Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/3144/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision:  The appeal is allowed.  I set aside the decision of the First-tier Tribunal and substitute my own decision that the claimant is to be treated as at 23 February 2012 as having limited capability for work and as having limited capability for work-related activity and therefore qualified for conversion to an award of employment and support allowance on that basis.  The Secretary of State must calculate her entitlement to employment and support allowance on that basis.

 

 

REASONS FOR DECISION

 

1.     This is an appeal with the permission of a Judge of the Upper Tribunal from a decision of the First-tier Tribunal dated 20 May 2013 allowing an appeal from a decision of a decision maker dated 23 February 2012 that the claimant’s existing awards did not qualify for conversion into an award of employment and support allowance (ESA).  The tribunal concluded that the claimant was entitled to ESA with the work-related activity component.  This was because she was found to score 18 points in relation to three of the mental health descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008 (the 2008 Regulations).  The tribunal also found that no Schedule 3 descriptor applied and the statement of reasons explains why the tribunal concluded that there would be no substantial risk to the claimant’s mental health if she were found not to have limited capability for work-related activity.  The claimant’s appeal challenges the tribunal’s reasons for this last finding.

 

2.     The decision maker had found that the claimant scored only 6 points on the Schedule 2 descriptors, in that he considered that she could not get to a specified place with which she was unfamiliar without being accompanied by another person.  The tribunal confirmed this award and also awarded her 6 points because she could not cope with minor unplanned changes to the extent that overall day to day life was made significantly more difficult, and a further 6 points because engagement in social contact with someone unfamiliar to her was not possible for the majority of the time due to difficulty relating to others or significant distress experienced by her. 

 

3.     The claimant attended the hearing, was represented and gave evidence.  The Secretary of State was not represented.  The statement of reasons indicates that after the claimant had provided some oral evidence the tribunal adjourned to discuss the case and returned to advise that it appeared that the claimant scored 18 points.  The claimant’s representative then accepted this and indicated that he did not invite the tribunal to consider any other descriptors, but did invite the tribunal to consider whether regulation 35 applied.  As a result the tribunal did not consider whether any more points could be awarded under Schedule 2, and there was no suggestion that any of the descriptors in Schedule 3 applied so as to result in the claimant having limited capability for work-related activity.

 

4.     Regulation 35 deals with circumstances in which a claimant is to be treated as having limited capability for work-related activity where none of the Schedule 3 descriptors apply.  The relevant provision is regulation 35(2) which provides that a claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) (the provision which applies the Schedule 3 descriptors) is to be treated as having limited capability for work 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.”

 

5.     The tribunal heard oral evidence as to this from the claimant but found her evidence unreliable for reasons which it gave and then proceeded to reach a decision based on the other evidence before it.  The tribunal concluded that the claimant would be able to attend work-focused interviews at the job centre.  It further concluded that it was of the opinion that the staff at the job centre were fully qualified and would work with specialist services that were already involved in order to carefully rehabilitate the claimant to the position where she could re-enter the job market.  She would thus receive the treatment stated in the written evidence of her cognitive behavioural therapist and there would not be a substantial risk to her mental health if she were found not to have limited capability for work-related activity.

 

The evidence before the tribunal

 

6.     As the claimant had not previously been found to have limited capability for work, she will not have had any invitation to a work-focused interview or been required to undertake any work-related activity.  Nor will the Secretary of State have had to consider before the hearing whether to invite her to such an interview or whether any particular work-related activity may be appropriate for her.  The submissions of the decision maker are directed to the question whether the claimant had limited capability for work so as to qualify for ESA.  Without taking into account the additional evidence to the tribunal, the Secretary of State would not in any event be able properly to consider what would be appropriate in the claimant’s case.  Nevertheless the total absence of any submissions or evidence as to what would happen if she was found to have limited capability for work but not for work-related activity is a concern which I address later in this decision.

 

7.     The claimant was born in 1963.  She had worked in social services but had left for mental health reasons (file p.27) although she also had several significant physical problems.  She had previously been in receipt of incapacity benefit or income support but no details have been provided as to for how long or on what grounds.  She was required to complete form ESA50 with a view to considering her entitlement to convert her then award into an award of ESA.  She completed the form in November 2011 and was examined by an approved disability analyst, a nurse, on 18 January 2012.

