Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 29 January 2014 at Enfield under reference SC045/13/04460) 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.

DIRECTIONS:

A.        The tribunal 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.

B.        In particular, the tribunal must investigate and decide the claimant’s capability for work on and from 8 May 2013.

C.        In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: 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: R(DLA) 2 and 3/01.

Reasons for Decision

A.        The issue

1.         I have to decide how to interpret and apply Activity 13 in Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI No 794). The version inserted with effect from 28 March 2011 reads:

2.         The word ‘sequential’ was present in descriptor (a) from 28 March 2011. It was add to descriptors (b) and (c) from 29 October 2013 by regulation 13(33) of the Social Security (Miscellaneous Amendments) (No 3) Regulations 2013 (SI No 2536).

3.         Regulation 19(5) is also relevant:

19 Determination of limited capability for work

…

(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.

B.        History and background

The Secretary of State’s decisions

4.         The claimant was awarded an employment and support allowance from and including 9 February 2012 as a result of a brain tumour, epilepsy and a back problem. In late 2012 and early 2013, his capability for work was assessed. He first completed a questionnaire. With regard to initiating actions, the questionnaire told claimants:

This section is about whether you can manage to start and complete daily routines and tasks like getting up, washing and dressing, cooking a meal or going shopping.

The claimant indicated that his ability to manage daily tasks varied. He wrote:

Sometimes have small problems concentrating, but this has almost disappeared the further away from the surgery I get. Also I feel the Kepra does this to me also, but get more used to this side of meds. Am suffering tiredness due to operation/medications. Can do light shopping only. If need to do anything more strenuous need help from someone else. Some days just washing and dressing tires me out, so I will do the other things the next day.

5.         He was then interviewed and examined by a health care professional, who did not identify any disability relevant to employment and support allowance. The examination of the claimant’s mental state revealed no abnormal findings. The record of the claimant’s typical day reads:

Usually goes to bed at different times.
Usually sleeps well.
Usually gets up at about 9 am.
Takes medication.
Prepares breakfast.
Can wash and clean teeth without help or aids despite back problem and pain.
Has a bath when partner is at home.
No problem with dressing and undressing.
Partner does housework and shopping.
Able to walk to the local shops for a pint of milk.
Watches TV.

6.         The decision-maker accepted the health care professional’s opinions and decided that the claimant no longer had limited capability for work from and including 8 May 2013.

The appeal to the First-tier Tribunal

7.         The claimant exercised his right of appeal to the First-tier Tribunal. In his detailed letter of appeal, he referred to tiredness, falling asleep after exertion, difficulties with concentration, and failing to finish tasks. The appeal finally came on for hearing on 29 January 2014. By that time, the claimant had secured, through the Free Representation Unit, the assistance of Mr Howard Leithead. He had obtained evidence from the claimant’s doctor/osteopath, which included these comments on initiating and completing personal action:

Although I cannot answer specifically with regard to questions asked, I can confirm that the patient did undergo a complex and serious operation in Feb 2012. He then presented with epileptic seizures. When seen in July he was in some pain with his back + management involved regular chiropractor sessions + swimming.

8.         The tribunal found that the claimant scored six points for standing and sitting, but this was insufficient to satisfy the work capability assessment, so the tribunal dismissed the appeal. Mr Leithead argued that the tribunal should not limit itself to the sort of action set out on the standard questionnaire, but should consider more complex actions such as making travel arrangements, sorting out the laundry and using a washing machine, writing shopping lists, and dealing with finances. These, he said, were better tests of an ability to plan or organise an activity, solve a problem, prioritise between different tasks and switch tasks. The tribunal dealt with this activity in paragraph 14 of its reasons:

14. Initiating actions [The claimant] says he sometimes has problems concentrating and suffers from tiredness. Sometimes washing and dressing wear him out. We are required to consider whether [he] can perform at least two consecutive actions, such as brushing his teeth and washing, for the majority of the time. He has not cognitive problems that would prevent him from doing so. He is able to go out by himself and get to the shops. We did not award any points for this descriptor.

