Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                        Case No.  CE/3377/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Nicholas Paines QC

Decision:  The decision of the First-tier Tribunal involved an error of law.  I set it aside and remit the case to a freshly constituted tribunal for redetermination.

REASONS FOR DECISION

1.               The claimant, who is a woman born in 1954, has a number of medical problems, including respiratory problems, rheumatoid arthritis and the after-effect of a fractured ankle, which was treated by fitting a plate which is still in situ.  She was in receipt of income support on the grounds of incapacity for work from 1994 to 2012.  In 1996 she was awarded the higher rate of the mobility component of a disability living allowance (DLA); in 2004 that award was made indefinite.

2.               In late 2001 the claimant was asked to complete an employment and support allowance (ESA) questionnaire with a view to the conversion of her income support award to ESA.

3.               In the questionnaire she assessed herself as unable to move 50 metres without needing to stop, sometimes unable to walk up or down two steps and as having to change clothing daily because of an inability to control her bladder.  She also assessed herself as having problems with other activities relevant to ESA, but those are no longer in issue.

4.               In January 2012 the claimant was examined by a medical practitioner, who assessed her as having no problems with, among other things, mobilising and continence.  A DWP decision-maker decided that the claimant scored no points under the limited capability for work assessment.  The claimant appealed on various grounds, including that there had been an underestimate of her mobility problems caused by her breathing difficulties and arthritis and the ankle injury.  The decision was reconsidered but not changed.

5.               The claimant made written submissions to the tribunal, criticising the medical examination. Her representative supplied copies of her medical notes and subsequently a further submission.

6.               The appeal was heard on 5 February 2013; the claimant attended.  The tribunal allowed the appeal to the extent of deciding that the claimant scored 9 points under schedule 2 to the Employment and Support Allowance Regulations 2008 in respect of mobilising, as she could not repeatedly mobilise more than 100 metres within a reasonable timescale, and 6 points in respect of continence as she was at risk of a loss of control sufficient to require cleaning and a change of clothing.  They found, however, that none of the descriptors in schedule 3 applied to the claimant.  The effect of this decision was that the claimant was entitled to be put in the work-related activity group for the purposes of ESA, but not the support group.

7.               In their statement of reasons the tribunal went conscientiously and carefully through all the descriptors in the limited capability for work assessment that had been put in issue by the claimant, of which there were several.  In respect of mobilising, they recorded the claimant’s assessment of herself in the questionnaire as being unable to move 50 metres before needing to stop and her evidence that she was sometimes unable to move across a room.  They also referred to her representative’s submission and her evidence at the hearing, as well as to her GP records.

8.               The tribunal accepted that the claimant had a significant limitation of her ability to move around, but did not consider it likely that her ability was so restricted as to leave her unable to walk 50 metres.  They referred to her evidence of shopping and visiting the local library and continued

With the use of a walking stick to remove weight from her ankle and assist balance, and walking slowly it was likely that the appellant would be able to walk for 1-2 minutes on level ground without significant discomfort or exhaustion.  With pauses, the appellant is likely to be able to do so repeatedly within a reasonable timescale and it is likely that this is in fact what the appellant does when out.

The tribunal was satisfied that the appellant was able to walk over 50 metres and could do so repeatedly and within a reasonable timescale.  The tribunal was also satisfied that it was likely that the appellant, for the majority of the time, was able to walk over 100 metres without significant discomfort or exhaustion.  However, it is not likely that she is able to walk more than 100 metres repeatedly within a reasonable timescale due to significant discomfort.

9.               Through her representative, the claimant sought permission to appeal in respect of the reasoning on mobilising.  Picking up the tribunal’s reference to pauses, her representative submitted that, if the claimant had to stop or pause when walking a particular distance, she should satisfy the criterion of being unable to walk that distance and there should be no need to refer to the criterion of ability to walk the distance repeatedly and within a reasonable timescale.  She submitted that there was no record of the tribunal asking the claimant when she had to stop while walking, and repeated the claimant’s evidence that all her walking was done in pain and severe discomfort.

10.            In respect of the tribunal’s reference to the claimant walking slowly for one to two minutes, the representative invoked the Disability and Carers Service’s benchmark of 40 to 60 metres per minute as a slow walking speed and pointed out that, at a midpoint slow walking speed of 50 metres per minute, the claimant could only cover 50 metres if the lower end of the tribunal’s estimated range of her walking time (i.e. one minute) was correct.  It was therefore unclear why the tribunal had assessed her as able to walk 100 metres rather than 50 metres.

11.            Finally the representative referred to the finding of a tribunal in 1996 that the claimant was virtually unable to walk for the purposes of DLA, and pointed out that the claimant’s condition had deteriorated since then.

12.            Permission to appeal was granted by Judge Wright, who found these points arguable. 

13.            The Secretary of State does not support the appeal.  His representative submits that there is an inevitable element of subjectivity in the assessment of a claimant’s likely walking distance and that the tribunal was entitled to reach the conclusion that they did.  The tribunal had deliberately referred to ‘pauses’, rather than to the claimant stopping, when it described her walking ability.

