Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/3441/2013

ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Decision:  My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.

REASONS FOR DECISION

1. The claimant is a man now aged 61 with back pain, urinary problems and depression.  He was in receipt of incapacity benefit from June 2003 and was also awarded higher rate mobility component for an indefinite period from 4 February 2004.  However, on being converted to the ESA regime in March 2012 the claimant was assessed by the healthcare professional who examined him on 26 July 2012 as scoring no points under the limited capability for work assessment. On 6 September 2012 he appealed against the decision refusing to continue his award of ESA on the basis of the healthcare professional’s report.

2. The tribunal made findings with regard to the journeys undertaken by the claimant and recorded their observations of him at the hearing as follows:

“At the hearing the appellant came into the room at 10.25 and asked to go to the toilet at 10:30.  He returned at 10.35.  The hearing finished at 11.30.  Between 10.35 and 11.30, he stood up at 11.00 for about 30 seconds, at 11:10 for a few seconds only, and at 11.18 he stood up and stood behind the chair until the hearing ended.  Each time the Appellant was observed to get up reasonably fast and without any difficulty.  The appellant was observed to walk in at a slow to medium pace using one stick, he walked out at a medium pace, he then walked back in at a medium pace, he then walked back in at a medium pace.  His gait and balance were normal.”

The decision notice records that the tribunal found that descriptor 1(d)(ii) applied to the claimant (cannot repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion) and the tribunal gave the following reasons for that conclusion::

“Mobilising-The appellant stated at the hearing he was able to travel by bus to his GP, the market, and to the mosque.  He went to the mosque twice a day about three times a week.  He stated that he was able to walk for 5-10 minutes before needing to sit down.  Based upon the observations made by the Tribunal at the hearing, the Tribunal find the Appellant should be able to mobilise more than 100 metres without stopping in order to avoid significant discomfort or exhaustion and repeatedly mobilise 100 metres within a reasonable timescale without significant discomfort or exhaustion but he may not be able to do the same concerning 200 metres.

The Tribunal are aware that the Appellant had been awarded higher rate mobility by the Respondent since 2004 for an indefinite period.  However, the finding we have made is based upon the Appellant’s oral evidence at the hearing and the Tribunal’s observations.”

3.  Since the tribunal did not award him any points in respect of other activities, the six points which the claimant was awarded in respect of standing were insufficient to entitle him to an award of ESA.  He applied through his representative for permission to appeal on a number of grounds and, following the refusal of that application by a district tribunal judge, I gave permission to appeal on 29 October 2013 because I considered it to be arguable that the tribunal ought to have taken into consideration the evidence on which the award of higher rate mobility component was based.  In a submission dated 15 January 2014 the Secretary of State has however opposed the appeal on the basis that the tribunal were aware of the award of higher rate mobility component of disability living allowance and explained adequately why despite that award they came to the conclusion that the claimant could mobilise for 100 metres either repeatedly, or without having to stop, because of significant discomfort or exhaustion. 

4. In AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61 (AAC) Judge Turnbull held (at para. 8):

“…the claimant had an award, apparently made some 3 years previously, of the higher rate of the mobility component of disability living allowance.  That would imply 15 points under descriptor 1(b).  In my judgment the Tribunal should have had before it the evidence on the basis of which that award was made.  Although the Claimant’s representative had not, it seems, made this point, the First-tier Tribunal should in my judgment have done so on its own initiative.”

Although the tribunal in this case considered that it could decide the appeal on the basis of the evidence before it, as Judge Williams pointed out in MI v Secretary of State for Work and Pensions (ESA) [2013] 447 (AAC):

“The task of the tribunal is to decide the case on the evidence, not such of the evidence as it considers sufficient to reach a particular decision.  What the tribunal decided, whether it intended to do so or not, was that it would consider some of the evidence and would not ask the other evidence if it felt that the incomplete evidence was sufficient.  How could it know that without the other evidence?”

5.  I do not exclude the possibility that there may be cases where a tribunal can conclude that the evidence supporting an earlier disability living allowance award would add nothing of significance to the evidence already before the tribunal, for example, if the claimant’s medical condition has altered fundamentally since the award was made, or if the award was made in respect of a temporary condition, such as restrictions in walking resulting from an operation.  A decision to adjourn a hearing under rule 5(3)(h) of the Tribunal Procedure (First Tier Tribunal) (SEC) Rules 2008 for further evidence to be obtained will require the tribunal to give effect to the overriding objective in rule 2 of the Procedure Rules, and clearly it would be a disproportionate exercise of the tribunal’s power to adjourn a hearing for the purpose of obtaining evidence supporting a disability living allowance award if the evidence related  to an altogether different state of affairs from that under consideration by the tribunal in the appeal before them.

6.  However, I do not consider that this case falls within that category.  The claimant underwent a L4/L5 discectomy in 2000 and was found to have lumbar spine stenosis in 2010.  The healthcare professional who examined the claimant on 26 July 2012 did not report any restrictions on his walking ability, but the tribunal found that descriptor 1(b)(ii) applied (although the statement of reasons suggests that the tribunal considered that the claimant also satisfied descriptor 1(b)(i)).  The tribunal must therefore have been satisfied the claimant’s ability to mobilise without stopping or to do so repeatedly within a reasonable timescale was limited by significant discomfort.

7.  On that basis, I am satisfied that the tribunal could not reasonably have concluded that the evidence before them was sufficient to enable them to establish reliably the distance which the claimant could mobilise in the terms of the descriptors (200 metres, 100 metres, or 50 metres), and that for that reason it was unnecessary to obtain the evidence on which the award of higher relate mobility component was based.  The tribunal said that their findings with regard to the claimant’s walking ability were based on their own observations at the hearing, although when referring to the award of the higher rate mobility component they said that it was based both on their own observations of the claimant and also on his oral evidence.  However, the evidence concerning the journeys undertaken by the claimant did not explore what restrictions in the claimant’s walking ability resulted from severe discomfort.  So far as the tribunal’s observations of the claimant are concerned, I do not see how watching the claimant standing up and sitting down and watching him take a few steps entering and leaving the tribunal room could reliably establish the point at which he would suffer severe discomfort after walking a significant distance.

8.  Even without the existence of the award of higher rate mobility component, I would therefore almost certainly have allowed the appeal on the basis of inadequate reasons.  However, the ground on which I in fact do so is that advanced in the claimant’s representative’s well-focussed and cogent grounds of appeal, namely, that the tribunal ought to have sought to obtain the evidence on which the award of higher rate mobility component was based.  In those circumstances, I hope that I will not be thought to be discourteous for not dealing with the other grounds of appeal.

9.  For those reasons, my decision is as set out above.

E A L BANO

16 April 2014