Upper Tribunal (Administrative Appeals Chamber)

 

 

IN THE UPPER TRIBUNAL                                         Appeal No. CE/2918/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge K Markus QC

 

The decision of the Upper Tribunal is to allow the appeal.  The decision of the First-tier Tribunal made on 16 November 2012 under number SC201/12/00269 was made in error of law.  Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside. Under section 12(b)(ii) I remake the decision and substitute my decision that as from 17 December 2011 the appellant has both limited capability for work and limited capability for work related activity and (subject to the satisfaction of the other conditions of entitlement) is entitled to employment and support allowance on this basis.  I refer to the Secretary of State for Work and Pensions any questions relating to payment of arrears of any benefit.

 

 

 

REASONS FOR DECISION

 

 

1.    On 17 December 2011 the Secretary of State for Work and Pensions (SSWP) decided that the appellant had limited capability for work and so was entitled to Employment and Support Allowance (ESA), but that he did not have limited capability for work-related activity and so was not entitled to the support component of ESA.

2.    The appellant appealed and the SSWP confirmed the decision.  The appeal was heard by the FTT on 16 November 2012.  The appellant lives in France and travelled to the tribunal hearing in Havant, with the assistance of a friend.  The FTT confirmed the decision of the SSWP.

3.    On 1 April 2014 Upper Tribunal Judge Wikeley gave the appellant permission to appeal against the FTT’s decision, and made observations as to possible errors of law by the FTT.  By written submissions dated 16 May 2014 the SSWP supports the appeal but not on all the possible grounds identified by Upper Tribunal Judge Wikeley.

4.    Neither party seeks an oral hearing and I am satisfied that I can determine this appeal fairly on consideration of the papers.

 

Legal Framework

5.    It is a condition of entitlement to Employment and Support Allowance that the claimant has “limited capability for work”: section 1(2)(a) and 1(3)(a) Welfare Reform Act 2007.  By section 8 of the Act an assessment must be made of a whether a person has limited capability for work in accordance with regulations.  The relevant regulations are the Employment and Support Allowance Regulations 2008.

6.      Regulation 19 of the ESA Regulations provides for the assessment, which is an assessment “of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities” (Regulation 19(2)). Regulation 19(3) provides that a claimant has limited capability for work if he obtains a score of at least 15 points in respect of descriptors listed in Schedule 2.

7.    A person who has limited capability for work may qualify for a higher payment and be exempt from undertaking work related activity if they have limited capability for work-related activity and so are placed in the “support group”.  By virtue of section 9 of the 2007 Act this is also determined in accordance with the ESA Regulations.  A determination that a person has limited capability for work-related activity will be made either as a result of an assessment that one or more of the descriptors in Schedule 3 apply to the person (regulation 34) or because the person is treated as having limited capability for work related activity pursuant to regulation 35 on account of the factors set out there including risk to the claimant were he found not to have limited capability for work-related activity: regulation 35(2).

8.    The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work Related Activity)(Amendment) Regulations 2011 had, by regulation 4, substituted entirely new Schedules 2 and 3 for those previously scheduled to the ESA Regulations, with effect from 28 March 2011.  Regulation 2 of the 2011 Regulations makes provision for the application of the previous schedules in cases where a questionnaire relating to a previous version of the schedules had been issued before 28 March 2011.  However, by regulation 2(5) that does not apply to any determination made on or after 28 September 2011. 

 

Background

9.    The appellant lives in France.  He had been in receipt of incapacity benefit since 22 March 1998.  As part of the ESA conversion exercise, the appellant was sent a questionnaire (the French version, ESA-N-50 France). I do not know when it was issued to him but he completed it on 23 May 2011.  The questionnaire related to the pre-March 2011 schedules to the ESA Regulations.  The appellant explained that he suffered from physical limitations but his main problems related to his mental, cognitive and intellectual functions.  He was examined by a French doctor on 4 August 2011 who completed form ESA-N-54C France (in French) which also related to the earlier version of the schedules. In fact, at the time of the decision of the SSWP on 17 December 2011, by virtue of regulation 2(5) of the 2011 Regulations, the new schedules introduced by those Regulations applied.  In these Reasons I refer to the schedules that applied prior to the substitution made by the 2011 Regulations as the “old” schedules and the schedules that were substituted by 2011 Regulations as the “new” schedules.

10. The French doctor did not find that any of the physical descriptors set out on the form applied to the appellant but found that the appellant fell within descriptors 15(b), 16(a) and 17(a) under old Schedule 2.  In English these read as follows:

15(b): “Takes more than twice the length of time it would take a person without any form of mental disablement, to successfully complete an everyday task with which the claimant is familiar”.

16(a): “Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks)”.

17(a): “Cannot cope with very minor expected changes in routine, to the extent that overall day to day life cannot be managed”.