14.            In relation to the claimant’s award of DLA, the Secretary of State accepts that the evidence underlying a DLA decision on inability to walk may be relevant to an ESA determination and that, on the face of it, the tribunal erred in law by not calling for the paperwork in relation to the DLA award.  However, he submits, the DLA records in fact show that the claimant’s last assessment for DLA had been in 2004, so that any evidence in relation to it was too out of date to be relevant.  He relies on a paragraph in Judge Jacobs’s decision in ML v Secretary of State for Work and Pensions [2013] UKUT 174 (AAC) where Judge Jacobs said that the fact of an award of the higher rate of the mobility component of DLA was in itself only evidence that at some point in time a claimant had been assessed as qualifying for that rate of the mobility component and that without more information it was impossible to relate the award to the descriptors for mobilising in the limited capability for work assessment, concluding that “it is the evidence that matters, not the award”.

15.            In response the claimant’s representative repeats the submissions based on the tribunal’s estimate of one to two minutes’ walking time, saying that it translates to a walking distance of possibly less than 40 metres to possibly less than 80m metres.  She submits that pauses are only relevant to the part of the descriptor that refers to repeated mobilising.  She points out that the DLA records produced by the Secretary of State indicate that an indefinite award of the higher rate of the mobility component was made in 2004, since when the claimant’s condition has deteriorated.

16.            I deal first with the tribunal’s conclusion on mobilising under the limited capability for work assessment and secondly with the relevance of the award of DLA.

Mobilising

17.            The relevant descriptors in the limited capability for work assessment are worded as follows (the definition of the activity was amended in January 2013, but that is not material to this case):

(a)     Cannot either

(i)         mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or

(ii)        repeatedly mobilise more than 50 metres within a reasonable timescale because of significant discomfort or exhaustion.

(That descriptor attracts 15 points.)

(b)     Cannot either

(i)         mobilise more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or

(ii)        repeatedly mobilise more than 100 metres within a reasonable timescale because of significant discomfort or exhaustion.

(That descriptor attracts 9 points.)

(d)     Cannot either

(i)         mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or

(ii)        repeatedly mobilise more than 200 metres within a reasonable timescale because of significant discomfort or exhaustion.

(That descriptor attracts 6 points.)

18.            The limited capability for work-related activity assessment in schedule 3 to the Regulations contains a single descriptor for mobilising, worded identically to (a) above.  It follows that a claimant who satisfies (a) above will be assessed as having both limited capability for work and limited capability for work-related activity and will be placed in the support group; a claimant who satisfies (b) or (d) above will not be assessed as having limited capability for work unless (as the tribunal found here) they score sufficient points under other schedule 2 descriptors.  They will not be assessed as having limited capability for work-related activity under schedule 3 unless they meet another schedule 3 descriptor. 

19.            In my judgment the tribunal correctly understood the relationship between parts (i) and (ii) of each descriptor in schedule 2: a claimant meets the descriptor if either they cannot mobilise as described in part (i) of the descriptor or they cannot repeatedly mobilise as described in part (ii): see HD v Secretary of State for Work and Pensions [2014] UKUT 72 (AAC).  The alternative interpretation, to the effect that a claimant only met the descriptor if they could do neither of those things, would render part (ii) of each descriptor otiose. 

20.            It is true that the interpretation preferred by Judge Williams and the Secretary of State in HD, and by myself, arguably makes part (i) of the descriptor superfluous: since inability to mobilise over the stipulated distance repeatedly satisfies the descriptor, it would be possible in each case to go straight to that issue, without troubling to consider whether a claimant can mobilise over the distance once; nevertheless, the existence of part (i) provides a convenient route to finding the descriptor met in the case of a claimant who cannot mobilise over the stipulated distance at all.

21.            I do not consider that part (i) of each descriptor draws any distinction between ‘stopping’ and ‘pauses’; if a person has to interrupt their mobilising within the stipulated distance in order to avoid significant discomfort or exhaustion, they meet part (i) of the descriptor without regard to whether the interruption is better described as stopping or a pause. 

22.            My reading of the decision is that the tribunal correctly understood this.   Their reference to pauses was in the context of mobilising repeatedly within a reasonable timescale (part (ii) of the descriptor).  I read the second sentence that I have quoted from their decision as meaning that the claimant could walk for one to two minutes, pause, and then carry on for a further one to two minutes. 

23.            The implications of part (ii) of each descriptor will no doubt be further developed in case-law.  Given that the assessment is designed to gauge the claimant’s ability to meet the demands of a workplace, I respectfully agree with Judge Wikeley (AS v Secretary of State for Work and Pensions (ESA) [2013] UKUT 0587 (AAC)) that the schedule has in mind a claimant’s ability to meet the demands of a job in which they might be required to mobilise from place to place on a number of occasions during the working day.  A claimant who was able to make the journey once but was not able to repeat it within a ‘reasonable timescale’ would meet the descriptor.  What is a ‘reasonable’ timescale will need to be assessed case by case, but it is shorter than the ‘several hours’ rejected by Judge Wikeley.

