Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/2174/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Decision:  The decision of the First-tier Tribunal sitting at Liverpool on 6 January 2014 under reference SC068/13/11822 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 & 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 appeal should be considered at an oral hearing at a venue convenient for the appellant.

 

(2) The new First-tier Tribunal should not involve the tribunal judge or medical member previously involved in considering this appeal on  6 January 2014.

 

(3) The appellant is reminded that the new tribunal can only deal with her situation as it was down to 19 June 2013 (the date of the original decision of the Secretary of State under appeal) and cannot deal with any changes after that date.

(4) If the appellant has further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the relevant tribunal office within one month of the issuing of this decision.  Any such further evidence, to be relevant, will have to relate to the circumstances as they were as at the date of the original decision of the Secretary of State under appeal. 

 

(5) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal.  Depending upon its findings, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

 

REASONS FOR DECISION

 

The decision in summary.

 

1. This is the appellant’s appeal to the Upper Tribunal against a decision of the First-tier Tribunal (F-tT) dated 6 January 2014.  My decision is that the F-tT’s decision involved an error of law.  I allow the appellant’s appeal to the Upper Tribunal and set aside the F-tT’s decision.  The appellant’s appeal against the Secretary of State’s decision dated 19 June 2013 will have to be reheard by a new tribunal. 

The background.

 

2. The appellant was born on 27 November 1961.  She suffers from health problems including depression, generalised arthritis, asthma and incontinence. 

 

3. On 22 March 2013 the appellant completed a standard questionnaire known as form ESA 50 in which she indicated she had difficulties with a number of the activities and descriptors contained within Schedule 2 to the Employment and Support Allowance Regulations 2008 relating to both physical and mental health issues.  Thereafter, on 13 May 2013, she was examined by a healthcare professional (HCP), on this occasion a registered nurse, and a medical report of that date was prepared.  The respondent, in light of the information obtained, went on to take a decision of 19 June 2013 superseding an earlier decision and deciding that the appellant did not have limited capability for work and was not entitled to employment and support allowance.

 

4. The appellant appealed to the F-tT. There was an oral hearing at which she attended and gave evidence. Both the appellant and the respondent were represented.  In addition to the oral evidence the F-tT had the benefit of a letter of 16 September 2013 written by an organisation called “Inclusion Matters” which indicated the appellant had been suffering from depression and related symptoms and was undergoing cognitive behavioural therapy.  The tribunal was also supplied with a decision notice relating to an earlier and successful appeal which had been brought by the appellant, in relation to employment and support allowance, and which had been allowed on 5 November 2012 on the basis that she scored 6 points each in relation to descriptors 1(c), 15(c) and 16(c). 

 

The First-tier Tribunal’s decision.

 

5. The F-tT has produced its statement of reasons for decision (statement of reasons).  It is said, therein, that the appellant’s representative had invited it to consider awarding points in respect of descriptors 1(d), 14(c). 15(c) and 16(c). Those descriptors, of course, relate to the activities of mobilising, coping with change, getting about and coping with social engagement.  It noted that the appellant had said that her mental health problems had improved and that her condition varied.  It noted that she had said she suffered from panic attacks when alone outdoors but that she did, nevertheless, try to go out alone.  She had said she felt anxious if there was an unexpected change in routine and this would cause her to become stressed and upset.  She said she had no friends and just mixed with family. 

 

6. As to mobilising, the F-tT observed the HCP had recorded that she appeared to walk normally at a normal pace and had indicated she could move around indoors on one level without difficulty, could go up and down stairs herself and could go to her sister’s house “by walking 5 minutes and back alone”.  The F-tT went on to say:

 

“The tribunal considered that based upon her own evidence the appellant would be able to mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion and would be able to repeatedly mobilise 200 metres within a reasonable time scale without significant discomfort or exhaustion.”

 

7. The F-tT then turned its attention to the mental health descriptors and said;

 

“The tribunal considered the Mental, Cognitive and Intellectual Functional Assessment set out in Part 2 of the ESA Regulations.  The appellant was able to carry out and complete all personal and household tasks without difficulty.  She was able to go to visit her sister at her home by walking there and back alone; she was sometimes able to go into the shops in Breck Road and could mix with her family.  She said that she felt anxious if there was an unexpected change in routine which would cause her to get stressed, anxious and upset.  The tribunal considered that she was able to cope with minor unplanned changes and her day to day life was not made significantly more difficult because of such changes. There was no evidence to indicate that engagement and social contact with someone unfamiliar to the appellant was not possible for the majority of the time due to difficulty related to others or significant distress experienced by her. The tribunal accepted that the appellant would be unable to get to a specified place with which she is unfamiliar without being accompanied by another person and awarded Descriptor 15(c) = 6 points for Getting About.  The tribunal decided that the appellant had no difficulties regarding any of the other activities referred to in the assessment to justify the award of any further points.  The award of Descriptor 15(c) was insufficient to meet the threshold for the test.”

