Before:  Upper Tribunal Judge Gray  CE/1650/2013

DECISION

This appeal by the claimant succeeds. Having granted permission to appeal on 16 October 2013, in accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting at Burnley and made on 22 August 2012 under reference SC 123/12/00885  and remit the case to a freshly constituted First Tier tribunal. 

REASONS

1. The case concerned the appellant's entitlement, or otherwise, to Employment and Support Allowance. She suffers from peripheral neuropathy. Her previous Incapacity Benefit award was subject to the conversion process. She appealed the decision made on 6 December 2011 that she was not entitled to Employment and Support Allowance. She had been examined by a healthcare professional on 24 August 2011. The opinion of the examiner was that she scored no points under schedule 2 of the Employment and Support Allowance Regulations 2008.  That opinion was adopted by the decision maker.

2.  The appeal came before the First-Tier Tribunal (FTT) on 22 August 2012.  That tribunal confirmed the decision of the Secretary of State, and later, at the appellant's request, provided a statement of reasons for that decision. 

3. I granted permission to appeal following an oral hearing on 16 October 2013.  I dismissed the appellant's central point, which was that her condition had deteriorated between the decision of the tribunal hearing, explaining that the tribunal was not able to take deterioration into account, the law stating that they were required to consider circumstances as they were at the date of the decision under appeal. I granted permission to appeal, however, on other grounds, which were concerned with what I thought to be potential inconsistencies and other limitations in the statement of reasons. I required the Secretary of State to file a submission as to those matters, and the adequacy of the statement of reasons in general.

4. The respondent does not support this appeal. The submission contends that the decision is sustainable. It does that by analysing the evidence before the FTT, in particular the healthcare professional’s report, and setting out facts which could justify a decision refusing entitlement.  It is of course the case that, if the Secretary of State's evidence is accepted, it is perfectly within the rights of a first-tier tribunal to confirm that decision. The issue that I am dealing with is not whether or not the decision was sustainable on the facts before the tribunal, but whether it was sustainable on the facts that they found.

5. My concerns as set out in granting permission to appeal were that the FTT had awarded no points under the physical descriptors of the work capability assessment, yet at paragraph 18 of the statement of reasons it states that "she is able to move a light bulky object but could not do so repeatedly". The appellant’s evidence at pages 68-9 of the record of proceedings "bulky light object once not repeated." is referred to at this point. Later, at paragraph 25 the tribunal states that it found the appellant to be a credible witness.

6. Activity 4 of schedule 2 is headed "picking up and moving or transferring by the use of the upper body and arms." The relevant descriptor, part (c) scores six points if someone "cannot transfer a light but bulky object such as an empty cardboard box".

7. The submission of the Secretary of State is correct in stating that the activity relates to upper limb power. That is clear from the activity heading.  I accept also that it is intended to reflect the ability to pick up and transfer articles at waist level, without stooping or reaching.  It is nonetheless the case that capability of performing an activity is considered in relation to the performance of that activity reasonably reliably and repeatedly.  In AF-v-SSWP [2011] UKUT 61 (AAC) at paragraph 11 Upper Tribunal Judge Turnbull dealing with the absence of the "sometimes" descriptors in the Work Capability Assessment said this:

"the need for the decision maker to take into account whether the claimant can perform the relevant activity with some degree of repetition (cf. In particular CIB/13161/96) in my judgement subsists in relation to the work capability assessment descriptors as in relation to the incapacity for work descriptors. In particular, if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account, both in relation to bending or kneeling and the other activities. The only "sometimes" descriptors in the personal capability assessment were in relation to the activities of rising from sitting and bending and kneeling, but it has never been doubted that the need to take into account whether the activity can be performed with a degree of repetition applies to all the activities."

8. He continues in paragraph 12 "A tribunal is of course unlikely to need expressly to consider this issue unless there is something in the facts which suggests that the claimant might not be able to perform the activity with some degree of regularity."   As I have said the FTT in this case found as a fact that the appellant could not perform the activity repeatedly.

9. In relation to activity 4 the Secretary of State prays in aid the typical day as set out in the report of the healthcare professional.  He invites me to take cognisance of the fact that the appellant was said in that report to be able to drive a manual car, use a mobile telephone, make meals and do other household tasks including shopping, the implication being that the fact that this evidence was before the FTT is sufficient without the tribunal explaining what it made of it. My role is neither to evaluate the evidence before the FTT nor to find facts.  My concern as to the nil award in respect of this activity was not that the tribunal was not entitled to take that view on the evidence before them, but that they have not explained why they did so where they found that she could move a light but bulky object but could not do so repeatedly.  That is stated to be a finding of fact.  It is either inconsistent with an award of zero points for that activity or the FTT has applied the wrong test, failing to consider the need to perform the activity with some degree of repetition.  