The appeal to the Upper Tribunal

9.         In applying for permission to appeal, Mr Leithead argued that the tribunal had misdirected itself on descriptor 13. By accepting the ability to complete habitual personal core tasks, such as clearing teeth, washing, dressing, or making short familiar journeys the tribunal had set a threshold that would rarely be met. The fact that the claimant can brush his teeth and wash himself should not necessarily be taken as showing a sufficient organisational ability to function in the workplace. He referred to the legislative history, pointing out that this activity had only been in the legislation since 2011.  An Internal Review had recommended the change in order to avoid double, if not triple, scoring between the previous activities. He sought to distinguish DK v Secretary of State for Work and Pensions [2009] UKUT 230 (AAC), which had decided that daily tasks that are so routine as to be second nature were relevant to the previous activity 14 (memory and concentration).

10.      I gave the claimant permission to appeal to the Upper Tribunal, saying:

It seems from the tribunal’s reasoning in paragraph 14 on page 97 that it may have misdirected itself on the nature of the actions that are relevant to the activity of initiating and completing personal actions.

11.      The Secretary of State’s written response did not support the appeal. The representative argued:

Activity 13 is intended to reflect difficulties that may be encountered by people with conditions such as psychosis, OCD [obsessive compulsive disorder], autism and learning difficulties. People with very severe depressive illness that results in apathy, or abnormal levels of fatigue also experience problems in this area. It may be compounded by the effects of medication. The intention of the activity is to assess whether a person has the capability to carry out routine day to day activities or activities that may normally be associated with work. The concept of 2 sequential tasks could include showering, and getting dressed to go out. The tasks themselves are not prescribed.

12.      In reply, Mr Leithead asked for an oral hearing. Referring to the Secretary of State’s written submission, he argued:

               The activity should not be confined to the medical conditions listed. This would introduce a test of severity of condition into the activity.

               Even if the activity were limited to those conditions, it would be rare for claimants to satisfy the test if habitual core personal activities were relevant.

               All the tasks listed in the activity should be considered: planning, organisation, problem solving, prioritising or switching tasks.

He provided a copy of the Medical Services’ Training and Development Revised WCA Handbook, Version: 6 Final of 19 March 2013. This showed that personal action must be effective and that the scope of the activity was wide.

13.      Mr Leithead also argued that the tribunal was wrong to use ‘consecutive’ rather than ‘sequential’. He argued that they were not synonymous and that sequential actions ‘should bear close relation to each other so as to form a logical sequence.’ He also argued that the ‘or’ between ‘initiate’ and ‘complete’ in descriptors (a), (b) and (c) should be read as conjunctive, meaning that all aspects had to be taken into account.

14.      I directed an oral hearing, which took place on 11 May 2015. Mr Leithead appeared for the claimant. Ms Sasha Blackmore of counsel appeared for the Secretary of State. After the hearing, and without invitation or warning, the Secretary of State sent to me a supplementary note and more material. This was said to be justified on the ground that the Secretary of State had not understood before the hearing that I was concerned about the difficulties a decision-maker might face in applying the Activity to a range of different circumstances. I allowed Mr Leithead a chance to comment on this material and he provided a short response, in which he expressed surprise that my concern had been unexpected by the Secretary of State. I am grateful to both Ms Blackmore and Mr Leithead for their interesting and helpful arguments.

C.        The Handbook

15.      As this was discussed in argument, I set out the section dealing with Activity 13:

3.5.4 Initiating and completing personal action (Understanding and Focus)

Activity 13: Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks).

Descriptors

IA(a) Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.

IA(b) Cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions for the majority of the time.

IA(c) Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions.

IA(d) None of the above apply.

Scope

This activity reflects the ability to initiate and successfully complete tasks without need for external prompting. This Support Group describes a severe restriction of an individual’s ability to understand how to co-ordinate actions in the correct sequence such that they successfully complete any personal actions in a logical order for example washing before dressing.

