Upper Tribunal (Administrative Appeals Chamber)

KB v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Regulation 29) [2014] UKUT 303 (AAC) (18 June 2014)



 

 

 

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Before Upper Tribunal Judge Gray CE/4094/2013

 

 

 Decision

This appeal by the claimant succeeds. Permission to appeal having been given by me on in accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 I set aside the decision of the First-tier Tribunal sitting at Bolton and made on 12 August 2013,  under reference  SC  122/13/00544. I refer the matter to a completely differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below.

 

 

REASONS

 

Background

1. The case concerned employment and support allowance (ESA) in respect of the appellant who had been in receipt of incapacity benefit from 12 May 2006. He claimed both physical and mental health problems which affected his ability to function. On 23 November 2012 the Secretary of State made a decision that he was not entitled two ESA from that date. That decision was appealed to the FTT, which heard the case on 12 August 2013.

 

2.     The FTT confirmed the decision under appeal.  I granted permission to appeal on what I saw as possible legal errors, one concerning what was arguably a contradictory findings of fact in relation to the appellant’s manual dexterity, another concerning the setting out of the statutory test in layman’s language, no doubt with the intention of explaining it more simply, but arguably changing its nature, and in relation to whether the tribunal had given a sufficient explanation of its consideration of regulation 29.

3.    The Secretary of State has made a submission which does not support the appeal.

4. I remit the matter on the basis of the regulation 29 point, which I will explain below. In those circumstances I do not need to deal with the other arguments. So far as the practical issue of the appellant’s manual dexterity is concerned it seems to me futile at this stage to discuss that hypothetically; the new FTT will be best placed to decide on the extent of any manual dexterity problems given the evidence as to his function, including the note of the evidence made at the first hearing.
5. With regard to that I would make a short practical point.  My photocopy of the record of proceedings was extremely difficult to read, and in writing this decision I required sight of the original.  The problem with the photocopying immediately became apparent. The original, which was entirely comprehensible, was written in blue ink. Blue ink does not photocopy well. Judges should use black ink.

 

The regulation 29 point

6. This is an issue which has provoked considerable legal analysis. The Secretary of State did not have the benefit of the decision of Judge White in NS-v-SSWP[2014] UKUT 15 AAC  which was issued after the date of his submission, but it is an excellent resume of recent decisions, and deals with the decisions relied upon by the Secretary of State in that submission. Judge White disagrees with some of those decisions; he explains why others do not support the point of view contended for, and he cites a number of decisions not referred to in the Secretary of State submission, including three of my own, PC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 1 (AAC) In SP v Secretary of State for Work and Pensions (ESA) [2014] UKUT 10 (AAC) DB v Secretary of State for Work and Pensions (ESA) [2014] UKUT 41 (AAC). 

 

7.    At paragraph 41 Judge White says

What is the effect of all these authorities? It seems to me that they are all saying that whether regulation 29(2)(b) requires to be considered depends on all the circumstances of the case. In so far as CSE/223/2013 and CSE/27/2013 may be saying otherwise, I disagree with them.

 

8.    I prefer his approach and reasoning to that in those decisions selected by the Secretary of State for inclusion in the submission.  It seems to me that the central issue is whether any consideration of regulation 29 was warranted given the information before the tribunal; this is not at all the same thing as saying that it did not apply, which is a conclusion that begs an explanation.  I can do little more than to explain why I consider the treatment of regulation 29 is, in this particular case, inadequate.

9.    I observe that in certain of the UT cases a distinction has been drawn by the judge in relation to the need to consider regulation 29 at all, as to whether the appellant was represented.  Although here the appellant was represented, the tribunal judge in his statement of reasons says at paragraph 15 that the panel had noted that the “submission appeared to have the wrong date of birth of Mr B and referred to him as a “her” for a significant portion of the document, however we proceeded on the basis that it did in fact refer to Mr KB.” (my anonymisation). Bearing in mind those limitations, I consider that it was appropriate for an inquisitorial tribunal to make their own assessment as to whether or not regulation 29 may be in issue rather than relying on what was clearly an inadequate and possibly erroneous submission. 

