Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/2304/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  1. The appeal is allowed.   I set aside the decision of the tribunal and I remit the case to be reheard by a new tribunal in accordance with the directions below.

REASONS FOR DECISION

1.    This is an appeal with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 6 February 2013 upholding a decision of a decision maker superseding an earlier award of employment and support allowance (ESA)  from and including 1 June 2010 following a medical assessment.

2.    The claimant suffers from Bipolar Affective Disorder (BAD), which had begun in 1999, in addition to physical problems.  It is unnecessary to consider the physical problems for the purposes of this appeal, which is concerned with the tribunal’s findings and reasons in relation to the contention of the claimant’s representative that she should be treated, pursuant to regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 (the 2008 Regulations) as having limited capability for work so as to qualify for employment and support allowance (ESA) because, by reason of her BAD, there would be a substantial risk to the mental or physical health of the claimant if she were found not to have limited capability for work.

3.    The claimant was born in 1956 and had been awarded ESA from 9 October 2009.  At a previous tribunal hearing in November 2011 the claimant had successfully appealed a decision of the Secretary of State removing her entitlement to ESA.  On that occasion the appeal succeeded because the tribunal considered that, although she did not otherwise have limited capability for work, she was to be treated as having such limited capability because of regulation 29 and also that she was also to be treated as having limited capability for work related activity by virtue of regulation 35 of the 2008 Regulations. 

4.    The evidence before the tribunal on this appeal was that the claimant had had to give up her job as a school meals assistant in 2009 because of her physical and mental health and had indeed been admitted to hospital because of it, but that with the help of medication her condition had been stabilised since that time up to June 2012.when the decision under appeal had been made.

5.    I note that although the decision maker included the report prepared on that occasion by the approved disability analyst on 22 March 2011, he or she did not include any of the medical evidence which must have been before the tribunal the following November.  It was the duty of the decision maker in relation to the present appeal, under rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008, to provide with the response to the appeal copies of all documents relevant to the case in the decision maker’s possession.  It was also the duty of the Secretary of State, under rule 2(4) of the same Rules, to help the tribunal to deal with the case fairly and justly.  Under one head or the other, if not both, the tribunal ought to have been provided with copies of the evidence before the previous tribunal which had heard the appeal only 7 months before the new decision now under appeal.  It is a duty which the new tribunal ought to have enforced.

6.    As it was the new tribunal had before it evidence that the claimant’s mental health had deteriorated since the date of the decision under appeal before it, which was dated 7 June 2012.  It also had before it expert evidence dating between September 2012 and January 2013 as to her then mental health and the risk to her mental health if she had to work or was otherwise placed in stressful situations.  It also had the claimant’s own evidence that her physical condition was about the same but that mentally she had gone downhill since then.  On the basis that at the date of the decision her condition had been stable for three years, it found that she scored no points on the mental health descriptors in Schedule 2 to the 2008 Regulations.  It also found that she scored no points on the physical descriptors in that Schedule.

7.    It then went on to consider Regulation 29 in the following terms:

“Regulation 29 – Substantial Risk to Health

20. The appellant can still be considered incapable of work if she falls within an exempt category, and the Tribunal considered whether or not there would be a substantial risk to the physical or mental health of any person if the appellant was not found to have limited capability for work.

21.  For the reasons stated above, the Tribunal found that the appellant did not have any significant physical restrictions, and found that her mental health had been stable for 3 years.  It was aware that she needed to guard against stresses, but was satisfied that she would, for example, be able to do light work, under guidance and supervision as required, and that there would not, at that time, have been a substantial risk to the physical or mental health of any person if she was not found to have limited capability for work, and Regulation 29 was not satisfied.”

8.    The expert evidence which the tribunal had before it began with the evidence of the claimant’s consultant psychiatrist by letter dated 10 September 2012 that, following two hospital admissions in 2009, her condition had “gained good stability since this time”.  That was the basis of the tribunal’s finding that her condition was stable at the date of the decision.  The psychiatrist went on to state that the nature of the claimant’s condition was “that putting herself in stressful situations is likely to increase the likelihood of her relapse.”  This appears to have been accepted by the tribunal. 

