Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                            Case No.CE/171/2014

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and remit the matter to be reheard by a new tribunal in accordance with the directions below. 

REASONS FOR DECISION

1.    This is a supported appeal with the permission of an Upper Tribunal Judge, Judge Lloyd-Davies, from a decision of the First-tier Tribunal dated 11 October 2013.  That decision dismissed the claimant’s appeal from a decision dated 6 February 2013 that as the claimant had not achieved 15 points from the appropriate descriptors, his existing awards did not qualify for conversion into an award of ESA and the existing awards and entitlement to be awarded credits would terminate from and including 27 February 2013.

2.    The tribunal found that the claimant scored 6 points on the limited capability for work descriptors in Schedule 2 to the 2008 Regulations, and that regulation 29 of the 2008 Regulations did not apply, with the result that he was not to be treated as having limited capability for work.

3.    While the claimant has some physical problems, his main problems are with his mental health.  The tribunal awarded him 6 points in relation to coping with social engagement.  In relation to initiating and completing personal action it found that he was prone to episodes of depression when he may lack the motivation to do things but it was not persuaded that he was “rendered incapable on a frequent basis of stringing together just two personal actions”.  The reasoning then given, however, relates to what the claimant can generally do.  There is no finding as to how frequently there are bouts of depression when the claimant lacks the motivation to do things or how long they last.  It appears to me that the tribunal was in error of law in this respect in that its reasoning does not explain why the periods of depression were not frequent or why, even during them, it found that he could reliably initiate and complete at least 2 personal actions.

4.    However, I am not satisfied that there was any error of law in relation to getting about.  The question there is whether, at the least, the claimant was unable to get to a specified place with which he was unfamiliar without being accompanied by another person.  It appears to me that the tribunal was entitled to come to the conclusion to which it came and that it gave good reasons for its decision, even though another tribunal may have reached a different conclusion.

5.    The result in relation to the descriptors therefore is that the error of law, if corrected, might have led to the claimant scoring an additional 6 points, but that would only have taken his total to 12 points.  That error of law would not lead to the decision being set aside.  As, however, I am setting the decision aside on the ground set out below, the question of the claimant’s entitlement to points in relation to all relevant descriptors will need to be looked at afresh by the new tribunal as well as the impact of regulation 29.

6.      The appeal is supported on the ground that the tribunal failed to give any proper explanation as to why it considered that regulation 29 did not assist the claimant.  It was submitted to the tribunal that if the claimant was not found to have limited capability for work, he would be left with no alternative but to sign on as a jobseeker to maintain himself, and would be directed to undertake mandatory jobseeking activities, including activities such as unpaid work in stressful environments.  Given the fluctuating nature of his condition, it was submitted that the claimant would not be able to comply with these, possibly inappropriate, demands reliably and would become a target for sanctions, leaving him destitute.  He would also be obliged to accept any work that could be found for him, again leaving him at risk.

7.    The statement of reasons says in relation to this that the tribunal did not consider the shock of having to sign on at the Jobcentre after 20 years would of itself harm him.  I note that this was not a contention made on behalf of the claimant.  The next point made was that the claimant could find and attend the Jobcentre and have a reasonable conversation with the job advisor.  Again the contrary does not appear to have been suggested.  It is then stated that the tribunal could see no reason why engagement in any occupation within his skill range, and which did not require him to undertake social interaction with strangers, would be harmful to him.  The tribunal does not indicate what occupation or range of occupations it had in mind.  More seriously it totally failed to deal with the points actually made in the written submissions.  It was dealing with a claimant who had not worked for 20 years, whose appearance was described by the disability analyst as unkempt, and whose behaviour was described as restless with reduced facial expression, and whom it had found was prone to episodes of depression when he may lack the motivation to do things. 

8.    The tribunal needed to address how he would have coped not just with an interview and with some unspecified job when not having a depressive episode, but with all the matters identified by the claimant’s representative in his written submissions and then determine whether there was a substantial risk to his mental or physical health (or that of anybody else) if he were found not to have limited capability for work.  There have also been raised, at least before me, issues as to the extent to which the claimant can use public transport or travel at busy times and the tribunal may need to consider this both in connection with any requirements imposed in connection with jobseeker’s allowance and in connection with any employment he may obtain.  In failing to identify the correct issues and to make appropriate reasoned findings, the tribunal was in error of law.  Its decision must be set aside and the matter remitted for rehearing by a new tribunal.

9.    If the new tribunal finds that the claimant did have limited capability for work, it will need to consider regulation 35 to determine whether he also had limited capability for work-related activity.  In doing so, it will need to have regard to the recent decision of a panel of Upper Tribunal judges in IM v Secretary of State [2014] UKUT 412 and for this purpose it will first need to obtain evidence from the Secretary of State as to the range of work related activities in the area in which the claimant then lived.  It will also need to know if there was any practice within the area which might affect the claimant as to who was required to undertake work-related activities.

(signed)                     Michael Mark

                                    Judge of the Upper Tribunal

                                    1 October 2014