Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal is allowed.

The decision of the tribunal given at Glasgow on 17 April 2014 is set aside.

The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal.

REASONS FOR DECISION

/1.        The claimant, a fifty three year old man with hypotension, depression and a frozen left shoulder, appealed against a decision made on 8 August 2013 disallowing employment support allowance following a medical examination on 30 July 2013 at which the claimant was assessed as scoring no points in respect of either the physical or mental health descriptors of the limited capability for work assessment.  The tribunal upheld that decision and held that regulation 29 of the Social Security (Employment and Support) Allowance Regulations did not apply to the claimant, and it is against the tribunal’s decision that the claimant now brings this further appeal.

2.         Judge May QC gave permission to appeal on 19 August 2014 solely on the ground that the tribunal’s findings were not supported by the evidence, and I respectfully agree with the Secretary of State’s submission supporting the appeal on that basis.  The tribunal’s finding that the claimant’s ability to grip and hold with his left arm below the level of his left elbow was perfectly normal did not accord with the Health Care Professional’s statement that the claimant’s left grip and muscle power in the left arm were significantly reduced, nor with the orthopaedic surgeon’s letter (page 61) reporting limitation of movement in the claimant’s left arm and stating that the claimant was unable to drive or perform any bimanual tasks.  The tribunal’s finding that the claimant had “no significant mental health problems” is difficult to reconcile with the evidence that he was seeing a psychologist and did not adequately deal with the claimant’s ability to cope with change and to start and finish tasks.

3.  As the Secretary of State’s representative has correctly observed, those defects in the tribunal’s reasoning may not be material, since the claimant might not have scored 15 points even if the tribunal had evaluated the evidence correctly.  However, the representative has very fairly supported the appeal on a ground not put forward in the grounds of appeal, that is, the way in which the tribunal dealt with regulation 29.

4.   In considering regulation 29, the tribunal recited the terms of the regulation and, having found that there would be no substantial risk to the mental or physical health of any person if the claimant were not found to have limited capability for work, went on to say that “the risk would be significantly reduced by reasonable adjustments made in the workplace or by taking prescribed medication”.  However, the claimant is a welding engineer by profession, work which involves strenuous effort using both arms in the proximity of flames and very high temperatures.  Even assuming that prior to his redundancy the claimant was employed in mainly supervisory roles, the tribunal’s decision wholly fails to explain how a man who (according to the orthopaedic surgeon) cannot drive and who is unable to perform any bimanual tasks and who was found by the tribunal to have postural hypotension could safely be employed on an engineering site. 

5.         This was a case, which more than most, required the tribunal to apply the approach in Charlton of identifying the range or type of work which the claimant was capable of performing sufficiently to identify the risk to health to the claimant or to others of a finding that the claimant did not have limited capability for work.  The difficult issues which may arise under regulation 29 will often require detailed findings of fact to be made by the tribunal, rather than mantra-like recitations of the terms of the legislation and unparticularised references to adjustments in the workplace.  I therefore agree with the Secretary of State’s representative that the tribunal did not deal properly with regulation 29 and that their decision is in error of law for that reason also.

6.         For those reasons, my decision is as set out above.

                                                                  (Signed)

                                                                  E A L  BANO

                                                                  Judge of the Upper Tribunal

                                                                  Date: 22 October 2014