10. There were features in the case which may have made regulation 29 relevant. That is not to say that it will apply, but proper consideration should have been given to that regulation along Charlton principles.  Those features were twofold.  One was the mental health issues which were, putting to one side the inadequate submission, apparent in the computerised notes from the appellant’s GP which were helpfully before the tribunal. 

11. I have considered whether the findings in relation to the appellant’s abilities under the mental health descriptors provide a sufficient backdrop for the observation that regulation 29 did not apply. I do not find in this case that they do.  Whilst the findings that the appellant was able to perform the various descriptors are set out, the descriptors appear to have been considered in a vacuum, ignoring the medical evidence that at or about the relevant time, that is to say during the month of November, the decision having been made on November 23, the appellant approached his GP on five occasions in relation to mental health problems.  On the first of those occasions the note stated that he had thought of suicide, but it was against his religion. There is no mention of that in the statement of reasons, paragraph 11 simply recording that the medical records only comprised September 2012 onwards without any reference to the content of the complaints and treatment recorded.  In those circumstances the factual findings of the mental health descriptors are insufficient for the tribunal to make a judgement that regulation 29 did not apply, without more explanation.

12. There is a further complication in this case, which relates to the pain from which the appellant is said to suffer. Although not a matter raised in my original grant of permission to appeal, the aspect of descriptor satisfaction concerning whether an appellant is able to perform a task reliably and repeatedly seems to me to be insufficiently dealt with, and this has a knock-on effect in my assessment of the treatment of regulation 29.  Where tasks can be accomplished, but perhaps not without pain, regulation 29 may have applicability. The issue needs therefore to be considered and adequately explained.

13. Clearly I make no observations as to whether or not regulation 29 is applicable, but it seems to me that in the circumstances of this case the FTT needed to conduct the enquiry into that issue fully, because there were aspects of the evidence which raised genuine questions as to whether, without a finding of limited capability for work, there may be substantial risk of deterioration in the appellants physical or mental health, or a combination of the two. The sentence in the statement of reasons that the FTT “considered whether there was a substantial risk that his condition would deteriorate were he found not to have limited capability for work. We found that Mr B does not fall into those exceptional circumstances.”  is inadequate, being merely a restatement of the statutory test, and not an explanation to the appellant as to why that conclusion was reached in circumstances where regulation 29 might have application.

14. For the above reasons I remit the matter for re-hearing, with the case management directions set out below. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course.

 

 

CASE MANAGEMENT DIRECTIONS

 

26. These directions may be supplemented or changed by a District Tribunal Judge giving listing and case management directions.

 

27. The case will be an oral hearing listed before a differently constituted panel.

 

28. The parties shall send to the relevant HMCTS office as soon as possible any further written medical or other evidence, if there is any.  If they cannot send that evidence within 2 weeks of the issue of this decision the parties will need to contact that office to let them know that further evidence is expected.  That is not to say that any further medical or other evidence will be necessary.

 

29. The appellant must understand that the new tribunal will be looking at his health problems and how they affected his daily activities at the time that the decision under appeal was made, 23 November 2012.  Any further evidence, to be relevant, should shed light on the position at that time.  That is not to suggest that any further evidence is necessary or expected. 

 

30. The new panel will make its own findings and decision on all relevant descriptors. They will consider all aspects of the case afresh, but they should note in particular the issues set out here.

 

31. The clerk to the First-tier tribunal should send to the presiding Judge of the original panel a copy of this decision and ensure that the same documents are placed in the tribunal bundle for the benefit of the panel that will hear the case. 

 

 

 

 

Paula Gray

Judge of the Upper Tribunal

 

Signed on the original on 18 June 2014