Upper Tribunal (Administrative Appeals Chamber)

 

 

IN THE UPPER TRIBUNAL CE/3086/2014

ADMINISTRATIVE APPEALS CHAMBER CE/3483/2014

 

Before: Upper Tribunal Judge K Markus QC

 

The decision of the Upper Tribunal is to allow the appeals. 

 

The decisions of the First-tier Tribunal made on 14 November 2013 and 10 January 2014 under numbers SC154/13/06099 and SC154/13/08062 respectively were made in error of law.  Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 I set those decisions aside.

 

I remit the appeal under SC154/13/06099 to be reconsidered by a fresh tribunal in accordance with the directions below.

 

I re-make the decision in SC154/13/08062 as follows:

The appellant had limited capability for work and limited capability for work-related activity from and including 19 December 2012.

 

SC154/13/06099 - Directions

 

1. The appeal is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

 

2. The members of the First-tier Tribunal who reconsider the case should not be the same as those who made the decision which has been set aside.

 

3. The parties shall send to the relevant HMCTS office as soon as possible any further relevant written evidence, if there is any.  If they cannot send that evidence within one month of the issue of this decision 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 evidence will be necessary.

 

4. The new tribunal will be looking at the appellant’s circumstances at the time that the decision under appeal was made, that is the 18 June 2012.  Any further evidence, to be relevant, should shed light on the position at that time.

 

5. The new panel First-tier Tribunal is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may reach the same or a different conclusion to the previous tribunal.

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

 

 

REASONS FOR DECISION

 

Introduction

1.    These appeals each concern the construction of activity 7 in both Schedule 2 and Schedule 3 of the Employment and Support Allowance Regulations 2008 (“the ESA Regulations”), as they were prior to the amendments which came into effect on 28 January 2013.  The conclusions that I reach are also relevant to the construction of the activities in their present form.  The issue is whether a claimant must be unable to understand or have difficulty in understanding communication by both verbal and non-verbal means in order to satisfy the relevant descriptors, or whether inability/difficulty by only one of those means is sufficient.

 

Facts

2.    AT is profoundly deaf. He has no sight impairment and so he is able to read, follow written instructions and write messages for others. He is able to use British Sign Language (BSL).  He has some ability to lip read, although the extent of that ability is in issue. The First-tier Tribunal found that he was able to lip read and that his ability to do so improves when he becomes accustomed to the manner of the person speaking.  The tribunal decided that AT might have some difficulty understanding a simple message from a stranger due to his deafness and awarded him 6 points under Schedule 2, activity 7. The tribunal decided that he was “able without significant difficulty, to understand a message from a stranger…”

3.    AT applied to the First-tier Tribunal for permission to appeal, challenging the tribunal’s findings of fact and reasons, but also placing particular emphasis on the submission that the First-tier Tribunal had failed to take into account that his ability to lip read depended on his having had an opportunity to become accustomed to a person’s manner of speaking and so this was not indicative of his ability to understand a simple message from a stranger.  A different First-tier judge refused AT permission to appeal on the ground that AT could understand a message by non-verbal means. In his application to the Upper Tribunal for permission to appeal, in addition to the original grounds of appeal AT’s representative added a further ground that the First-tier Tribunal had wrongly construed activity 7 as requiring a person to be unable to understand a simple message by both verbal and non-verbal means.

4.    VC has impaired vision but has no hearing problem.  The First-tier Tribunal found that she can read and use a computer with a magnifying glass, and can read 20 point print.  The tribunal found that she scored 15 points under activity 8 of Schedule 2 (navigation) but did not consider the application of activity 7 under that Schedule.  The award of 15 points meant that she was entitled to ESA because she had limited capability for work.  The tribunal found that no Schedule 3 activity applied.  In relation to activity 7 it said:

“17. [VC] argued that she met this descriptor…as she was not able to understand communication by non-verbal means pointing out that she was unable to read Braille or 16 point print.  The relevant descriptor however is strictly worded and is so structured as to require an individual not to be able to understand a message by either verbal or non-verbal means.  [VC] is able to understand verbal messages through hearing. This could include a verbal message for example as the location of a fire escape.  The descriptor is not met.”

5.    VC appealed on the ground that a person satisfies activity 7 of Schedule 3 if he or she is unable to understand a simple message due to either visual or hearing impairment.

