Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CE/3928/2014

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge E. Grey QC

 

 

DECISION

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Coventry on 26 March 2014 under reference SC015/13/02828 involved an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.

 

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 at an oral hearing.

 

(2)              The appellant is reminded that the tribunal can only deal with her situation as it was as at 8 January 2013 and not with any changes after that date.

 

(3)              If the parties have any further evidence that they wish to put before the tribunal that is relevant to the appellant’s health and capability for work in or before 8 January 2013, this should be sent to the First-tier Tribunal’s office in Birmingham within one month of the date this decision is issued. If they cannot send that evidence within that period, the parties will need to contact that office to let them know that further evidence is expected.  That is not to say that any further medical or other evidence will be necessary.

 

(4)              The First-tier Tribunal should have regard to the points made below.

 

 

 

REASONS FOR DECISION

 

Introduction

1.                   This is an appeal against the decision of the First-tier Tribunal, sitting on 26 March 2014 in Coventry, to dismiss the appellant’s appeal against a decision regarding her entitlement to Employment and Support Allowance (“ESA”). The tribunal confirmed the respondent’s decision that the appellant was not entitled to ESA because she was not incapable of work, having scored no points on the limited capability for work assessment. The Tribunal considered the application of Regulation 29 of the Employment and Support Allowance Regulations 2008 (“the ESA Regulations”), but its members were not satisfied that the appellant had a disease or disablement that would involve a substantial risk to her mental or physical health, or to any other person, if she was found capable of work.

 

2.                  Permission to appeal against the First-tier Tribunal decision was granted by Judge Wright of the Upper Tribunal on 18 November 2014, on the grounds that the Tribunal had arguably erred in its approach to:

 

(a)  Activity 1 (Mobilising) of Schedule 2 of the ESA Regulations, by failing to consider the extent to which the appellant could ‘repeatedly mobilise’ over the required distances and to explore this issue in evidence;

(b)  Activity 9 (Incontinence), by its treatment of the interrelationship between loss of control and mobility difficulties in reaching a toilet in time.

 

3.                  The parties were invited to respond to the grant of permission.  By submissions dated 22 January 2015, the respondent to this appeal (the Secretary of State for Work and Pensions) accepted that the First-tier Tribunal’s approach to both grounds of appeal amounted to errors of law and that the case should be remitted back to a fresh panel for redetermination. The appellant agreed.

The factual background

4.                  In her ESA50 the appellant stated that she suffered from prolapsed discs in her lower back and from IBS (irritable bowel syndrome).  She wrote that she could not move 50 metres before she had to stop.  She was in constant pain and suffered spasms in her back.  She wrote: “Due to my IBS I can sometimes soil myself as I have no control over when it will happen and if unable to reach a Toilet in time.” (p26).

 

5.                  The findings of the healthcare professional (“HCP”) who examined the appellant were summarised by the First-tier Tribunal and are set out below.  However, the appellant’s submissions to the Tribunal for the appeal included the assertion that the HCP’s statement regarding her ability to go shopping ‘for about an hour’ was untrue – “what she actually said to the HCP was that .. “it would take me an hour just to get up the first aisle.”’

 

6.                  The First-tier Tribunal’s Statement of Reasons contained the following passages:

 

“[7]  The HCP carried out a physical assessment and took a full history from [the appellant], including details of her general daily routine.  [The appellant] had travelled to the assessment by way of a 15 – 20 minute car journey …. She was able to walk in the local area for 4-5 minutes.  The HCP reported that she was able to shop for 1 hour using a trolley as a support. [The appellant] stood for 25 minutes using 1 crutch and sat for 2 minutes.  The HCP found evidence of a slight reduction in her ability to bend her hips and knees and outwardly rotate her hips. 

…..

[9] The HCP concluded that in relation to lower limbs [the appellant’s] observed behaviour was not consistent with significant disability.  In relation to upper limb restrictions the HCP concluded they were medically unexplained and inconsistent.

[10]  In oral evidence [the appellant] said that her back symptoms consisted of spasms, shooting pains which made her back hot like a radiator,  She said she suffered from diarrhoea up to 2 – 3 times a month. 

[11] She described her walking ability as poor.  She said she could walk for 4 – 5 minutes stopping every lamppost.  She said that if she walked one aisle of the supermarket she would be in agony for three days thereafter.  She said she took 30 minutes to walk a distance that would take 2 minutes for a normally-mobile person.  She said her soiling from her bowels was due to being unable to reach the toilet due to mobility.  She said she had 3 accidents a month but she did not use any pads….

