IN THE UPPER TRIBUNAL Case No  CE/3915/2014

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Gravesend on 30 April 2014 under reference SC172/13/02136 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 paragraphs 4 and 5 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 and giving directions for the rehearing of the case.

2. I have set the tribunal’s decision aside for two reasons:

(a) The tribunal found that that claimant had started taking anti-depressants in January 2014, that her low mood stemmed from her physical health and that she did not have a primary, enduring, mental health problem (statement of reasons, para 7.)  There was evidence at page 75 that the claimant had left work in 2005 and that the main reason for doing so was depression.  Conversely (to a degree) there was evidence at p42 that her mental health problem had started in 2009.  At the same page it is said her sciatica likewise started about 4 years ago and her IBS 5 years ago.  Even the evidence at p42 of later onset of the mental health problems does not provide a clear showing of the sequence of occurrence of the various conditions for which the tribunal contended and the tribunal’s conclusion was wholly contrary to the evidence at page 75.  At very least, therefore, the tribunal’s conclusion was insufficiently reasoned and I am not persuaded that it was a conclusion which it was open to it to reach on the totality of the evidence (the Secretary of State does not argue that it was).

(b) The Secretary of State submits that the tribunal also erred in dismissing the claimant’s difficulties with initiating actions on the basis that it was “due to her physical limitations and not due to impaired mental function as is required by law to meet that test.”  Although the decision was taken on 8 February 2013, the claimant had competed the questionnaire version ESA30 03/11 and, by the terms of reg 2(2) and (4) of the Employment and Support Allowance (Amendment) Regulations 2012/3096, regulation 5 of those Regulations (which introduced from 28 January 2013 a changed version of Schedule 2, containing the descriptors) was disapplied and “the provisions of Schedule 2 of the ESA Regulations are to continue to apply in respect of that person as they had effect immediately before the commencement date.”  What brought into effect the separation between those descriptors which could be fulfilled on the basis of impaired physical function and those to be met due to impaired mental function was not the changes to Schedule 2 itself, but rather the amendment to regulation 19(5) , which was effected not by regulation 5 of SI 2012/3096 but by regulation 3.  I interpret the Secretary of State’s concession therefore as being that the requirement for the provisions of Schedule 2 “to continue to apply…as they had effect immediately before the commencement date” (my emphasis) is sufficient to maintain the pre-2013 position of no physical/mental split as part of how Schedule 2 “had effect”.

3. 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.

4. 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.  While the tribunal will need to address the grounds on which I have set aside the decision, 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  – 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.

5. The claimant’s representative has asked me to give a direction on the  correct approach to descriptor 10 (consciousness) where it is asserted there is drug-induced drowsiness.  As a preliminary, it is for the party asserting a matter to prove it if necessary, so the claimant’s representative will need to be prepared to prove if necessary that the medications taken by the claimant on the balance of probabilities have that effect upon her.  The tribunal will need to make sufficient findings on all material issues on this point, as on others.  In JG v SSWP (ESA) [2013] UKUT 496 (AAC) Judge Mark on setting aside a tribunal’s decision gave specific directions as to how the relevant version of descriptor 10 (a) fell to be interpreted.  I can find no subsequent decision casting doubt on that authority.  The tribunal to which this case is remitted must apply that decision in the usual way.  

6. 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

1 April 2015