Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/2057/2014

ADMINISTRATIVE APPEALS CHAMBER

Decision: The decision of the First‑tier Tribunal sitting at Southampton on 10 January 2014 under Ref: SC203/13/04256 involved an error of law and is set aside.

The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.

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

Directions: Subject to any later directions by a district tribunal judge of the First‑tier Tribunal, the Upper Tribunal directs as follows:

(1) The new hearing will be an oral hearing.  It will take place before a completely differently constituted tribunal to that which considered the appeal on 10 January 2014.

(2) The appellant is reminded that the tribunal can only deal with his situation as it was down to 9 September 2013 (the date of the original decision of the Secretary of State under appeal) and cannot deal with any changes after that date.

(3) If the appellant has any further evidence that he wishes to put before the tribunal that is relevant to his health conditions in September 2013 this should be sent to the relevant First‑tier Tribunal’s office within one month of the date this decision is issued. 

REASONS FOR DECISION

The background

1. The appellant was born on 19 July 1974.  He has musculoskeletal problems.  In 1993 he was involved in a motorbike accident which affected his left arm and neck to the extent that he had what appears to have been quite extensive surgery. 

2. The appellant had been in receipt of incapacity benefit from and including 20 May 1994.  On 29 March 2013 he was notified that the conversion phase, in respect of which recipients of incapacity benefit are assessed for possible entitlement to its successor, employment and support allowance, had begun.  At the request of the respondent he completed a standard questionnaire known as form ESA50 which is dated 3 May 2013.  In completing that form he made reference to the motorbike accident and described his left arm as being “paralysed and flailing”.  He said that subsequent surgery had allowed him to regain what he described as “a tiny bit of movement at the elbow”.  He indicated difficulties with many of the functions enquired about in the form ESA50 but appeared to ascribe difficulties he claimed with mental, cognitive and intellectual functions to physical causes.

3. On 8 August 2013 the appellant was examined by a health care professional (HCP), who was, on this occasion, a doctor. The HCP identified only one medical condition being the musculoskeletal problem.  She noted that the appellant was taking medication in the form of Gabapentin and Dosulepin.  She noted that he had active movement in the left shoulder with very reduced movement in the left elbow and no movement in his left wrist and hand.  Under the heading “Description of a typical day” she noted, amongst other things, that he was reliant upon using his right hand, that he can drive an automatic car, that he visits a local shop for essentials, that he manages stairs using a banister and that he can walk for 5-10 minutes at a normal pace before stopping due to pain in his legs.  The HCP thought that the appellant did not qualify for any points under the activities and descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008.

4. On 9 September 2013, in light of the above information and in particular the HCP’s report, a decision maker decided that the appellant scored no points under Schedule 2, that he did not meet the requirements of regulation 29 of the 2008 Regulations, that he did not have limited capability for work and that he was not, therefore, entitled to employment and support allowance.

5. On 30 September 2013 the appellant appealed against the decision.  The decision was reconsidered on 15 November 2013 but was not changed. 

6. The respondent prepared a written submission for the purposes of the appeal hearing before the First‑tier Tribunal (F‑tT). In that submission the respondent relied, in large measure, upon the content of the HCP’s report.  Attached to the respondent’s submission were various items of written evidence including the form ESA50, the HCP’s report and some additional medical evidence including a letter from one Dr. Waite, which was dated 30 November 2009, and which referred to the appellant, at that time, experiencing increasing problems with leg pain. 

7. The appeal came before the F‑tT on 10 January 2014. The appellant attended the hearing with his brother.  Both of them provided some oral evidence.  The F‑tT has produced a helpful and legible record of proceedings. 

8. The outcome of the appeal was that it failed.  However, the F‑tT did decide that the appellant scored six points under descriptor 1(d)(ii) and a further six points under descriptor 15(c).  Those descriptors relate, respectively, to the activities of mobilising and getting about.  That was not, however, sufficient to reach the required 15 point threshold and although the F‑tT considered whether the appellant satisfied the requirements of regulation 29 it concluded that he did not.  The F‑tT, upon request, produced a statement of reasons for decision (statement of reasons). 