6.    I gave AT permission to appeal on 29 September 2014, and Upper Tribunal Judge Turnbull gave VC permission to appeal on 4 November 2014.  The parties agreed that both appeals should be considered together.  In his written response to the appeals, the Secretary of State supports the appellants’ construction of activity 7 and submits that, applying the correct construction to the facts, the tribunal’s decision in AT should be confirmed but that the decision in VC should be set aside.  In both cases the Secretary of State agrees with the appellants that the latter construction is correct: i.e. that it is not necessary to be unable to understand by both verbal and non-verbal means. 

7.    My provisional view was that the wording of the activity was ambiguous, and that amendments introduced in January 2013 did not support the Secretary of State’s position.  As I explain in more detail below, different Upper Tribunal Judges have reached different conclusions on the issue.  So I decided to direct an oral hearing of these appeals at which the issue could be more thoroughly explored.

8.    The hearing took place before me in London on 6 July 2015.  AT was represented by Ms Haws of Surrey Welfare Rights Unit, VC was represented by Ms French of the Royal National Institute for the Blind and the Secretary of State was represented by Ms Blackmore of counsel.  I am grateful to all of them for their helpful written and oral submissions.  In addition to the documents which were before the First-tier Tribunals, I also had a witness statement of Dr James Bolton, Deputy Director of the Strategic Health and Science Directorate at the Department for Work and Pensions (DWP) along with a number of exhibits. The contents of Dr Bolton’s witness statement were not challenged by either appellant.

 

The legislative framework

9.    The Welfare Reform Act 2007 provides for the conditions of entitlement to employment and support allowance (ESA) which include that the claimant has limited capability for work.  A more generous allowance is payable if the claimant has limited capability for work-related activity. Whether a person satisfies those conditions is determined in accordance with the ESA Regulations.  For present purposes it is sufficient to explain that regulation 19 provides for an assessment of a limited capability for work assessment (commonly known as the work capability assessment) as to their capability or incapability of performing activities prescribed in Schedule 2.  A person has limited capability for work if they score at least 15 points under Schedule 2. Regulation 34 provides that a person has limited capability for work-related activity where at least one of the descriptors in Schedule 3 applies to them. 

10. At the time of the Secretary of State’s decisions which are the subject of these appeals, activity 7 in Schedule 2 read as follows:

(1) Activity	(2) Descriptors	(3) Points
7.Understanding communication by both verbal means (such as hearing or lip reading) and non-verbal means (such as reading 16 point print) using any aid it is reasonable to expect them to use, unaided by another person.	(a) Cannot understand a simple message due to sensory impairment, such as the location of a fire escape.	15
	(b)  Has significant difficulty understanding a simple message from a stranger due to sensory impairment.	15
	(c)  Has some difficulty understanding a simple message from a stranger due to sensory impairment	6
	(d)  None of the above apply.	0

 

11. Activity 7 in Schedule 3, at that time, was:

Activity	Descriptors
7.  Understanding communication by hearing, lip reading, reading 16 point print or using any aid if reasonably used	Cannot understand a simple message due to sensory impairment, such as the location of a fire escape.

 

Previous case law

12. The question that arises in this appeal has been subject of a number of earlier decisions of the Upper Tribunal.

13. In CE/2466/2012 Judge Humphrey decided that the plain wording of activity 7 (the above version) meant that a claimant qualified under activity 7 if he or she was impaired in either verbal or non-verbal understanding; it was not necessary to be impaired in both.  In CE/3455/2012 Judge White came to the same conclusion, as the Secretary of State had conceded.  He noted that Departmental guidance contained in Memo DMG 03/12 advised to that effect and that, although the guidance was not law, it accorded with meaning expressed by the words of activity 7.  He considered that the same approach applied to the slightly different wording of the activity in Schedule 3.  In CE/482/2013 Judge Turnbull accepted a concession by the Secretary of State that the activity was satisfied if a claimant could not understand by either verbal or non-verbal means but was not convinced that this was correct.  He said that his decision was “worthless as and should not be cited as a precedent in any other case.”  The issue again came before Judge Turnbull in CE/2942/2013 and he accepted the Secretary of State’s concession with a similar disclaimer as to the precedential value of his decision.  He observed that amendments introduced in January 2013 (as to which, see below) might indicate more clearly than the old wording that the activity was not satisfied unless the claimant was unable to understand by both verbal and non-verbal means.

