THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal is allowed.

The decision of the tribunal given at Glasgow on 13 June 2013 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 below.

REASONS FOR DECISION

1.            I have allowed the appeal in this case and remit the appeal to a differently constituted tribunal for a rehearing.

2.            Notwithstanding the submissions for the Secretary of State, I agree with Judge Lunney that the tribunal failed to address properly the claimant’s oral and written evidence and have relied on the claimant’s presentation on the day without explaining its relevance to the date of the decision under appeal.

3.            However, I also allow the appeal because I consider that the tribunal has incorrectly approached the question of whether or not there should have been an adjournment to allow the claimant to obtain representation. I do not fault the tribunal in relation to the law on this issue as it was understood at the time of their decision and I note the Secretary of State’s reference to paragraph 9 of CSIB/848/97 where Mr Commissioner May (as he then was) said:

“… there is no obligation on a tribunal, giving rise to an error in law if they fail, to offer unrepresented claimants the opportunity of an adjournment to obtain representation” which accurately reflected the law at the time. However, in light of the recent decision in Secretary of State for Work & Pension and (R on app MM & DM) & others [2013] EWCA Civ 1565 I consider that the approach to the issue of whether or not to allow an adjournment or to offer an adjournment to a claimant with mental health issues requires to be reconsidered.

4.            The MM case concerned the question of whether or not reasonable adjustments should be made to the ESA application process in respect of claimants with mental health issues on the basis that when the claimant has a mental, intellectual or cognitive condition these individuals may lack insight into the effects of their condition on their day-to-day functioning. The suggestion was that it should be mandatory that decision makers and tribunals should seek further medical evidence on these conditions where the claimant had not produced such evidence beyond the ESA85 or in any event that there required to be a consideration in each case as to whether or not such further evidence should be obtained. The court had evidence as to the particular problems faced by claimants with mental health issues and summarised the evidence:

“31       From that detailed evidence, the Upper Tribunal identified the following particular problems which MHPs as a group face, whilst recognising that the extent to which any particular MHP will suffer from these problems will vary.

“(i)     In terms of filling out a form, seeking additional evidence and answering questions, claimants with [mental health problems] as a class have the following problems and difficulties because of their [mental health problems], some of which overlap:

a)      insufficient appreciation of their condition to answer questions on the ESA50 correctly without help,

b)      failure to self-report because of lack of insight into their condition,

c)      inability to self-report because of difficulties with social interaction and expression,

d)      inability to self-report because they are confused by their symptoms,

e)      inability because of their condition to describe its effects properly,

f)       difficulty in concentrating and in understanding the questions asked,

g)      unwillingness to self-report because of shame or fear of discrimination,

h)      failure to understand the need for additional evidence because of cognitive difficulties,

i)       problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance,

j)       false expectation that conditions will be understood without them needing additional help, and

k)      lack of understanding that professionals named in the form will not automatically be contacted in the assessment process.

ii)        in terms of further aspects of the process for the determination of their entitlement to ESA, claimants with MHPs as a class have or have to face the following problems and difficulties because of their MHPs:

a)      particular conditions (e.g. agoraphobia and panic attacks and autism spectrum disorder) make attending and/or travelling to a face-to-face assessment difficult,

b)      finding the process itself intimidating and stressful, and, in some cases, that having a long-lasting negative effect on their condition,

c)      a desire to understate conditions,

d)      the masking of health problems as physical problems,

e)      dealing with assessors who have little or no experience of mental health problems,

f)       the difficulties of identifying many symptoms of a condition and its impact on what a person needs without proper training and knowledge,

g)      the lack of time during a short assessment to identify a person's needs,

h)      fluctuation in condition, and

i)       scepticism about the condition.”

32     It is important to note that these problems fall into two categories, although they overlap. Some of these difficulties go to the adverse experience which might be felt because of what, from the vantage point of some MHPs, will be perceived to be stressful, embarrassing or confusing features of the process, in particular the completion of the questionnaire and the face to face interview. Other difficulties lead to the decision maker having inadequate or even false information about the nature and extent of the illness thereby increasing the risk that a false functional assessment will be made which in turn may jeopardise the right to an ESA. …”.

The court went on to hold that:

“…, the Tribunal properly identified relevant disadvantages in this case as potentially relating both to the actual determination or outcome itself, and to the process leading up to it.”

5.            Thus it can be seen that in MM the court accepted that in the ESA process, including attending for the ESA assessment [the ESA85] and in the tribunal hearing that claimants with mental health problems suffered disadvantage. If there is a disadvantage to a person with a protected characteristic under the Equalities Act 2010, then a public authority, which includes a tribunal, has to consider whether or not a reasonable adjustment is required. Against that background, I am of the opinion that the law as expressed in CSIB/848/97, and the general discretion of a tribunal as to whether or not to allow an adjournment requires to be considered.

6.            I consider that where a claimant with mental health problems asked for an adjournment in order to instruct a representative or for some other reason, that the tribunal in considering that request is required to have regard to the fact that such a claimant is at a disadvantage for one or more of the reasons found in MM and to assess the scope of that disadvantage for the particular claimant before making a decision on whether or not to grant the adjournment.

7.            In the present case the tribunal did not recognise that the claimant was at a disadvantage and then make such an assessment. Of course they did not have the benefit of MM, but I do and on that basis I can re-assess the situation and that is why I hold the tribunal erred. The tribunal relied on the number of previous requests for an adjournment and the fact that the claimant had taken no steps to look for representation until about 10 days before the hearing. I note one of the grounds of disadvantage noted in MM was “i) problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance” and that might explain why the claimant had not set about seeking representation until shortly before the hearing.

8.            For these reasons I allow the appeal and remit to a differently constituted tribunal. In rehearing the appeal, when I assume the claimant will be represented, the tribunal should have regard to Secretary of State for Work & Pension and (R on app MM & DM) & others [2013] EWCA Civ 1565 and depending on the medical evidence produced, should consider whether or not to seek further medical evidence if additional evidence has not been produced. I note that the claimant has been prescribed Citalopram, which means that he must be having some medical treatment from a doctor and so the representative should consider obtaining a medical report from the doctor who prescribed Citalopram and consider whether or not other medical evidence should be obtained. If the claimant attends unrepresented again then the tribunal should take account of the guidance in MM to decide how it should proceed and in assessing any evidence have regard to the disadvantages noted in MM regarding the presentation of their case by a person with a mental health problem.

                                                                  (Signed)

Sir Crispin Agnew of Lochnaw Bt QC

Judge of the Upper Tribunal

Date: 7 May 2014