9.    The psychiatrist’s letter continued “She is currently awaiting an appointment with the CPN from our service following recent contact from her GP indicating that she was distressed and low in mood.  She is no longer under my care as an outpatient.”  This is evidence that the psychiatrist was not able to give personal evidence as to her condition at the date of the letter but that there was evidence by that time of a deterioration in her mental condition requiring intervention by the community psychiatric nurse.  This was not referred to by the tribunal.

10. The remaining written evidence consisted of three documents, First, there was a letter dated 24 October 2012 from a retired mental health worker and child and family therapist who had been working with the claimant as a counsellor since 19 September 2012, and who gave evidence as to the stress and anxiety caused to the claimant by the prospect of a tribunal hearing.  Secondly there is a report from the claimant’s GP dated 19 December 2012 in which it is stated that it was noted on her discharge letter, when the claimant was discharged from hospital in 2009, that she was likely to have deterioration in her mental health if she became non-compliant with her medication “or if she has significant life stressors”, that such life stressors would probably include work and that the whole process of the appeal in itself was a possible trigger for her relapsing, and that there would be a significant risk of deterioration in her mental health due to life stresses given the demands of the workplace. 

11. Finally there is a letter dated 29 January 2013 from the community psychiatric nurse, who stated that she had worked with the claimant since October 2012 helping her to stabilise her moods with regard to her BAD and had agreed to commence some cognitive behavioural therapy to help with the claimant’s low mood and negative thought process.  The claimant was stated to present at times in acute distress and to lack insight into her behaviour.  She found it difficult to cope with stressful situations and had a lack of insight into her difficulties and a lack of support at times at home.  Her likelihood of relapse was stated to be high if put into stressful situations, although she had a Wellness Recovery and Action Plan to help manage this.

12. The tribunal makes no reference to this evidence, apparently because it considered that it had to consider only whether at the date of the decision under appeal there would be a substantial risk to the claimant’s health if she worked.  In failing to deal with the evidence and make appropriate findings, the tribunal was again in error of law.  It was found by the decision maker that the claimant did not have limited capability for work.  There had been, if the evidence was accepted, and there seems no reason why it should not have been accepted, a significant deterioration in the claimant’s mental health since the date of the decision which had already led to her consulting her GP and being referred to the community psychiatric nurse at some point before 10 September 2012, and undergoing counselling in addition from 19 September 2012. 

13. Given the wording of regulation 29, an obvious question for the tribunal was whether the deterioration was as a result of her being found not to have limited capability for work.  While the effect of work on a claimant’s health is usually an important consideration, that is not all that a tribunal must look at.

14. In IJ v SSWP, [2010] UKUT 408 (AAC), I considered the equivalent provision in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 (the Incapacity Benefit Regulations), where the relevant question was whether by reason of some disease or disablement “there would be a substantial risk to the mental or physical health of any person if he were found capable of work.”  In this respect I stated at paragraph 10:

“the test is not limited to whether there would be a substantial risk to the claimant from any work he may undertake.  The test is as to the risk as a result of being found capable of work.  If he was found capable of work, he would lose his incapacity benefit, and would very possibly need to seek work and apply for jobseeker’s allowance.  That would involve his attending interviews, and going through all the other steps that would be needed to obtain and keep jobseeker’s allowance.  In the present economic climate, a claimant who is 62 years old with mental health problems, and who has not worked since the early 1990’s, is unlikely to find work quickly and would very possibly never find it.  His GP’s assessment that it is inconceivable that he would ever be able to earn his living may be right.  The tribunal would then have to determine how this change from his being in receipt of incapacity benefit would affect the claimant’s mental health, looking not at some work he may do, but at the effect on his mental health of fruitless and repeated interviews and the possibly hopeless pursuit of jobs until he reached retirement age.  These factors were not considered by the tribunal, and indeed they did not elicit the information necessary to enable them to be considered, such as whether he had in fact applied for jobseeker’s allowance and if not, how he was coping or would cope.”