14. After permission was granted in these appeals, Judge Rowley addressed the issue in CE/1539/2014.  She accepted the Secretary of State’s concession that the activity would apply if the claimant was unable to understand a message by either verbal or non-verbal means.  She took into account the more recent DWP guidance and the Explanatory Memorandum to amending regulations which explained that amendments introduced in January 2013 were for the purpose of clarification and that the new wording was intended to reflect the position as it had always been.  I consider these documents below.

 

Dr Bolton’s evidence

15. Dr Bolton has been the DWP’s Deputy Chief Medical Advisor for almost 7 years and was one of the lead policy officials in reviewing the design of the assessment criteria for the Work Capability Assessment (“WCA”).  In his statement in these appeals he has explained the background to the WCA, the way in which activity 7 in Schedules 2 and 3 has been amended over time and the policy intent of the activity.  None of this has been challenged and I accept it.  It is supported by the documents produced by him.  What follows is a summary of the salient aspects of Dr Bolton’s evidence.

16. Dr Bolton makes the important introductory point that ESA was designed to focus on the functional impact of a person’s health conditions, not the health conditions themselves.  The WCA is a functional assessment of the impact of a person’s condition on their capability to undertake work.

17. In the original ESA Regulations, there were three activities in Schedule 2 covering sensory impairment – speech, hearing and vision.  A person could score up to 15 points in respect of each of those three activities. This meant that a person could qualify for ESA in respect of speech impairment alone, hearing impairment alone or visual impairment alone.  Dr Bolton explains that that was the policy intent from the outset. There were no activities covering sensory impairment in Schedule 3 which instead addressed “communication”. 

18. The DWP commissioned an internal review of the WCA in 2009. The review report was published in October 2009.  In relation to sensory functions, the review concluded:

“The activities of Speech, Hearing and Vision, are overly focused on an individual’s impairment rather than the disability engendered by it.  This focus hinders the assessment’s ability to consider the individual’s functional limitation in relation to their capability for work. Refocusing these activities would lead to alignment of the descriptors with the functional focus of the assessment”. The necessary functions with they identify are expressive and receptive communication (achievable through various modes), navigation and maintaining safety.”

19. The review proposed three new impairment-based activities: making self understood, understanding communication and navigation and maintaining safety. 

20. The review also proposed removing the existing top descriptors of “cannot speak at all”, “cannot see at all”, “cannot hear at all”, in order to prevent “transmission of the message that individuals with such impairment inherently cannot work.”

21. In relation to vision, the review proposed that “vision should not be considered a substitute for hearing  ... the key disabling features of the impairment can be identified as navigation and maintaining safety”. 

22. Further work was done on this and in March 2010 the DWP published, as an addendum, a technical review by the Chief Medical Adviser.  At paragraph 2.2 the review said:

 “...navigation and maintaining safety do not account for the fact that a considerable amount of the information an individual receives is visual.  To address this it is proposed that the receptive communication descriptor (7) is also changed to include the need to demonstrate understanding by both verbal and non-verbal means.”

23. The Employment and Support Allowance Regulations 2011 (SI 2011/228) were the product of the review, following consideration by the Social Security Advisory Committee (SSAC).  The regulations introduced a number of changes to the WCA. They substituted new activities 6, 7 and 8 for the previous three sensory activities, including the versions of activity 7 in Schedules 2 and 3 which applied at the time of the decisions in these appeals (set out at paragraphs 10 and 11 above). In this decision I call these “Version 2”.  

24. The Explanatory Memorandum to the SSAC on the draft 2011 Regulations stated:

“2.11 The changes to Schedules 2 and 3 – Sensory Function – replace assessment of ability to speak with ability to ‘make oneself understood’, replace assessment of ability to hear with ability to ‘understand communication’, and replace assessment of ability to ‘see’ with ability to navigate safely and be aware of hazards. This aligns the descriptors with the functional focus of the assessment and identifies capability for expressive and receptive communication rather than specifying the mode of communication.

 

2.12 Formerly, LCWRA[1] was identified only on the basis of limited expressive communication. These changes expand the support group criteria to include disablement caused by limited receptive communication.”

25. Dr Bolton says that the intention of these changes was that in order to satisfy the WCA a person should be able to understand by both verbal and non-verbal means.  He explains, however, that it quickly became apparent that ATOS healthcare professionals and DWP decision-makers were not interpreting activity 7 in this way and claimants who had only a hearing or a visual impairment, but not both, were not scoring.  The Guidance to Healthcare Professionals (43/2011) was updated and included:

“you must make an assessment of a person’s ability in both sensory modalities. Where a restriction is identified in one area, it is likely they will be awarded a scoring descriptor.” 