 

8.     In her form ESA50, the claimant identified her main problem as depression but also stated that she suffered from panic attacks and from Raynaud’s disease which caused her a lot of pain in her feet, that she was awaiting carpal tunnel surgery on her right hand and had had carpal tunnel surgery on her left hand the previous year.  She had also suffered repeated ear infections over the previous two years.  She had been told that she had a low immune system and in the last few operations she had had, she had proved MRSA positive.  She had side effects from time to time from the medication she took for Raynaud’s disease, and suffered from asthma and also from sleep problems and was in the early stages of the menopause.

 

9.     Her physical problems caused difficulties with walking, standing, picking up and moving things, manual dexterity and (when suffering from ear infections) hearing.  Her mental problems, she stated, caused difficulties concentrating, being aware of danger, initiating actions, coping with unexpected change, going out and coping with social situations.

 

10. At the medical examination she also referred to dizziness and headaches a few times a week, a back problem and a knee problem.  Her depression had started about 7 years previously and she had been referred to a counsellor.  There is also reference to a psychologist 2 years previously and to her regularly seeing a cognitive behavioural therapist. 

 

11. The date of the decision, which is the date at which the tribunal had to consider whether she had limited capability for work-related activity, was 23 February 2012.  In her letter of appeal dated 29 February 2012 the claimant expressly put in issue that a return to work would be detrimental to her health.

 

12. The claimant was represented by an experienced representative, but there was no medical evidence provided to the tribunal other than a report from an NHS cognitive behavioural psychotherapist dated 27 September 2012 which read as follows:

 

“Assessment Summary

 

[The claimant] is experiencing symptoms of clinical depression and generalised

anxiety disorder.  Features of these mental illnesses include: anhedonia, rumination, severe anxieties and feelings of hopelessness.  These symptoms have been pronounced and have impacted considerably on [the claimant’s] quality of life and ability to manage day to day stressors.

 

[The claimant] is actively engaged with group and individual therapy and it is hoped that this may lead to a positive outcome for her.  Currently I have advised that as far as possible [the claimant] reduce her contact with stressful situations as this has aggravated her depression.

 

[The claimant] hopes to return to work but coping skills and support networks will first have to be put into place before she is able to function at this level.”

 

13. Although the appeal had been brought at the end of February 2012, it was only at the end of August 2012 that a decision was taken by the Secretary of State not to change the original decision and the matter was referred to the tribunal service,  The standard enquiry form was then promptly issued asking whether the claimant required an oral hearing, and the claimant had returned the enquiry form seeking an oral hearing by 11 September 2012.  Despite this the oral hearing only took place on 20 May 2013, some 15 months after the original decision, an overall delay which appears to me to be unacceptable and for which I can detect no explanation.

 

14.  It is clear from the record of the proceedings that the only descriptors in respect of which points were claimed at the hearing were four of the mental health descriptors, while regulations 29 and 35 were also invoked.  The record of the proceedings is not entirely legible, but it does not appear to me that I require a transcript in order to determine this appeal.  It appears to have taken the tribunal about 10 minutes to decide that the claimant scored the 18 points it awarded, after which it concentrated on regulation 35.

 

The tribunal’s reasons

 

15. The tribunal gave very brief reasons for concluding why it awarded the 18 points, stating that it was after reading the documentary evidence.  In relation to regulation 35, it stated as follows (p.74):

 

“19. [The claimant’s representative] did however invite the Tribunal to consider whether Regulation 35 applied.  As a result of this further questions were put to [the claimant].  Unfortunately the Tribunal was unable to rely upon this oral evidence as it was vague (especially in relation to her condition as at the date of the decision under appeal) and it was contradicted by other evidence.  An example of this is when she was asked if she had been referred to a psychiatrist?  [The claimant] replied by saying yes, but she cannot remember who this is.  She then informed the Tribunal that she was told on the Wednesday before the Tribunal hearing that she needed intense help and was going to be referred back to the adult psychological therapy.  This vague evidence contradicted what she told the nurse at the medical assessment which is stated on p.26, ‘no psychiatrist.  No mental health team.  Feels private person.”  The Tribunal found that this contradictory and vague evidence affected [the claimant’s credibility and as a result found that her oral evidence was not reliable.”

