Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                        Case No.  CE/2016/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 27 September 2012 is set aside and there is substituted a decision to the effect that the claimant’s award of income support qualified for conversion to an award of employment support allowance, on the basis that the claimant had limited capability for work but not for work-related activity, with effect from 17 November 2011.

REASONS FOR DECISION

1.         This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal dated 27 September 2012, whereby it dismissed the claimant’s appeal from a decision of the Secretary of State dated 1 November 2011 to the effect that his award of income support did not qualify for conversion to employment and support allowance under the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No.2) Regulations 2010 (SI 2010/1907) and should terminate from 17 November 2011.  The claimant had been in receipt of income support on the ground of incapacity for work since 28 October 1999.

2.         In order for his award to qualify for conversion, the claimant needed to score 15 points on an assessment under Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI 2008/794, as amended by SI 2011/228).  The Secretary of State awarded 9 points.  The First-tier Tribunal awarded 12 (6 under each of descriptors 15(c) and 16(c)), but that was still not sufficient.  The claimant, who is represented by Mr Andrew Hipwell of Birmingham Citizens’ Advice Bureau, appeals on the basis that the First-tier Tribunal erred in law in its approach to paragraph 13.  The Secretary of State supports the appeal.

3.         Paragraph 13 of Schedule 2 to the 2008 Regulations makes provision for the number of points to be scored in respect of “initiating and completing personal action”, as follows –

4.         The claimant suffers from obsessive compulsive disorder.  In written submissions made on his behalf to the First-tier Tribunal, it was said that he had lost his last employment due to being slow and having constantly to check things and carry out rituals.  Oddly, paragraph 13 was not mentioned in the written submissions, which were written by a different representative, but it was the subject of oral submissions made by Mr Hipwell at the hearing.  He submitted that the claimant should be taken not to be able to perform sequential actions that he could not perform within an objectively reasonable timescale due to his need to repeat actions before moving on to the next one.  The First-tier Tribunal appears not to have accepted that argument.  In relation to paragraph 13, it said –

“6.        Initiating actions.  In the ESA 50 it appeared that the appellant was suggesting that he could manage to start and complete his daily routines but it would take him longer than the average person, not because of any lack of motivation but because of constantly checking that he had done things right.  In order to award points under the terms of this descriptor the tribunal need to have been satisfied that the appellant was incapable because of a mental impairment to carry out at least two sequential actions in regard to his personal care.  The appellant had told the HCP that he could get himself out of bed, washed and dressed without any assistance from a third party.  In the circumstances the tribunal could not conclude that the appellant was unable to carry out at least two sequential actions in regard to his personal care and the tribunal was satisfied that no points were applicable under the terms of this descriptor.”

5.         In supporting the claimant’s appeal, the Secretary of State submits that the evidence of the claimant’s need to check things excessively and the difficulties to which that gives rise showed that, although the claimant might be able to initiate a personal action, he had difficulty completing it.

6.         I am satisfied that the First-tier Tribunal’s decision is wrong in law.  It neither addressed the consequences of the claimant’s need constantly to check that what he had done was right nor paid sufficient attention to the precise language of the legislation.  The main consequence of the claimant’s disorder was that everything took much longer, but there is also evidence that, for instance, turning gas hobs on and off when cooking had resulted a build-up of gas and in him being a danger to himself to the extent that his mother had taken over his cooking from him.  The material features of the legislation are, first, that it is not enough that the claimant can initiate and complete personal actions – he or she must be able to do so “reliably” – and, secondly, a finding that a person can sometimes reliably initiate or complete actions may rule out descriptor 13(a) – at least on a literal construction of that descriptor – but it leaves open the possibility of either of descriptors 13(b) or 13(c) being satisfied since those descriptors are satisfied if the claimant cannot reliably initiate or complete at least two person actions “for the majority of the time” or “frequently”.

7.         The word “reliably” makes it unnecessary to go as far as is argued on behalf of the claimant and hold that a person is to be treated as not being able to initiate and complete actions at all if he or she can do so only with excessive delay.  The Secretary of State is right to argue that one should consider separately whether there is a difficulty in initiating an action and whether there is a difficulty in completing it and that in this case the difficulty lay in completing actions, although arguably the difficulty in completing the first action creates a difficulty in initiating the second.  In any event, the practical point is that, if compulsive behaviour means that it takes an excessive amount of time to complete at least two actions, it can be said that the claimant cannot “reliably” complete them.  The First-tier Tribunal did not consider whether that was, at least frequently, so in this case or, if it did, it gave inadequate reasons for its conclusion.

8.         The First-tier Tribunal’s decision must therefore be set aside.  The Secretary of State concedes that the evidence in this case supports an award of 6 points under descriptor 13(c), as well as the 12 points awarded by the First-tier Tribunal, and submits that I should substitute for the First-tier Tribunal’s decision a decision to the effect that the claimant’s award of income support qualifies for conversion to an award of employment and support allowance from 17 November 2011.  This is clearly on the basis that the claimant has limited capability for work but does not have limited capability for work-related activity.  The claimant is content with the concession which, in my judgment, is indeed supported by the evidence in the documents.  There is no evidence that the claimant has limited capability for work-related activity.  Accordingly, I accept the concession and give the decision set out above.

Mark Rowland

12 March 2014