15. That approach was applied to regulation 29 by Judge Parker in CF v SSWP [2012] UKUT 408, and is in my judgment the proper approach to regulation 29, following the wording of the regulation.  It is also supported by the decision of Mrs. Commissioner Parker, as she then was, in CSIB/719/2006 at paragraph 11 when in considering the risk she said that it “must arise from the broad results of a claimant being found fit for work and is not confined to the risks arising directly from the tasks with a claimant’s job description.”

16. In this case, therefore, the job of the tribunal was to assess in that way, as at the date of the decision, the risk to the claimant’s health of her being found not to have limited capability for work.  As pointed out repeatedly, this does not prevent tribunals from having regard to evidence coming into existence after the date of the decision, or of events after the decision under appeal, so long as it is relevant to the prognosis at that date.  Thus in R(DLA) 3/01 the actual rate of recovery of a claimant from a health problem was held to be relevant to the question whether as at the date of the decision the claimant was likely to satisfy the relevant conditions for benefit for 6 months after the date of the decision.

17. So too, in the present case, the tribunal needed to assess whether there was a deterioration in the claimant’s health following the decision, the extent of the deterioration, and the extent to which it was as a result of her being found not to have limited capability for work.  This includes the stress from an appeal, successful or otherwise, the stress of dealing with the Jobcentre and possible interviews, the prospects of employment, and the ways in which it is said that the claimant’s mental health can be kept stabilised bearing in mind, if the evidence is accepted, that it appears to have deteriorated even without seeking or obtaining work and without both the pressures of work and the additional pressures on daily life if she did spend part of it working.  The brief reference to “guidance and supervision as required” is inadequate to identify what the tribunal had in mind for this lady who was 56 years old at the date of the decision and who had only stabilised her mental health after giving up work.

18. It was also necessary for the tribunal to take into account the expert evidence of the various experts and explain why it does not accept that evidence.  If it does accept that evidence, but still considers that there would be no substantial risk to the claimant if found not to have limited capacity for work, then it must explain why that is so.

19. In the present case the tribunal erred in law in failing to make the necessary findings of fact as to the claimant’s health since the date of the decision, and the extent to which the decision of the decision maker contributed to that deterioration.

20. I also find that the tribunal was in error of law in its decision and I set it aside.  In many cases, I would find it necessary to remit such a case to a new tribunal for further findings, especially when they turn on medical evidence which the medical member can assess and on the way in which the claimant presents to the tribunal when giving evidence in person.

21. In the present case I have come to the conclusion that I can substitute my own decision.  There is nothing to indicate that the medical member in this case was on the last occasion or will be, if I remit the matter, a person with specialist expertise in BAD.  The claimant had to give up her previous job in 2009 in large part because of her BAD which led to her being hospitalised twice.  That job was light work as a school meals assistant.  Her condition was then stabilised until she was found not to have limited capacity for work, when it deteriorated necessitating the intervention of her GP, and ongoing help from a counsellor and the community psychiatric nurse.  There is no other identified cause of this deterioration.  BAD is intermittent, and depression can be concealed, so that the ability demonstrated by the claimant to communicate properly at the hearing is not of any significance in assessing whether the claimant had deteriorated since the date of the decision

22. There is then the question whether the evidence establishes that on the balance of probabilities there was a substantial risk to the claimant’s mental or physical health as a result of her being found not to have limited capability for work.  The question of what was a substantial risk was considered in cases relating to regulation 27 of the Incapacity Benefit Regulations.  As pointed out by Mr. Commissioner Rowland (as he then was) in CIB/3519/2002, “a risk may be substantial if the harm would be serious, even though it was unlikely to occur and conversely, may not be ‘substantial’ if the harm would be insignificant, even though the likelihood of some such harm is great.”  I note that in CIB/2767/2004, Mrs. Commissioner Fellner, while describing these observations as probably right,  drew attention to the context of regulation 27 which, like regulation 29 of the 2008 Regulations, was headed exceptional circumstances and was also concerned with life-threatening diseases. In CIB/1064/2006, Deputy Commissioner Ovey, as she then was, indicated that to be substantial the risk did not have to be life-threatening but that regard had to be had “to both likelihood of occurrence and degree of harm.”

