Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/3933/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: A. Rowley, Judge of the Upper Tribunal  

Decision: I allow the appeal.  As the decision of the First-tier Tribunal (made on 27 February 2014 at Basildon under reference SC038/13/04550) involved the making of an error in 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 tribunal for rehearing by a differently constituted panel.

REASONS FOR DECISION

1.    This is an appeal by the claimant from a decision of the Basildon First-tier Tribunal dated 27 February 2014.  The tribunal upheld the decision dated 16 July 2013 of the Secretary of State for Work and Pensions to the effect that the claimant was no longer assessed as having limited capability for work from and including 16 July 2013, and so was not entitled to Employment and Support Allowance from that date.  The tribunal considered the appeal on the papers, the claimant having consented to the matter being decided without a hearing. 

2.    The claimant has a number of health conditions, including anxiety, sciatica in his back, and arthritis in both knees.  He had previously been awarded Employment and Support Allowance from and including 13 June 2011.  A Healthcare Professional who had conducted an assessment on 30 October 2012 in relation to that previous award had been of the opinion that he satisfied descriptor 15(c).  A copy of that report was on the tribunal’s file. 

3.    The tribunal awarded the claimant 9 points under descriptor 1(c).  It does not seem to have been suggested by the claimant that there had been a change in his condition during the intervening period.  However, nowhere in the Statement of Reasons did the tribunal make reference to the previous award or report.  Nor, given the previous Healthcare Professional’s assessment, was it reasonably obvious from the tribunal’s findings why it considered that the claimant no longer satisfied descriptor 15(c).  The Secretary of State’s representative submits that, for these reasons, the tribunal erred in law.  She further submits that I should set aside the tribunal’s decision and remit the matter to a new tribunal for re-hearing.  I agree with these submissions. 

4.    There are other issues raised by the appeal to the Upper Tribunal.  Given my decision set out in paragraph 3 above, on one analysis it is not strictly necessary for me to explore any of them.  However, in my judgment it is right that I should consider, and give some guidance to the new tribunal in relation to, activity 10, and accordingly I deal with that below.  Any other errors in point of law which the tribunal may have made will be subsumed by the re-hearing.

Activity 10

5.    One of the basic conditions of entitlement to an award of Employment and Support Allowance is that a claimant has limited capability for work, i.e. his capability for work is limited by his physical or mental condition, and the limitation is such that it is not reasonable to require him to work (see section 1(3)(a) and (4)(a) and (b) of the Welfare Reform Act 2007).  Section 8(1) of the 2007 Act provides that these issues shall be determined in accordance with regulations. Regulation 19 of the Employment and Support Allowance Regulations 2008 sets out how limited capability for work is to be determined.

6.    Regulations 19(1), (2) and (5)(a), (b) and (c) provide:

“Determination of limited capability for work

19.—(1) For the purposes of Part 1 of the Act, 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.

(2) 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…

(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises —

(a) in respect of any descriptor listed in Part 1 of Schedule 2, from a specific bodily disease or disablement;

(b) in respect of any descriptor listed in Part 2 of Schedule 2, from a specific mental illness or disablement; or

(c) in respect of any descriptor or descriptors listed in –

(i) Part 1 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; or

(ii) Part 2 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.”

7.    It is not necessary, for the purposes of this decision, for me to consider regulation 19(5)(c), and my observations below are, therefore, limited to 19(5)(a) and (b).

8.    Schedule 2 is in two parts.  Part 1 is headed “physical disabilities” whilst Part 2 is headed “mental, cognitive and intellectual function assessment.”  Paragraph 10 of Schedule 2 falls within Part 1.  It deals with consciousness:

9.    A number of issues arise in relation to this activity.  The circumstances of an individual case will dictate which one(s) should be addressed.

(a) Does the claimant have “lost or altered consciousness”?

10. “Lost consciousness” will, in most cases, be self explanatory.  As to “altered consciousness” I note what is said in the Training and Development WCA Handbook, which gives guidance to Healthcare Professionals on the scope of the descriptors.  Whilst it is not binding on decision makers or tribunals, I agree with and adopt the following proposition:

“’Altered consciousness’ implies that, although the person is not fully unconscious, there is a definite clouding of mental faculties resulting in loss of control of thoughts and actions.”

(b) Is the “lost or altered consciousness” experienced “during waking moments?”

11. This question is outside the scope of this appeal, as it is not in dispute that any episodes experienced by the claimant occurred during waking moments.  The issue has been discussed by the Upper Tribunal in other cases (see AB v Secretary of State for Work and Pensions (ESA) [2012] UKUT 151 (AAC), JG v Secretary of State for Work and Pensions (ESA) [2013] UKUT 0496 (AAC), and the Northern Ireland decision DM v Department for Social Development (ESA) [2013] NI Com 17).

(c) Does the lost or altered consciousness arise from a specific bodily disease or disablement?

12. An exact diagnosis is not necessarily required.  Rather, the focus should be on determining whether or not the claimant’s state of lost or altered consciousness arises from “a specific bodily disease or disablement” (my emphasis).  This is because activity 10 is in Part 1 of Schedule 2 (“physical disabilities”), and so falls squarely within the provisions of regulation 19(5)(a) which is set out above.  As a consequence, if a claimant’s condition which gives rise to episodes of lost or altered consciousness arises from a mental illness or disablement, that claimant will not fall within the ambit of activity 10. 

(d) Are the episodes of lost or altered consciousness “involuntary?”

13. The activity only covers “involuntary” loss or alteration of consciousness.  Thus, a tribunal must whether the episodes can properly be described as involuntary.  In other words, it must ask if voluntary control was lost.

