Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Upper Tribunal case No.  CE/3689/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Mr. E Mitchell, Judge of the Upper Tribunal

 

 

Decision:  The decision of the First-tier Tribunal (14 April 2014, Burnley, file reference SC 123/14/00137) involved the making of an error on a point of law. It is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing. Directions for the rehearing are at the end of these reasons.

 

REASONS FOR DECISION

 

What this appeal decides

 

1. This appeal considers the range of aids and appliances that may be incorporated into an assessment of continence under the Work Capability Assessment (WCA). The WCA determines whether a person has limited capability for work for employment and support allowance (ESA) purposes. The First-tier Tribunal concluded that a bucket was an aid or appliance. That was an error of law. The wider legislative context requires a continence aid or appliance to be one that can be used by the claimant in a workplace without the associated indignity against which the WCA is designed to protect. That excludes a bucket.

 

2. Separately, the appeal raises the issue whether a person can score WCA continence points for mobility problems alone. The answer to that is no. Some disease or disablement affecting the functioning of the bowel or bladder must be present. It is a different matter, however, if the effects of such a disease or disablement are compounded by mobility problems. As the Upper Tribunal has previously held, in those cases impaired mobility must not be ignored in assessing continence.

 

3. The appeal in fact succeeds on a simpler basis. A First-tier Tribunal made findings of fact that were, on the face of it, inconsistent. Its failure to explain this meant inadequate reasons were given.

 

Background

 

4. Mr C had an award of incapacity benefit. As part of the incapacity benefit to ESA conversion process, Mr C completed an ESA 50 disability questionnaire.

 

5. In his ESA 50, Mr C wrote that he had a defective ankle and “cannot get up stairs, use bucket at times have accident”. He answered the question ‘do you have to wash or change your clothes because of difficulty controlling your bladder, bowels or collecting device?’ by ticking ‘yes-weekly’.

 

6.  Mr C was examined by a Healthcare Professional (HCP), a registered medical practitioner, on 13^th November 2013. The HCP’s report says Mr C “confirms he does not have a problem with bowel/bladder continence” and any continence problems are “due to his mobility problem”.

 

7. The HCP thought Mr C satisfied WCA descriptor 1(b): “cannot mount or descend two steps unaided by another person even with the support of a handrail”. That attracts 9 WCA points but the limited capability for work threshold is 15. The Secretary of State agreed with the HCP and decided on 4 December 2013 that Mr C did not have limited capability for work so that his existing award did not qualify for conversion to ESA.

 

8. Mr C appealed to the First-tier Tribunal. The record of proceedings for the hearing on 14^th April 2014 indicates Mr C said nothing about toileting. The record is in ‘Q & A’ format and, from that, it can be deduced that Mr C was not asked any questions about toileting.

 

9. The Tribunal refused Mr C’s appeal and confirmed the Secretary of State’s decision. It also found that Mr C could mobilise at least 200 metres on the flat such that none of the descriptors about ability to mobilise applied.  

 

10. The Tribunal’s statement of reasons says this about continence:

 

“It is well established that if a person’s incontinence is caused by an inability to reach a toilet in time because of other physical problems, they are not precluded from being awarded points under this activity – see EM v SSWP [2014] UKUT 34. Further, regulation 19(4) of the 2008 regulations provides that in assessing the claimant’s capability to perform any activity listed in Part 1 of Schedule 2 (the physical descriptors) he is to be assessed as if wearing any prosthesis with which he is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used. The bucket used by the appellant in this case is such an aid. According to him, if he uses the bucket he is not incontinent. No points were awarded for this activity.”

 

The appeal to the Upper Tribunal

 

11. After the First-tier Tribunal hearing, Lancashire County Council’s welfare rights unit became Mr C’s representative. They sought permission to appeal to the Upper Tribunal, arguing that the Tribunal erred in law because its reasoning was inconsistent, having found that Mr C was both a credible witness and gave evidence that was very unlikely to be correct; it wrongly relied on Mr C’s level of pain relief in assessing his mobility; it failed adequately to explain why it did not award descriptor 1(a) (inability to mobilise 50 metres which attracts 15 WCA points).

