Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                        Case No.  CE/1021/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: A. Rowley, Judge of the Upper Tribunal

Decision:  I allow the appeal.  As the decision of the First-tier Tribunal (made on 7 November 2013 at Stockport under reference SC944/13/03379) involved the making of an error in point of law, it is set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is remitted to the tribunal for rehearing by a differently constituted panel.

REASONS FOR DECISION

1.    This is an appeal by the claimant from a decision of the Stockport First-tier Tribunal dated 7 November 2013.  The tribunal upheld the decision dated 13 March 2013 of the Secretary of State for Work and Pensions to the effect that the claimant’s award of Incapacity Benefit did not qualify for conversion to Employment and Support Allowance, and her award was accordingly terminated from 5 April 2013.

2.    The issue on this appeal is whether the tribunal adequately dealt with activity 17 of Schedule 2 to the Employment and Support Allowance Regulations 2008.

Background

3.    This is a conversion case.  The claimant had been entitled to Incapacity Benefit since 12 February 2004.  She has a number of medically identified conditions, including depression.  As part of the conversion process the claimant completed a form ESA50, in which she indicated that she had difficulties with a variety of activities.  On 26 February 2013 the claimant was examined by a Healthcare Professional, who was of the view that the claimant did not score any points under the Work Capability Assessment.  A Decision Maker shared that view and, on 13 March 2013, made the decision under appeal.

The First-tier Tribunal

4.    The claimant appealed to the First-tier Tribunal, which held an oral hearing of the appeal on 7 November 2013.  The claimant attended the hearing with her daughter, and each gave evidence.  The claimant was represented at the hearing by a Welfare Rights Officer.

5.    The tribunal found that the claimant was entitled to 9 points under descriptor 2(b) (“standing and sitting”).  As these were insufficient to satisfy the Work Capability Assessment the tribunal dismissed the claimant’s appeal.

The appeal to the Upper Tribunal

6.    The claimant sought permission to appeal to the Upper Tribunal.  I gave permission to appeal.  The Secretary of State does not support the appeal.

7.    The issue turns on the tribunal’s consideration of activity 17.  The activity heading is:

“Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder.”

8.    Each of the descriptors in activity 17 refer to:

“… uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.”

9.    There is a descending scale of frequency.  To satisfy descriptor (a) the episodes of behaviour must be “on a daily basis,” for (b) they must occur “frequently,” and for (c) “occasionally.”  

10. It seems to me that a methodical approach to descriptor 17 would involve a tribunal asking these questions:

(a) Does the claimant have cognitive impairment or mental disorder? 

(b) If so, does that cause the claimant to behave in the way described by the descriptor, namely:

(i) Does the claimant have episodes of aggressive or disinhibited behaviour?

     (ii) Are any such episodes uncontrollable?

     (iii) How often do they occur (noting the words of the descriptor: “on a daily basis,” “frequently,” “occasionally,”).

     (iv) Would such behaviour be unreasonable in any workplace?

11. The evidence before the tribunal included the following:

(a) On her form ESA50 the claimant had ticked the appropriate box to indicate that occasionally she behaved in a way which upset other people.  No further information was provided.

(b) She told the Healthcare Professional that she could get frustrated and verbally aggressive at times, but was not violent.

(c) She described to the tribunal an occasion when a letter of appointment had given the wrong time.  She said she was wound up and lost her temper.  She was not physically aggressive, just verbally abusive.

(d) When asked by the tribunal what would stop her from working as a hospital receptionist the claimant said that if people were funny on the phone she would argue with them.

(e) The claimant’s daughter told the tribunal that the claimant got stressed very easily.

12. The tribunal’s Statement of Reasons deals with activity 17 in the following way:

“The Tribunal does not find that the appellant has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.  We are persuaded of this by the fact that she has not been involved in any recent fights or arguments as a result of her behaviour.  0 points are awarded for this descriptor.”

13.   In giving permission to appeal I said that it was arguable that the tribunal had erred in its consideration of activity 17 in two respects.  First, I asked whether the tribunal applied the wrong test, in relying on the fact that the claimant had not been involved in any recent fights or arguments as a result of her behaviour.  Secondly, given what the claimant told the Healthcare Professional and tribunal, referred to above, I asked whether the tribunal’s findings were adequate.

14. The Secretary of State does not support the appeal.  He submits that it is likely that any behaviour would extend beyond just verbal aggression for activity 17 to apply.  The claimant’s representative disagrees, and so do I. 