11. The assessment of the French doctor was translated into English. The translated assessment included the following findings:

“Anxiety disorder with panic attacks

Seasonal depressive syndrome

…

“Panic attacks when under stress

Concentration and memory impairment, reads books, cooks for himself, able to shop with the help of a friend (needs to write a list out), problems managing his day-to-day life,

…

Says he does very little during the day, likes gardening a little, says he cannot cope with any kind of stress

…

Impaired concentration during times of stress

Anxiety…, problems with short-term memory (uses note pads as memory aids), problems when facing decisions to make but can read books and do his own cooking.

…

Adjustment disorder caused by stressful events.

Panic attacks when facing any kind of stress or changes”

12. On 24 November 2011 a Health Care Professional completed form “ESA 85A min”, giving the following advice:

“The customer suffers from mental illness. Takes no medication but attends physiotherapy.  The report is brief but can be used for this purpose.  The awarded descriptors, however, are not consistent with the contents of the report.  Whereas it is possible that the customer might satisfy LCW there’s no [sic] enough evidence to suggest they’d satisfy LCWRA”.

13. On 12 December 2011 a Department for Work and Pensions decision-maker completed the work capability assessment document, “ESA N 56”. It was completed by reference to the activities in the old Schedule 2 (I note that the activity numbering as set out on page 86 does not wholly correspond with the numbering in the old Schedule, but this does not appear to be material for present purposes).   The appellant received a nil score on the physical assessments and a total score of 90 on the mental, cognitive and intellectual assessment.    On that basis, the appellant had limited capability for work.  Beside the scoring boxes the decision maker recorded “no evidence to support high score”.  Despite that the appellant received the highest scores (15) on each of activities 15, 16, and 17 (as they were under old Schedule 2). The decision maker then commented “No evidence for support group”.  The appellant was therefore not treated as having limited capability for work related activity and was placed in the work related activity group.  The case was reconsidered by the Decision Maker on 13 April 2012 and was not changed (pg 99).

14. Following the appellant sending his appeal, the Decision Maker asked for further advice from the Health Care Professional.  On 1 July 2012 the Health Care Professional advised

“I cannot identify any information that supports any of the Support Group Criteria for mental health.  The typical day from the report suggests he has an adequate level of function.  The fact that you have had an extensive telephone conversation with him suggests that problems with social interaction are not significant.  He does not appear to have problems with learning, awareness of hazards, personal action, coping with minor planned changes, social interaction or behaving appropriately.”

15. The appellant travelled from France to the FTT hearing which took place in Havant on 16 November 2012.  No issue was raised regarding the decision that the appellant had limited capability for work.  The only issue at the hearing was whether the appellant had limited capability for work related activity.  At the outset of the hearing the appellant was given an opportunity to have an adjournment because the wrong schedule had been used by the Department but the appellant was content to proceed.

16. The FTT accepted the decision that the appellant had limited capability for work but did not find that he satisfied any of the schedule 3 criteria and so he did not have limited capability for work related activity. In its Statement of Reasons the FTT noted that “The decision maker indicated that the level of scores awarded by the examining practitioner seemed to be extremely high, however the examination was not the subject of review…”.  The FTT did not review the basis upon which the appellant had been found to have limited capability for work, but addressed the relevant Schedule 3 activities and the application of regulation 35, in some detail.

 

Analysis

Schedule 3, activities 11 and 12

17. The relationship between the Schedule 2 and Schedule 3 descriptors was considered by Upper Tribunal Judge Levenson in CD v Secretary of State for Work and Pensions [2012] UKUT 289 (AAC).  That case involved the original (pre-March 2011) schedules. The appellant had been awarded 15 points under descriptor 16(a) of Schedule 2 but did not find that any Schedule 3 descriptor applied. The appellant appealed to the Upper Tribunal on the ground that, if descriptor 16(a) of Schedule 2 applies, descriptor 10 of Schedule 3 must also apply. 

18. Descriptor 16(a) of Schedule 2 read at the relevant time:

“Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks).”

19. Descriptor 10 of Schedule 3 read at the relevant time:

“(a) Cannot initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks);

 

(b) Cannot initiate or sustain personal action without requiring daily verbal prompting given by someone else in the claimant’s presence; or

 

(c) Fails to initiate or sustain basic personal action without requiring daily verbal prompting given by someone else in the claimant’s presence owing to a severe disorder of mood or behaviour.”

20. The FTT in that case had refused permission to appeal on the basis that the Schedule 3 assessment was more stringent than Schedule 2. The Secretary of State agreed.  In submissions to the Upper Tribunal the claimant referred to the identically worded “reaching” descriptors as they were at that time in both Schedules 2 and 3, as an example which rebutted the suggestion that a person qualifying under Schedule 3 must inevitably be more severely impaired than one who qualifies under Schedule 2.  In allowing the appeal, Upper Tribunal Judge Levenson said:

“21.     …I cannot find any support for the Secretary of State’s argument that a person qualifying under Schedule 3 must inevitably be more severely impaired than one who qualifies under Schedule 2. The claimant’s reference to the reaching descriptors is persuasive on this point.