10. The papers appeared to raise the issue of regulation 29.  I said erroneously in my decision as to permission to appeal that the tribunal had not indicated that they considered the applicability of regulation 29. In fact it was considered, albeit briefly, in paragraph 28. The regulation was referred to, with the comment that "the evidence did not support such a finding. There was no evidence that Ms Proctor was suffering from a life-threatening disease or that there would be a substantial risk to must Proctor or others due to a specific disease or physical or mental disablement that Ms Proctor was suffering from." That is simply to repeat the words of the regulation, and does not explain either the tribunal's approach or its reasons for that conclusion.

11.  The Secretary of State considered the regulation 29 point in his submission. It was conceded that the statement of reasons dealt inadequately with the issue, but the submission states that the healthcare professional considered that there was no substantial risk. As to that the evidence is on page 49. The comment by the healthcare professional is no more than a restatement of the statutory test. That is the criticism which I make of the tribunal's treatment. The Secretary of State's submission then puts forward another factual analysis of the evidence, and the point seems to be being made that because there was evidence that might have led the FTT to the conclusion that regulation 29 was not applicable their failure adequately to deal with the issue was immaterial. It is not for me to say what the tribunal could or should have made of the evidence on that point; since the tribunal had considered regulation 29 the appellant was entitled to their view on the matter, and she had the right to know why it was that regulation 29 did not apply to her. As I said at paragraph 8 of CE/3043/2013

"As to regulation 29 it is not necessary for a FTT to consider regulation 29 as a matter of routine. It is not always disclosed upon the papers or by the oral evidence as being of potential applicability, but where the FTT considers it, and the judge says that they did in this case, it must be properly dealt with bearing in mind the criteria set out in the case of Charlton-v- SSWP [2009]EWCA Civ 42 which are essentially that the tribunal must establish what sort of work the appellant would be expected to do, and assess the level of risk in relation to the likely workplace and the journey to and from work. "

12. If there is nothing at all to raise that regulation in the papers it may be that any error of law in dealing with it is not, in those circumstances, material. That is not, however, the position in this case.  There is mention in the full statement of the appellant's being investigated for ME/chronic fatigue syndrome. Her letter of appeal speaks of the extreme variability of her condition, and problems with anxiety, stamina and fatigue. It must be remembered that the FTT found her evidence to be credible, going as far as to say that she gave a "clear account of her condition and how it affected her.” These matters taken together would seem to have required a regulation 29 consideration.

13. The inconsistency or failure to apply the correct test in relation to activity 4 and the inadequacy of the regulation 29 considerations amount to material errors of law, and the decision cannot stand. 

14. This is not a situation in which it is possible for me to make a final decision as to entitlement. I remit the case to a freshly constituted FTT in accordance with the directions below.  They will make their own findings on the various descriptors, and in relation to regulation 29 using the Charlton criteria, assuming that they find that regulation to be engaged.

15. In the correspondence concerning her disagreement with the decision the appellant makes a variety of points as to the decision having violated her human rights in a number of regards, and as to certain matters concerning the Equality Act.  There is authority that work schemes, put into place either within or outside the ESA framework do not amount to forced labour ( R( on the application of Reilly and another)-v-SSWP UKSC 2013 0064) and the tribunal is entitled to consider her capability for work within the terms of the Employment and Support Allowance Regulations 2008.  I reject her arguments in this regard, and I would say that it in relation to the fresh hearing it may be more fruitful for her to concentrate on evidence concerning her abilities in relation to the functional descriptors set out in the regulations.

16. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course.

DIRECTIONS

1. These directions may be added to or amended by the District Tribunal Judge if reviewing the file prior to hearing.

2. The rehearing will be an oral hearing before a panel consisting of a judge and medical member.

3. The parties must send to the clerk to the First-Tier Tribunal at the Liverpool office as soon as possible any further relevant written medical or other evidence. If they cannot send that evidence within 2 weeks of the issue of this decision the parties will need to contact that office to let them know that further evidence is to be filed. This is not to suggest that such further evidence is necessary or expected.

4. The appellant must understand that the new tribunal will be looking at her health problems as of the date of the decision under appeal, 6 December 2011 and for any further medical information to be of assistance it will need to shed light on the health problems at that time.

5. The clerk to the First-Tier Tribunal shall send to the presiding Judge of the original panel a copy of this decision, and ensure that the documents before the Upper Tribunal are placed in the tribunal bundle for the benefit of the panel that will hear the case.

Upper Tribunal Judge Gray

(signed on the original)

3 January 2014