IN THE UPPER TRIBUNAL Case No  CE/4095/2013

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is dismissed.  The decision of the First-tier Tribunal sitting at Nottingham on 15 February 2013 under reference SC045/12/02322 involved the making of an error of law but was in the outcome correct and I exercise my discretion not to set it aside.

REASONS FOR DECISION

1. The claimant is a woman born in 1964.  She has had depression for many years.  The ESA50 contains a description of how her condition has affected her.  Her housing support provider completed it for her, as there are limitations on her ability to read and write.  Any physical problems she had at the date of the DWP’s decision were relatively minor.

2. She had been on income support on the grounds of incapacity for, it appears, some considerable time.

3. It appears that in three weeks out of every four she was able to spend three mornings a week sorting clothes on a voluntary basis for her (charitable) housing provider.  Shortly before the date of decision, she had taken up a job for one hour a day in a launderette.

4. Following a medical examination she was awarded 0 points and so was found not to have limited capability for work by a decision taken on 8 December 2011. That decision was subsequently upheld by the tribunal.

5. I gave permission to appeal limited to two points:

(a) whether the tribunal ought to have called for evidence relating to previous assessments, about which the DWP had said nothing in its submission; and

(b) whether the tribunal erred by failing to explain how it reached its conclusion on reg 29 in the face of a Med 3 from the GP, more or less contemporaneous with the decision, that the claimant was not fit for work.

6. The Secretary of State opposes the appeal on both grounds.

7. The claimant’s representative has tended to become focussed on one particular issue, which is not relevant to either of the grounds on which I gave permission, namely whether the person who conducted the medical examination was influenced by a mistake, given that at one point in her report she refers to the claimant working for 7 hours a day.  He says the point has not been answered.  It has, so far as relevant for the purposes with which I am concerned, as when refusing permission to appeal on that ground I indicated that the tribunal did address the point, which had been squarely put before it, at para 11 of its statement of reasons.  The tribunal knew perfectly well that the claimant did not work for seven hours a day and did not proceed on the basis that she did.

8. The ground mentioned at [5(a)] is to be considered by a three judge panel in CSE/435/2013.  I do not seek in this case to advance any general proposition as to whether such a duty exists.  If however there was such a duty, the failure to call for such evidence made no difference in this case.  While it was implicit in the facts before the First-tier Tribunal, and has become explicit on further appeal, that there were numerous previous assessments of the claimant, it is said that in them she was “awarded the full complement of points.”  Whatever the position might be in relation to certain physical descriptors, or to findings that previously the predecessor to regulation 29 was satisfied, I do not consider that passing the test for income support based on incapacity on the basis of (as appears likely to have been the case) points gained from the mental health descriptors then in force would yield any evidence of significant probative value, in view of the subsequent shift from a large number of descriptors, each attracting a small number of points, to a small number of descriptors applying significantly different tests of, in general, much greater severity.

9. Turning to ground (b), the claimant’s GP on 16 January 2012 issued  a certificate in form Med 3.  So far as relevant, it read:

“I assessed your case on: 16/1/12

And, because of the following condition(s): depression

I advise you that: (x) you are not fit for work.

(  ) you may be fit for work taking account of the following advice:

If available, and with your employer’s agreement, you may benefit from:

( ) a phased return to work ( ) amended duties

( ) altered hours ( ) workplace adaptations

Comments, including functional effects of your condition(s):

( )

This will be the case from 5/1/12 to 5/3/12”

10. The GP had also on 12 January 2012 also written a “To Whom It May Concern” letter, which was in evidence.  It said:

“I am writing to confirm that [the claimant] has suffered from depression and has been on treatment for this for at least the last 11 years.  Although her condition is stable she does describe that her mood remains low with poor sleep, appetite and concentration. She does have a small part-time job which she enjoys but feels unable mentally to cope with full-time work and fears that this would aggravate her mental health.”

I hope that you can be supportive of her situation.”

