Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL         Case No.  CE/1532/2014

ADMINISTRATIVE APPEALS CHAMBER

Before:           L T Parker Judge of the Upper Tribunal

Decision:         The decision of the First‑tier Tribunal (Social Entitlement Chamber) (the tribunal) held at Newport, Isle of Wight on 12 December 2013 is wrong in law.  Permission to appeal was given by a district tribunal judge.  Despite the lack of support for the appeal on behalf of the Secretary of State, in all the circumstances I judge it appropriate to substitute my own decision, having regard to the facts found by the tribunal.  There is some evidence of improvement after the date of the decision under appeal so that, if considered appropriate, another assessment may be initiated.  But having regard to the evidence accepted by the tribunal, I see no point in the delay and expense involved in remission of this appeal to a fresh tribunal.  My substituted decision is as follows:

                                    The appellant remains assessed as having limited capability for work from and including 18 March 2013 and therefore remains entitled to employment and support allowance (ESA) from that date; she attains 6 points from descriptor 14(c), 6 points from descriptor 15(c) and 6 points from descriptor 16(c), thus reaching the necessary points threshold; it is not an issue between the parties that the appellant has limited capability for work‑related activity. 

REASONS FOR DECISION

Descriptor 14(c):  cannot cope with minor unplanned change (such as the timing of an appointment on the day it is due to occur), to the extent that overall, day to day life is made significantly more difficult

1.         The tribunal found:

            “[The appellant] was, of course, generally in a position where she could set her own routines and unlikely to be confronted by changes whether expected or not.  We noted that she was anxious about the impending WCA, spending the night beforehand on the couch to make sure that she did not oversleep, but that having done so she got there and then coped with the experience albeit with some difficulty.  Jumping forward in time to when she took on the holiday park job in the aftermath of her benefit disallowance decision, we learned in her oral evidence that although she generally worked Mondays and Fridays this could be varied according to the pattern of bookings.  She said that she didn’t like it, but nevertheless did her best to accommodate the management’s requirements and over the  course of a whole summer season (seven months) only missed three days work.  She told us that she did become upset on a visit to the Jobcentre when it transpired that her appointment had been misplaced, but that she calmed down with the support of [her friend] ... we realise that this period post‑dated the decision, but she did not suddenly get better by virtue of taking on the job.”

The tribunal awarded no points for this activity; it confirmed the original decision with respect to the application of 15(c) and additionally held that 16(c) was satisfied, thus giving a score of 12 points. 

2.         In the submission to the Upper Tribunal on behalf of the Secretary of State dated 30 July 2014, it is argued:

            “The claimant in this instant case states that she slept on the sofa the night before the medical examination to ensure she did not oversleep.  It is my submission that this does not reflect an inability to cope with change.  I submit that many claimant’s (sic) would feel anxious about an impending appointment to assess their entitlement to benefit and the vast majority would want to ensure that that they are on time for such an important appointment.  Additionally, the medical examination is a one‑off  instance so it is my submission that, even if the claimant did struggle to cope, it cannot be said that descriptor 14(c) applies to the claimant for the majority of the time.  The claimant admitted she was able to change her working days to suit management, albeit she did not like it.  It is my submission that the dislike experienced by the claimant is not something intended to be captured by Activity 14.  The claimant was, in a variety of situations, able to carry on with her daily life despite a change occurring she did not welcome …”

3.         The appellant did not state merely that she slept on the sofa the night before the medical examination because of anxiety but that she was “vomiting with anxiety with attending her appointment”, which is surely much less usual and rather more grave.  There appears to be no evidence, moreover, to justify the assertion that the appellant was: 

            “In a variety of situations, able to carry on with her daily life despite a change occurring that she did not welcome.”

The evidence in that respect seems to apply only to the period when the appellant was working in the caravan park and that was after the date of the relevant decision under appeal.  Much more telling is that the tribunal accepts that the appellant became very upset when an appointment had been misplaced and needed her friend to calm her down; however, Activity 14 is not concerned with an ability to cope when supported but only about ability to cope when on one’s own.  This incident, which the tribunal was able to relate back to the appropriate period, demonstrates that the appellant had problems coping with change.

