Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CE/5661/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge K Markus QC

The decision of the Upper Tribunal is to allow the appeal.  The decision of the First-tier Tribunal made on 3 September 2014 made under SC045/12/01186 was made in error of law.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.

Directions

1. This case 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 new First-tier Tribunal will consider all aspects of the case entirely afresh.

4. The parties should send to the relevant HMCTS office within one month of the issue of this decision, any further evidence upon which they wish to rely.

5. The new tribunal will be looking at the appellant’s circumstances at the time that the decision under appeal was made, that is the 15 November 2011.  Any further evidence, to be relevant, should shed light on the position at that time.

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.         This is an appeal against a decision of the First-tier Tribunal that the appellant scored 12 points under Schedule 2 of the Employment and Support Allowance Regulations 2008, and that regulation 29 did not apply to him, so that he did not have limited capability for work.

2.         The appellant appealed on a number of grounds.  I granted permission to appeal on two grounds relating to the decision in respect of activity 1 of schedule 2 and regulation 29. 

3.         By written submissions dated 16 April 2015 the Secretary of State agreed with the first but not the second ground.  The appellant maintained his appeal on both grounds.  The Secretary of State supported the first ground of appeal on the basis that the tribunal should have ascertained at what point the appellant experienced significant discomfort regardless of whether he continued to walk through his pain.  It appeared to me that this submission required further consideration and so I made directions requiring the Secretary of State to address the issues identified by me.  The Secretary of State has sent further written submissions.  The appellant has no further comments to make on the submissions.

4.         Neither party has requested an oral hearing and I am satisfied that I can properly determine the case without a hearing. 

Discussion

Activity 1

5.         In its statement of reasons the First-tier Tribunal recorded the appellant’s evidence as to the distances that he could walk and the pain or discomfort that he experienced.  This was expressed in a variety of ways but the thrust of his evidence was that he could walk distances of between 50 and 150 metres but in doing so experienced severe pain which sometimes caused him to be physically sick and sweat.

6.         The First-tier Tribunal addressed the issue as follows:

“In considering the evidence with regard to his walking ability the first thing that should be said is that [the appellant] throughout his correspondence and indeed in evidence to the Tribunal was labouring under the impression that any walking undertaken with severe discomfort is to be disregarded.  That certainly of course is the position with regard to Disability Living Allowance but in relation to descriptor 1 under the ESA Regulations a person will not be found to score points under the descriptors if he can repeat the activity with reasonable regularity even if in pain. …if [the appellant] can repeatedly walk 200 metres with or even in substantial pain or severe discomfort without stopping then he will not be entitled to score points under the descriptor.”

7.         The tribunal went on to decide that that the appellant could repeatedly mobilise 100 metres.

8.         I agree with the Secretary of State that the First-tier Tribunal appears to have thought that the prescribed pain threshold was “substantial pain or severe discomfort” rather than “significant discomfort or exhaustion”.  But the tribunal did not make a finding of the degree of pain or discomfort suffered because of its conclusion that walking when in pain was to be disregarded.  For reasons which I now explain, this is wrong.

9.        Subparagraph (i) of each descriptor for Activity 1 requires an assessment of the distance for which a claimant can mobilise “without stopping in order to avoid significant discomfort or exhaustion”.  One construction of this provision is that, where a claimant continues to walk after the onset of significant discomfort or exhaustion, the descriptor applies because the claimant has not avoided significant discomfort or exhaustion.  The question for a tribunal is whether the claimant needs to stop in order to avoid significant discomfort or exhaustion, rather than whether the claimant in fact stops. 

10.     I was prompted to direct further submissions from the Secretary of State because it seemed do me that there was a possible alternative reading, which is that the relevant descriptors do not apply unless the claimant actually stops in order to avoid significant discomfort or exhaustion.

11.      There was no ambiguity under the previous incapacity for work regime. The descriptors for walking in the Social Security (Incapacity for Work)(General) Regulations 1995 were defined in terms of the ability of a claimant to walk a specified distance “without stopping or severe discomfort”.  The requirement to stop and the experience of discomfort were disjunctive so that if a person experienced severe discomfort it was irrelevant that they did not stop.  In a case involving the application of those descriptors, CIB/3013/1997, Commissioner Angus observed as follows:

“6. I accept the claimant’s argument that to demonstrate that it has applied the descriptors (c) and (d) properly a tribunal must make it clear that it has considered not only the point in distance at which the claimant stops walking because of severe discomfort but also the point at which the onset of severe discomfort occurs.  No doubt some claimant’s will stop walking at the first point at which severe discomfort is experienced by others will keep going until forced to stop.  It is easy for a busy tribunal to overlook the distinction when considering evidence but, nevertheless, for the proper application of paragraph 1 of the schedule it must be observed…”

12.     Similar words were used in the original version of the ESA Regulations.  The present wording was introduced by the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity)(Amendment) Regulations 2011 (SI 2011/228).  Did this change of wording reflect an intention to change the meaning? The admissible background documentation to the 2011 regulations indicates that no such change was intended.  It is evident from the 2009 DWP-led internal review of the work capability assessment, and the 2010 addendum to the review, that the main reasons for the change were to move away from the function of walking to the function of mobilising, and to take account of fatigue and fluctuating conditions. There was no expressed intention to make any other change.  The continuity of intention is also manifest in the current version of the DWP Medical Services Handbook  which states:

“A task must also be completed reasonably.  If a person can complete a task but suffers significant pain or distress in doing so, they should be considered incapable of the activity.” (page 30)

13.     Taking into account the above, I conclude that a claimant’s ability to mobilise with significant discomfort or exhaustion should be disregarded for the purposes of Activity 1.

Regulation 29

14.      The appellant had claimed to have difficulties in respect of some of the mental functions in Schedule 2.  When he completed the limited capability for work questionnaire the appellant had said that he suspected that he suffered from Asperger Syndrome (AS) and had requested an assessment.  The tribunal was provided with a medical report dated 4 December 2012 (approximately one year after the Secretary of State’s decision) diagnosing the appellant with AS.  There was other medical evidence as to the impact upon him of AS. The tribunal did not consider whether the appellant had suffered from AS at the time of the decision.  But that could not have been ruled out merely because the diagnosis was not made until after the decision.

15.      Regulation 29 requires consideration not only of the risk to health if the appellant is required to work, but in appropriate cases the risk as a result of being found capable of work: NS v Secretary of State  for Work and Pensions (ESA) [2014] UKUT 115 (AAC).  The documents before the tribunal included a letter from the local NHS Asperger Service dated 14 January 2013 explaining that on 10 January 2013 the appellant had presented himself to the hospital in the early hours of the morning as he was experiencing suicidal ideation with intent, having taken an overdose of paracetamol. The letter explained that the appellant “reported as feeling distressed after his case for Disability Living Allowance was dismissed on Wednesday 9^th January with a sense of hopelessness about his financial situation and chronic back problems.” Although this letter related to an incident that took place over one year after the Secretary of State’s decision it raised the possibility that the appellant’s mental health may have been at risk in November 2011 as a result of being found not to have limited capability for work, particularly if the appellant had suffered from AS at the time.  The tribunal did not consider that possibility.

Conclusions

16.      For the above reasons I find that the First-tier Tribunal’s decision was made in error of law and I set the decision aside.  I give directions, above, for the redetermination of the appeal by the First-tier Tribunal.

Signed on the original Kate Markus QC

on 14 September  2015 Judge of the Upper Tribunal