[12] We accepted [the appellant] suffered with back pain but there was a great deal of discrepancy between the level of disability described by the HCP and [the appellant].  To reconcile this we looked at the medical evidence that had been called for by the previous tribunal. [The appellant] had visited her GP on one occasion between 1^st July 2011 and the date of the decision on 8^th January 2013 for investigation of a chest rash.  She was receiving no specialist input for her IBS and was using first-line antispasmodic medication.  She was using over-the-counter painkillers and this corroborated the medical member’s view that her prolapse discs [sic] were unlikely to be causing the level of pain and disability she was claiming. As all her claimed disabilities stemmed from her back pain we found on balance that she was unlikely to be suffering the level of disability claimed on the ESA50.  We therefore preferred the evidence of the HCP.”

 

7.                  It was on this basis that the Tribunal found she scored no points on the limited capability for work assessment.

 

Ground 1: Mobilising

8.                 Consideration of Activity 1 requires consideration of whether (amongst other things) an appellant cannot “repeatedly mobilise” 50, 100 or 200 metres “within a reasonable timescale because of significant discomfort or exhaustion.” As the Upper Tribunal stated in AH v Secretary of State for Work and Pensions [2013] UKUT 118 (AAC):

 

 “The key to applying the words of Activity 1 lies in making findings of fact relevant to those words that are as specific as the evidence allows.  And, if the claimant is present at the hearing, the tribunal should ensure that it obtains evidence that is sufficient to that purpose. Just to take one example: the tribunal should have probed Mr H’s evidence that he “could not repeatedly do 50 metres”. How far could he walk before stopping? What made him stop? How did he feel? How soon could he proceed? How often could he repeat that process?” (paragraph 21).

 

9.                  Also relevant is the guidance is to be found in Commissioner’s decision CIB/2308/2001.  Mr Commissioner Williams there stated:

 

“20 The tribunal should then have done what Commissioners have repeatedly told tribunals to do: weigh the evidence on the issues in the case. In this case, as in too many others, the tribunal took the short cut of preferring the evidence of the examining medical practitioner as a whole to that of the claimant as a whole (see its reasons set out above). Having dismissed the claimant’s evidence as exaggerated, it then assessed the examining medical practitioner’s report against the general practitioner’s report and preferred the examining medical practitioner report to that of the general practitioner because it directly answered the questions that the tribunal had to answer, and the general practitioner did not. That approach is fundamentally wrong. The tribunal did not assess the evidence from all sources together in one “weighing” exercise on the issues in dispute. Instead, it adopted a sequential approach to the sources of evidence, cutting out the evidence of A by reference to B, then C by reference to B, etc, so ending up only with the evidence of B. In so doing, it concentrated on the sources of evidence rather than on the relevant conflicts in the evidence. Although it states that it “carefully considered and weighed” all the evidence, its statement gives no evidence of that. There is no comparative analysis of the evidence on any of the seven physical descriptors expressly put in issue by the claimant in her grounds of appeal to the tribunal.”

 

 

10.              In this case, the First-tier Tribunal treated the HCP’s assessment and the appellant’s evidence as being fundamentally inconsistent with each other, and then, having looked at the GP records from June 2011, found that the appellant’s evidence was not credible. 

 

11.               The HCP recorded that the appellant was able to walk in the local area for 4-5 minutes and to shop for 1 hour using a trolley as a support. The appellant’s evidence was that she could walk for 4 – 5 minutes stopping at every lamppost.  She also said that she had told the HCP was that it would take her an hour just to get up the first aisle of the supermarket.  However, it is not apparent that the HCP had explored or sought to understand what distances could be covered by the appellant during the short number of minutes in which she might walk, or her ability to ‘repeatedly mobilise’ without significant discomfort or exhaustion. The Tribunal too failed to probe the appellant’s evidence on this point, failing to ask the type of questions suggested by AH: “How far could the appellant walk without stopping?  What made her stop? How did she feel?  How soon could she proceed?  How often could she repeat the process?”  Such probing would have elicited not only more information but could also have helped in the assessment of the appellant’s credibility.  Nor did the Tribunal seek to resolve the issue of whether the appellant had told the HCP that it would take an hour to get up the first supermarket aisle.