 

12. I granted permission on those grounds but also on the ground that, arguably, the First-tier Tribunal erred in law by treating a bucket as an aid or appliance for the purposes of the WCA continence activity.

 

13, The Secretary of State supports the appeal. He argues the First-tier Tribunal erred in law by treating Mr C’s bucket as an aid or appliance but did not argue that, since Mr C only had a mobility problem, could never meet any of the continence descriptors. The Secretary of State requested that the Tribunal’s decision be set aside and remitted to the First-tier Tribunal for re-hearing. Mr C’s representative agreed.

 

14. Although the appeal is supported, I shall set out my reasoning in full. I do not entirely agree with the Secretary of State’s position. He should know why as should the Tribunal to which the appeal is remitted. More generally, I think it is important that I explain why it is quite wrong for any First-tier Tribunal, or decision maker, to assess the WCA continence descriptors on the basis that a bucket can be used to minimise the effects of incontinence.

 

The relevant legislation – the Work Capability Assessment

 

15. A basic condition for ESA is that a person has “limited capability for work” (section 1 of the Welfare Reform Act 2007 (“2007 Act”)). Section 1(4) provides that “a person has limited capability for work if (a) his capability for work is limited by his physical or mental condition, and (b) the limitation is such that it is not reasonable to require him to work”.

 

16. Section 1(4) is not in fact applied to determine whether a person has limited capability for work. Instead, section 8(1) of the 2007 Act provides that “for the purposes of this Part, whether a person’s capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations”.

 

17. Section 8(2) of the 2007 Act requires regulations to provide for the section 8(1) determinations to be “on the basis of” an assessment. The assessment must be defined by reference to the extent to which a person with some specific disease or bodily or mental disablement is capable or incapable of performing prescribed activities. This is an assessment in the sense of a mental evaluation rather than a face-to-face examination.

 

18. Section 8(2) requires regulations to specify, firstly, activities and, secondly, a description/s of the extent of person’s capability to perform an activity.  No doubt, section 8 gives the Secretary of State (who makes the regulations) significant freedom to prescribe activities and grade associated levels of capability. But there must be limits and it seems to me that, within the scheme of the 2007 Act, this is where section 1(4) enters the picture. Regulations under section 8 must be rationally connected to section 1(4) by properly seeking to identify individuals whose capability for work is limited such that it is not reasonable to require them to work. That is because the function of the regulations is to lay out a decision-making system the output of which is a determination that the basic condition of limited capability for work in section 1 of the 2007 Act is or is not met.

 

19. The Employment and Support Allowance Regulations 2008 (“the ESA Regulations”) are made under section 8. They name the assessment required by section 8(2) the Work Capability Assessment. Regulation 19 contains the WCA legal framework although the WCA itself is I Schedule 2 to the Regulations. Relevant features of regulation 19 are as follows:

 

(a) regulation 19(1) requires that “whether a claimant's capability for work is limited by the claimant's physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part”. The “Part” is Part 5 of the Regulations which includes Schedule 2 since it is given effect by a regulation within Part 5;

 

(b) regulation 19(2) repeats the distinction drawn by section 8 of the 2007 Act between activities and capability to perform them. It reads:

“The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.”;

(c) capability, in relation to activities, is not assessed (evaluated) in some general sense. The exercise is far more restricted than that.  Capability levels are pre-set and expressed in each activity’s corresponding descriptors. A “descriptor” means “in relation to an activity specified in column (1) of Schedule 2, a descriptor in column (2) of that Schedule which describes a person's ability to perform that activity”: regulation 2(1). The task is to select which of those pre-set categories of capability applies. Each descriptor is allotted a number of points. One descriptor will always apply because each activity has a ‘none of the above apply’ descriptor scoring zero points;

 

(d) regulation 19(3) translates the total descriptor points into a determination whether a person has limited capability for work. ‘Descriptors’ attracting at least 15 points must be satisfied in order for a person to have limited capability for work;

 

(e) regulation 19(4) provides that “in assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if…(b) wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used”. This does not change the nature of the activities themselves. Regulation 19(4) addresses capability (the province of the descriptors) and so it shapes them rather than the activities. The mental task of deciding whether an individual’s limitations match those in the descriptors must incorporate aids and appliance that are normally used or could reasonably be used. The resulting capability is the one that counts.