 

22. The only difference between the wording of descriptor 16(a) in Schedule 2 and descriptor 10(a) in Schedule 3 is that 16(a) contains a cause of the inability to carry out the specified tasks (cognitive impairment or a severe disorder of mood or behaviour). Arguably this actually makes 16(a) narrower than 10(a). In any event, the First-tier Tribunal having found that 16(a) applies, it is a necessary consequence that 10(a) applies, leading to the decision that I have made above.

21. Similar reasoning applies to the question whether the appellant in this case falls within either activity 11 or 12 of Schedule 3, with some qualification due to the different wording in the relevant descriptors in the present case. 

22. Activity 11 in the new Schedule 3 is “Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks)” and the descriptor is “Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions”.  This is not identical to descriptor 16(a) under the old Schedule 2, set out above, which had been held to apply to the appellant.  As in the case of CD, descriptor 16(a) contained a cause of the inability to carry out the specified tasks, where activity 11 does not.  But as Judge Levenson observed, arguably that made the former descriptor narrower than the latter.  There are also more substantial differences in wording between the two relevant descriptors in this case than there were between those in issue in CD, but when one considers the reason for the change in wording between the old and new descriptors it is apparent that the policy intention was that activity 11 in new Schedule 3 is intended to identify the same disability as was in descriptor 16(a) under the old Schedule 2.  In its report on the Work Capability Assessment Internal Review dated October 2009 the working group said that activities 14, 15 and 16 in old Schedule 2 all identified “the same disability, the inability to complete a task” (page 44).  It therefore proposed that these three activities be amalgamated into one activity, that which is now (with the addition of the word “reliably”, but the addition of which is not material for the purpose of this analysis) activity 13 in Schedule 2, and the most severe form of which is activity 11 in Schedule 3.  It seems, therefore, that a claimant who fell within old activity 16(a) would fall within new activity 13(a) in the current version of Schedule 2 and so would also fall within activity 11 in Schedule 3.

23. Activity 12 in new Schedule 3 is “Coping with change” and the descriptor is “Cannot cope with any change, due to cognitive impairment or mental disorder, to the extent that day to day life cannot be managed”.  The Internal Review of October 2009 found that, if a person cannot cope with planned change, the planned nature of the change is irrelevant (page 47).  It therefore equated activity 17(a) under the old Schedule 2 with what became activity 14(a) under the new Schedule 2 and activity 12 under Schedule 3 (with the addition of the mental cause of the disability). Therefore a person who satisfies activity 17(a) under the old Schedule 2 must satisfy activity 12 of the current Schedule 3, as long as the inability is due to cognitive impairment or mental disorder.

24. It follows that the FTT made an error of law in concluding that, despite the appellant falling within activities 16(a) and 17(a) in the old Schedule 2, he did not fall within activities 11 or 12 of new Schedule 3.

25. Even if I am wrong that the application of activities 11 and 12 of new Schedule 3 must follow from the application of activities 16(a) and 17(a) in old Schedule 2, I would nonetheless hold that there is a fundamental error in the reasoning of the FTT and that its decision is irrational. This is because, in deciding whether activities 11 or 12 of Schedule 3 apply to the appellant, the FTT was bound to take into account the obviously relevant conclusions of the French doctor in relation to activities 16(a) and 17(a) of the old Schedule 2, and the fact that the decision-maker had awarded the appellant the highest scores in respect of those activities.  The scoring on those activities was not challenged before the FTT.  There was therefore an apparent inconsistency between those scores and a decision that the appellant did not satisfy activities 11 or 12 of Schedule 3.  Although the FTT has provided an explanation as to its finding in relation to the appellant’s function in these respects, it has not addressed this issue.  It is true that the Health Care Professional found that the descriptors awarded by the French GP were not consistent with the contents of the report (page 84) but the FTT should itself have addressed the apparent inconsistency.  This was particularly important in the light of the scores awarded at page 86. The FTT has failed adequately to explain its conclusion that neither activity 11 nor 12 apply to the appellant. The decision, absent an adequate explanation, is irrational.

 

Schedule 3 activity 13

26. At paragraph 21 of its reasons the FTT “found that social engagement could be a problem for [the appellant], but did not find that engagement in social contact is always precluded which is what is required by law.”

27. In so doing the FTT failed to consider the application of regulation 34(2):

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity by that descriptor”.