24.            In the present case the tribunal found that the claimant could repeat a distance of 50 metres after a ‘pause’, a word that suggests that she could repeat the distance for a second time not long after completing it the first time.  That would amount to repetition of the distance ‘within a reasonable timescale’, so I do not consider that the tribunal’s reasoning can be faulted in that respect. 

25.            What does, however, trouble me is the way in which the tribunal translated their estimate of the claimant’s walking time – one to two minutes – into an estimate of walking distance.  I am concerned as to whether they gave an adequate statement of the reasons for their conclusion on the statutory question of distance – in other words, an explanation that enables the reader to understand why their reached their conclusion that the claimant could repeatedly mobilise for 50 metres, albeit not for 100 metres. 

26.            I agree with the claimant’s representative that the reader would reasonably interpret their reference to ‘walking slowly’ as walking at a pace of 40 to 60 metres per minute.  The tribunal expressed the walking time as a range of between one and two minutes.  While only 60 seconds separate the top end of that range from the bottom end, its top end is twice as long as the bottom end. 

27.            If (for the sake of argument) the tribunal had expressed their conclusion on walking time as (say) ‘about 1½ minutes’, the reader would readily understand that they were estimating a walking distance of between 60 metres (at 40 metres per minute) and 90 metres (at 60 metres per minute).  But they did not; their use of a time estimate of one to two minutes translates into a distance range of between 40 metres (assuming one minute’s walking at 40 metres/minute) and 120 metres (assuming two minutes’ walking at 60 metres/minute).  They do not offer any view on any walking time between one and two minutes that they regard as average or typical for the claimant.

28.            I am therefore forced to conclude that in this respect the tribunal’s extremely through and careful decision is not supported by an adequate statement of reasons.

29.            I must therefore set the decision aside.  I am not qualified to decide the appeal myself, since I have not seen or heard directly from the claimant and do not possess the additional medical and disability expertise that First-tier Tribunals in ESA cases have.  I must therefore remit the case to a freshly constituted tribunal for redetermination.

The award of DLA

30.            In view of the decision that I have reached above, this issue will not affect how I dispose of the appeal to the Upper Tribunal.  However, I need to deal with it since it could be relevant to the way the new tribunal should approach the case.

31.            The tribunal were aware of the award of the higher rate of the mobility component of DLA to the claimant in 1996.  The 1996 tribunal’s statement of reasons was in the papers.  The tribunal did not investigate the reasons for the continuing DLA award, saying that the 1996 tribunal had been ‘dealing with the situation as at the date of that decision and based upon the evidence relevant at that time’.

32.            The Secretary of State has suggested that the tribunal erred in law in not adjourning the proceedings and calling for the papers relating to the award of DLA (although the error was not material, given the staleness of the evidence that would have been produced).  In reply, the claimant’s representative does not directly ally herself with that suggestion; she submits that the DLA award, which she says was made indefinite in 2004, supported the claimant’s case on the ESA mobilising descriptor given that the claimant’s condition had deteriorated since then.

33.            Different Upper Tribunal judges have taken different positions on this question.  I have referred above to Judge Jacobs’s decision in ML. By contrast, in MI v Secretary of State for Work and Pensions (ESA) [2013] UKUT 0447 (AAC) Judge Williams decided that, at least in the circumstances of that case, a tribunal had erred in not calling for DLA papers.  In my view it cannot be said that the law either always or never requires a tribunal to adjourn and call for DLA papers in circumstances of the present sort.  Everything depends on the precise facts of the case.

34.            Tribunals are often faced with cases in which categories of information that might be helpful to the tribunal are not in their papers.  For example, they may or may not have a claimant’s GP records; the claimant may have been to a specialist for treatment, but the papers do not contain any report from the specialist; the claimant may not have been examined on behalf of the DWP by an examining medical practitioner; or, as here, an ability similar to the ability at issue before the tribunal may have been adjudicated on for the purposes of another social security benefit, but the papers are not before the tribunal.  Other examples can no doubt be proffered.  In all these situations, it seems to me, the tribunal has a discretion, to be exercised judicially, as to whether they adjourn with a view to obtaining the further material.

35.            In exercising that discretion, the tribunal will balance the competing factors, which include: the wishes of the claimant, particularly if represented; the delay to the proceedings before it; the amplitude of the evidence already before it; the likely relevance or helpfulness, so far as it can be judged, of the missing material, etc. 

36.            In the present case the tribunal knew that the higher rate of the mobility component of DLA had been awarded by a tribunal in 1996 and that the award continued.  The decision that they were reaching on ESA was on the face of it inconsistent with the DLA award.  However, they had reasonably ample material on the ESA claim, including an examining doctor’s report.  It cannot in my judgment be said that no reasonable tribunal in the circumstances of the present case could have failed to adjourn.

37.            I therefore do not direct the new tribunal to obtain such further DLA papers as may exist, over and above the computer prints already supplied by the Secretary of State.  But, especially given that there will be a period of time before the case can be re-listed, it is open to the Secretary of State to obtain and lodge any such papers if so advised.  It is also open to the claimant to apply to the First-tier Tribunal for a direction that that be done, but I leave any such application to be dealt with by the First-tier Tribunal.

Judge Nicholas Paines QC

14 March 2014