Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CE/2527/2013

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge PA Gray

The decision of the Upper Tribunal is to allow the appeal.  The decision of the Lincoln Tribunal made on 21 March 2013 under number SC 040/12/01656 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 an award of Employment and Support Allowance to the appellant, following a decision made by the Secretary of State made on 21 March 2012 that although she had Limited Capability for Work she did not have Limited Capability for Work Related Activities.  That decision was said to have been the subject of the appeal, but as a matter of law the appeal was against an earlier decision made on 21 February 2012 that the appellant had no entitlement to ESA, not having limited capability for work.  I will return to that point and its relevance below.

2. The First-Tier Tribunal (FTT) heard the appeal on 21 March 2013, and confirmed the decision of the Secretary of State that the appellant had Limited Capability for Work, scoring 18 points under schedule 2 Employment Support Allowance Regulations 2008, made up of three 6 point descriptors namely activity 15(c) getting about, activity 14 (c), coping with change and activity 16(c) coping with social engagement.  I granted permission to appeal on 13 September 2013, a number of matters being, in my view, arguable.  I required a submission from the Secretary of State. That is now to hand. The Secretary of State supports the appeal but on a more limited basis than that set out in my grant of permission to appeal. I will therefore give brief reasons for my decision to set aside the FTT decision and remit the matter for rehearing by fresh tribunal.

3. The issues that I raised in granting permission to appeal arose out of the statement of reasons provided, and were firstly as to the apparent reliance placed upon the HCP report by the FTT, which in its decision disagreed with the conclusions. My concern was whether bearing in mind that dichotomy the FTT should have explained its reasoning more fully; secondly the need for an explanation as to the specific reliance placed upon the HCP report on the critical issue of the applicability of regulation 35 (2), given that the only reference in the HCP report was a sentence which did no more than restate the statutory test.  There needed to be an indication that the FTT had considered any possible limitations in relation to Work-Related Activities in the context of what those activities might have involved. Thirdly I was of the view that the statement of reasons did not explain the tribunal's treatment of the evidence from the appellant’s psychiatrist.  The full statement said that the evidence of the HCP was preferred on the assessment of difficulties in relation to engagement with others but did not really explain the process by which that view was arrived at, which is important when one is weighing expert evidence (or what is being put forward as expert evidence). The final matter upon which I felt that there was an arguable error of law was in relation to the potential applicability of activity 13 of schedule 3 "Coping with social engagement, due to cognitive impairment or mental disorder.", the terms of the descriptor being:  "Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual." It will be recalled that the decision maker in the revised decision had found that 6 points were merited under activity 16 descriptor (c) “engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual.” clearly a lower test.

4. The statement of reasons underlined the word "always". That may have been indicative of an over- rigid approach to the descriptor which was inconsistent with its proper construction, and I quoted the case of KB-v-SSWP 0152 UKUT (AAC) in which Upper Tribunal Judge Parker explained that the word "always" meant "repeatedly" or "often".

5. The Secretary of State agreed with the third and fourth points but disagreed with the first two.  My decision is that the decision was erroneous on all four points. To explain that it will be necessary for me to explain some of the circumstances of the decision making process, but I will not need to deal in detail with the appellant's medical problems in this decision. The practicalities in that regard will be a matter for the freshly constituted FTT.

6. The case was somewhat unusual in that the revision decision maker overruled the opinion of the healthcare professional (HCP), a registered physiotherapist who had examined the appellant on 31 January 2012.   The original decision, made on 13 February 2012, was that the appellant did not have Limited Capability for Work. The HCP had found that the appellant merited 6 points under schedule 2 Employment Support Allowance Regulations 2008, activity 15(c) getting about, and that was initially accepted.  The decision maker, however, revised the decision on 21 March 2012.  That decision maker awarded the appellant 18 points.  Clearly the decision maker did not accept the opinion expressed by the HCP as to the limited extent of the appellant's functional problems.

