Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No CE/2831/2013. 

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Gray

 Decision: This appeal by the claimant succeeds. having been given Permission to appeal on 13 September 2013 in accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting at Rochdale and made on 2 May 2013 under reference SC 947/12/05481 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 FOR DECISION

1.     This appeal concerned the appellant’s entitlement, or otherwise, to Employment Support Allowance. The activities and descriptors comprised in the Work Capability Assessment at the relevant time are set out in Schedule 2 to the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”). They are the descriptors which applied from 29/3/11.

2.     The appellant had been in receipt of ESA from 16 January 2009. By a decision made on 23 October 2012 he was found not to have Limited Capability for Work, and his claim was disallowed.

3.     That decision followed a medical examination on 12 September 2012 at the Manchester Medical Examination Centre, which was carried out by Dr Khurana.  The report of that examination on the form ESA85 appears in the tribunal bundle along with a prior report made on 29 September 2011.  There is no score sheet for the earlier report but of itself it would not have led to an award.  I am not aware as to what decision was made on the basis of that report, whether it was overridden by the decision maker, or whether there was a successful appeal. 

4.     The appeal against this decision was heard on 2 May 2013.  There was  oral hearing and the appeal was dismissed. A District Tribunal Judge refused permission to appeal on 28 June 2013, and the application was renewed before me.

5.     The basis of the further appeal was that the FTT had failed to explain their decisions that the appellant would be able to walk 200 m without needing to stop, and the fact that some reasoning had been based upon observations of the appellant during the hearing, which might, it was said, suggest some informal examination of the appellant which is precluded.

6.     In granting permission to appeal I said:

Although I do not wholly agree with the points made as to the use of observation by the tribunal, it seems to me arguable that the First-tier Tribunal (FTT) has fallen into error of law in the following respects.

The statement of reasons fails adequately to explain the basis of the findings in respect of the appellant’s walking ability and his capacity to pick up and move things. Due to the construction of the statement it is hard to establish what evidence was accepted and what was rejected. Arguably the fact-finding is deficient due to this.

No mention is made of the FTT’s treatment of the evidence of the appellant's doctor, page 96 of the bundle, and in particular the remark made in respect of the finding that the appellant was fit for work "I have strongly advised him to appeal against this decision as I cannot understand on what basis it was made."  No mention is made of the multiple atrial ectopics which are mentioned in that letter as having been found on an ECG.  Although the doctor's letter was written on 19/11/12, and the date of decision was 23/10/12, the condition may have existed at the date of decision, arguably it was incumbent upon the FTT to explain whether they found that it had not existed at the relevant time, or that it may have existed but was not the cause of particular functional disability. Regulation 29 should probably have been considered due to the multiple medical problems; it is not mentioned.

7.     I asked the Secretary of State to comment upon the adequacy of the statement generally and specifically with regard to the issues that I raised and to indicate whether, in all the circumstances, he was of the view that any errors of law which may exist are sufficiently material to require the decision to be set aside.   

The submission of the Secretary of State

8.     The Secretary of State in his submission following my grant of permission to appeal accepted that a number of the points I had made amounted to errors of law, but denied that they were material and argued that the decision was sustainable.  

The submission of the appellant

9.     The appellant’s representative commented as to the evidence in relation to walking ability, which he described as a variable, and anticipated a situation whereby the appellant might not score 15 points for walking, but may merit a lower score, which might then be added to the score in respect of other problems with the physical descriptors.  His observations in respect of the regulation 29 point were that the Secretary of State was taking to narrow an approach in saying that the fact that he managed certain stated daily activities would suggest that no one would be at substantial risk if he was found not to have limited capability for work, in that there was a need to consider how the appellant might cope with specific work, and within a work environment which was more pressurised than that he experienced during the day. The GPs view was referred to, and the further hip replacement. The specific point was made that it may be that his hip would deteriorate if he were found not to have limited capability for work.