15. There is nothing in the wording of the activity to suggest that verbal aggression would not, in appropriate cases, be sufficient to satisfy the test.  I adopt the observations of Upper Tribunal Judge Gray in WT v Secretary of State for Work and Pensions (ESA) [2013] UKUT 556 (AAC):

“40…The mischief that the descriptor must be intended to remedy is the creation of an unsafe or otherwise unacceptable work environment for co-workers.  The way in which the avoidance of that is accomplished is to exclude from the workplace those who, due to their mental health condition exhibit certain behaviour…”

16. In my judgment, the use of sufficiently serious verbal aggression may well create an unacceptable work environment for co-workers, or indeed others with whom the person exhibiting the behaviour may come into contact in the workplace.  It would be wrong to say that such conduct can never be enough to satisfy activity 17.  Further, in my view it is not necessary for the claimant to have been involved in a fight or argument for activity 17 to apply.  There may be examples where his or her behaviour has been aggressive or disinhibited but has not led to another person responding by fighting or arguing.  Indeed, in many cases when faced with such behaviour, some people’s natural reaction is to walk away.  That does not necessarily make the aggressive or disinhibited behaviour any less serious, nor does it necessarily render it any more acceptable to co-workers or others in the workplace.   In each case it will be for the tribunal to consider the evidence, find the facts and decide, in the light of those findings, whether a particular claimant’s behaviour, whether physical or verbal, is sufficient to satisfy the relevant criteria.

17. Applying what I have said above, in limiting its consideration to whether the claimant had been involved in any (recent) fights or arguments the tribunal erred in law in this case.    

18. I must say that I cannot accept the submission of the Secretary of State to the effect that in order to score under the descriptors relating to activity 17 a claimant’s behaviour would have to be considered unacceptable in an average workplace such as a call centre.  This puts an un-necessary gloss on the wording of the activity, which applies to “any workplace.” 

19. Despite the Secretary of State’s submissions to the contrary, I find that the error of law identified above is a material one.  The Secretary of State contends that there are no recorded examples of where the claimant’s behaviour has upset anybody.  However, in my view it may be that the incident referred to at paragraph 11(c) above had that effect.  There is insufficient information before me to enable me to express a further opinion. 

20. It is submitted by the Secretary of State that there are no specific examples of situations that have occurred where the claimant’s behaviour would be deemed to be unreasonable in the workplace.  In response the claimant’s representative opines that it is hard to imagine that a workplace would tolerate aggressive or disinhibited verbal abuse of staff or customers.  It seems to me that further findings are required on this issue.

21. The Secretary of State asserts that there must be evidence that the individual is “frequently” unable to control their behaviour.  This is, of course, right in relation to descriptor 17(b).  However, in the case before me, the claimant having scored 9 points under descriptor 2(b), only 6 further points were required for her to satisfy the Work Capability Assessment.  As descriptor 17(c) carries 9 points, the claimant would have had limited capability for work had she come within its provisions, which are limited to the relevant behaviour occurring “occasionally.”

22. It is also argued by the Secretary of State that the mental health assessment of the claimant revealed good insight of her illness, cognition was not significantly impaired, and her rapport and communication were adequate and not difficult, “which would be expected to be the case.”  These are factors to be weighed by the tribunal, but in my judgment in this case are not sufficient to categorise the tribunal’s error as immaterial. 

23. A further submission by the Secretary of State is that the evidence of the kind of behaviour required to satisfy the descriptors under activity 17 has not been corroborated.  It is trite law that, in general, corroboration of a party’s evidence is not required as a matter of law although, naturally, corroboration can increase its probative value.  It is, again, a matter for the tribunal to weigh in the balance when considering all the evidence.

Conclusion

24. In all the circumstances, I find that the tribunal’s decision involved the making of a material error in point of law.  As further findings of fact are required I remit the case for a rehearing.

25. The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.  The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal, including a consideration of all the activities contended for by the claimant and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

26. In relation to activity 17 the tribunal should ask the questions set out at paragraph 10 above, and take into account, in particular, my observations at paragraph 16.

27.  The tribunal must not take account of circumstances that were not obtaining at the time of the decision: see section 12(8)(b) of the Social Security Act 1998.  Later evidence is admissible, provided that it relates to the time of the decision (R(DLA) 2 and 3/01).

28. If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

29. I should add for the sake of completeness that the claimant’s success on this appeal to the Upper Tribunal says nothing one way or the other about whether her appeal will succeed before the First-tier Tribunal, which must come to its decision having properly considered all the relevant evidence before it and made appropriate findings.  The Secretary of State’s submissions may lead the new tribunal to reject the claimant’s case, but I cannot say on the basis of the evidence before me that they will necessarily do so.

1. Rowley, Judge of the Upper Tribunal

(Signed on the original)

Dated 1 August 2014