28. The Court of Session has recently considered the interrelationship between activity 13 and regulation 34(2) in Secretary of State for Work and Pensions v Kevin Brade [2014] CSIH 39.  Lady Smith held that the two provisions must be read together, and explained the effect as follows:

“[35]    …I am satisfied that, when these provisions are considered in the context of the whole statutory scheme, "always", as used in descriptor 13 of Schedule 3 cannot have been intended to mean "always" in the sense of the claimant never, at any time, whatever the circumstances, being able to engage in "social contact".

…

 

[37] A purposive construction is called for... I consider that descriptor 13 must apply if a claimant suffers from a mental disorder which has the consequence that, for the majority of the time, he cannot engage in social contact. That construction properly embraces regulation 34(1), 34(2) and the terms of descriptor 13 and accords with their evident intention. Such a person is not likely to have labour market potential and, moreover, if, for the majority of the time, that person cannot engage in social contact, requiring participation in a work focused interview would be not only unreasonable but pointless. Further, that construction avoids the fact finder being necessarily driven to the absurd conclusion that descriptor 13 is not satisfied if, for instance, on a single occasion, a claimant has given instructions to a representative for the purposes of a tribunal hearing. The question of whether or not a person is wholly precluded from engagement in social contact for the majority of the time is one of fact having regard to the statutory provisions as understood by the guidance we have sought to provide. That question is not answered by the application of any precise mathematical approach but by the fact finding tribunal having regard to the evidence in the particular case of the effects of the claimant's condition in a realistic way whilst bearing in mind the purpose of the legislation.”

29. In a concurring judgment Lord Clarke said:

[43] …Taking a realistic, common sense and purposive approach to the statutory provisions, it seems to me that the combined effect of regulation 34(2) and descriptor 13 may be read to include an individual whose condition can, realistically speaking, be described as constant and continuing, in its disabling effects, for the purpose of engaging socially, while, nevertheless, recognising that there may be short intermittent breaks in that being the position. Having regard to the need, in relation to work, and work-related activity, for there to be steady and reliable engagement in social contact, evidence of episodes, however brief, and, in whatever circumstances, where some kind of social engagement may have been achieved, would not necessarily preclude the descriptor being met, particularly having regard to the qualifying words of paragraph 34(2). “

 

                                   

30. Further assistance can be found in LM v Secretary of State for Work and Pensions [2013] UKUT 0552 (AAC). Although this was decided before the decision in Brade, it is consistent with the approach of the Court of Session.  Upper Tribunal Judge Mark said:

 “13….The descriptor would be satisfied if for the majority of the time, engagement in social contact is always precluded.

…

15.       By way of example, if a person was so stressed or otherwise disabled 6 days a week that engagement in social contact was always precluded during that time, but they could obtain sufficient relief from stress one day a week that some limited social contact was possible, then for most of the time engagement in social contact is always precluded, and the fact that limited contact one day is possible prevents the claimant scoring points under descriptor 16(a) or 16(b) as appropriate, but would not prevent the claimant from satisfying descriptor 13 when regulation 34(2) is taken into account.”  

31. In limiting its consideration of activity 13 to the question whether social contact is always precluded, the FTT erred in law because it failed to apply regulation 34(2) as explained in the above decisions.

 

Regulation 35

32. Having found that the appellant did not satisfy any of the Schedule 3 descriptors, the FTT went on to consider whether regulation 35(2) of the 2008 Regulations applied.  This provides:

“A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if –

(a)  the claimant suffers from some specific disease or bodily or mental disablement; and

(b)  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-related activity.”

33. The FTT gave detailed consideration to the application of this regulation in the light of the evidence and concluded that it did not apply to the appellant.  I find no fault with the FTT’s reasoning as such. The difficulty is that the FTT did not draw the provisions of regulation 35(2) to the attention of the appellant.  Nor was it mentioned in the Department’s submission to the FTT.  In those circumstances, the appellant did not know the issues that he was to address in order to satisfy regulation 35(2) and he did not have an opportunity to respond to the points that the FTT has relied upon in concluding that he did not satisfy the provision.  I conclude that this was unfair to the appellant in that it was a breach of natural justice. 

 

 

Disposal

34. In the light of the errors of law that I have identified, I set aside the decision of the FTT. 

35. The question then arises whether I should remit the case to a different tribunal for reconsideration, or whether I should remake the decision. 

36. I consider that I can and should remake the decision as to whether activities 11 and 12 of Schedule 3 apply to the appellant.  It follows from my conclusions as to the FTT’s errors of law in this respect that, on the evidence at the time of the decision in question, those descriptors applied. 

37. In the light of that conclusion, it is not necessary for me to make any orders in relation to the decisions as to activity 13 or regulation 35.  

38. I therefore make the decision set out above.

 

 

 

(Signed on the original)                                              K Markus QC

                                                                                      Judge of the Upper Tribunal

                                                                                      18 June 2014