 

26. The next amending regulations were the Employment and Support Allowance Regulations 2012 (SI 2012/3096).  Dr Bolton explains that these were in particular intended to address issues relating to cancer treatment.  However, “they were also intended to clarify the original policy intent where it was perceived to be ambiguous or had been challenged by case law and greater clarification was required.  It was not intended to be a change in the policy intent”.

27. The regulations amended activity 7 in both schedules, to their current form (which in this decision I call “Version 3”).  Activity 7 in Schedule 2 now reads as follows:

(1) Activity	(2) Descriptors	(3) Points
7.Understanding communication by - (i) verbal means (such as hearing or lip reading) alone, (ii) non-verbal means (such as reading 16 point print or Braille) alone, or (iii) a combination of (i) and (ii), using any aid that is normally, or could reasonably be used, unaided by another person.	(a) Cannot understand a simple message, such as the location of a fire escape, due to sensory impairment.	15
	(b)  Has significant difficulty understanding a simple message from a stranger due to sensory impairment.	15
	(c)  Has some difficulty understanding a simple message from a stranger due to sensory impairment	6
	(d)  None of the above applies.	0

 

28. Activity 7 in Schedule 3 now reads as follows:

Activity	Descriptors
7.  Understanding communication by (i) verbal means (such as hearing or lip reading) alone, (ii) non-verbal means (such as reading 16 point print or Braille) alone, or (iii)  a combination of (i) and (ii), using any aid that is normally, or could reasonably be, used, unaided by another person.	Cannot understand a simple message, such as the location of a fire escape, due to sensory impairment,

 

29. On 20 September 2012 Dr Gunnyeon (the DWP’s Chief Medical Adviser) sent the draft of the above regulations, along with the Explanatory Memorandum and Equality Impact Assessment, to the SSAC.  In the covering letter he explained that the above amendments were for clarification and did not represent a change in policy.

30. The Explanatory Memorandum explained these amendments (in both schedules) as follows:

“3.14 Cause – The current wording ...could be misinterpreted as meaning that the person has to have both a hearing impairment and a visual impairment in combination in order to score.

3.15 The policy intent is that this activity should examine the ability to understand communication sufficiently clearly to be able to comprehend a simple message by both verbal and non verbal means.  The descriptors may therefore apply if a claimant has a hearing impairment alone, visual impairment alone or a combination of hearing and visual impairment.

3.16 Effect - It is therefore recommended that the wording is changed to understanding communication by:

 (i) verbal means (such as hearing or lip reading) alone,

(ii) non-verbal means (such as reading 16 point print or Braille) alone, or

(iii) a combination of (i) and (ii)”

31. I note that the same text was included in the Explanatory Memorandum which accompanied the draft regulations when laid before Parliament.

32. Dr Bolton says that the above makes it clear that the policy intent with regard to understanding communication had not changed since the inception of ESA in 2008.  This is reflected in the current edition of the Revised WCA Handbook for Healthcare Professionals which states at page 99:

“It should be noted that in this activity, a person must be able to understand communication through both the written and spoken word. A restriction of understanding in either of these communication modalities may result in a scoring descriptor. For example this means a person with normal hearing ability who understands the spoken word without difficulty but has visual impairment to the extent they cannot read 16 point print nor read Braille in a reasonable, reliable or repeatable manner would meet Support Group criteria in this activity.”

33. In conclusion Dr Bolton states:

“The policy (and Parliamentary) intent behind this legislation has since 2008 been that communication involves effective use of verbal and non-verbal descriptors. The assessment is focussed on assessing these functions.”

 

The parties’ submissions

34. The Secretary of State’s position, in summary, is that the meaning of the statutory words in Version 2 was ambiguous, but that it has been clarified by Version 3.  The policy intent was and is that a person should qualify if either they meet the verbal descriptors alone, or the non-verbal descriptors alone, or both. Ms Blackmore relies on the legislative history described by Dr Bolton and the accompanying documents to make clear that this has been the policy intent since the ESA regulations were introduced.  The appellants agree.

