Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

My decision is that the decision of the tribunal involved the making of an error on a point of law.  I set aside the decision of the tribunal and refer the case to the First-tier Tribunal for rehearing before a fresh tribunal.

REASONS FOR DECISION

1.  The claimant, a man now aged thirty three, had a heart attack in April 2013.  He was awarded ESA from 2 August 2014, but following a medical examination on 18 December 2014 at which the claimant was assessed as scoring no points in respect of either the physical or mental health descriptors of the work capability assessment, a decision was made on 7 January 2015 superseding and removing the award.

2.  The claimant appealed on 30 January 2015, claiming to satisfy descriptors 13(b), 14(b), 15(a) and (b), 16(b) and 17(c).  In relation to Activity 15, he stated:  “I am unable to go out to familiar places on my own due to suffering severe anxiety.  I find this far too distressing.” However, the supersession decision was maintained on mandatory reconsideration and the appeal accordingly proceeded to a hearing.

3.  The first hearing of the appeal was adjourned for more medical evidence to be obtained.  At the adjourned hearing of the appeal, on 11 May 2015, the claimant’s representative put in issue descriptors 1(c), 2(c), 4(c), 12(c), in addition to those cited in the grounds of appeal.

4.  The tribunal had before it two short letters from the claimant’s doctors’ practice.  The first, dated 17 December 2014, simply confirmed that the claimant was suffering from anxiety which had got worse since the Summer, that the claimant’s uncle had died, and that the claimant was taking Citalopram 30 mg.  The second letter, dated 24 April 2015, stated that the claimant had PTSD following assaults in his teens and that he had attended psychology.  The letter added that the claimant was avoidant of going out and did not attend follow up appointments.

5.  The tribunal dismissed the appeal, giving the following reasons for awarding no points in respect of activity 15:

“The appellant’s evidence was that he would only ever go out accompanied – either by his girlfriend or family members, even whilst travelling in taxis.  The appellant’s evidence on this activity was not convincing as he was not fully able to explain what was stopping him from going out or why he needed to be accompanied whenever he was out other than to say that he was concerned that people would stare at his facial

scars.  Furthermore we noted that the appellant had told the HCP that he was able to go outside alone to have cigarettes and that he had injured his wrist whilst falling taking his rubbish bin outside, evidence that we accepted that he said and reflected the true picture.  Noting that he lived in an upstairs flat where he would need to travel some distance and presumably come into contact with unfamiliar people, this suggested  that  the  appellant’s ability to go out was not as  limited as he suggested. 

We weighed this against the evidence of the appellant and the letter [of 24 April 2015] which stated that the appellant avoided going out.  Taking all the relevant evidence into account, our doubts about the credibility of the appellant’s and the Tribunal’s own medical expertise, we preferred the evidence of the HCP that the appellant did not meet any of the points scoring descriptors.”

6.  The claimant’s representative applied for permission to appeal on the claimant’s behalf, on the grounds that the tribunal did not put to the claimant their reasons for failing to give the medical evidence full weight, that in considering Activity 15 they took into account irrelevant matters, and that they failed to put to the claimant or his representative their reasons for not accepting his evidence.  Permission to appeal was given by Sir Crispin Agnew of Lochnaw Bt QC on 11 August 2015, but the appeal has been opposed by the Secretary of State in a submission dated 19 August 2015.

7. I reject the first and third grounds of appeal.  The tribunal were fully entitled to take into account any matter affecting the weight of the evidence and, if the tribunal indicated their misgivings about the claimant not having been examined by the doctors who wrote the letters, there was nothing to prevent the claimant’s representative from dealing with that point at the hearing.  For the reasons given by the Secretary of State’s representative, I also consider that  the tribunal were not obliged to give any more detailed reasons than they did for regarding the claimant’s evidence as unsatisfactory.

8.  I have however come to the conclusion that the tribunal’s approach to Activity 15 was flawed.  Activity 15 is concerned with ‘getting about’, and descriptor 1 is satisfied if a claimant “cannot get to any place outside the claimant’s home with which the claimant is familiar”.  For my part, I do not consider that putting out the bins or going outside to have a cigarette amounts to ‘getting about’, even if there is a chance of meeting a neighbour or visitor to the building when doing so. In my judgment, descriptor 1 of Activity 15 requires an investigation of whether a claimant can go to a place outside the immediate vicinity of their home, and that in order to satisfy the descriptor it is not necessary for a claimant to establish that he or she cannot go beyond their front door.

9.  As the claimant’s representative accepts, the tribunal took into account other matters in deciding that the claimant did not satisfy any of the Activity 15 descriptors, but in my judgment the tribunal’s reasons do not adequately explain their conclusions on this issue.  The claimant told the Healthcare Professional that he could not remember the last time he went to the shops alone due to anxiety, that he stayed in his room all the time, had stopped visiting his girlfriend and did not visit his family.  The tribunal might have disbelieved that evidence, but in that case they ought to have made a finding to that effect.  If the tribunal accepted that the claimant did not in fact leave his home without being accompanied, they might have considered that this was out of choice, or they could have concluded that the claimant was prevented from doing so because of anxiety, which was the basis of his case.  On the issue of whether the claimant chose not to go out, or genuinely could not do so because of his mental state, the tribunal’s reasons are therefore so ambiguous as to be in error of law.

10.  The tribunal stated that they ‘preferred the evidence of the HCP that the appellant did not meet any of the points scoring descriptors’, but in relation to Activity 15 the Healthcare Professional’s report did not attempt to justify the nil points score by reference to the medical findings.  It is therefore not clear which aspect of the Healthcare Professional’s report the tribunal regarded as undermining the claimant’s case, nor is it apparent how the tribunal’s medical expertise played a part in their decision.  Although the tribunal expressed their doubts about the claimant’s credibility, they did not make clear which aspects of the claimant’s evidence they rejected.  Although there is no universal obligation on tribunals to explain assessments of credibility in every instance - see CIS/4022/2007 -  a claimant is at the very least entitled to know which aspects of his or her evidence a tribunal does not believe.

11.  For those reasons, my decision is as set out above.

(Signed)

E A L BANO

Judge of the Upper Tribunal

Date: 11 September 2015