It is intended to reflect difficulties that may be encountered by people with conditions such as psychosis, OCD, autism and learning disability. A severe depressive illness that results in apathy, or abnormal levels of fatigue experience problems in this area. It may be compounded by the effects of medication.

Issues to consider

               The intention of the activity is to assess whether a person has the capability to carry out routine day to day activities or activities that may normally be associated with work. The concept of 2 sequential tasks could include showering, and getting dressed to go out.

               The issue of whether a person can repeatedly and reliably complete tasks must also be considered.

               There must be evidence of effective personal action. For example, someone with OCD may initiate many actions, but due to rituals they may not actually be able to complete them and therefore should be considered not capable of personal action. Similarly, if a person perhaps with bipolar illness manages to wash and dress but then goes out and spends all their money on non essential activities, giving no consideration to issues such as bills, rent, food etc, they would not be considered to be initiating effective personal action.

‘Personal action’ may include:

               ability to plan and organise a simple meal

               ability to get up, washed, dressed and ready for work in the morning

               ability to cope with simple household tasks e.g. sorting laundry and using a washing machine

               dealing with finances

               arranging GP appointments, picking up prescriptions, taking medication

Details of activities of daily living

Areas to consider should include any behaviour that involves a decision to plan or organise a personal action to enable them to perform it.

Activities may include:

               Making travel arrangements

               Writing shopping lists

               Organising finances

               Planning a simple meal

               Getting washed and dressed

               Ironing clothes for the next day

               Caring for children: preparing clothes, lunches etc.

Mental State Examination

General memory and concentration will be important to assess. Intelligence and severity of depression should be considered. It would be expected that the Mental State Examination findings should be consistent with significant impairment of mental function if choosing a descriptor in this functional category. Where depression is present, evidence of psychomotor retardation would be likely if these descriptors were applicable.

D.       The arguments at the oral hearing

For the Secretary of State

16.      Ms Blackmore began by referring to the tribunal’s findings as a whole, without limiting herself to paragraph 14 of the tribunal’s reasons. The tribunal found that the claimant was able to wash and dress himself, walk to the shops for a pint of milk, prepare breakfast, sometimes travel by bus, walk for about half an hour some afternoons, get a lift to visit his father some evenings, and warn the lifeguard when he went swimming of the risk of an epileptic seizure. She then set out in some detail the oral and documentary evidence on which those findings were made.

17.      On the way in which the tribunal directed itself on ‘personal action’, she argued that the tribunal did not limit itself to the activities of brushing his teeth and washing; it said it took account of activities ‘such as’ those. Read as a whole, paragraph 14 showed that the tribunal was concerned with whether the claimant could carry out two actions in general terms. By way of example, she argued that going to the shops involved a wide range of actions planning, motivation and organisation. In any event, the tribunal could not properly have come to any other conclusion on the evidence before it. On habitual tasks, Ms Blackmore argued that completing two tasks such as brushing teeth and washing did not necessarily show sufficient organisational ability to function in the workplace. However, she then argued that such activities were relevant and that decision-makers had a discretion over which activities it was appropriate to take into account.

18.      On the meaning of ‘sequential’ and ‘consecutive’, Ms Blackmore argued that they were synonymous. She also argued that, although the issue did not arise in this case on the evidence before the tribunal, ‘sequential’ meant that the activities should take place in the same time frame.

For the claimant

19.      Mr Leithead’s argument followed that used in application for permission to appeal, which I have already summarised.

The material submitted after the hearing

20.      I have not found this material helpful in reaching my conclusions, which ultimately must depend on the proper interpretation of the legislation. For the record, it contained: the Parliamentary report of the debate on the motion to annul the 2011 amending Regulations, which was lost; the report of the Social Security Advisory Committee on the amendments and the Government’s response; CE/0682/2013 at [60]-[62]; and MW v Secretary of State for Work and Pensions [2014] UKUT 0112 (AAC), which was concerned with obsessive compulsive disorder.

