Upper Tribunal (Administrative Appeals Chamber)

LD v Secretary of State for Work and Pensions (Employment and support allowance : Regulation 29) [2014] UKUT 131 (AAC) (20 March 2014)

IN THE UPPER TRIBUNAL                                 Case No  CE/2964/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Leeds on 9 May 2013 under reference SC007/13/01942 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 11 of the Reasons.

 

REASONS FOR DECISION

 

1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

 

2. The claimant, born in 1955, has had back problems for many years.  An MRI scan in November 2010 found scoliosis and mild to moderate discogenic disease to the lower lumbar spine and above with disc herniation and foraminal stenosis at L5/S1.  There was nerve impingement.  The claimant’s main problem evident from the case papers appeared to be pain caused by her back problems. She asserted that her condition was deteriorating.  She also complained of carpal tunnel syndrome over the last four years, affecting her grip and causing pain.

 

3. The papers disclosed that she had worked full-time as a secretary within the National Health Service and in 1995 (at the early age of 40 or so) had been placed on ill-health retirement with a pension.

 

4. The tribunal decided the case on the papers and upheld the Secretary of State’s decision that 0 points were to be awarded.  Additionally, it noted:

 

            “Although the Appellant did not pursue Regulation 29(2)(b) the Tribunal   considered whether there was a risk to the Appellant’s (or anybody else’s) health in a finding that she was fit for work.  We bear in mind that the Appellant’s needs will be taken into consideration by an     employer.  Appropriate aids and appliances will be provided.  In            consideration of all the information provided the Tribunal was satisfied             that the Appellant could undertake any supervised low skilled, non             manual or light manual, non-demanding job, taking into account the     appellant’s overall condition.  Such jobs are available in a range of        organisations including, but not limited to supermarket chains or call             centres.”

 

5. I have set the tribunal’s decision aside, on two grounds, only the first of which is supported by the Secretary of State.  That is that nowhere does the tribunal appear to have considered the impact of pain upon the claimant and in particular upon her ability to perform the activities covered by the various descriptors reliably and repeatedly.

 

6. The second ground arises in relation to the tribunal’s failure to engage with all the evidence in relation to regulation 29 and/or to have regard to the terms of the National Health Service Pension Scheme Regulations 1995 SI 1995 No.300 (“the 1995 Regulations”).

 

7. The terms on which a public sector employee can get ill health retirement are a matter of law.  With effect from 6 March 1995 it was the 1995 Regulations that applied.  (Before then it was SI 1980 No 362).  If the claimant’s retirement in 1995 was after that date, it was governed by regulation E2, which then provided:

 

            “(1) A member who retires from pensionable employment because of          physical or mental infirmity that makes him permanently incapable of       efficiently discharging the duties of that employment shall be entitled to    a pension under this regulation if he has at least 2 years' qualifying             service or qualifies for a pension under regulation E1 (normal          retirement pension).”

 

(The Secretary of State’s submission to the Upper Tribunal refers to a two tier system of ill-health retirement  but that has only been in operation since 1 April 2008 when regulation E2A of the 1995 Regulations was introduced.)

 

8. On the evidence the claimant did not have carpal tunnel syndrome then and the problem was her back.  The pension would not have been awarded without an occupational health specialist doctor having been satisfied that this test was met.  Substantial amounts of money that would otherwise not have been paid turned on it - the payment of a pension from age 40 to retirement age - so it may be thought unlikely that scrutiny was other than thorough.  If she was permanently incapable of efficiently being a secretary in 1995 and her condition had, if anything, got worse, to assert that she could perform even a non-manual job, never mind a light manual one in my view required the tribunal to engage with this evidence and explain what it made of it, if it was sufficiently to discharge its duty to give reasons.

 

9. I of course accept that there is no automatic correlation between the conditions of entitlement for an ill-health retirement pension from the NHS and those for employment and support allowance.  I entirely accept that in applying regulation 29(2)(b) the tribunal had to apply the relevant caselaw - principally Charlton.  The Secretary of State submits that:

 

            “There is no element of that consideration that requires an assessment      of the claimant's comparative capability between the date of the             decision under appeal and the date of an assessment of capability for a       different purpose, under different rules, some 17 years earlier.”

The point is that applying Charlton has to be done in the light of all the available evidence, of which the early retirement was part.  True it is, rather as in the case of the relevance of DLA assessments for ESA purposes, that the evidence behind the assessment would be more use than the mere fact of the assessment (cf. ML v SSWP [2013] UKUT 174 (AAC); [2013] AACR 33) and there was and is no indication that that was likely to be available.  Nonetheless , that does not make the fact of the assessment of no probative value.  The reason why an assessment done as long as 17 years previously was capable of having some ongoing relevance was because according to its terms, it had to address the claimant’s permanent incapability for doing a particular type of job.  There was no indication of any change for the better, if anything the opposite.  If then the tribunal was going to say that actually the claimant was capable of doing a job similar in its physical demands to the one she had had to retire from, or even one that was  a little heavier, it needed to explain why, in the light of all the evidence. That it failed to do.

 

10. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

 

11. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (14 November 2012) - see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.  As regards the suggestion (hinted at by the First-tier Tribunal and expanded upon by the Secretary of State in submissions to the Upper Tribunal) that the duties imposed on employers by the Equality Act 2010 can be taken into account), the tribunal is referred to the case CE3688/2013 (the reference in the Secretary of State’s submission to the Upper Tribunal appears to be in error), in which an oral hearing is due to be held on 28 April 2014 and the present case should not be listed by the First-tier Tribunal until that decision is available

 

12. I encourage the claimant to attend the next hearing.   It is almost always useful for a tribunal to hear from a claimant face to face about the difficulties they experience.

 

13. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter




for the tribunal to which this case is remitted.

 

(signed)                                                                    

 

 

C.G.Ward

Judge of the Upper Tribunal

20 March 2014