 

12.              As Judge Wright pointed out when granting permission to appeal, there were other factors which potentially supported the appellant’s case: the continued DLA mobility awards at the higher rate (p65 contains a Tribunal decision from 2008, determining that the claimant was “virtually unable to walk”; p66 contains evidence that the award continued as at December 2013), the pain and stiffness the HCP found in many of the appellant’s lower limb functions (p40) and also the GP’s certification of inability to work as a result of “back pain” from February 2013 which, although post-decision, appeared to acknowledge an existing problem rather than a new condition.  I accept that the evidence underlying the DLA awards was not before the Tribunal (see ML v Secretary of State for Work and Pensions [2013] UKUT 174 (AAC) at paragraph 18); but still, all these factors underlined the need to explore the appellant’s assertions carefully.  Against that background, I consider that there was an error of law on the part of the Tribunal in failing to elicit sufficient evidence to explore the nature and extent of the appellant’s claimed mobility difficulties, particularly her ability to mobilise ‘repeatedly’. There was also a failure to assess the weight that could be given to the HCP’s findings against that background. Rather, the Tribunal adopted the ‘short-cut’ referred to by Commissioner Williams by using the HCP’s assessment to reject the appellant’s evidence as a whole, rather than seeking to assess the evidence from all sources when evaluating each of the issues in dispute.

 

 

Ground 2: incontinence

 

13.              Activity 9 of Schedule 2 of the ESA Regulations relates to the “Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the presence of any aids or adaptations normally used.” 

 

14.              This requires an assessment of whether:

 

(a)  the appellant experienced, at least once a month, “a loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder” sufficient to require cleaning and a change in clothing [descriptor 9(a)(i), 15 points]; or

(b)  the appellant was at “risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly” [descriptor 9(b), 6 points].

 

15.               Activity 9 has since been modified to make explicit a requirement that the absence of control should be whilst conscious and that it should be “despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used”.  That modification, however, only applies from 28 January 2013 and so was not under consideration in this case, as the relevant decision was made on 8 January 2013.

 

16.              The application of descriptor 9(a)(i) was considered in EM v Secretary of State for Work and Pensions [2014] UKUT 34 (AAC), when Upper Tribunal Judge Mark observed:

 

“[19]   As I held in LB v SSWP, [2013] UKUT 352 (AAC), descriptor 9(i) requires not full evacuation or voiding (as had been required by the descriptor in its original form up to 27 March 2011) but only extensive evacuation or voiding sufficient to require cleaning and a change of clothes, and this must be despite the presence of any aids or adaptations normally used….”

 

17.               After setting out the correct approach to the “normal” use of aids or adaptations, he continued:

 

“[24]  I note that the representative of the Secretary of State on this appeal has drawn attention to guidance in the Medical Services Handbook which states:

 

“In terms of continence problems as a result of time taken to get to toilet facilities because of poor mobility, this issue would not be considered in this activity area as mobilising issues are covered elsewhere.”

 

[25] This statement is wholly misguided both in relation to the descriptor as it was at the time of the decision and as it now is.  In descriptor 9(a)(i) the only question is whether at least once a month the claimant experiences loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder sufficient to require cleaning and a change of clothes.  The fact that this is because the claimant is unable to reach a toilet in time because of other physical problems is irrelevant, as one would expect bearing in mind that the purpose of the descriptor is to deal with questions of personal dignity and social acceptability.  This is made even clearer, if that were possible, by the wording of descriptor 9(b) where the question is whether there is a risk of loss of control if not able to reach a toilet quickly.  Loss of control at least once a month because the claimant cannot reach a toilet quickly plainly qualifies for 15 points if the other requirements are met.”

 

 

18.              In granting permission to appeal, Judge Wright raised the question of whether activity 9 is to be read discounting any mobilising difficulties the claimant has, so as to focus exclusively on bladder or bowel control; or whether, on the other hand, mobilising difficulties should be regarded as relevant to a claimant’s ability to reach a toilet quickly under descriptor 9(b), given that the assessment is meant to be of the individual claimant’s ability to work.