 

 

Discussion – the construction of activity 7

35. I am considering the meaning of Version 2 of activity 7 in both Schedule 2 and Schedule 3, set out at paragraphs 10 and 11 above.

The statutory words

36. I start my analysis with the wording of the statutory provisions. 

37. As a preliminary point I note that the terms “verbal” and “non-verbal” are confusing because both forms of understanding in activity 7 relate to verbal communications, in that the activity is about understanding words whether written or spoken. It appears that in activity 7 “verbal is used to mean “spoken” and “non-verbal” is used to mean “written”.   

38. The activities in Schedule 2 must be read in the light of regulation 19 which provides, at regulation 19(2), that:

“The limited capability for work assessment is an assessment of the extent to which a claimant ... is capable of performing the activities prescribed in Schedule 2 or is incapable ... of performing those activities.”

39. Activity 7 takes on a different meaning depending on whether it is read with the first or second clause of regulation 19(2).  If it is read as a statement of what a claimant “is capable of performing”, the words used in activity 7 mean that a claimant must be assessed as capable of understanding communication by both verbal and non-verbal means, and so a claimant who can understand by only one of those means would qualify.  However, if an assessment is being made of the extent to which a claimant is incapable of “understanding communication by both verbal means … and non-verbal means”, a claimant who is incapable of understanding by only one of those means would not be incapable of performing the activity and so would not qualify. 

40. The meaning of the provision is not clarified by the descriptors themselves.  The description of being unable to or having difficulty in understanding a message “due to sensory impairment”, without distinguishing between verbal or non-verbal means, might be understood as meaning that as long as a message can be understood by one or other of those means then the descriptor does not apply. On the other hand, “sensory impairment” may simply be a reference to the words of the activity, in which case the words do not clarify the ambiguity there.

41. The words of activity 7 in Schedule 3 are also ambiguous.  Regulation 34(1) provides:

“...where ... at least one of the descriptors set out in Schedule 3 applies to the claimant, the claimant’s capability for work-related activity will be limited....”

42. It is notable that this refers to the application of the descriptors not the activities.  The descriptor for Version 2 of activity 7 in Schedule 3, as in Schedule 2, does not differentiate between verbal and non-verbal means of understanding.  Even when read with the activity itself, which lists alternative means of understanding, the meaning is unclear.

Legislative intention

43. Given the ambiguity in the words of the provisions, I turn to the legislative history in order to discover the intention of the legislation. Admissible legislative history includes explanatory memoranda. In R(D) & Others v SSWP [2010] EWCA Civ 18, Carnwarth LJ said:

“48.  In relation to explanatory notes, the orthodox position is, in my view, as stated by Lord Hope (in a speech agreed by the other members of the House, including Lord Steyn):

“… an explanatory note may be referred to as an aid to construction where the statutory instrument to which it is attached is ambiguous” (Coventry and Solihull Waste Disposal Co Ltd v Russell [2000] 1 All ER 97, 107g)

49.  It is to be noted that Lord Hope’s comments were directed to the explanatory notes to an amending Order made under a statute.  If anything the case for using such assistance may be even stronger in relation to a statutory instrument than a statute, at least where the explanatory material emanates from the Secretary of State who is directly responsible for making the instrument.  Thus, the explanatory memoranda in the present case represent formal statements of the Secretary of State’s intentions as the author of the relevant statutory instrument, given first to the main statutory consultee, and secondly to Parliament.  Furthermore, unlike primary legislation, Parliament’s function was limited to approving or rejecting the instrument, rather than amending it.”

44. The exchanges between the DWP and the SSAC are also admissible in construing the regulations.  Official statements issued by a department administering an Act are persuasive authority but they cannot turn what has been enacted into what the department wished they had enacted. See JC v SSWP [2015] AACR 6 at [13].

45. Accordingly the materials provided by Dr Bolton are admissible in construing activity 7.  Considering this material along with the relevant statutory provisions as originally enacted and as amended, I conclude as follows.

46. The inclusion of three separate sensory activities in the original version of Schedule 2 meant that impairment in understanding a message by either sight or hearing was sufficient to satisfy the relevant descriptor.  The changes introduced by the 2011 Regulations were intended to focus more on function than impairment, and so moved to receptive communication.  In making that change, the functions of understanding by verbal and non-verbal means were introduced.   The March 2010 review (see paragraph 22 above) shows that the intention was that in order to be capable of activity 7 a person should be able to understand both written and spoken messages.