E.        Conclusions

21.      These are my conclusions.

22.      I need to sound a warning about some of the examples I use later. For convenience, I have treated dressing as an activity. As the passage from the Handbook shows, the Secretary of State seems to regard dressing not as a separate activity, but as a component task in getting up and ready for work.

23.      It is neither necessary nor appropriate to define ‘personal action’. They are ordinary words that have to be given their normal meaning. As Lord Hoffmann explained in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 at [24], ‘The meaning of an English word is not a question of law’. At the risk of stating the obvious, it means something undertaken by someone on their own.

24.      The proper task for the First-tier Tribunal is to apply the language to the facts of the case.

25.      That application will depend ‘not only on the conventional meanings of the words used but also upon syntax, context and background’, to quote Lord Hoffmann again. In this case, the context of the legislation is particularly important.

26.      The purpose of Schedule 2 is to provide a series of specific tests to determine whether ‘it is not reasonable to require [the claimant] to work’ (section 8(1) of the Welfare Reform Act 2007 and regulation 19(1)).

27.      An important part of the legislative context is provided by regulation 19(5). In particular, a claimant will only score points for difficulties that arise from ‘a specific mental illness or disablement’. This is made more specific by the heading to Part 2 of Schedule 2 that limits its scope to the claimant’s ‘mental, cognitive and intellectual function’.

28.      The tribunal must apply common sense in deciding what constitutes an action. It is possible to render the legislation redundant by splitting an action into its component parts. The definition of Activity 13 recognises this by referring to ‘tasks’ as components of a single action.

29.      I reject Ms Blackmore’s argument that applying Activity 13 involves a discretion over which activities to take into account. That would abdicate the meaning of the Activity to the decision-maker or the tribunal, which would be contrary to section 8 of the Welfare Reform Act 2007. That section, after setting out the statutory test of whether ‘it is not reasonable to require [the claimant] to work’, goes on to provide for further provision to be made by regulations. Nowhere does the legislation authorise the decision-maker to exercise any discretion over the meaning of those regulations.

30.      I accept Mr Leithead’s argument that actions that are undertaken out of habit are not to be considered. Their performance does not demonstrate the claimant’s mental, cognitive or intellectual function. They merely show that the claimant has developed the habit of performing them. I accept Mr Leithead’s argument that DK can be distinguished on the ground that it was concerned specifically to test memory and concentration.

31.      I accept Ms Blackmore’s argument that the action must be effective. Actions are not undertaken for their own sake. They are undertaken for a reason and a purpose. If that purpose cannot be achieved, the action is ineffective. The activity is defined as initiating and completing personal action. If the action never reaches the point of being effective, it is not complete. The most obvious example is a person with obsessive compulsive disorder. A person with that disorder is able to perform particular actions and to do so regularly, reliably and repeatedly. Their difficulty is being unable to stop doing them. The result is that they are unable to continue with the rest of their life. For those without the disorder, the action would be part of their life and allows them to continue with the rest of their life. For those with the disorder, the actions becomes their life and prevents them continuing with the activities they would then wish to pursue.

32.      In considering effectiveness, it is important to remember the purpose of the test, which is to decide whether it is reasonable to require the claimant to work.

33.      Activity 13 further defines initiating and completing person action as meaning ‘planning, organisation, problem solving, prioritising or switching tasks’. I accept Mr Leithead’s argument that, in descriptors (a), (b) and (c), ‘or’ must be read conjunctively, as meaning ‘and’. Ms Blackmore agreed with that argument, which reflects the description of the activity itself, which uses ‘and’..

34.      The tribunal’s decision on Activity 13 must relate only to actions that involve all these tasks. This does not mean that the tribunal must find evidence of an action involving all those tasks that the claimant cannot complete. It may be that there will be evidence from, say, dressing that shows the claimant being unable to plan by selecting appropriate clothing to wear outdoors, which can be put together with evidence from, say, cooking, that shows the claimant being unable to prioritise tasks. This specific evidence may have to be supplemented by inferences drawn from the nature of the claimant’s condition or other factors. 