 

WCA activity 9 - continence

 

20. This case is about activity 9 which is:

 

“Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting), despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used.”

 

21. Since the essence of the activity is loss of control, I agree with Upper Tribunal Judge Mark’s view in EM v Secretary of State [2014] UKUT 34 (AAC) that the aids and adaptations encompassed by the wording of activity 9 are limited. He mentions “internal devices which control the evacuation of the bowel or voiding of the bladder”.

 

22. There are two points-scoring descriptors for activity 9. The first is descriptor 9(a) which attracts 15 points so that an individual to whom it applies has limited capability for work. It reads:

 

“At least once a month experiences:

 

(i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or

(ii) substantial leakage of the contents of a collecting device,

 

sufficient to require cleaning and a change of clothing.”

 

23. Descriptor (b) attracts 6 points and reads:

 

“The majority of the time is 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 of clothing, if not able to reach a toilet quickly”.

 

24. By regulation 19(4), any assessment of whether a person satisfies these descriptors must incorporate “aids and appliances” that are normally used or could reasonably be expected to be used. So if an aid or appliance could reasonably be expected to be used, such as a particular type of continence pad, the assessment must assume that it is.

 

25. As an aside, the Department for Work & Pensions may wish to note that the version of the WCA provided within the First-tier Tribunal appeal bundle inadvertently omits the wording “The majority of the time” at the beginning of descriptor (b). That wording was added by S.I. 2012/3096.

 

Discussion – the nature of the continence descriptors

 

26. The continence activity and descriptors serve a different purpose to most of the other activity areas and descriptors. This is to be taken into account in interpreting the relevant provisions.

 

27. The WCA is a work capability test by proxy. Within the 2007 Act scheme, it is the only means by which an individual can meet the basic condition in section 1 of that Act of having limited capability for work.

 

28. There are various special cases in which an individual is treated as having limited capability for work by the ESA Regulations 2008. By virtue of section 8(1) and regulation 19(1), however, passing the WCA ‘test’ is the only means by which an individual can demonstrate actual limited capability for work. That must be relevant in interpreting the WCA provisions. And it is for that reason that I agree with Upper Tribunal Judge Wikeley in AS v Secretary of State [2013] UKUT 587 (AAC) that “the activities and descriptors in Schedule 2 do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work” (paragraph 19).

 

29. Most of the WCA activities and their associated descriptors apply the same logic. Anatomical operations and mental processes typically deployed to do work are identified, such as mobilising, standing and sitting, social engagement, and points are awarded if a person’s ability to do these things is limited to an extent that matches a point-scoring descriptor. In this respect, the intention of the WCA must be to identify the stage at which a person’s capacity to do the things typically done at work is so degraded that it is not reasonable to expect the person to work.

 

30. Descriptor 9(a), however, has a different logic. It is not about bodily and mental processes used to do work. A monthly incontinence event of the type prescribed is of itself unlikely to have any significant bearing on the performance of work tasks. There must be a different reason for the legislator deciding that anyone within descriptor 9(a) meets the condition of having limited capability for work. I think it is obvious that this is connected to the deeply personal and potentially embarrassing and distressing nature of significant continence problems.