(e) Do the episodes of lost or altered consciousness result in “significantly disrupted awareness or concentration?”

14. As Judge Ward recognised in BB v Secretary of State for Work and Pensions (ESA) [2-12] AACR 2; [2011] UKUT 158 (AAC), this issue provides the yardstick by which to judge whether an episode is sufficiently severe to qualify.  Only if there is “significantly” disrupted awareness or concentration will the claimant satisfy the statutory test.  A tribunal should, accordingly, give close attention to the effects of a claimant’s condition on his or her awareness or concentration, and determine, as a question of fact, whether any disrupted awareness or concentration could be appropriately categorised as significant. 

(f) How frequently do the episodes occur?

15. Points will be scored if the episodes are either at least once a month (6 points) or at least once a week (15 points).  Nothing less will do.

16. The tribunal found that the claimant was having what he described as “blackouts” on average once a month.  It went on to find that:

“What is occurring with [the claimant] is that he is fainting due to anxiety.  [The claimant] would be able to recover from a faint relatively quickly.  Therefore we do not consider them to amount to significant disruption of awareness or concentration and do not find him to meet any of the descriptors for staying conscious when awake.”

17.  The Secretary of State’s representative, Ms. Rachel Walker, indicates that she supports the tribunal’s conclusion that the claimant did not score any points under activity 10.  She does so on three grounds.

18. First, Ms. Walker contends that it follows from the tribunal’s finding that the claimant was fainting due to anxiety, that any lost or altered consciousness arising from an episode did not arise from a “bodily disease or disablement,” and so, by virtue of regulation 19(5), the claimant did not fall within the ambit of activity 10. I agree. 

19. I also agree with Ms. Walker’s second submission, namely that the tribunal was entitled, on the facts before it, to find, as it did, that the episodes experienced by the claimant did not result in “significantly disrupted awareness or concentration” (my emphasis).

20.  Where I part company with Ms. Walker is in relation to her third submission, which concerns whether or not the loss or altered consciousness of the claimant could be said to be “involuntary.”  There was evidence before the tribunal that if the claimant had “a feeling that [came] over him” which could result in him “collapsing” he would manage it by leaving the room or building and going outside.  Such a strategy would help on most occasions and he would not collapse.  Ms. Walker says that this evidence shows that the claimant had control over his condition, and could manage it so that he did not black out or collapse.  In my judgment this submission flies in the face of the tribunal’s finding that the claimant did in fact faint on average once a month.  That finding suggests that on those occasions the claimant actually lost voluntary control, regardless of whether he could manage his condition on other occasions.

21. It is right to say that the tribunal did not specifically consider each of the specific components of activity 10 as discussed above.  However, the facts of the case did not necessarily require it to do so.  The finding that the claimant’s blackouts did not result in significantly disrupted awareness or concentration was one that it was open to the tribunal to make on the evidence before it.  That was sufficient to dispose of the appeal, irrespective of the other questions which may have been raised.  I conclude that tribunal’s findings and decision in relation to activity 10 did not involve the making of an error of law.

22. Nevertheless, for the reasons set out at paragraph 3 above, the tribunal erred in law, and I set aside its decision.  As fresh findings of fact are required, I remit the matter to be re-heard by a new tribunal.

Directions to the new tribunal

23. These directions may be added to or amended by a District Tribunal Judge.

24. The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.  It must undertake a complete reconsideration 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. 

25. In determining whether the claimant satisfies the conditions of activity 10, the tribunal must take into account what I have said above.  Further, the tribunal’s considerations must include activity 15, and must note my observations in paragraph 3 above.

26. The tribunal must not take account of circumstances that were not obtaining at the time of the decision: see section 12(8)(b) of the Social Security Act 1998.  Later evidence is admissible, provided that it relates to the time of the decision.  In other words, the new tribunal will be looking at the claimant’s health problems as at the date of decision under appeal (16 July 2013).  For any further evidence or medical information to be of assistance, it will need to shed light on the claimant’s health problems at that time.

27. If the claimant has any further written evidence to put before the new tribunal, this should be sent to the new tribunal within one month of the date of the letter sending him this Decision.

28. I should add that the tribunal did not have before it the claimant’s ESA50.  Indeed, there was an issue as to whether or not he had received or completed one.  The Secretary of State does not appear to have a copy of it.  Be that as it may, the claimant has now provided a copy of the document at pages [115] – [131], which will be before the new tribunal.  However, I note that page 12 of the document has not been copied.  Crucially, that contains the claimant’s answers to questions 9 and 10.  If the claimant has a copy of that page, he should put it before the new tribunal within one month of the date of the letter sending him this Decision. 

29. Further, the claimant must, within one month of the date of the letter sending him this Decision notify the First-tier Tribunal whether he seeks an oral hearing of his appeal or is content for it to be decided on the papers.  While it is not a matter for me to direct, it is strongly suggested that the claimant should attend the re-hearing if at all possible.   

30. The claimant may find it helpful to get assistance from a law centre, neighbourhood advice centre or Citizens’ Advice Bureau (CAB) in relation to the new tribunal’s re-hearing of the appeal.

31. For the sake of completeness I should emphasise that the fact that this appeal has succeeded on a point of law says nothing one way or the other about whether the claimant’s appeal will succeed on the facts before the new tribunal, which will make its decision having considered all the relevant evidence before it and made appropriate findings.

1. Rowley, Judge of the Upper Tribunal

(Signed on the original)

Dated: 20 May 2015