Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/1637/2015

ADMINISTRATIVE APPEALS CHAMBER

Before: M R Hemingway: Judge of the Upper Tribunal

Decision: The decision of the First‑tier Tribunal made when sitting at Nottingham on 20 January 2015 under reference SC045/14/01353 involved an error of law and is set aside. 

The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal. 

This decision is made under section 12 of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

Subject to any later directions by a district tribunal judge of the First‑tier Tribunal, the Upper Tribunal directs as follows:

(1) The appeal should be considered at an oral hearing at a venue convenient for the appellant.

(2) The new tribunal should not involve the tribunal judge or the medical member previously involved in considering this appeal on 20 January 2015.

(3) The appellant is reminded that the new tribunal can only deal with his situation as it was down to 4 July 2014 (the date of the original decision of the Secretary of State under appeal) and cannot deal with any changes after that date. 

(4) If the parties have further written material to put before the new tribunal this should be sent to the appropriate tribunal office within one month of the issuing of this decision.  To be relevant any further such material will have to relate to the circumstances as they were as at the date of the original decision of the Secretary of State under appeal (see above).

(5) The new 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 outcome to the previous tribunal. 

REASONS FOR DECISION

1. This is the appellant’s appeal to the Upper Tribunal, brought with my permission, against a decision of the First‑tier Tribunal, (the tribunal), made on 20 January 2015 dismissing his appeal against the respondent’s decision of 4 July 2014 to the effect that he is not entitled to employment and support allowance. 

2. The appellant, who was born on 1 April 1971, had originally been awarded employment and support allowance from and including 16 April 2013 on the basis that he suffered from back pain.  However, after an assessment which involved him completing a standard form known as form ESA50 and attending a medial examination of 11 April 2014 conducted by a healthcare professional, it was decided, on 4 July 2014, that he was not entitled to any points under any of the activities and descriptors contained within Schedule 2 to the Employment and Support Allowance Regulations 2008 and that he did not meet the requirements of regulation 29 of those Regulations.  Thus, he did not have limited capability for work and was no longer entitled to employment and support allowance.  He requested a mandatory reconsideration of that decision and, as a result, on 3 September 2014, the respondent decided he was entitled to 9 points on the basis of his having problems mobilising but that he was not entitled to any further points such that the decision as to his lack of entitlement remained in place.  That was because the necessary 15 point threshold had still not been reached.

3. The appellant appealed to the tribunal.  It held an oral hearing on 20 January 2015 which he attended.  He gave evidence with the assistance of an interpreter.  He was not represented at the hearing but a written submission had been lodged by his then representatives at the Nottingham and Nottinghamshire Refugee Forum.  There was no attendance on behalf of the respondent.  The tribunal dismissed the appellant’s appeal.  According to its decision notice it decided that he scored no points (but see below) under the activities and descriptors in Schedule 2 and did not meet the requirements of regulation 29.  It appears that the appellant then secured the services of his current representatives at the Nottingham Law Centre who requested the tribunal’s statement of reasons for decision (statement of reasons). 

4. The tribunal produced its statement of reasons.  In that document it noted that the appellant had been awarded 9 points under the descriptors relating to mobilising as a result of the mandatory reconsideration process.  It did not go on to say, in terms, whether it too was awarding 9 points but, despite the absence of a reference to those 9 points in the decision notice, it appears, from reading the statement of reasons as a whole, that it did accept they had been validly awarded.  It then went on to say that whilst the Nottingham and Nottinghamshire Refugee Forum had urged it to award points in relation to the activities and descriptors concerned with “standing and sitting” and “bending or kneeling” it was only considering standing and sitting because there is no activity and there are no descriptors which relate to bending or kneeling.  It was correct in saying that.  There used to be but no longer.  Having decided no points could be awarded in relation to standing and sitting it moved on to consider the possible applicability of regulation 29.  In so doing it said this:

“ 11. The Tribunal agreed with the opinion of the HCP that there were no exceptional circumstances which meant that Regulation 29 of the Regulations should apply.  We asked [the appellant] if there would be any risk to his or anyone else’s health if he had to go to work.  He could not point to any.  The ESA85 records that he stated at the medical examination that in his typical (sic) he can carry out most normal activities of daily life.  We found that to be consistent with his medical condition.  He is able to interact with his friends and to cope with the social situation of going to the shops.  In the circumstances, we found there would be no substantial risk to his or anyone else’s health if he were found not to have limited capability for work.  Since he had not been awarded 15 points under the Schedule 2 descriptors, the appeal was dismissed.”

