Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CE/3070/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge K Markus QC

The decision of the Upper Tribunal is to dismiss the appeal.

REASONS FOR DECISION

1.    The short point in this appeal is whether the appellant was recovering from radiotherapy treatment so as to bring her within the scope of regulation 20(1)(b)(iii) of the Employment and Support Allowance Regulations 2008.

Background

2.    In 1989 the appellant had radiotherapy treatment following surgery for breast cancer.  She made a complete recovery from the breast cancer. There is a letter from the appellant’s consultant oncologist (page 162) dated 22 December 1989 which states that the appellant tolerated the radiotherapy well.  Subsequent letters written by her doctors between 1990 and 1993 (pages 158-160) state that the appellant was “very well”. It was not until the summer of 1994 that the appellant reported problems with her left hand (page 157) and she subsequently developed her current condition, brachial plexus nerve injury.  In 1995 there was an attempted surgical correction which was unsuccessful. Since 1996 the appellant has suffered complete paralysis in her left arm.  In a letter dated 29 January 2014 a consultant oncologist at Lincoln County Hospital wrote that her condition is unlikely to improve.

3.    The appellant had been entitled to incapacity benefit.  As part of the conversion process the Secretary of State decided on 17 December 2012 that the appellant was not entitled to Employment and Support Allowance (ESA) because she did not have limited capability for work.  That decision was revised on 30 January 2013 when the Secretary of State decided that she had limited capability for work under regulation 29(2)(b) of the ESA Regulations but that she did not have limited capability for work-related activity.  The appellant appealed to the First-tier Tribunal.

4.    At the hearing on 7 March 2014 the First-tier Tribunal warned the appellant that her existing award might be at risk and she was given the opportunity to seek legal advice or proceed.  She wished to proceed.  The tribunal decided that the appellant was not entitled to ESA. 

5.    The appellant appealed to the Upper Tribunal.  On 30 September 2014 I gave permission to appeal on one ground only, which was whether the appellant was recovering from radiotherapy.  The Secretary of State does not support the appeal. 

6.    Neither party has asked for an oral hearing and I am satisfied that I can determine this appeal without a hearing.  Both parties have made their submissions in writing, I have all the information I require within the bundle, and the facts relevant to this issue are not in dispute.  I would not be assisted by having an oral hearing.

The relevant law

7.    The Employment and Support Allowance Regulations 2008 set out the criteria for determining whether a claimant for ESA has limited capability for work and for work-related activity.  The principle conditions are that a claimant is assessed (the work capability assessment) as scoring sufficient points under Schedule 2 of the Regulations (for the purposes of determining whether a claimant has limited capability for work) and satisfies one of a number of conditions in Schedule 3 (for the purposes of determining whether a claimant has limited capability for work-related activity).

8.    There is a number of regulations providing for a person to be treated as having limited capability for work (or work-related activity) without being required to undergo a work capability assessment.  The relevant provision in this appeal is contained in regulation 20(1) of the ESA Regulations, as follows:

“A claimant is to be treated as having limited capability for work if –

(a) …

(b) the claimant is –

(i) receiving treatment for cancer by way of chemotherapy or radiotherapy;

…

(iii) recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work;”

The decision of the First-tier Tribunal

9.    The tribunal addressed the application of regulation 20 at paragraph 13 of its statement of reasons:

“The tribunal found that [WD] last received treatment for cancer in 1989, this fact was established by the evidence of Dr T Sreenivasan a consultant clinical oncologist (page 173 of the appeal bundle).  The tribunal found based on an evaluation of this evidence that [WD] was no longer recovering from radiotherapy because in our experience recovery from radiotherapy would take up to a few months, and certainly not decades.”

Discussion

10. The appellant submits that a known effect of radiotherapy is brachial plexus nerve injury and that recovery from the effects of radiotherapy does not exclude long-term limitations. The Secretary of State submits that the ordinary meaning of recovery is “to return to a normal state of health” or “to get better”.  He submits that the normal recovery period following the immediate side effects of radiotherapy is up to six months and that the evidence in this case indicates that after six months the appellant had completed recovered from the short term effects of radiotherapy.  He submits that where the long-term effects of radiotherapy are chronic it cannot be said that the appellant is recovering.  The treatment has caused a separate health condition from which she has not recovered.

11. I conclude that the Secretary of State’s submissions are correct for the reasons which I now explain. 

12. The word ‘recovering’ is not defined in the legislation. It must bear its ordinary meaning in its context. See Secretary of State for Work and Pensions v Moyna [2003] 1 WLR 1929 (also reported as R (DLA) 7/03), at paragraphs 23 to 25.  I have no doubt that, when used in a health context, “recovering” refers to a process of getting better.  It may not result in a person’s condition reverting to the way it was before the treatment in question, but it denotes a process of some improvement or, at the very least, hoped-for improvement.  Thus the Shorter Oxford English Dictionary defines the word, in so far as it relates to health, as “restoration or return to health from sickness”.   At some stage a person will cease to recover.  This may occur when they are completely better.  Or it may occur when they have reached a point when no further recovery will take place. 

13. In my judgment the above is the only sensible way in which “recovering” can be understood.  But in case of any doubt, I have considered the wider legislative context and find that this supports my approach. 

14. In addition to regulation 20 there are other regulations providing for a person to be treated as having limited capability for work without being required to undergo a work capability assessment (regulations 25, 26 and 33(2)), and regulations 25 and 26 apply where a claimant is undergoing certain treatment or recovering from it.  Regulations 25 and 26 suggest that a recovery period for those purposes is intended to be time limited, as both of them exempt a claimant on “any day” of treatment or recovery from that treatment.  I do not see any reason to approach regulation 21 differently.  There is no significance in the slightly different wording of the recovery provision in regulation 21 and regulations 25 and 26, which is likely to be a consequence of some of the provisions having been carried over from the Social Security (Incapacity for Work)(General) Regulations 1995 while others were not. 

15. The policy underlying the ESA Regulations was not to “automatically assume that because a person has a significant health condition or disability, they are incapable of work” (see the Explanatory Memorandum to the Regulations at paragraph 7.7). To accept the appellant’s approach to regulation 20(1)(b)(iii), so that a claimant could be assumed on a long term basis to have limited capability for work where they suffer from a chronic condition that has been caused by the treatment, regardless of their actual ability to work, would fly in the face of that objective and I should not adopt such a construction where the words of the regulation do not require it. 

16. Having said that, contrary to the way in which the First-tier Tribunal approached the issue, the mere fact that a person’s recovery takes longer than usual need not be conclusive against them.  But the appellant’s appeal is hopeless on the facts. The evidence shows that she had fully recovered from both surgery and radiotherapy by late 1990. The problem with her arm did not first manifest until summer 1994.  She was not recovering from radiotherapy at that time or thereafter.  Moreover, the appellant could not be said to be recovering from radiotherapy treatment when that treatment had triggered a chronic condition which was not improving and would not do so. In short, in her case there was no prospect of recovery and so she was not recovering.  

17. Accordingly, this appeal is dismissed.

Signed on the original Kate Markus QC

On 16 February 2015 Judge of the Upper Tribunal