a medical examination carried out on 18 April 2011, was that the Appellant did not have limited capability for work. It was accepted that he had a problem with standing, and scored 6 points on the standing descriptor then in force (descriptor 2e), but this was obviously below the 15 points required for his ESA claim to succeed.

12. The FTT on 5 March 2012 confirmed the award of 6 points for standing. The tribunal also considered whether the appellant qualified for any points under activity 3 for bending or kneeling. The FTT refused to make any such award, for the following reasons:

“49. The bending and kneeling descriptor involves picking up a light object such as a piece of paper either on the floor or situated 15 centimetres from the floor. There is absolutely no reason why an employer that is complying with disability legislation would not provide a grabber to an employee. The level of bending involved is going to be minimal. The Appellant can clearly hold a grabber in either hand. The object he has to pick up is a light piece of paper or something similar.

50. Local authorities provide this equipment as a matter of course to, for example, people who pick up litter from the streets. This is designed, amongst other things for health and safety reasons, to prevent somebody from bending too far forward on a regular basis.

51. Therefore, with the use of such an aid which is readily and cheaply available e.g. from Wilkinson’s or Boots and can be obtained via occupational health/occupational therapy at minimal cost – he would be in a position to pick up a piece of paper from the floor or a low shelf.

52. Consequently, the bending and kneeling descriptors was not awarded.”

13. The tribunal’s approach to this issue is, quite simply, fundamentally flawed. As Mr Page points out, the activity being assessed is the claimant’s ability to bend or kneel, not his ability to pick up low-lying objects.

14. I accept, of course, that regulation 19(4) of the Employment and Support Allowance Regulations 2008 (SI 2008/794), in the version then in force (the more recent amendments are not material for present purposes), provided as follows:

“(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.”

15. However, regulation 19(4) does not give the FTT a licence to proceed on the basis that an appellant scores no points for bending or kneeling because an aid can be provided that in practice circumvents the need to bend or kneel at all. I accept that a grabber, taken in isolation, is on any reckoning an “aid or appliance” (in the same way that a walking stick is). However, equally obviously, it is not something that assists with “a claimant’s capability to perform [the] activity” of bending or kneeling. Rather, it allows the person concerned to avoid that activity altogether – whereas a walking stick, on the other hand, helps with the very activity of walking.

16. The tribunal therefore plainly erred in law in its approach to this issue. It is, however, entirely possible that this error was not material, as the FTT had previously recorded a finding that the Appellant could kneel without any difficulty (although the basis for this finding is not entirely clear). That issue will need to be explored properly by the new tribunal.

What happens next: the new First-tier Tribunal

17. There will need to be a fresh hearing of the ESA appeal before a new FTT. Although I am setting aside the FTT’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the Appellant is entitled to ESA and, if so, at what rate and on what basis. That is a matter for the good judgement of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact. 

18. The new FTT will have to focus on the Appellant’s circumstances as they were in April 2011, and not the position as at the date of the new FTT hearing, more than two years later. This is because the new FTT must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998).

Conclusion

19. I conclude that the decision of the First-tier Tribunal involves an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above. 

Signed on the original Nicholas Wikeley

on 13 November 2013 Judge of the Upper Tribunal