 

16. Pausing there, I can see no necessary contradiction in the claimant stating in January 2012 that she had no psychiatrist and stating in May 2013 that she had  (by that date) been referred to one but could not remember who it was.  There is no date given, or appearing in the record of proceedings when this reference is said to have happened, and if it was a relatively recent referral and she had not even yet had an appointment it would be completely understandable if she could not remember the name. 

 

17. The tribunal then continued in the following paragraph of its decision, numbered 15 despite following paragraph 19, that when asked questions about how she would find attending an interview, “She replied to this by stating, “I would be stressed wouldn’t I.”  Unfortunately the tribunal was unable to rely on her oral evidence and therefore used the other evidence to determine whether she would be able to attend at interviews.”  Again, whatever view the Tribunal took of her other evidence, I am unable to understand why it should be unable to accept evidence that attending an initial interview with an unfamiliar person at an unfamiliar location about the possibility of returning to work would be stressful for the claimant. 

 

18. In looking at the other evidence, the tribunal first found that the claimant was able to see the cognitive behavioural psychotherapist every week up to December 2012 which, it concluded, showed that attending interviews could not have been too stressful for her especially at the date of the decision in February 2012.  I am wholly unable to understand the rationality of this conclusion.  There is a world of difference between attending regular therapy sessions with a psychotherapist and having to attend interviews with DWP employees at the jobcentre.  Apart from the nature of the therapy and the approach of the therapist being very different from the type of interview envisaged and the approach of the DWP employees the therapist is somebody who has become familiar to the claimant, whereas the DWP employees are not,  There is no consideration of how the claimant would get to the interviews at an unfamiliar place or how many interviews are being envisaged or whether they would be with the same employee each time, with whom the claimant may become familiar, or with a different employee each time with whom the claimant would be unfamiliar.  Nor is there any consideration of what the interview would involve in terms of waiting time or the environment at the jobcentre.  I assume for this purpose that the interview would be at the jobcentre, as the tribunal appears to have done, despite the fact that, as I understand may be the case, interviews can be, and sometimes are, conducted on the phone.

 

19. The tribunal then decided that the claimant could attend interviews because she had been able to meet with the tribunal, the psychotherapist and the approved healthcare professional at various dates before and after the date of the decision.  In other words, a claimant who is receiving psychiatric help and who attends the medical examination and the tribunal hearing is to be treated as able to attend work-focused interviews as well.  In order to stand any chance of persuading a tribunal otherwise a claimant has to be so disturbed as to be unable to receive psychiatric help or to attend a medical examination and a tribunal hearing.  This is quite apart from the fact that the tribunal hearing in this case was 15 months after the date of the decision and the claimant had in the meantime, according to the tribunal, ceased to see the psychotherapist for reasons that are not explained in the statement of reasons and may not have been explored by it, although she was still apparently being referred to specialist services for her mental health problems.

 

20. The statement of reasons went on to state “The Tribunal is of the opinion that the staff at the jobcentre are fully qualified and will work with the specialist services that are already involved in order to carefully rehabilitate [the claimant] to the position whereby she can re-enter the employment market.  Therefore she will receive the treatment that is stated in paragraph 3 of [the psychotherapist’s] letter on p.64.  With this careful support there would not be a substantial risk to her mental health if she were found not to have limited capability for work-related activity.”

 

21. Paragraph 3 of the psychotherapist’s letter is the paragraph that states that coping skills and support networks will first have to be put into place before she is able to return to work.  The tribunal had no facts on which to base its opinion in that there was no evidence from the DWP that its jobcentre staff had the necessary skills to deal with somebody with the claimant’s mental health problems and no evidence that the steps that would be taken would bear any resemblance to the steps envisaged by the psychotherapist to put into place the necessary coping skills on the part of the claimant or the support networks envisaged by her.  The tribunal also expresses itself in the present tense although the question was whether at the date of the decision in February 2012 a finding that she did not have limited capability for work-related activity would have given rise to a substantial risk to her mental health.

 

22. I find the reasoning of the tribunal to be wholly unsatisfactory and I set aside its decision.  In the light of the evidence before me, I would have little difficulty in concluding that the claimant scored at least 18 points on the mental health descriptors, and that if she did not, then there would be a substantial risk to her health if she were found not to have limited capability for work.  However, it is less clear that I could substitute my own decision for that of the tribunal in relation to the impact of regulation 35(2).