35.      This does not mean that the action considered need necessarily be complicated, so long as the tribunal takes all potential tasks into account. Take dressing as an example. Most of the time dressing may simply be routine. It may even involve nothing more than putting on the clothing selected and laid out by the claimant’s partner. But it can require planning (deciding what to wear), organising (assembling the different items required), problem solving (finding an alternative item of clothing for something that is in the wash), prioritising (deciding whether it is more important to get dressed or to wash a particular item of clothing) or switching tasks (going to iron a shirt to wear). To put it differently. The tribunal must always be sure that the evidence on which it relies actually demonstrates an ability to undertake all the tasks required by the activity.

36.      The claimant must not be prejudiced by living a limited life-style. It may be that someone whose daily life is limited to the basic actions of survival and watching the television would have difficulties if required to undertake any action that was more complicated. This is really an instance of the point I have just made about evidence and proof. It is also an instance of Ms Blackmore’s argument that actions must be effective to allow a person to function. That is what the activity tests: function, not survival.

37.      I trust that it is now clear why, for a variety of reasons, tribunals have been wrong when they have treated cleaning teeth and washing as separate and sequential personal actions.

38.      I accept Mr Leithead’s argument that there is no test of the severity of the condition. It is nowhere stated in the legislation and it is inconsistent with the provisions that the legislation does contain. The legislation is a test of capability and disability. It is the experience of every judge who has dealt with capability and disablement issues that conditions that would medically be classified as serious or severe do not necessarily generate incapacity or disability, whilst conditions that would medically be classified as mild can generate incapacity and disability. To put it another way, severity is tested not by reference to the medical condition, but by reference to the manner and extent in which it restricts a claimant’s activities.

39.      This is not to say that the nature of the claimant’s medical condition is irrelevant. That condition is relevant to the threshold requirement that the activities in Part 2 of Schedule 2 are only relevant if they arise from ‘a specific mental illness or disablement’ that affects the claimant’s ‘mental, cognitive and intellectual function’. The condition may also provide a basis for drawing an inference that the claimant is, or is not, likely to experience particular restrictions. And the nature of the condition provides a check when assessing the evidence on whether the difficulties that the claimant reports are likely to arise from the condition.

40.      I accept Ms Blackmore’s argument that the amendment adding ‘sequential’ to descriptors (b) and (c) merely made explicit what consistency had always required. This is comparable to the decision of Judge White in CS v Secretary of State for Work and Pensions [2014] UKUT 519 (AAC) that the words ‘on level ground’ had to be read into the language of some of the descriptors for Activity 1.

41.      I reject Mr Leithead’s argument that sequential means that the actions ‘should bear close relation to each other so as to form a logical sequence.’ As with so many words, ‘sequential’ and ‘consecutive’ can be used interchangeably or they can convey different nuances of meanings. Both convey that the actions must occur separately rather than at the same time. If anything, the former conveys the notion captured by Ms Blackmore that the actions must occur in the same time frame. That is consistent with the actions having to be effective. The concept of effectiveness involves functioning, and being able to perform only a single personal action in a particular time frame is hardly consistent with functioning effectively. I see no reason, though, why the actions should be related one to another, as Mr Leithead argued.

F.        Disposal

42.      Ms Blackmore argued that the First-tier Tribunal did not make an error of law. I do not accept that. It failed to explain what it made of Mr Leithead’s detailed argument. The manner in which it dealt specifically with Activity 13 left unclear precisely how it directed itself. Ms Blackmore has shown by her detailed analysis of the evidence and the tribunal’s findings that it could have properly come to the decision it did. But that falls short of showing that it could only have done so if it had directed itself properly, not least because of the variation to which the evidence referred. It is possible that, properly directed, the questions that the tribunal asked of the claimant and the findings it made might have been more specifically directed to the relevant issues. The outcome of that exercise is speculation. That is why I have directed a rehearing.