 

31. If the other basic conditions are met, a person who ‘passes’ the WCA is not expected to seek work. In fact, claiming Jobseeker’s Allowance is not an option because its entitlement conditions include that a claimant “does not have limited capability for work” (section 1(2)(f) Jobseekers Act 1995). Accordingly, the legislator thinks it would be unreasonable to engineer the welfare state on the assumption that a person ought to work if their bowel or bladder contents, on a reasonably frequent and regular basis, were to escape into clothing to a material extent at which point, of course, it would become discernible to others. That purpose can be deduced from the legislative context but is confirmed by the October 2009 report of the Departmental review of the operation of ESA. This explains why continence is included within the WCA:

 

“the loss of dignity resulting from the associated soiling is considered severe enough to make it unreasonable to expect an individual with severe incontinence to work.”

 

32.  Descriptor 9(b) does not of course carry 15 points and so a person who needs to be relatively close to a toilet most of the time, and scores no other points, is expected to seek work. However, so far as permissible aids and appliances are concerned, it clearly has to be approached in the same way as descriptor 9(a).

 

Relevant case law

 

33. The First-tier Tribunal relied on EM v Secretary of State [2014] UKUT 34 (AAC). The claimant in that case relied on both a bladder disorder and mobility difficulties. Upper Tribunal Judge Mark referred to the DWP’s Medical Services Handbook which said “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”. Of this, Judge Mark said (the emphasis is mine):

 

“25. This statement is wholly misguided…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 the 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”.

 

34. I believe Judge Mark had in mind a claimant, like the one before him, whose case was that a bladder or bowel defect was compounded by another disability. That is shown by the reference to “other physical problems” in the final sentence. This presupposes another problem.

 

35. The decision in EM was recently applied by Upper Tribunal Judge Grey Q.C. in FR v Secretary of State [2015] UKUT 151 (AAC). That also involved a person who argued a defect in bowel or bladder functioning was compounded by impaired mobility. Judge Grey found:

 

“19. It seems to me that both general principle and previous authority, in the shape of EM, provide the answer to that question [whether mobilising difficulties should be discounted].  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.”

 

36. Again, that pre-supposes some problem with functioning of bowel or bladder. I do not read the decision as holding that, even without an underlying problem of bowel or bladder functioning, mobilising difficulties might justify a determination that a points-scoring descriptor applies. An issue raised in this appeal, whether mobilising difficulties alone might generate points under activity 9, therefore appears free of authority.

 

Issue 1 – whether a bucket can be an aid or adaptation

 

37. The First-tier Tribunal erred in law by holding that Mr C’s use of a bucket to avoid accidents meant he could not satisfy any activity 9 points-scoring descriptors.

 

38. Firstly, a bucket cannot amount to an aid or adaptation for the purposes of the prescribed activity. That is because it cannot have any effect on whether or not control of bowel or bladder is lost. The only aids or adaptations contemplated by activity 9’s wording are those which prevent or minimise a loss of control.

 

39. Secondly, and more importantly, a bucket cannot amount to an “aid or appliance” for the purposes of descriptor 9(a) or 9(b). A bucket cannot reasonably be used in any workplace, apart from perhaps an incredibly unusual one like a one-person lighthouse, to deal with incontinence. That would run counter to, and undermine, the purpose of the continence activity and descriptors. It would be impossible to maintain dignity in those circumstances. The range of permissible aids and appliances must be restricted to achieve that aim and discounted if use in the workplace would be likely to expose an individual to the indignity against which these descriptors are designed to protect. But this does not mean that a less intrusive receptacle than a bucket must be discounted, if it can be used by a person without that associated indignity. I have no idea whether such things exist.

 

40. The First-tier Tribunal therefore erred in law by relying on Mr C’s use of a bucket to deny awarding descriptor 9(a) or 9(b). Also, if the Tribunal proceeded on the basis that Mr C’s bucket was a toilet, for descriptor 9(b)’s purpose, and its decision can be read in that way, it also erred in law.  Clearly, a bucket is not a toilet.

 

Issue 2 – whether mobilising difficulties alone can justify awarding a continence descriptor

 

41. Did the First-tier Tribunal’s error of law matter? Could it have made a difference if the Tribunal had approached activity 9 correctly?