 

8. The F-tT then went on to consider regulation 29 of the Employment & Support Allowance Regulations 2008 and said this;

 

“There was no evidence that the appellant was suffering from any specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the appellant were found not to have limited capability for work.”

 

9. Hence, the appeal failed.

 

The proceedings before the Upper Tribunal.

 

10. The appellant, through her representative, sought permission to appeal to the Upper Tribunal.  In summary, it was contended that the F-tT had erred in failing to refer to the requirement that it had to assess matters as at the date of decision, in failing to make sufficient findings with respect to the mobilising descriptors, in failing to provide an adequate explanation as to its conclusions regarding the mental health descriptors, in failing to consider the letter from Inclusion Matters, in failing to make adequate findings of fact with respect to certain of the appellant’s health problems and in erroneously concluding there was no evidence to suggest there would be a substantial risk ( I think in the context of regulation 29 of the 2008 Regulations) to health in circumstances where it was accepted that she had suffered from panic attacks.

 

11. I granted permission to appeal, principally, because of my view it was arguable the F-tT had erred in failing to adequately address the descriptors relating to the activities of coping with change and coping with social engagement and in failing to adequately explain its conclusion with respect to the possible applicability of regulation 29 though I did note that it was not clear the appellant’s representative had actually sought to rely upon that provision at the hearing. I did not limit the grant of permission.

 

12. Ms R Walker who now acts on behalf of the respondent with respect to this appeal to the Upper Tribunal has filed a written submission in which she indicates the appeal is supported.  She accepts the F-tT erred in providing insufficient reasons for its conclusions regarding the descriptors related to the activities of coping with change and coping with social engagement.  She accepts that the F-tT further erred in its consideration of regulation 29 and, in particular, in omitting to deal with how the appellant might be expected to get to and from a workplace bearing in mind points had been scored under descriptor 15(c) which relates to the activity of getting about.  She also accepted that the F-tT’s findings regarding the mobilising descriptors were inadequate.

 

13. The appellant’s representative has indicated he does not have any further comments. 

 

Analysis.

 

14. Although not originally attracted to the ground regarding mobilising I have concluded that it is made out and that the F-tT did err in this respect.  In general terms it was open to it to take into account walking undertaken by the appellant either in the home or when journeying to her sister’s house.  At paragraph 6 of its statement of reasons the F-tT refers to the appellant going to her sister’s house “by walking 5 minutes and back alone”.  That is taken from what she is recorded as having said to the HCP and which appears under the heading “Description of a Typical Day”.  However, at paragraph 5 of its statement of reasons, the F-tT says that she had said, seemingly in oral evidence, that she would walk to her sister’s house nearby but it would take her around three quarters of an hour and that she would need to stop and start quite a lot.  Unless she is talking about different sisters, and there is no indication that she is, there does seem to be some conflict in the evidence here.  There is a significant difference between her walking 45 minutes, even if she starts and stops a lot, and walking only 5 minutes in order to get to her sister’s house.  The apparent conflict is not resolved or explained.  Further, the F-tT did not make findings as to how far away the sister’s house was, how often the appellant would stop on the journey and how long she would stop for.  All of that was relevant to the question of whether or not she was able to mobilise more than 200 metres or repeatedly do so within a reasonable timescale.  The lack of findings about key matters and the apparent confusion as to the distance walked causes me to conclude that the F-tT did fail to adequately explain why descriptor 1(d) did not apply.

 

15. Further, with respect to the activity of coping with change, what the F-tT had to say above consisted of an assertion that she could cope with minor unplanned changes rather than an explanation, based upon evidence, as to why it concluded she could.  An F-tT does have to produce adequate reasons for its conclusions.  Those reasons do not have to be anything more than adequate but they do have to constitute a sufficient explanation as to why a matter of relevance has been resolved against a party.  Here, that standard is not reached.

 

16. As to the activity of coping with social engagement, again the F-tT’s explanation owes more to assertion than explanation based upon evidence.  The F-tT did observe, at paragraph 6 of its statement of reasons, that the appellant had no problems communicating with other people and “sees her family all the time”.  It did not explain why it thought she had no problems communicating with other people nor did it explain why seeing her family might relate to the question of whether engagement in social contact with someone unfamiliar to her would not be possible for the majority of the time.  I do not say that an ability to mix with one’s family is irrelevant to the question of being able to manage social contact with unfamiliar people but, clearly, family members would be familiar in the normal way of things and, therefore, more explanation of the F-tT’s thought processes was required.

 

17. I have also concluded that the F-tT erred in its consideration of regulation 29.  What it had to say about that regulation was very brief and somewhat formulaic.  In this case the appellant had claimed to have both mental and physical health difficulties.  The F-tT had accepted that she did score points in relation to descriptor 15(c) which meant it was satisfied she was unable to get to a specified place with which she was unfamiliar without being accompanied by another. Thus, it had acknowledged there were mental health problems such as to justify some point scoring under schedule 2 to the 2008 regulations. There is a very helpful consideration as to when it is necessary to address regulation 29 in a statement of reasons and to what extent it is necessary in MS v Secretary of State for Work & Pensions [2014] UKUT 115 (AAC).  It is said, therein, amongst other things, that regulation 29(2) (b) is more likely to be relevant in cases where the descriptors relating to mental, cognitive and intellectual functions are in issue. They were, of course, in issue here.  Further, there is no consideration by the F-tT as to the range or type of work the appellant might reasonably be expected to do and, therefore, no consideration as to whether there would be the necessary degree of substantial risk stemming from undertaking such work.  Thus, the approach set out in Charlton v Secretary of State for Work & Pensions [2009] EWCA Civ 42 has not been followed.