 

The scope of regulation 35(2) and the evidence required

 

23. In order to consider whether, by reason of any disease or bodily or there would be a substantial risk to the mental or physical health of the claimant if she had been found in February 2012 not to have limited capability for work-related activity, it is necessary to consider the effect on her of that finding had it been made.  This necessarily involves consideration of what would have been expected to happen in that event. 

 

24. That is a matter as to which the Secretary of State ought to have provided some evidence.  The scope of the evidence required must depend on the facts of the case.  In some cases, it will be apparent that there is no such risk and no point is taken as to it.  Where a claimant has mental health problems and there is clearly an issue as to the risk for the tribunal to consider if it accepts her evidence, then in my judgment the Secretary of State has a duty to the tribunal under regulation 2(4) of the Tribunal Procedure (First-tier Tribunal) (SEC) Regulations 2008 to provide evidence to the tribunal as to what steps would have been taken at the time and subsequently if the decision of the decision maker had been that the claimant qualified for ESA but did not have limited capability for work-related activity.

 

25. I appreciate that ahead of the decision of the tribunal, at least where the original decision was, as here, that the claimant did not have limited capability for work, the Secretary of State could not know exactly what the tribunal might find.  Nevertheless, the psychotherapist’s report was sent to the tribunal by letter of 26 October 2012 and was presumably copied to the decision maker shortly thereafter, and many months before the hearing.  No attempt was made to reply to it or to provide any evidence in relation to regulation 35(2).  In particular, there was no attempt to provide any evidence as to the steps that the Secretary of State considered would have been appropriate to deal with the claimant’s perceived need for coping skills and support networks or as to the quality and qualifications of the personnel who would be dealing with her.  Nor was any indication given whether she would have been dealt with throughout by one person or, if not, how many people would have been involved in contact with her, or in what circumstances and where that would have happened following a decision in February 2012.

 

26. There is no automatic requirement that a claimant who is found not to have limited capability for work-related activity should attend a work-focused interview and then undertake work-related activities of any kind.  It is, of course, possible that the Secretary of State, or those acting for him, could have decided that, on the basis of the evidence, it was not appropriate, if the claimant was found to have limited capability for work to require the claimant to attend any work-focused interview or to become engaged in any work-related activity until there was further expert mental health evidence that that was appropriate.  That is a matter as to which the Secretary of State could have adduced evidence.  It is also possible that as at February 2012, no such discretion was ever exercised and there was a policy of immediately summoning claimants for such interviews followed by a ritual of work-related activities which did not take adequate account of their mental health problems.

 

27. In AH v SSWP, [2013] UKUT 118 (AAC), Judge Jacobs held that, except in a case where only general evidence would be enough, the tribunal needed specific evidence of the type of activity that the claimant might be expected to undertake.  In ML v SSWP, [2013] UKUT 174, he observed at paragraph 15 that

 

“Despite having dealt with numerous cases involving the support group, I still have no idea of what work-related activities involves beyond the general formulaic statements such as those I have quoted from the Secretary of State’s argument.  I accept that it is not possible to say in advance what precisely would be expected of any particular claimant.  However, it must be possible to give a sufficient indication of what is involved in order to allow a claimant to provide evidence and argument, and to allow a tribunal to make a decision.”

 

28. These decisions of Judge Jacobs were given in March and April 2013, before the hearing under appeal.  Yet in the present case, not even general formulaic statements have been provided.  Even in CE/3468/2012, upon which the Secretary of State now relies, Judge White stated that there must be some identification of the type of work-related activity which the claimant could safely undertake, and that that may be no more than an initial consultation over the phone, although, as I pointed out in JS v SSWP, [[2013] UKUT 635 (AAC), the initial work-focused interview is not a work-related activity.

 

29. I also note that while the Secretary of State has sought to rely on Judge White’s decision and on another decision which follows it, he has failed to draw attention to the decision of Judge Gray in MT v SSWP, [2013] UKUT 545, which expressly disagrees with the decision of Judge White, for what is to me the very good reason that the work-related activity which the claimant could safely engage in may not be the same as the work-related activity which he or she would have been required to engage in if found not to have limited capability for work-related activity. The ability of an employee at a jobcentre accurately to assess at what would probably be a very short interview what is right for a claimant with serious mental health problems must also be open to question.  In assessing the effect of an adverse finding the tribunal must take into account not some theoretical possibility but the likely result based on evidence of what would happen or have happened at the relevant time.