7. The appellant remained discontented and appealed.  The appeal contended that the appellant had Limited Capability for Work Related Activities. I should say at this stage that technically her appeal is against the original decision although that decision is replaced by the revised decision.  The importance of putting the matter in that way is that the date of the original decision dated 13 February 2012 applies for the purposes of section 12 (8) (b)  the Social Security Act 1998 ( the date of decision rule).  13 February 2012 is the terminal date upon which the new FTT will be able to consider factual matters under that provision which prevents them from considering matters not obtaining at the date of the decision under appeal. Section 12 (1) of the same Act provides for an appeal against a decision under section 8 or 10 only; any appeal against a revised decision being against the original decision (as revised) and the time for appealing that decision is extended by section 9(5) for one month beyond the date of the revision decision.  . 

8. Following the appeal which had been received on 14 August 2012 another decision maker considered the matter. They found that none of the schedule 3 descriptors were applicable, and as to the potential applicability of regulation 35 (2) the decision states merely "having considered all the available evidence I consider that she can engage in work-related activity.” The FTT said that the original decision-by which was meant to the original decision as revised-was upheld, that the appellant had Limited Capability for Work but not Limited Capability for Work Related Activity.

9. There was no information in the decision as to what was meant by work-related activities; there had been none apparently before the HCP, and she mentioned none.  There was none before the FTT.  In those circumstances there is a question mark over the basis of the decisions taken in relation to regulation 35 (2).

10. Since granting permission to appeal in this case I have made a decision on similar issues in the case MT-v-SSWP 2013 UKUT 545  AAC.  In that decision I deal with both the context and the importance of regulation 35 (2) (b) of the Employment and Support Allowance Regulations 2008 and the legal duty on the Secretary of State to provide some details as to what work related activities a given appellant might be called upon to engage in prior to a decision of the First-Tier Tribunal (FTT) on the applicability of that regulation.  I also deal with the practical difficulties of a FTT speculating upon such activities in the absence of evidence, and suggest approaches which a FTT may adopt to avoid the generally unsatisfactory path of adjourning the case once it is in front of a tribunal which is able to decide the issue. That decision will accompany this decision for the benefit of the panel that is to rehear the case.

11. The submission of the Secretary of State on this, my second point, is that consideration of regulation 35 (2) does not involve a detailed Charlton type enquiry, that case having concerned Incapacity Benefit rather than Employment and Support Allowance, and that it dealt with regulation 27 of the applicable Incapacity Benefit Regulations, which were repeated in regulation 29 of the ESA regulations, and nor regulation 35. This approach ignores the comments of Upper Tribunal Judge Jacobs in AH v SWP [2013] UKUT 118 (AAC)   in which he discusses the applicability of the test of the Court of Appeal in the case of Charlton v Secretary of State for Work and Pensions reported as R(IB) 2/09 in relation to regulation 35.  He said at paragraphs 25 and 26

"In other words, the paragraph applied not only to the immediate effect of the decision that the claimant was no longer entitled to incapacity benefit, but also to consequence of having to seek and then undertake work, including travel to work. That conclusion is equally applicable to both regulation 29(2) and regulation 35(2)."

26.       The Court then explained how to identify the type of work that had to be taken into account:

45. … The decision-maker must assess the range or type of work which a claimant is capable of performing sufficiently to assess the risk to health either to himself or to others.

Obviously, that is not directly applicable to regulation 35(2), which does not envisage the claimant working. However, the Court’s reasoning can be applied by analogy to the work-related activity. Translating the language of the judgment into terms of work-related activity comes to this:

The decision-maker must assess the range or type of work-related activity which a claimant is capable of performing and might be expected to undertake sufficiently to assess the risk to health either to himself or to others".

12. As to the extent of the regulation 35 enquiry, building on my decision MT-v-SSWP, and pertinently in relation to this case, Upper Tribunal Judge Bano in  GH-v-SSWP CSE/634/13 at paragraph 9

Although the nature of the fact-finding exercise required by regulation 35 differs from that required to decide whether the claimant satisfies any of the Schedule 3 descriptors, in that regulation 35 is concerned with the assessment of risk rather than functional impairment, in many cases the tribunal’s factual investigation when considering regulation 35 will need to be no less detailed than when considering the descriptors.  In the case of claimants with mental health conditions, it may be necessary to investigate in particular whether undertaking work-related activity would conflict with any medical advice which a claimant has been given. 