47. I note that the Explanatory Memorandum to the 2011 Regulations (paragraph 24 above) did not refer to the expanded scope of receptive communication as discussed in the 2010 Review.  However, given the background to the 2011 Regulations, I am satisfied that the legislative intention was as explained in that Review.

48. It is clear from all the materials that the legislative intention since ESA was introduced has been that in order to qualify under a relevant descriptor a claimant  need be impaired in either hearing or vision (but not both) or, as amended, in understanding either spoken or written communication (but not both).

49. Ms Blackmore also relies on the later amendments and surrounding admissible materials which led to Version 3, as evidencing a continuity of legislative intent  throughout the history of these provisions.

50. Unfortunately the statutory wording of Version 3 (see paragraphs 27 and 28 above) is not much of an improvement on the previous wording. Despite the use of the connector “or” and the addition of “alone” after (i) and (ii), as with Version 2 the meaning seems to be different depending on whether the activity is read with the words “is capable of” or “is incapable of” in regulation 19(2). 

51. Despite this it is clear from Dr Bolton’s evidence that the word “alone” was inserted after each of (i) and (ii) with the intention of making clear that it is sufficient if a person is unable to understand a message by either verbal or non-verbal means. The purpose of Version 3 was to clarify what had been the intention of this provision since it was originally enacted. It is clear that the legislative intention has been the same throughout the life of these provisions.

52. Although, as Judge Turnbull said in CE/2942/2013, it is difficult to see why (iii) has been included in the current version of the activity if either (i) or (ii) suffices, this does not alter my conclusion as to the intention of the provision.  There is an example at page 104 of the current WCA Handbook which attempts to illustrate the application of (iii), but it fails in that respect and there is no need to reproduce it here.  However there is a clear statement of policy at page 99 of the Handbook (see paragraph 32 above) which reinforces the Secretary of State’s case as to the intention of the activity.

53. I am also satisfied that activity 7 in Schedule 3 was intended to correspond with the highest descriptor in activity 7 of Schedule 2.  In Version 2 the activities are not the same but the highest descriptor for activity 7 in Schedule 2 is the same as the descriptor in Schedule 3.  The activities and descriptors in Version 3 are the same.  I am satisfied that the differences in the wording of the descriptors in Version 2 of the two Schedules is not intended to reflect a difference in substance. The 2009 review, which led to Version 2, explained at page 30 that there should be correlation between the highest scoring Schedule 2 descriptors and the Schedule 3 criteria.  The Explanatory Memorandum to the 2012 regulations applied to the amendments to both Schedules.  And the letter from Dr Gunneyeon of 20 September 2012 makes it clear that Versions 2 and 3 are intended to carry the same meaning.  Accordingly, I conclude that activity 7 in Schedule 3 as in force at the date of the decisions in these appeals (Version 2) applied to a claimant who was unable to communicate by either verbal means or non-verbal means and it was not necessary for the claimant to be unable to communicate by both means.

54. As I said at the beginning of this part of my decision, these appeals are concerned only with the interpretation of Version 2 of activity 7.  However, it is apparent from my conclusions that the legislative intent has remained constant throughout the history of the provisions and so my reasoning also applies to Version 3.

 

 

The individual appeals

AT’s appeal

55. There is no indication that the First-tier Tribunal misconstrued activity 7.  The Tribunal Judge who refused permission to appeal did so, but that judge did not determine the appeal and her observations and conclusions cannot be attributed to the tribunal which decided the appeal. 

56. The issue which the First-tier Tribunal addressed was whether as a result of his deafness AT’s ability to understand a message by verbal means (such as hearing or lip reading) was impaired.  The tribunal concluded that AT had “some difficulty” in that respect. The tribunal set out at paragraph 4 the factors which it took into account: AT was able to use British Sign Language (BSL) and was able to lip read, the latter became easier on becoming more accustomed to the manner of the person speaking, he was able to read and follow written instructions, and he received the help of support staff at college.