9. The appeal now comes before me with my permission. 

The appeal to the Upper Tribunal

10. The appellant’s grounds of appeal did not seem to me to go beyond mere disagreement with the outcome.  However, I granted permission to appeal because I thought it arguable that the F‑tT had erred in failing to explain, with respect to the mobilising descriptors, why it had not selected a higher scoring descriptor than 1(d); had erred in failing to adequately explain why descriptor 2(c) did not apply and had erred in failing to adequately explain why descriptor 4(c) did not apply and that, in particular, it may not have been enough, in this context, for it to simply say that the appellant is “resolute”. 

11. Mr M Page who now acts for the respondent with respect to this appeal to the Upper Tribunal has indicated, in a written response, that the appeal is supported on the basis of the first reason why I granted permission.  He urges me to set the F‑tT’s decision aside and to remit to a new F‑tT.  He also consents to my issuing a decision without reasons.  The appellant, by way of reply, makes some further factual points and indicates he does not consent to a decision without reasons because, quite reasonably, he wishes to understand why the decision of the Upper Tribunal has been reached.  Neither party sought to request an oral hearing.  I did not see the need for one. 

Did the tribunal err in law?

12. In considering the descriptors relating to the activity of mobilising the F‑tT said this:

“ 16. In assessing the extent to which the appellant satisfied this descriptor, the Tribunal considered the examination of the appellant at the medical assessment, which detailed that there was no evidence of muscle wasting in the appellant’s calves and that the co‑ordination in both legs was normal.

17. At the hearing the appellant described how his mobility was limited and the constant pain that he suffered.  This resulted in the restriction of his mobility to such an extent that he no longer visited the supermarket.  He accepted that he could walk very limited distances before the pain kicked in and that he regularly walked across the road to visit his brother but would not be able to do this repeatedly.

18. The Tribunal found the appellant’s account of his problems with mobilising to be credible and found that he was unable to repeatedly mobilise 200 metres within a reasonable time scale because of significant discomfort and awarded 6 points for this descriptor.”

13. It is clear then, from that passage, that the F‑tT concluded the appellant did have some quite significant problems with respect to mobilising.  However, in my judgment, it is not sufficiently clear why it did not decide that a higher scoring descriptor was satisfied.  In this context, it found that the appellant could walk only “very limited distances” before, as it put it “the pain kicked in”.  It did find that he regularly walked across the road to visit his brother but walking across a road does not obviously preclude, for example, descriptor 1(a)(i) or (ii) or 1(c)(i) or (ii).  Nor, for that matter, would it, of itself, preclude descriptor 1 to Schedule 3 to the 2008 Regulations.  I do appreciate that, as a counter‑point to its favourable findings, the F‑tT did comment upon there having been no evidence of muscle wasting in the appellant’s calves when he was examined by the HCP.  However, given the seeming acceptance that he could manage only very limited distances before experiencing pain it was incumbent upon the F‑tT to say something more than it did by way of explanation as to why more than 6 points were not being awarded.  Accordingly, I conclude that the F‑tT erred in law.  The error was material because had the appellant achieved more than 6 points under the mobilising descriptors then this would have led to him attaining a total of either 15 or 21 points.  That is sufficient for me to conclude that the F‑tT’s decision has to be set aside. 

14. Strictly speaking it is not necessary to say anything further because any other errors of law which the F‑tT might have made will be subsumed by the fresh hearing.  However, I do think it appropriate for me to say something with respect to the point about descriptor 4(c).  The relevant activity is “picking up and moving or transferring by the use of the upper body and arms” and the relevant descriptor reads “cannot transfer a light but bulky object such as an empty cardboard box”.  The appellant’s position is that he cannot do this because he has no useful use of his left upper limb.

15. In dealing with this aspect of the appeal the F‑tT said this:

“ 21. In considering this descriptor the Tribunal considered whether the appellant could move the objects detailed in the descriptor with either hand.  At the hearing the appellant accepted that he could lift most of the objects specified but would have difficulties with a light card board (sic) box unless it had handles.  The Tribunal found that (sic) the appellant to be determined and resolute in respect of his physical limitations and was satisfied as a result that he was able to manage a light cardboard box with some adaptation.

22. The Tribunal accepted that the appellant had difficulties using his left upper arm and noted the evidence of the HCP regarding the examination of the appellant’s right arm as being fluid and pain free.  On that basis the Tribunal was satisfied that this descriptor was not satisfied and awarded no points.”

