Before:  Upper Tribunal Judge Gray CE/1537/2013

DECISION

This appeal by the claimant succeeds. Having granted permission to appeal on 27 September 2013, in accordance with the provisions of section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting at Bolton and made on 2 January 2013 under reference SC 122/12/02245 and remake the decision as follows:

The appellant has limited capability for work-related activities from 22/12/11.  He enters the support group and is entitled to Employment and Support Allowance at the appropriate rate for that group from that date. He satisfies the schedule 3 descriptor number 13.

REASONS

1. The respondent supports this appeal; he agrees that the decision of the tribunal was made in error of law due to certain matters which I highlighted in my grant of permission to appeal and suggests that I remit the case for re-hearing. For reasons which I deal with below it is preferable that I remake the decision.  I am giving reasons in connection with that, and other matters in the appeal, because although I agree with the conclusion of the Secretary of State that there was a material error of law in the decision of the First-Tier Tribunal  (FTT) there are matters put forward in his submission with which I do not agree.

The background

2. The case concerned the appellant's entitlement, or otherwise, to Employment and Support Allowance (ESA).  He suffers from paranoid psychosis which had led to him being in receipt of Employment and Support Allowance from 13 January 2009. 
3. This appeal was against the decision made on 22 December 2011 which had been made following a medical examination carried out on 21 November 2011 by a registered nurse at the Preston medical examination centre.  There was at least one medical assessment prior to that, which was in the papers.  It had taken place on 6 September 2010.  Although there is no formal score sheet the report suggests that the (different) criteria applicable at that time were not met.  The statement of reasons shows that the FTT hearing this appeal made enquiries of HMCTS computerised records and established that there had been two successful appeals prior to the decision then under appeal. As is correctly stated in that document that was no indication of the outcome in the current appeal, particularly given that the amended ESA Regulations in force from 28 March 2011 applied.
4. The appeal came before the First-Tier Tribunal (FTT) on 2 January 2013 having previously been adjourned by another tribunal which had directed the production of medical evidence from the appellant’s treating clinicians.  The case was heard on the papers at the appellant’s request.  That tribunal confirmed the decision of the Secretary of State, and later provided a statement of reasons for that decision. 
5. The matter came before me for a decision on the application for permission to appeal which had been refused by a District Tribunal Judge. I granted permission to appeal on 27 September 2013. I said

1. This ESA case was heard on the papers. The appellant raises essentially factual issues in his appeal, however the statement of reasons gives rise to a number of concerns which might of themselves or in conjunction with each other amount to errors of law.  They are as follows.
2. Paragraph 4 appears to be an attempt to paraphrase the regulations regarding the applicability of the descriptors where their application may be variable.  I have no doubt that it was written to try to make matters easier for the appellant to understand, but is it a correct statement of the law?
3. At paragraph 12, which concerns activity 13, it is pointed out that "Mr Murray describes problems with memory which make him unreliable in carrying out some actions but the description of a typical day which he gave to the nurse who conducted the medical examination on 21/11/11 confirms that he is able to initiate and complete personal actions.”  Insofar as this is a finding that no points are scored under that activity, does it explain to the appellant why the description recorded by the healthcare professional was preferred to his other evidence?
4. Is there an inherent contradiction between the finding at paragraph 16, (in relation to activity 15), that "he gets about on his bicycle in order to avoid the other passengers who would be around him if he went by public transport. Mr Murray's problem is not getting about to familiar or unfamiliar places, but the prospect of having to be with other people on the way" compatible with the later finding at paragraph 18 (in relation to activity 16) that Mr Murray does not like engaging in social contact with people he does not know, but he can cope. That statement is based upon his attending the medical assessment for the purposes of ESA, and other medical appointments.  Is that too narrow an approach in considering whether social contact is precluded in the various circumstances set out in the descriptors of activity 16?
5. In paragraph 23 where it states that the appellant had said the decision was wrong because "he could not go to any courses or work because of his ongoing mental health problems and that he still had problems talking to anyone " a finding of fact, and as such inconsistent with the finding that no points were merited under activity 16?
6. Is the comment at paragraph 23 as to the appellant's non-compliance with medication saying that if he was compliant his problems would be reduced to a level that regulation 29 did not apply? If so, should the tribunal have found as a fact whether or not the non-compliance was something which it was within the appellant's power to rectify, or whether it had its origins in his mental health problems themselves?
7. The applicability of regulation 29 (2) of the Employment and Support Allowance Regulations 2008 was raised on the basis of the appellant's medical history as he was said to have psychosis.  It was dealt with by the tribunal in paragraphs 23 and 24.  Is the treatment adequate, or should the tribunal under the Charlton test have gone on to state the sort of jobs that Mr Murray could do bearing in mind his work background and any qualifications? Was this case, in which specific mention is made of difficulties the appellant had in getting to the medical examination on public transport (preferring rather to use his bicycle) one in which specific attention should have been given to whether significant risk might arise during the appellant's journey to and from work.