My conclusions

10. Looking at the matter overall it boils down to a reasons challenge.  It seems to me that the statement is deficient to the extent that the appellant cannot really divine why he lost.  The statement recites part of his evidence, but seems to omit those parts in which he qualified his abilities, particularly with regard to walking. If I take the recitation of evidence to be the facts found by the tribunal, it is difficult to determine precisely what the basis of that was. I don’t know whether or not the appellant’s evidence was accepted, or accepted in the qualified way that it is set out, in which case there should have been some explanation for the parts of his evidence that strongly implied he would have difficulties with certain descriptors on a reliable and repetitive basis being rejected.  There seems to have been no express consideration of the aspect of repeatability.  Although the GP’s evidence was not particularly informative as to function, it did make the general point that the GP felt the appellant to be unable to work, albeit that that does not mean that he was applying WCA criteria.  It also indicated that a further hip replacement was awaited, and in view of that, and of the possible interaction of conditions, including that set out in the conclusions of the ECG, it seems to me that regulation 29 required specific consideration.  The observations of the representative in respect of possible deterioration of the hip seemed to me to be pertinent in that context. 

11. I do not feel that this decision is sustainable. The matter requires remission for a further hearing where facts will be found as to the appellants physical capability to carry out the various descriptor tasks on a reliable and repetitive basis, and if insufficient points are scored, then the question of whether there would be a substantial risk to his health (risk to the health of others would not seem to be a feature) if he were found not to have limited capability to work arises. The test in Charlton [ 2009] EWCA Civ 42 requires consideration of any risk in the context of the sort of work that the appellant might be expected to look for and the journey to and from work.  Whilst regulation 29 (2) (b) is more frequently applicable to those with mental health problems than physical problems, it may have applicability where a physical condition results in problems with exertion, or limits exercise tolerance significantly.  These may be issues which it is difficult to adapt for within the workplace.

12. The matter is very far from being a foregone conclusion, however.  It may be that the medical member on the panel would be able to interpret the medical evidence in a way that satisfied the FTT that there were no complex interactions, that the conditions were medically managed to a degree where difficulties with the physical descriptors would not be expected, and dealing with the issue of risk, particularly in relation to the hip joint.  These matters were simply not addressed by the first FTT.

13. I would make a further point as to observation evidence, because it is a matter upon which the representative places substantial reliance.

14. Observation evidence of an appellant within a tribunal context is permissible. The FTT needs to bear a number of things in mind, however, if placing reliance on their observations. There needs to be clarity as to whether the current position is representative of that which was obtaining at the date of the decision.  With regards to observation this tends to be more difficult where there has been an improvement, than where there has been deterioration.  Nonetheless the issue needs to be addressed.  Where reliance is placed upon the physical demonstration of ability during the hearing, generally an appellant ought to be given the opportunity to comment upon it. As an example if somebody who claims significant problems with manual dexterity is seen to handle papers, bags, gloves, buttons etc apparently normally, it is good practice to put that observation to the appellant for comment.  That is not to say that it would always be a material error of law not to do so; the nature of the observation and the context is important.  As I said in  KE v Secretary of State for Work and Pensions (DLA) [2013] UKUT 532 (AAC)

 Credibility findings come both from impression and inconsistencies. It is not necessary even in respect of inconsistencies of physical behaviour to put every matter to an appellant, and in relation to impressions from the oral evidence which may be being formed by the tribunal during the hearing and which may only crystallise during the post- case discussion it is not to be expected.

15. Once again, contrary to the submission of the appellant’s representatives, in this case the type of observation does not amount to an examination of any sort, let alone one which is specifically precluded.  aTribunal is able to use all its senses, including what it observes from looking at an appellant, in considering whether or not the tests in relation to capability for work are satisfied. ((R1/01(IB) (T); R4/99(IB))  It is also settled law that if an appellant invites specific observation by, for example pulling up his sleeve to show a burn or a rash, or inviting inspection of arthritic hands that does not amount to a physical examination, and the tribunal is entitled to observe and take into account those observations.

16. As explained above I set the decision aside and direct that a freshly constituted tribunal rehear the case.  Case management directions appear below, although they are subject to amendment or review by a District Tribunal Judge considering the case prior to listing.

17. 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.

DIRECTIONS

18. The case will be listed as an oral hearing in front of a freshly constituted tribunal.

19. The appellant must understand that the new tribunal will be looking at his health problems and how they affected his day-to-day life at the time that the decision under appeal was made, 23 October 2012.

20. The new panel will make its own findings and decision on all relevant descriptors.  They will consider all aspects of the case afresh.

(Signed) PA Gray

Judge of the Upper Tribunal

(Dated)  23 January 2014