13. Of course any regulation 35 (2) enquiry will only be necessary if no schedule 3 descriptor is applicable. As to that issue regard should be hard to the first and third point that I make concerning the adequacy of the FTT's explanation in relation to their acceptance and rejection of certain evidence. The submission of the Secretary of State does not, I feel, entirely take on my point in relation to the first matter. The question is not whether the FTT is able to rely on the HCP report; they are entitled to accept whatever evidence they feel is most persuasive, however in doing so there may be a need for explanation. The wholehearted way in which the report appears to have been accepted in this case flies in the face of the ultimate conclusion of the tribunal, which was against the opinion of the HCP. They agreed with the revision decision maker that 18 points were merited, whereas the HCP had felt that just 6 points were merited on the same evidence.  It is not impossible for that conclusion to be arrived at, but it needs some explanation, and in particular it needs to disentangle the factual evidence which was accepted from the opinion which was clearly not. That leads fairly neatly onto my point 3, in which I felt that there was a lack of explanation of the rejection of the evidence from the appellant’s psychiatrist. The FTT simply accepted the HCP's evidence over and above that of the psychiatrist without explanation.  This is despite their apparent rejection of that person's opinion on the extent of the functional disablement. Where evidence of opinion is put forward, key to the evidential value of that opinion is the source of it. The level and extent of the expertise must be of central relevance in relation to the evaluation of opinion evidence.  To accept, for example, on a contested legal point, the opinion of a law student, rather than that of their professor in the absence of a compelling explanation would be irrational.  Here on a psychiatric issue the opinion of a registered physiotherapist was preferred to that of a psychiatrist. this situation may be more powerful than my example in that the physiotherapist is unlikely to have any experience at all in the field of psychiatry.  If, unusually, they had such experience then that should have been stated because it would have been of importance.

14. I need say no more about my final point in granting permission to appeal Judge Parker's decision is attached to the submission of the Secretary of State, which will be in front of the fresh panel.

15. There is one further matter, which the new FTT will need to consider. The appellant argues that the examination carried out by the registered physiotherapist was cursory, and the report of little worth.  She goes into considerable detail, but I think one matter in particular that she makes is worthy of note at this stage. She says that the report refers to a Mrs Worthington. I did not see that in the report, and it seems to me possible that the report has been reworked. The Secretary of State will need to clarify that, and if it has, produced the original version for the fresh tribunal. It will be a matter for the FTT to decide what evidential value the place on this report, bearing in mind the matters which to I have already alluded, but that may be a feature which is of concern.  There is an audio recording of the examination, and the submission of the Secretary of State makes it clear that this could be obtained from ATOS if it was required.  I certainly did not need to listen to it for the purposes of this decision.  I was not evaluating that report in the context of other evidence order to make factual findings.  Listening to the recording was clearly of value however to the decision maker who revised the original decision. At page 91 they write this "due to the ability to actually hear the recording, the severity of her problems have not been emphasised sufficiently." The FTT will need to make its own decision as to whether the recording will be of any practical assistance to them in their evaluation. This is possibly a matter which could be considered by a DT J prior to any hearing. 

16. 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 submissions of both the appellant and the Secretary of State in this appeal should form part of the tribunal bundle together with this decision for the benefit of that tribunal, as well as my decision in MT-v- SSWP.

4. The Secretary of State is to file evidence within 28 days of the issue of this decision as to what work related activity was in contemplation in respect of this appellant, and the level of expected engagement in such activities, at the date of the decision under appeal.  The matter of whether the report of the HCP was reworked which I mention above should also be clarified.

5. 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, 21 February 2012.

6. The clerk to the FTT must ensure that the documents set out in these directions are added to the FTT bundle for the benefit of the parties and the tribunal.

(Signed on the original) PA Gray

Judge of the Upper Tribunal

12 December 2013