11. As to regulation 29, the tribunal said:

“[T]he tribunal does not consider that there would be a substantial risk to the mental or physical health of any person if the Appellant were found not to have limited capability for work.  The tribunal considered that the Appellant would be able to undertake longer hours in the sort of role she undertook at the launderette; whether in the same industry or for example as a cashier in a cinema or amusement arcade or in a   low pressure retail environment.”

It made no reference here or elsewhere to the Med 3 or to the letter of 12 January 2012.

12.This was not therefore a case like RU v SSWP (ESA) [2014] UKUT 77 (AAC) where I held that the content of the particular Med 3 in that case was such as to require the tribunal to consider regulation 29 when the point had not otherwise been raised.  In the present case, the tribunal saw fit to consider regulation 29 and the question, rather, was as to its duty to consider all material evidence in that regard, to make necessary findings and to give sufficient reasons for its decision.

13. There is no reason to suppose that the Med 3 in this case, coming as it did a short while after the date of decision, was anything other than indicative of the claimant’s circumstances at the date of decision also, given the long-running nature of her condition.  So on the face of it, here was the claimant’s medical adviser advising her that she was not fit for work because of her depression. The statement of reasons says nothing about how well the GP knew the claimant, or whether the GP knew about the claimant’s recent work in the launderette or the voluntary work that she could manage most (though not all) weeks.  However, we know from the letter of 12 January 2012 that the GP did at least know about the former and despite knowing about it, was still prepared to advise the claimant she was not fit for work.  The following boxes on the form appear more suited to someone who is on sick-leave from an existing employment, but they would certainly have provided an opportunity for a doctor who felt that a patient might be fit for work within limits to have said so (as the relevant legislation requires – see below) and that opportunity was not taken either.

14. Form Med 3 has a statutory underpinning, via the Social Security (Medical Evidence) Regulations 1976/615 as amended by SI 2010/137. Schedule 1 contains a number of rules governing their issue.  By rule 4, “a doctor’s statement must be based on an assessment made by that doctor”.  An indication as to the “assessment” required is provided by rule 5(b): the statement is required to contain “the date of the assessment (whether by consultation or consideration of a report as the case may be) on which the doctor’s statement is based.”  By rule 7: “Where a doctor considers that a patient may be fit for work the doctor shall state the reasons for that advice and where this is considered appropriate, the arrangements which the patient might make, with their employer’s agreement, to return to work.”  On the face of it therefore , the GP’s view would have been given following a consultation or consideration of a report and specifically did not treat this as a borderline case.

15. Regulation 29 of the Employment and Support Allowance Regulations 2008/794, as it stood at the material time, required the tribunal to consider whether:

“the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”

16. Because of the operation of reg.30 of those Regulations pending an appeal, most appellants will be submitting Forms Med 3.  To address the Secretary of State’s submission, I am not suggesting for one moment that what is written in the Med 3 must be conclusive of a regulation 29 question.  Clearly it may be possible to reconcile that a doctor has provided advice to a patient in a Med 3 with the specific legislative test under reg 29 of a “substantial risk” to health not being met.  But to do that will in my view require the implications of the certificate to be addressed and facts to be found to the extent that it is possible to do so.  Otherwise a claimant may be understandably baffled, saying: “you’re telling me I can work without substantial risk to my health yet my own doctor is advising me not to work.  How can that be squared?”  That was not done here and accordingly, the decision was in error of law for (at least) insufficient reasons.

17. I would however not set aside the decision on this ground.  The evidence also contains the letter of 12 January 2012 mentioned above.  It indicates the claimant’s condition was stable on medication.  Such reservations in relation to work as are expressed are attributed to reservations about “full-time work” on the part of the claimant.  The GP does not express a professional view that the claimant could not cope, much less that there would be substantial risk to her health, but requests a supportive approach to her situation.  With the help of this letter, one can understand how the Med 3 came to be given in the light of the claimant’s reservations, but in circumstances such as to negative any implication that there might be “substantial risk”.

CG Ward

Judge of the Upper Tribunal

13 June 2014