 

19.              It seems to me that both general principle and previous authority, in the shape of EM, provide the answer to that question.  The effect of the “loss of control” set out in descriptor 9 must be assessed in the light of an individual’s personal circumstances. If, as a result of limited mobility, he or she is more adversely affected than someone who has greater mobility and an associated ability to better manage the effects of any threatened loss of control, this should be taken into account by the decision-maker.  The alternative would be to divorce the assessment of this activity and the descriptors from the reality of an individual’s ability to cope with their condition and to replace an assessment which is claimant-centred with one based on (here) the ability of a ‘hypothetical’, reasonably mobile individual to reach toilets.  The activity seeks to assess the likelihood of loss of personal dignity and shame in the workplace associated with significant ‘accidents’. It should make no difference whether soiling may occur because an individual’s restricted mobility slows down the process of reaching a toilet, or because the loss of control is comparatively rapid.  The effect on the individual and their ability to work is the same.

 

20.             I agree with Judge Mark that the correctness of this approach is confirmed by the express reference in 9(c)(b) to inability to reach a toilet quickly.  The reference confirms the practical focus of the descriptor, and its link to an ability to manage in a workplace.

 

21.              I further note that in early 2015, the DWP’s Medical Services Handbook was revised to take account of the decision in EM:

 

“It should be noted that in 2014, an Upper Tribunal decision determined that mobility issues must be taken into account when considering continence. This applies to both the Activity 9 LCW (Continence descriptors) and the Activity 8 LCWRA descriptor (Continence Support Group). Therefore in cases where a continence problem is evident, HCPs must consider the impact of impaired mobility and provide advice accordingly.

 

Further guidance on this issue is detailed below.

 

If a claimant is incontinent because they are unable to reach the toilet quickly enough as a result of mobility issues then they should score against the relevant descriptor. So, for example if a claimant with urge incontinence has to change their clothes at least once a month despite the use of incontinence aids because they are unable to reach the toilet quickly enough as a result of a lower limb / back problem then the HCP should consider advising descriptor C(a).

 

This Upper Tribunal decision does not impact on how the actual “continence” problem is considered. The key issue is that the HCP must now take into account the impact of impaired mobility and how this impacts on the continence problem…

 

When considering a claimant with a medical condition affecting bladder/bowel function who in addition has impaired mobility, consider whether their mobility issue is sufficiently severe that their ability to access toilet facilities in a normal working environment, with reasonable adjustments, would be compromised. This assumes that toilet facilities are within a reasonable distance and on the level…”

 

(paragraph 3.2.10, pages 106 – 107).

 

22.             The approach set out, therefore, is now accepted by the Department for Work and Pensions.

 

The application to this case

23.             The evidence from the appellant’s ESA50 and at the hearing has been set out above (paragraphs 4 and 6).

 

24.             The HCP noted that the history of the complaint of IBS and that the  appellant saw her GP but not a specialist. She noted that the appellant stated that she “loses control of bowels due to poor mobility and inability to reach the toilet in time when required.” (p37). The HCP did not elicit an account of the frequency of any soiling incidents or whether a change of clothing was needed. Her assessment was that none of the descriptors for Activity 9 applied (p44).  She then recorded again, under the heading “supporting medical evidence”, that the appellant stated that “she loses control of bowels due to poor mobility and inability to reach the toilet in time when required.”

 

25.              The Tribunal’s consideration of this issue was limited to endorsing the evidence of the HCP (Statement of Reasons, paragraph 12).

 

26.             However, the HCP’s reasoning on Activity 9 is unclear.  She appears to treat the fact that the loss of control of bowels was “due to poor mobility and inability to reach the toilet in time when required” as supporting the assessment that the descriptors under Activity 9 did not apply.  If that is correct, she fell into the legal error discussed above, by discounting difficulties because of their link to restricted mobility.

 

27.              If that was not what she meant by her reasoning, then she failed to elicit sufficient evidence to enable a proper evaluation of the extent of appellant’s difficulties.  There was no attempt to assess the severity of each episode, any need for a change of clothing, or the issue of whether assistance might “normally” have been derived from aids such as sanitary pads (see LB v Secretary of State, [2013] UKUT 352 (AAC)).

 

28.             The First-tier Tribunal’s acceptance of this approach amounted, in my view, to an error of law.

 

Conclusion

 

29.             For all these reasons, I have reached the conclusion that the appeal should be allowed and the case remitted back for hearing in front of a differently-constituted First-tier Tribunal.

 

30.             The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the available evidence. 

 

 

 

 

 Signed (on the original) Eleanor Grey QC

Judge of the Upper Tribunal

Dated 20 March 2015