57. The tribunal took into account the medical assessment by the healthcare professional in the ESA85.  That assessment included the following:

“Uses lip reading. Can use sign language, Is able to socialise with no problem using lip reading and sign language, finds it easier communicating 1 to 1…

The client used lip reading to understand conversational speech

The client used sign language to a standard equivalent to Level 4 British Sign Language  ” 

 

58. In the ESA 50 AT explained that he had been profoundly deaf since childhood and so had missed normal speech development (page 20).  In his appeal (page 14 and 15), AT explained that the healthcare professional had used BSL to communicate and spoke more slowly than one would normally.  He said that this did not mean he could understand a simple message from a stranger or non-BSL user. He said that he could not understand a simple message from a stranger, for instance an airline attendant, train guard or ship attendant when travelling, and would rely on their body language.  He also explained that, at college, he would wear a pager to alert him to a fire alarm and would follow others to evacuation points.  In the documents before the First-tier Tribunal there was a letter from AT’s learning support assistant at college (page 68), who said that he always needs support when understanding others and that she communicates with him using sign language.

59. The record of proceedings before the First-tier Tribunal includes the following:

“Lip-read?

Can yes…

Easier to lip read when I know the person – harder with a stranger.

So I would say “no”.”

 

60. It seems that the responses above came from AT.  Ms Blackmore agreed. 

61. I note the guidance in 43/2011 as it was at the time of the decisions in question (referred to above), that activity 7 “relates to the ability to understand communication sufficiently clearly to be able to comprehend a simple message. It does not relate to being able to follow a complex conversation, the level of communication is basic”, and that “The level of lip reading required is very basic…and it would be expected that the vast majority of people would meet this level of proficiency in lip reading”.  The guide continues “It is however important to be mindful that some people may not be able to lip read a simple message, for example those with severe profound pre-lingual deafness who have no experience of the spoken word”, and “Where a BSL interpreter is used, it is essential that the HCP assesses lip reading ability.”  The advice is repeated in the latest edition of the WCA Handbook.

62. Ms Blackmore submits that AT’s case illustrates the spectrum within which an assessment under activity 7 sits.  He is profoundly deaf and has some limitations on his lip reading activity.  He does not qualify simply because he is deaf.  She submits that the tribunal was plainly aware of the evidence as to AT’s difficulties with lip reading, it had sufficient evidence to support its decision and it explained its decision adequately. 

63. I accept Ms Blackmore’s submission that it was not necessary for the tribunal to have mentioned every piece of evidence, and that the findings of fact which it set out in its statement of reasons appear to be derived from the appellant’s evidence.  Nonetheless, for the reasons which follow I conclude that the First-tier Tribunal failed to make adequate findings of fact to support its conclusion that the appellant had sufficient understanding by way of lip reading.

64. The extent of AT’s ability to lip read was key to determining his ability to understand by verbal means (ie understand a spoken message).  Resolution of that issue required more than a statement that he was able to do so and that it became easier when he became accustomed to the manner of the person speaking. 

65. AT had explained that he had problems with lip reading. His evidence to the tribunal was that he “would say” that he cannot lip read.  The fact that he wore a pager at college to alert him to a fire alarm and then follow others to the exit is consistent with him not being able to understand a simple spoken message such as the location of a fire escape.  The fact that his learning support assistant always supported him when understanding others by use of sign language is also consistent with this.  It is not clear from the ESA85 that the healthcare professional assessed AT’s ability to lip read without the assistance of BSL and the assessment does not indicate the extent of his lip reading ability without the assistance of BSL.

66. The tribunal has addressed none of this evidence.  It is impossible to tell how it reached the conclusion which it did.

67. I also note that, although the required level of lip reading is basic, AT had been deaf from an early age (it is not clear from when) and so the caution contained in the medical advice/handbook in relation to those who are prelingually deaf was of possible relevance to him. 

68. In the light of these errors, the tribunal’s decision in AT’s case must be set aside.  Further findings of fact are needed and accordingly I remit his case to be heard by a different tribunal in accordance with the directions above.

 

VC’s appeal

69. It follows from my conclusions as to the meaning of activity 7 in Schedules 2 and 3 that the First-tier Tribunal in VC’s case misdirected itself as to the interpretation of activity 7 and, as a result, wrongly concluded that VC did not have limited capability for work-related activity.  It is plain from the tribunal’s findings of fact that activity 7 of Schedule 3 applied to VC from 19 December 2012, which is the date of conversion of VC’s award of incapacity benefit to ESA.

70. I therefore set aside the tribunal’s decision in VC’s case and remake the decision that the tribunal should have made, which is that VC had limited capability for work and limited capability for work-related activity from and including 19 December 2012.

 

 

 

Signed on the original Kate Markus QC

on 7 August 2015 Judge of the Upper Tribunal