 

30. Judge Gray also points out that the tribunal must look at the position as it was at the date of the decision and at the work-related activities which this claimant might have been required to undertake following a decision to that effect.  That must plainly be right.  The tribunal cannot be concerned with the claimant’s ability to deal with work-related activity at the date of the hearing, in this case 15 months later by which time a claimant’s mental condition could have changed significantly.

 

31. I do not share the optimism of the tribunal under appeal, lacking as it does any evidential basis that the staff at the local jobcentre are, or were at the relevant time, fully qualified or that they would work with the specialist services that were already involved in order to carefully rehabilitate the claimant.  There is no evidence as to training or qualifications of the staff at the jobcentre.  There is no evidence that one single suitably qualified employee would have been allocated to work with the claimant, despite her problems relating to people with whom she was unfamiliar, or that the staff at the jobcentre would work with her NHS psychotherapist,  It is now submitted on behalf of the Secretary of State on this appeal that by taking part in work-related activity the claimant would be placed in such a “coping skills and support network” described by the psychotherapist which would hopefully help the claimant back into work.

 

32. While this is by way of submission as to what would happen now, and not by way of evidence as to what would have happened in and after February 2012, the submission is presumably made on instructions and reflects an approach of the DWP which would have been in place at that time.  There is no suggestion that there has been any approach to the psychotherapist or anybody else to ascertain what she envisaged when she stated that “coping skills and support networks will first have to be put into place”.  The representative appears to have assumed that the psychotherapist was referring to “a coping skills and support network” when she appears to me to have been referring to the claimant acquiring coping skills and having the support of an appropriate network (which she did not describe further).  The representative also appears to have assumed an ability and readiness on the part of the local jobcentre staff, with adequate time and resources, to deal with the matter in the largely unparticularised manner contemplated by the psychotherapist.

 

33. In my judgment this, coupled with the absence of any real evidence, demonstrates the inability of the DWP to understand the needs of this claimant if she were found not to have limited capability for work.  There is nothing in these representations, or in the reported approach of the DWP and Secretary of State in other cases, to suggest to me that, if I were to remit this matter to a new tribunal, there would be any evidence from the Secretary of State which could properly persuade the new tribunal that the local jobcentre would be able to deal with the matter in the way suggested.  While there was, and is, the right to request reconsideration of a work-related activity action plan by the Secretary of State, and provision for showing good cause, within a strict time limit, for not undertaking an activity, inter alia on mental health grounds, and a right of appeal against the relevant decisions of the Secretary of State, all of this, if needed, would clearly pose a substantial risk to the mental health of the claimant at the time in the light of the evidence before me including in particular that of the psychotherapist.

 

34. I conclude that it is more likely than not that, in and after February 2012, the likely approach of the DWP to the claimant, if she were found not to have limited capability for work-related activity, would have posed a substantial risk to her mental health at a time which was plainly a crisis time for her.  I do not consider that it would have taken proper account of her mental health needs as described by the psychotherapist, which I accept.  I do not consider that, on the balance of probabilities it would have involved contact with the NHS psychotherapist treating her and a working out of a suitable programme for her, or that the local jobcentre would have had the time, facilities or staff to carry out such a programme or to provide any necessary support network.  Nor do I have any evidence to suggest that she would always have been seen by the same person at the jobcentre, despite her problems dealing with people unfamiliar to her.  I consider it more likely than not that she would have been seen by different people and that any work-related activity would have been unsuitable for her because of these factors.

 

35. All of this would have created stressful situations for the claimant and I accept the evidence of the psychotherapist that this would aggravate her depression.  I am satisfied that although that evidence is in relation to her condition in September 2012, it would equally have applied in February 2012 when she was already receiving professional help with her mental problems.

 

36. I therefore conclude that this is a case in which I should substitute my own decision and that no useful purpose would be served by remitting the case to a new tribunal adding to the already excessive burdens being borne by the First-tier Tribunal.

 

 

 

(signed) Michael Mark

Judge of the Upper Tribunal

 

24 January 2014