4.         However, was it to the extent that overall, day to day life was made significantly more difficult?  I judge the observations in this respect on behalf of the claimant to be persuasive:

            “Although attending an assessment is (relatively speaking) a ‘one‑off’ appointment, this is consistent with its being relevant to ‘coping with changes’:  as by definition [the appellant] cannot be assessed on the basis of ‘changes’ that are also normal circumstances.  The inability to cope is nevertheless always present, because the rest of the time she avoids having to cope with such events.”

5.         As the tribunal expressly acknowledged, the appellant’s lifestyle was such that she could “set her own routines and [was] unlikely to be confronted by changes whether expected or not.”  Descriptor 14(c) concerns the ability to cope with “minor unplanned change”; by the very nature of things, such change does not happen daily to those who, because of mental disablement, strive hard to avoid it; what matters is that ordinary daily life is made significantly more difficult if there is such change; that a claimant goes out of his or her way to  organise life so as to minimise the problem is itself evidence that the required degree of difficulty for the claimant is present, on a day to day basis, unless she leads an unvarying lifestyle. 

Activity 13:  initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks)

6.         While I agree with the point made on behalf of the appellant that the emphasis under this activity is on the mental agility involved in carrying out personal action, rather than the simple completion of physical tasks, nevertheless I do not judge that the tribunal went wrong in its approach.  Deciding to get up and dress in order to go out to shop, selecting and paying for produce, all demonstrate some planning and organisation; an adjudicator does not have to find examples in each of the categories if the inference from the overall picture is of a necessary level of competence.  The tribunal determined that the appellant, at the time of the relevant decision, could undertake these activities “most days”; so that not even 13(c) applied.  I am unable to say that exercise of judgment is perverse. 

Regulation 29(2)(b)

7.         At paragraph 10 of IJ v Secretary of State for Work and Pensions (IB) [2010] UKUT 408 (AAC), Judge Mark said:

            “Further, the test is not limited to whether there would be a substantial risk to the claimant from any work he may undertake.  The test is as to the risk as a result of being found capable of work.  If he was found capable of work, he would lose his incapacity benefit, and would very possibly need to seek work and apply for jobseeker’s allowance.  That would involve his attending interviews, and going through all the other steps that would be needed to obtain and keep jobseeker’s  allowance.  …  The tribunal would then have to determine how this change from his being in receipt of incapacity benefit would affect the claimant’s mental health, looking not at some work he may do, but of the effect on his mental health of fruitless and repeated interviews and the possibly hopeless pursuit of jobs … these factors were not considered by the tribunal, and indeed they did not elicit the information necessary to enable them to be considered, such as whether he had in fact applied for jobseeker’s allowance and if not, how he was coping or would cope.”

As noted on the appellant’s behalf, letters expressing concern at what it would mean for the appellant if she had to “go on to jobseeker’s allowance and deal with what that entails” were before the tribunal; notwithstanding, while the tribunal dealt properly with whether there would be a substantial risk to the appellant from any work she may undertake, they did not, even briefly, address this further aspect.  It may indeed be, as is submitted on behalf of the Secretary of State, that she could be accompanied, at least initially, but this would not address some of the potential stress to which Judge Mark referred. 

Summary

8.         For the above reasons, I conclude that, despite its sympathetic and careful approach to the case, the tribunal materially erred in law.  On its own primary findings, however, I am able to make an inferential finding that descriptor 14(c) was satisfied at the date of the relevant decision under appeal; the 6 points under this descriptor when added to the score allotted by the tribunal (which I confirm) exceeds the 15 points required by regulation 19.

                                    (Signed on the Original)

                                                                                    L T Parker

                                                                                    Judge of the Upper Tribunal

                                                                                    26 September 2014