23. It appears to me that on any basis there was a substantial risk to the health of the claimant if she was found not to have limited capability for work.  The risk was the loss of the stability she had attained over the previous 3 years with the real possibility of a further breakdown leading to her admittance to hospital as had occurred twice in 2009.  The risk was evidenced by the fact that her mental health had deteriorated significantly following the decision, with no other explanation being suggested for that deterioration.  It was a deterioration which had led to her needing both counselling and more significantly the intervention of the community psychiatric nurse.  These problems were still ongoing at the date of the tribunal hearing and indeed the counsellor had asked if the hearing was really necessary because of the stress and anxiety it was causing the claimant. While tribunal hearings inevitably cause stress and anxiety to most claimants, they do not all require counselling and the assistance of a community psychiatric nurse.  That risk does in my judgment constitute a substantial risk to the claimant’s health.  The harm if that were to occur would be significant.  Indeed even the symptoms which emerged during the period between the date of the decision and the tribunal hearing cannot properly be described as insignificant.

24. On the occasion of the tribunal hearing the claimant coped, or appeared to cope, well and answered all questions without difficulty and prompting, as the tribunal found.  That does not detract from the other evidence.  A person with BAD is not manic or depressive all the time and can conceal depressive symptoms if required for a short period.

25. The question then arises whether there are grounds for superseding the decision of the tribunal on 2 November 2011 that the claimant has limited capability for work related activity so as to fall within regulation 35 of the 2008 Regulations.  In my judgment, the evidence is equivocal as to whether the claimant could undertake such activities both because they have never been identified and because all the evidence has been directed to the effect of not having limited capability for work.  I therefore do not consider that grounds for supersession of the decision in relation to regulation 35 have been made out.

26. I am, however, unclear whether this question has been properly addressed to date.  If the problem is that work-related activities may lead to a deterioration in the claimant’s health, this must be addressed by reference to what those activities may be and when they may be required.  If the claimant is permanently unable to work for health reasons then she cannot even be required to attend a work focused interview, which is a pre-condition for being required to engage in work-related activities, and she could not in any event be required to engage in work-related activities because these are defined by s.13(7) of the Welfare Reform Act 2007 as activities which make it more likely that the claimant will obtain or remain in work or be able to do so (JS v SSWP, [2013] UKUT 635 (AAC)).  If, on the other hand there is a prospect of her condition improving to the extent where she may ultimately be able to do some work, then there may come a time when a work-focused interview and some work-related activities may be of benefit for her.  For so long as she cannot properly be required to engage in work-related activities it is difficult to see why the fact that she is found not to have limited capability for such activities should lead to a substantial risk to her health (JS v SSWP), at least provided that she receives re-assurance on the point from the Secretary of State and does not feel under constant threat from him.

27. It is therefore possible that there may be grounds for considering supersession of the tribunal decision insofar as it places the claimant in the support group on the basis that the claimant cannot and will not be required to undertake work-related activities but this will depend on consideration of the evidence on which the decision of the previous tribunal of 2 November 2011 was based and whether any of the matters to which I have drawn attention give grounds for such a supersession.

28. I therefore set aside the decision of the decision maker dated 7 June 2012.  I would also observe that I would discourage the Secretary of State from continuing to require this lady to attend further examinations by approved disability analysts which have no real prospect of enabling a decision maker to form any sensible view of the state of her BAD or of the potential for a worsening in her condition if she is found not to have limited capability for work or work related activities. 

(signed) Michael Mark

Judge of the Upper Tribunal

15 January 2014