Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CE/3069/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Chester on 18 March 2014 under reference SC065/13/03604 involved an error on a material point of law and is set aside.

The Upper Tribunal substitutes its own decision for that of the First-tier Tribunal.

The substituted decision of the Upper Tribunal is to set aside the Secretary of State’s decision of 22 July 2013 and replace it with a decision that on the balance of probabilities the appellant had limited capability for work and limited capability for work related activity from the relevant effective date and so her prior award qualified for conversion to an award of employment and support allowance with the support component from that effective date, on the basis that she scored 15 points under descriptor 7(a) in Schedule 2 to the Employment and Support Allowance Regulations 2008 and satisfied activity 7(ii) in Schedule 3 to the same regulations.

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(ii) of the Tribunals Courts and Enforcement Act 2007

REASONS FOR DECISION

1.                   Both parties have not objected to the First-tier Tribunal’s decision of 18 March 2014 (“the tribunal”) being set aside for error of law and the Upper Tribunal substituting its own decision for that of the tribunal, and I agree with them that this is the correct course to take.

2.                  The tribunal erred in my clear judgment law in giving no, or no adequate, consideration to activity 7(ii) in Schedule 3 to the Employment and Support Allowance Regulations 2008 (the “ESA Regs”). (Schedule 2, ostensibly at least, not being in issue on the appeal.)

3.                  I am satisfied I ought to decide the appeal myself rather than remit it to the First-tier Tribunal for decision because (i) the parties agree to me taking this course, and (ii) the paper evidence enables a decision to be made.

4.                  The ESA50 form, surprisingly, does not define the size of the large print (relevantly 16 or 24 point) the person can read to understand a simple message (on its page 11). It simply asks whether the person can understand simple messages by reading “large print”. The appellant can do so if the print is large enough. The critical question, however, for the purposes of the statutory scheme is how large the print is, on which the (new) ESA50 form is of no assistance.  Nor does the ESA85A scrutiny report explain the evidential basis for its finding that the appellant could read 16 point print. The only evidence directed to this particular issue (i.e. the size of print that the appellant could read), is that on page 38. On that evidence and on the balance of probabilities the appellant cannot read 16 point print and therefore satisfies activity 7(ii) in Schedule 3.

5.                  I therefore set aside the tribunal’s decision of 18 March 2014 and remake it in the terms set out above.

Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

Dated 27^th November 2014