The appellant’s reasons for appealing

6. The appeal points made by the appellant to the Upper Tribunal concern aspects of the statement of reasons. In relation to activity 16, he challenges the implication that because he can cope with social contact with the HCP and people from his mental health team he would be able to cope with contact with others, for example an employer or staff. He feels that he should have scored points for that activity. He also takes issue with paragraph 24, feeling that there would be a substantial risk to his mental physical health because of difficulties he might have coping with situations which he might then have to leave, and would then perhaps feel suicidal, hearing voices or feeling very tense. He makes the general point that somebody with social phobia is not fit for work, and emphasises his depression, anxiety and agoraphobia.

The submission of the Secretary of State

7. The Secretary of State agrees that the attempt to paraphrase the legislation has resulted in an incorrect statement of the law.  The error was in the statement that the schedule 2 descriptors apply “all or most of the time”, however as the Secretary of State points out, the activities which are relevant in this case if an individual is unable to carry out one of the specified activities reliably and repeatedly for the majority of the time they would be awarded points. It is therefore said that the error of the FTT is immaterial.
8. In relation to the second matter which I raised, as to the claimant describing problems with memory which made him unreliable in carrying out some actions, the Secretary of State submits that, as the typical day section of the HCP report is a written record of the claimant’s verbal evidence, and as the claimant had provided no evidence to demonstrate that he disputed the account of his typical day, the FTT have reached a conclusion on the evidence to which they were entitled.
9. in relation to the third issue, concerning what I thought may be a rather narrow approach to the descriptor concerning social engagement, the Secretary of State is of the view that because the appellant was able to go to the medical assessment which was conducted by a nurse he did not know, and could go to appointments with people from his NHS mental health team, that was an adequate background to demonstrate satisfaction of an ability to engage socially.
10. So far as regulation 29 is concerned the Secretary of State disagrees that there was an inconsistency of fact-finding, because the comments of the FTT at paragraph 23 are said to be simply a repetition of the appellants claim in his appeal form.
11. The Secretary of State agrees with the concern I expressed in relation to the observations concerning regulation 29 that if the appellant was compliant with his medication the regulation would not apply to him. I had expressed concern that there was no finding as to whether or not non-compliance was something which the appellant could rectify, or whether it may have been part of his underlying mental health condition.  The Secretary of State concedes that this is arguably an error of law, but is of the view that the treatment of the test in the case of-Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 is otherwise sufficient. In particular he is of the view that because the appellant can use a bicycle to travel to places there was no need for the FTT to further deliberate the journey to and from work. He points out that a number of people commute by bicycle, and therefore there would be no risk to the claimant in doing so. 

The error of law

12.  I am satisfied that in relation to activity 16 the FTT applied too narrow an approach, and that this, unusually, is a case in which it is appropriate that I should make a final decision.  
13. The FTT found that he was able to get to the medical assessment alone on his bicycle, albeit that the journey took him about an hour. Following a detailed consideration of activity 15 concerning whether or not the appellant required to be accompanied when outdoors the tribunal made the point that the reason he went about on his bicycle was to avoid passengers who would be around him if he went by public transport. They said that his problem was not getting out to places but the prospect of having to be with other people on the way. They concluded from that but it would make no difference if he were to be accompanied, and I have no difficulty with the logic of that finding, or its availability to the FTT on the evidence.
14. The following paragraph, number 18, deals with activity 16, coping with social engagement. The FTT found that the appellant could cope with social engagement with people that he knew, because he saw his father and his brother. It was said that he did not like engaging with social contact with people he did not know, “but he can cope”.  The point was made that he went to the medical assessment which was conducted by a nurse he did not know and that he was able to go to appointments with people from his NHS mental health team. I would agree that at least occasionally these people would not be known to him.  The fact that he went to some considerable lengths to bicycle an hour to the medical assessment rather than go on public transport because of the difficulties he might have encountering other people whilst  travelling was not addressed in the context of activity 16. This raises the legal issue as to whether it is sufficient to justify an absence of point scoring in relation to activity 16 the fact that a claimant has attended the medical, and may attend other medical appointments (or similar formal meetings) in his personal life.  
15. This issue arose in AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 446 (AAC) a case decided by Upper Tribunal Judge Ward.  He dealt specifically with the point at paragraph 18, having raised the difficulties that may be encountered by those on the Autistic Spectrum Disorder, although his views are not restricted to that condition.