 

42. The First-tier Tribunal found that Mr C had no underlying bladder problem. His continence difficulties were simply due to him being unable to use the stairs at home to get to the toilet. As a matter of law, is that sufficient to satisfy any of the continence points-scoring descriptors? For the purposes of analysis, I assume the Tribunal’s findings of fact were correct. I express no opinion as to whether those findings were actually correct.

 

43. To recap, regulation 19(2) of the ESA Regulations 2008 provides:

“The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.”

44. Regulation 19(2) requires the presence of a disease or disablement. And incapability to perform an activity must be “by reason of” the disease or disablement. Here the activity is absence or loss of control leading to extensive evacuation. On the Tribunal’s findings, the disablement is a defective ankle. Is Mr C’s claimed loss of control by reason of his defective ankle?

 

45. In the light of activity 9’s purpose, it cannot legitimately be held that Mr C’s loss of control is “by reason of” his defective ankle. It is principally by reason of his living in a house without a downstairs toilet. While this would not matter if Mr C had a normal ankle, my view is that, in relation to activity 9, the disablement or illness must affect the control mechanisms of the bowel or bladder. To hold otherwise would run counter to activity 9’s purpose as a means of protecting persons from the indignity of having incontinence exposed in the workplace. It would protect those who did not need to be protected. The Upper Tribunal decisions mentioned above (EM and FR) can be distinguished because they involved claimants whose case was that they had a disease or disablement that affected the control mechanisms of the bowel or bladder the consequences of which were compounded by a mobility problem.

 

46. On the Tribunal’s findings, Mr C is capable of mobilising at least 200 metres repeatedly within a reasonable timescale. That shows he would not experience incontinence in the workplace. So long as a workplace had a toilet access which was not exclusively via stairs, as most do, Mr C would get to a workplace toilet in time.

 

47. If, therefore, the First-tier Tribunal’s findings of fact are sustainable, its bucket error was not material. On those findings, Mr C could not satisfy any of the activity 9 points-scoring descriptors because the only cause of his incontinence was his impaired mobility.

 

48. I have to say I think the First-tier Tribunal was unwise not to raise Mr C’s toileting at the hearing. What he described was odd and it would only have taken a moment or two to clarify matters. But I do not decide it erred in law in this respect in the light of the documentary evidence and that Mr C seems not to have volunteered any further information about his toileting problems at the hearing. In any event, I set aside the Tribunal’s decision for a different reason as described below.

 

49. The previous paragraph is not to be taken as agreement or disagreement with the Tribunal’s findings. The topic will need to be considered afresh by the next Tribunal which must not, in its reasoning, take into account the findings of the Tribunal whose decision I have set aside.

 

Why the Tribunal’s decision is set aside

 

50. I set aside the Tribunal’s decision on the first ground advanced by Mr C’s representative. Its findings were inconsistent. On the one hand, it found Mr C to be a “credible witness” but, on the other, it “considered it very unlikely that the appellant went out as little as he claimed”. Those are apparently inconsistent and no attempt was made at explanation. The Tribunal does not, for example, state that Mr C is confused or forgetful and that explains why, despite him being credible, his evidence was not accepted. This cannot be considered an immaterial error and so I set aside the Tribunal’s decision and remit Mr C’s appeal to a differently-constituted First-tier Tribunal for rehearing.

 

Directions

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, I direct as follows:

 

(1)   An oral rehearing must be held by the First-tier Tribunal. The Tribunal’s membership must not include anyone who was a member of the Tribunal whose decision has been set aside.

(2)   Mr C is reminded that the law prevents the tribunal from taking into account circumstances not obtaining at 4^th December 2013, when the decision under appeal was taken.

(3)   Within one month of the date on which this decision is issued, Mr C must supply the First-tier Tribunal with a written statement clarifying whether he argues his claimed continence difficulties are caused, or contributed to, by something other than difficulty using stairs.

(4)   If Mr C has any further evidence that she wishes to put before the tribunal, it should be sent to the First-tier Tribunal’s office within one month of the date this Decision is issued.

 

 

 

 

 

(Signed on the Original)

E Mitchell

Judge of the Upper Tribunal

19 May 2015