IN THE UPPER TRIBUNAL Case No  CE/2286/2013

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Fox Court on 11 January 2013 under reference SC154/12/09942 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 14 of the Reasons.

REASONS FOR DECISION

1. Both the claimant’s representative and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. I have set the tribunal’s decision aside, because I consider that the tribunal’s decision was flawed by giving no, or insufficient, consideration to regulation 29 (even though the point had not been expressly raised by the claimant) and/or by making insufficient findings of fact and/or giving insufficient reasons.  The Secretary of State agrees there was an error in relation to regulation 29 , though for different reasons.

3. The appeal was against a decision taken on 21 April 2012 awarding nil points and concluding that the claimant did not qualify for ESA.  Just a few days later, the claimant’s GP provided  a certificate in Med 3 (“fit note”) indicating that because of the conditions  of “severe walking difficulties, depression and anxiety, shoulder pain, unable to use right hand, multiple joint pains”, the claimant was unfit for work. The certificate was given for 6 months.  There is no suggestion that the claimant’s condition had materially changed between the date of the decision and the date of certificate , which was included in the evidence to the tribunal.

4. It further appears that the claimant, a woman in her late 40s,  does not speak English and her last work, which had been with a supermarket chain, had ended 7 years ago following an accident.  Whilst I do not know, I infer from the file that it is likely to have been relatively unskilled work.

5. Regulation 29 of the Employment and Support Allowance Regulations 2008 applies if

“the claimant suffers from some 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 claimant were found not to have limited capability for work.”

Guidance as to how this test should be applied is available, in particular, from Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42.

In the tribunal’s decision notice and statement of reasons it did not mention regulation 29 at all.

6. In my judgment, if the claimant’s GP was advising his or her patient to refrain from work for 6 months by a Med 3 issued more or less contemporaneously with the decision under appeal, it was incumbent on the tribunal to consider the implications of that.  The work capability assessment is an artificial construct, which looks at certain activities only, and there is no necessary correlation between a doctor’s views as to what the patient can manage and the outcome of the WCA applied to that person, or vice versa.  Regulation 29 has the function of a safety valve addressing that lack of correlation, protecting claimants (and others) from the effect of determinations which in the circumstances set out in that regulation would otherwise result in substantial risk to health.

7. The tribunal only briefly addressed the fit note “which listed the appellant’s conditions, but did not refer in any detail to any functional restrictions caused by those conditions, except in headline form to walking difficulties and an inability to use her right hand.”

8. I can understand that the fit note may have been of little assistance in relation to the descriptors, but the tribunal in my view needed to consider what the very issue of the certificate implied about the impact of the conditions, taken as a whole, on the claimant’s ability to work.  The tribunal was required by Charlton to determine the range or type of work the claimant could do without the sort of risk which would be caught by regulation 29.  It did not do so and that was an error of law.

9. It is clear from her work history, language difficulties and other factors that the claimant does not enjoy every advantage on the labour market, so it is not self-evident that there is such a type.  And if, as seems likely, the most promising line of work is some sort of light manual occupation, such as the supermarket work she had previously done, then the tribunal needed to make findings as to her capability of doing it without significant risk to her health.  We are told that she cannot use her right hand.  It is likely to be relevant to anyone doing a light manual job whether (if such is the case) if they are unable to use one hand, it is their dominant hand or not.  Taking a practical approach, then, there were insufficient findings to support the most likely answer to the question that the tribunal might have given.

10. The Secretary of State disputes that the tribunal went wrong on this point in this way, relying on the fact that the answers to the ESA50 questions showed that the claimant could in fact reach above her head with one arm and that her ability to pick things up and use her hands varied, implying that she was able to do those things.  In fact the claimant’s’ answers were heavily qualified “I cannot use my right arm without pain and extreme difficulty” and she gave real illustrations of what she could not do, including reaching or doing any other task involving the right arm for too long, or picking up and moving anything of awkward shape or slight heaviness.  Whilst I accept that a tribunal’s decision on that evidence that nil points were obtained for ”reaching” or “picking up and moving” might well be unchallengeable in an error of law jurisdiction, regulation 29 is, to the extent identified in Charlton, looking at the practical question of the range of work the claimant could do without significant risk to health. On what the claimant had said, it remained as a real issue.

11. The Secretary of State supports the appeal in relation to regulation 29 on the basis that the tribunal failed to consider the claimant’s ability to get to and from work.  As I am setting the decision aside on the ground I have identified, I do not need to consider that submission further.

12. In her reply, the claimant asked for an oral hearing before the Upper Tribunal.  I believe that what she is probably seeking is an opportunity to give evidence as to the difficulties she faces – that will better be given by the First-tier Tribunal, which has a doctor on the panel as well as a judge.  So far as her appeal to the Upper Tribunal is concerned, I have been able to decide it in her favour without the need for an oral hearing, the application for which is accordingly refused.

13. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

14. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  It must give the claimant a fresh opportunity of electing an oral hearing.  While the tribunal will need to address the grounds on which I have set aside the decision, applying Charlton, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (21 April 2012) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

15. I encourage the claimant to take up the opportunity of an oral hearing with the First-tier Tribunal, as it is usually helpful for tribunals to hear from people themselves about their difficulties.

16. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter

for the tribunal to which this case is remitted.

(signed)

C.G.Ward

Judge of the Upper Tribunal

14 February 2014