 

18. In my view, social contact in this sense is not the same as contact for business or professional purposes.  If one goes to a medical examination, or a tribunal hearing, the rules are firmly established by the process and/or the person conducting it, and are typically clearly defined, often in writing.  If the person being examined or whose case it is does not respond in a way that a person without disability might, the person conducting it may because of their professional responsibilities be expected within generous limits to accommodate the non-conforming response and certainly not, as it were, to take a poorer view of, or attempt to avoid further contact with, the person because of it.  That is precisely what is lacking in the social sphere, where people are free to interact on their own terms and to accept the behaviour of another or to reject it, and largely do so on the basis of the sort of unwritten rules to which the National Autism Society guidance makes reference, an inability to respect which could, in the words of the descriptor, be an indication of “difficulty relating to others”.

 

16. I agree, for the reasons that he stated, that it is insufficient to use mere attendance at a medical – or for medical treatment generally-as definitive of an ability to engage in social contact. 
17. Judge Ward also considered the recent decision of Upper Tribunal Judge Parker in
[2013] UKUT 152 (AAC).  He felt that in her treatment of the term “social engagement” she had limited the scope of the term too far. Having set out dictionary definitions which had been provided for him, with the caveat that they are not the litmus test of statutory interpretation, he said at paragraph 28 et seq

 

28. I do not seek to define “social “in activity 16 by reference to the dictionary definition above.  But for the reasons in particular in [17] –[22] I consider that the mischief at which the statutory instrument was directed was such that unless there is an element of the social such as is referred to in the definition above or in some way which a tribunal may properly consider to be analogous, a tribunal will be liable to being overturned on further appeal on the basis either that it has not given any effect to the word “social” or that its conclusion cannot be supported.

 

29. The focus of the legislation is however on the nature of the contact, not the context in which it occurs, albeit it is far more likely that such contact will take place in some contexts than others.  The point is well put by the representative in his original submission. 

 

“That is not to say that [contact with others to conduct a commercial transaction such as buying groceries, buying a bus ticket or a medical consultation] could never involve social contact: a person may have a chat with a shopkeeper during the course of the transaction about the weather, the news or a recent sporting event. In these circumstances the contact would involve an element of social contact and therefore fall within the ambit of activity 16. However where a person simply places his shopping on the counter and hands over the money I submit the contact would not amount to social contact and would not therefore fall within the ambit of activity 16.”

 

Similarly, if one knows that ones GP has just got back from holiday one might ask about it and that might constitute social contact, although the time for doing so may prove to be slight compared to the time devoted to the medical reason for the visit.  It would follow that, if I had needed to decide the point, I would have concluded that the tribunal failed to find sufficient facts in relation to activity 16.

 

18. I accept what is said there.  I would add to Judge Ward’s reasoning the observation that because for the important purpose of benefit entitlement, or indeed order to effect treatment for a mental health condition, one may be able to summon up reserves to attend such an appointment that may not be sufficient in relation to a test which is of the ability to perform an activity reliably and repeatedly. 
19. The approach of the FTT focussed upon the attendance at formal meetings the missing of which as likely to create significant problems.  This was inappropriately narrow and could not reflect the appellant’s probable difficulties in social engagement.  That was an essential issue in the case and the approach constituted a material error of law. 

 

 

My decision on the issue of ESA entitlement

 

20. I have considered whether I should remit the matter to a fresh FTT for re-hearing.  In this case, however, I am conscious of the delay in time which has already occurred, the decision having been made as long ago as December 2011, and the further delay which would inevitably occur prior to listing the re-hearing. I bear in mind that, given the histstory of 3 FTT appeals having been determined on the papers despite at least one attempt to have the appellant attend, and his strongly expressed wish not to attend a hearing at the Upper Tribunal, it seems to me highly unlikely that he will attend a further FTT hearing. If I am able to decide the case I should. 
21. The appellant’s medical records are in the bundle, and I am able to discern from them the problems with which his treating clinicians felt themselves to be dealing.  That, the ESA 50, the appeal letter and the letter written later by the appellant to the FTT, together with the information set out in the report of the HCP, enable me to make sufficient findings to determine the appeal.

 

My findings and reasons

 

