Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                         Appeal No.   CE/3100/2013

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge PA Gray

The decision of the Upper Tribunal is to allow the appeal.  The decision of the Sunderland Tribunal made on 2 May 2013 under number SC 236/12/03708 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 referred by a fresh tribunal in accordance with the directions below.

REASONS FOR DECISION

1. This matter concerned entitlement to Employment and Support Allowance by the appellant, who had previously been in receipt of that benefit under a decision taken following a medical examination in 2011 which had detailed the problems that she had from conditions of anxiety and depression and alcohol misuse. Relying upon that medical report, dated 16 May 2011, a decision was made that the appellant had Limited Capability for Work, but was capable of Work Related Activities. That decision, however, was later revised on 10 August 2011, and it was decided that she had been wrongly placed in the Work Related Activities Group, and she was placed in the Support Group.  Being a revision decision, that replaced the original decision that she had been capable of work related activities.  That decision carries with it the implication that the medical report of 16 May 2011, whilst acknowledging severe drug and alcohol difficulties, did not really reflect the extent of the appellant's problems at that time. That matter becomes of some importance in relation to the extent that an FTT finding facts upon the basis of more current evidence including a medical report provided about a year later needs to explain its conclusions.

2. That decision was superseded by the decision under appeal, made on 8 August 2012. It had been made following a further medical examination which had taken place on 28 June 2012, in which the appellant’s stated condition was depression only, although the ESA 50 which she had completed spoke of a serious alcohol abuse as well as misuse of drugs, including heroin.

3. The First-Tier Tribunal (FTT) heard the appeal on 2 May 2013, and confirmed the decision of the Secretary of State.  I granted permission to appeal on 16 October 2013 on the basis that the full statement failed to deal adequately with a considerable amount of medical evidence put before it by the appellant. I required a submission from the Secretary of State. That is now to hand.

4. The Secretary of State does not support the appeal. The submission argues that the FTT was entitled to come to the factual conclusions that it did, and that it adequately explained them. I disagree.

5. Regrettably the full statement of facts and reasons supplied by the Tribunal Judge does not withstand scrutiny. I acknowledge the expertise of the FTT, and where that expertise is present it is not always necessary to explain the factual findings in detail, and, as I said at paragraph 37 of TB-v-SSWP (ESA)[2013] 0408(AAC)  a statement of reasons needs to be adequate rather than perfect, but this statement makes specific factual findings which go against the totality of the evidence upon which the previous placement of the appellant in the Support Group had been based, and which was being put forward as the current position by the appellant, and as such a proper explanation as to those findings was required.

6. Essentially the conflict is between the facts as found by the FTT that the appellant did not have a medical problem with respect to alcohol misuse, but was making a lifestyle choice to drink to excess which she could choose to change.  The history was of diagnosed alcohol problems which were being treated by specialists in conjunction with her mental health problems, and her evidence in the ESA 50 and her account to the HCP (she failed to attend the hearing without explanation) was that she spent her day in her room drinking. In so far as it is possible to ascertain a reason for that factual conclusion from the statement of reasons it is that she did not appear to be under the influence of alcohol at the medical examination-which took place at 9 AM-and that in the three weeks prior to the most recent medical examination she had stopped taking drugs. The latter point is not even an accepted base fact upon which the FTT could build. There was also evidence that some two weeks prior to the medical examination she had taken a drug overdose. That conflict required resolution; until that was done the matter could not be used as a factual building block.  

7. Fact-finding requires an analysis of the evidence, which here included the evidence that the appellant's problems in 2011 were so significant that she was placed in the Support Group.  In the face of that background some explanation was required to rationalise the conclusion that this behaviour was simply choice on the part of the appellant.

8.  The appellant's representative argues additionally that the tribunal fell into error in their consideration of descriptor 12 of the version of schedule 2 then applicable, concerning awareness of hazards   , because they failed to take into account her propensity to self harm. Although I did not have the benefit of full argument on this issue, it seems to me that a descriptor which talks in terms of reduced awareness of everyday hazards due to cognitive impairment or mental disorder, leading to a significant risk of injury to self or others, does not contemplate self harm, which may be a deliberate act, albeit one which may result from mental health difficulties.   I therefore reject that particular point, however there does seem to be an assumption implicit in the statement of reasons that self harm problems which did not result in hospital attendance for admission could simply be ignored for all purposes.  These are highly complex issues which defy such a simplistic approach.

9. Of considerable importance in this case, bearing in mind the diagnoses, is the potential application of regulation 29. In this the tribunal’s reasoning was wrong. At paragraph 19 of the statement of reasons it is explained that FTT had regard to the type of employment which the appellant may be capable of undertaking. There is then something of a quantum leap from that comment into a generalised assertion that the Equality Act 2010, including as it does provisions concerning "disability discrimination" in the workplace, can be relied upon to prevent the risk to health envisaged by regulation 29. With respect, if that might be the position in relation to physical disablement, and I do not decide that important point upon which I have not had argument, to assume that because there is a duty on an employer to make reasonable adjustments there cannot be a substantial risk to health due to stress related matters for somebody with significant addiction or mental health problems, is to misunderstand the provisions of both sets of legislation. 

10. Also stated in the paragraph which dealt with relation 29, is the assertion that there were a number of manual jobs which the appellant could do under supervision, including a job at a call centre. From decisions I have seen there appears to be a common misconception that working in a call centre is a benign, stress-free occupation. On the contrary such work is generally highly target driven, and whilst it may be suitable for those with physical health problems for whom being settled in one place is an advantage over more peripatetic occupations it cannot be seen as invariably suitable for all those with disabilities. 

11. I remit the appeal to the FTT accordingly.  The fact that the appellant has succeeded at this stage is no indication as to the final outcome.

DIRECTIONS

1. I give the following directions for the further conduct of this appeal; however they may be added to or amended by a DT J reviewing the file prior to listing.
2. The re-hearing will be an oral hearing before a freshly constituted panel.
3. The appellant is to file any additional evidence within 28 days of the date of the issue of this decision; that is not to suggest further evidence is expected.  In order to be of relevance the evidence must shed light on how matters stood at the date of the original decision under appeal, 8 August 2012.
4. The clerk to the first-tier tribunal must ensure that the appellant's representative’s grounds of appeal, the submissions of the Secretary of State and the response to that submission from the representative are before the new FTT.        

Upper Tribunal Judge PA Gray

Signed on the original on

13 December 2013