16. Mr Page, on behalf of the respondent, has drawn my attention to the Training and Development ESA Handbook which he says contains advice issued to health care professionals by the Department for Work and Pensions (DWP) and which is publicly available and can be accessed through the DWP website.  He quotes an extract from the Handbook which reads as follows:

“Within the descriptors, the concept of adaptation exists.  There is no requirement to have two hands to achieve the tasks outlined in the descriptor.  For example in P(c) (descriptor 4 (c)), a person could reasonable (sic) manage this by using one hand and supporting the box against another part of their body.”

17. Mr Page recognises, correctly, that the content of the Handbook is not binding on decision makers or tribunals but says that the F‑tT has done sufficient by noting that the appellant is “resolute”.  Mr Page goes on to say:

“I submit that if he can do it with one arm and his body, the Tribunal’s explanation in respect of this descriptor does not amount to an error of law.”

18. As was noted by a judge of the Upper Tribunal in KH v Secretary of State (ESA) [2014] UKUT 0455 (AAC), descriptor 4(c) was originally worded “cannot pick up and move a light but bulky object such as an empty cardboard box, requiring the use of both hands together”.  The current version of the descriptor, which was in force at the material time in the context of this appeal, no longer indicates a requirement that both hands will be needed.  Thus, in principle, I would accept that if a claimant is able to perform the task using one hand, perhaps by wedging the bulky object under his arm as was suggested in KH that will mean no points are scored.  Nevertheless, the task is no doubt easier for a person who has two good arms rather than one and the mere fact that a claimant has one good arm will not, of itself, mean that he or she will be capable of accomplishing the task.

19. In KH the Secretary of State’s submission to the Upper Tribunal was to the effect that because the requirement for the use of both hands in the relevant descriptor has now gone it is to be assumed or is generally accepted that a person could manage to transfer an empty cardboard box by using one hand and supporting the box against another part of the body.  The Upper Tribunal judge deciding that case disagreed and so do I.  As was pointed out, there is no suggestion that the size of the bulky object has diminished because of the change in the wording of the descriptor.  The descriptor requires an ability to transfer by the use of the upper body and arms.  There is no basis for an assumption that a claimant with one good arm will be able to do this although some might.  In fairness to Mr Page, though, that is not his submission to the Upper Tribunal in this appeal.  As indicated, he draws my attention to the Handbook, but whilst the content of that Handbook might be felt to be of some general assistance to initial decision makers it is not binding nor persuasive and a decision maker and, indeed, a tribunal, must reach a decision on the descriptor on the basis of all of the circumstances of the case.  What Mr Page contends, in effect, is that that is what the F‑tT has done.

20. As indicated, the task of transferring a light but bulky object is significantly easier with two good upper limbs rather than with only one.  Against that background, whilst what an F‑tT has to say need not be at all lengthy, it should offer some explanation as to how it concludes (if it does so conclude) that the task can be achieved by a claimant who is incapacitated in the way this appellant says he is.  In the passage quoted above, the F‑tT has not made it clear whether it thinks the appellant could use his left upper limb at all in attempting the task.  On the assumption that it does not think he could, it has not explained how it thinks the task might practically be achieved with the use of the rest of his upper body and his right upper limb.  Its finding that he is “resolute” does indicate its view that he has determination but that, of itself, will not always be sufficient for a claimant to overcome physical difficulties and does not, of itself, therefore, represent an adequate explanation for its ultimate conclusion.  The task of an F‑tT in such a case need not be regarded as an exacting one but the standard required has not, for the above reasons, been reached here.  Accordingly, I would conclude that the F‑tT has also erred with respect to its treatment of descriptor 4(c) to Schedule 2 of the 2008 Regulations. 

Conclusion

21. In light of the above, I conclude that the decision of the First‑tier Tribunal involved the making of an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a).  The case must be remitted (sent back) for rehearing by a new tribunal subject to the directions above (section 12(2)(b)(i)).  The new tribunal will not be bound by the decision of the previous tribunal and should consider all matters afresh.

(Signed on the original)

 M Hemingway

Judge of the Upper Tribunal

Dated 4 December 2014