22. From the medical records I note in particular an urgent referral in February 2011 to the PCMHT.  That team gave him telephone access to the Crisis Team.  In February 2012 he was accepted onto the Crisis/Home Treatment Team.  Whilst after the date of decision that has relevance as confirming ongoing problems between February 2011 and Feb 2012, and I am able to infer they were similar at the date of decision, December 2011. 
23. In the ESA 50 at page 21 the appellant makes it clear that his problems dealing with people socially relate both to people he knows and people that he does not.  It is clear from the medical evidence provided by his clinicians that he has regularly reported a complete estrangement from his mother, and that he sees his father and brother only every few months.  There are references to his having no friends, of persistently low mood despite engagement with medical professionals and differing medications.  There is little indication of a lack of motivation to engage, although there are sometimes difficulties in doing so. The picture is of longstanding problems with profound difficulties engaging with others.  This knowledge informs remarks in the HCP report, such as the stated problems in going to the supermarket, although he can go to the local shop, and the inability to walk his dog (see page 27 of the HCP report).  Those seems to me to be indicative of a significant problem, and  that is confirmed on page 74 where he says that he gets around on his bike so that he doesn’t have too use public transport or walk on the street, which caused him anxiety. The record of a typical day at page 26 says that he reports “he does not go out really and does not like talking to people, you (sic) get anxious and low in mood.” It also reports that he did try a learning direct course, “but only stayed 10 minutes and then he walked out he could not cope with being with other people.” On balance I find that the appellant is likely to experience significant distress when engaging in social contact.  The next issue as to the extent of that.
24. It seems to me that, using the meaning of “always” in the context of a similarly worded descriptor, number 13 of schedule 3, as interpreted by Judge Parker in KB v Secretary of State for Work and Pensions [2013] UKUT 152 (AAC),  the appellant satisfies schedule 2 descriptor 16 (a).  She said at paragraph 14:

 

 14. Therefore, in order to make use of regulation 34(2), but mindful of the distinction in activity 16 of Schedule 2 between “always” and “for the majority of the time”, I conclude that “always precluded”, as used in activity 13 of Schedule 3, and likewise as used in activity 16 of Schedule 2, is not an all or nothing test; rather, it means “repeatedly” or “persistent” or “often”. A “majority” may be constituted by events which happen only on 50.1% of the possible occasions, but a greater frequency is required by the use of the word “always”. It is a question of degree, but a fact finding tribunal is eminently suited to applying these subtle nuances of difference in a common sense way. It suffices to say in the present case, that because a claimant attends one tribunal hearing, and his GP accepts that he comes to the surgery very occasionally, does not necessarily entail the conclusion, as the tribunal clearly considered that it did, that it “cannot be said that engagement in social contact is always precluded”.

 

25. I find that the appellant has a persistent problem engaging with others, whether he knows them or not.  Satisfaction of schedule 2 descriptor 16 (a) in its turn satisfies schedule 3, activity 13 of that schedule being a mirror descriptor. He therefore has limited capability for work-related activities and enters the support group.

 

 

The regulation 29 issue

 

26. I have resolved the points issue in the appellant’s favour, so what I say concerning the subsidiary issue of regulation 29 is obiter.  Nonetheless, I will deal shortly with the question of whether, in considering whether or not the appellant had limited capability for work under regulation 29 (2) (b) the FTT  failed fully to consider the criteria set out in the case of Charlton-v- SSWP[2009]EWCA Civ 42 in relation to difficulties both at work and getting to work. 
27. The particular and somewhat unusual issue which arose in this case was in relation to the journey to and from work.  Where the tribunal has found that someone goes to some significant lengths to avoid people on public transport  there should there be specific consideration of how they might get to work, and such considerations would involve looking at the practicalities of the work they had decided that the appellant might perform being available within the appellant’s locality, that is reasonably accessible by bicycle.  If it was not there would need to be specific findings made as to whether the journey on public transport might constitute a substantial risk to the physical or mental health of any person, given the appellants accepted difficulties dealing with random members of the public. 
28. In addition to this there was what appeared to be a finding at paragraph 23 that the appellant was non-compliant with his medication; although the sentence does not directly correlate to the regulation 29 issue it is in the paragraph that discusses that regulation.  If the FTT was saying that compliance with medication would ameliorate the risk, if any, to the health of the appellant or others there should have been a finding as to whether the non-compliance was an aspect of the appellant’s mental health condition or whether it was something within his control, the question being whether he was choosing not to comply with his regime of medication. 
29. Since this decision there has been a change in regulation 29, and this is raised in the submission of the Secretary of State. From 28 January 2013 the relevant parts of the regulation read:

 

(2)Subject to paragraph 3 this paragraph applies if…

(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person is the claimant was found not to have limited capability for work.

 

(3) paragraph (2) (b) does not apply where the risk could be reduced why a significant amount by-

(a) reasonable adjustments being made in the claimant’s workplace; or

(b) the claimant taking medication to manage the claimant’s conditions where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

 

30.  It seems to me that, although I do not have to decide this issue for a decision in this case which was prior to that amendment,  subparagraph (b) makes little difference, because if a condition was resolved by taking medication to the extent that there was not substantial risk, whether pre or post the amendment, the non-functional descriptor would not apply; if a condition may be resolved or alleviated to the extent that risk was reduced to below substantial risk by medication which was not taken regulation 29 (2) (b) would not apply where the non-compliance was through election, but may where the condition itself generated the non-compliance. This issue may, but will by no means always be, a problem for those with mental health conditions irrespective of whether the consideration is pre or post the amended version of regulation 29. 

 

 

 

 

 

 

 

Upper Tribunal Judge Gray (signed on the original)

 

20 January 2014