 

18. I did consider whether the representative’s apparent failure to specifically raise the issue meant that the F-tT was not obliged to address it.  Indeed, I raised that in my grant of permission though neither party has sought to address the point further.  Presumably, neither thought it necessary bearing in mind the measure of agreement about other matters.  The record of proceedings does record that the representative indicated he would seek to rely, on the appellant’s behalf, on four specific descriptors, but is silent about regulation 29.  I think it is right to say, in general terms, that if a competent representative (as is the appellant’s representative here) chooses not to raise regulation 29 then an F-tT will not, absent unusual circumstances, be obliged to address it.  However, where an F-tT does choose to address it, even if not raised, it must do so properly and in those circumstances a failure of a representative to raise it will not mean that an otherwise inadequate analysis will suffice.  In these circumstances, therefore, I would accept, even without a further specific point made by the respondent and which I shall address below, that the F-tT erred in its consideration of regulation 29.

 

19. The further specific point, made in the respondent’s written submission and which was referred to, albeit briefly, in the grounds of appeal relates to the question of the journey to and from the workplace. It is certainly right to say that a consideration of the substantial risk in regulation 29(2)(b) would encompass not only risk in the workplace but wider matters including risk on the journey to and from work.  Ms Walker’s specific point, in this context, is that descriptor 15(c) was accepted as being met such that it was accepted the appellant was unable to get to a specified place with which she was unfamiliar without being accompanied.  Ms Walker says that has relevance because of what is said in PD v Secretary of State for Work & Pensions (ESA) [2014] UKUT 148 (AAC). 

 

20. In PD the Upper Tribunal was concerned with an appellant who, it was accepted, was unable to get to a specified place with which he was familiar without being accompanied by another person.  Thus, he had greater difficulties, at least in that particular context, than did the appellant in this appeal.  The Upper Tribunal concluded that, given the difficulties of the claimant before it, it was necessary to consider whether a third party might be able to assist in the journey to and from work in order to obviate any risk in undertaking such a journey.  Evidence as to the availability or otherwise of a third party should, it was said, be considered by a tribunal.  Other possible means of getting to and from work, such as using a motor car should also be investigated.  As was pointed out in PD it is not unusual to come across people whose ability to get out of their domestic setting is much greater in a car than it is when relying on public transport.

 

21. There is, though, it seems to me, a significant difference between a claimant who is unable to get to a familiar place and one, as here, who is unable to get to an unfamiliar one but who can get to a familiar one. That said, it is reasonable to suppose that many new employees will be embarking on a journey which is, initially, unfamiliar to them when they start a new job. However, a practical difference is that an unfamiliar journey can very quickly become a familiar one so that, for example, if a third party were needed to accompany a new employee that might only be for a short, perhaps very short, initial period until the journey, by repetition, became familiar.  So, whilst a person in the position of this appellant might need some initial assistance from a third party that might, depending on the circumstances, be for a matter of just a few days or so and, in those circumstances, it would seem to be much more likely that someone would be on hand to afford that limited amount of assistance for a limited period of time.  I do not say that the difficulties of a person who only meets descriptor 15(c), rather than a higher scoring one within the same activity, in getting to the workplace are to be discounted, I simply say it is far more likely that there will be a practical way of surmounting such difficulties so that the likelihood of regulation 29(2) (b) coming into play in such a situation is very much reduced though not extinguished.  A prudent tribunal would be alert to the point but may not, depending upon the facts as found, have to say very much, if anything, to satisfactorily deal with the matter. In this case I would accept the F-tT erred in failing to address the matter at all but, in view of my setting aside the decision for the other reasons set out above, I do not have to consider whether that error was material.

 

22. On the basis of the various other errors of law identified above then, I do conclude that the F-tT’s decision has to be set aside.

 

What happens next?

 

23. There will, therefore, need to be a fresh hearing before a new F-tT.  Although I am setting aside the F-tT’s decision, I stress that I am making no finding nor expressing any view on whether or not the appellant was entitled to employment and support allowance at the relevant time and, if so, on what basis.  All of that is a matter for the good judgment of the new F-tT which must review all the relevant evidence and make its own findings of fact. 

 

Conclusion.

 

24. I conclude the decision of the First-tier Tribunal involved an error of law.  I allow the appeal and set aside the decision of the tribunal.  The case must be remitted (sent back) for rehearing by a new tribunal subject to the directions above.

 

 

(Signed on the original)

 

M R Hemingway

Judge of the Upper Tribunal

 

Dated 10 December 2014