5. The appellant, through the Nottingham Law Centre, sought permission to appeal to the Upper Tribunal.  Although I was not persuaded that all the grounds advanced had arguable merit, I granted permission to appeal because I thought the tribunal might have erred in failing to carry out an adequate consideration with respect to the possibility applicability of regulation (29)(2)(b); in failing to consider whether the 54 minutes the appellant was said to have sat for at the medical examination conducted by the healthcare professional was or was not for an unbroken period and in failing to address the point that the healthcare professional’s report appeared to have been completed some three days after the date of the examination.

6. The respondent, through Mr M Page, has indicated that the appeal is not supported.  He has provided some helpful background information concerning the issues surrounding the medical examination and report.  I will quote directly from his written submission, as to this, as the new tribunal, which will be rehearing this appeal in due course, may find it of assistance.  Mr Page says this:

“ 5. The WCA took place on Friday 11/04/14.  The LIMA system on which the WCA reports are compiled is open throughout the assessment.  The HCP records entries on the system during the course of the assessment interview.  At some time after the interview has ended and the claimant has left the room the report is completed, in the sense of being finished, by the HCP.

6. The Clinical Manager at the Nottingham Examination Centre has advised that although delay in completion of the report is not preferable, it may be done for a number of operational reasons; for example, to ensure other customers are not kept waiting for a prolonged period or where a healthcare professional wishes to take advice from a mentor.  However strict guidance is applied regarding the point at which a case can be saved.  In summary, this is after all of the client‑given data is recorded on the report such as all histories, examination findings, mental state and observations and not before.  This will leave only descriptor scoring and justification to write up at a later point; these sections of the report can easily be done referencing all the data already obtained.  There should be no quality deficit as the analysis of the data should be the same if undertaken there and then or later as the protocols and processes remain the same.

7. On the length of time that the claimant was observed to sit on a chair by the Health Care Professional during the Work Capability Assessment having looked at this case he notes 58 minutes of work was completed on the report before it was saved, which appears consistent with a report saved only after all the data required had been obtained.  It was recorded contemporaneously by the healthcare professional within the observations section that the customer sat in a chair with a back for 54 minutes.  In relation to the time sitting the Clinical Manager has commented as follows:

‘the physical examination doesn’t take that long, 5 minutes for a full review, sometimes if a blood pressure, pulse or peak flow is needed this may take a while longer but could be while the claimant is sat.  In fact in this case I note only the lower limbs were assessed so it would have been a fairly swift task.  I note that HCP states ‘stood for 2 minutes’ which is probably part of the lower limb observation (we don’t make the claimant literally just stand still for 2 minutes but often the HCP will observe standing next to the couch while they explain what is going to happen next).  I think given the specifics of this report 54 minutes sitting, 2 minutes standing and 3 minutes on couch seems fairly standard considering no upper limb examinations were completed and this examination is usually the very last thing before the claimant leaves, so no need to sit back down.’ ”

7. So, in effect, it was Mr Page’s contention that the appellant was likely to have sat for an unbroken 54 minute period and that the quality of the report would not have been compromised because all of the relevant factual information would have been obtained at the time the examination was conducted. 

8. As to regulation 29, Mr Page agreed that the tribunal had not addressed certain of the requirements which would normally form part of such an assessment but, he argued, it had done enough by asking the appellant if there would be any risk to his or anyone’s health if he had to go to work and recording that he had not been able to point to any such risk.  He also referred me to the decision in NS v The Secretary of State (ESA) [2014] UKUT  0115 (AAC). 

9. The appellant’s representatives, in a written reply to Mr Page’s submission, contended that a delay of three days in order to write up the report was not acceptable, that the physical examination had probably taken longer than Mr Page’s source had indicated it might have done given that there was an interpreter (presumably with the knock‑on effect that the appellant would have been standing for longer than Mr Page’s source had thought and would, therefore, have been sitting for less than 54 minutes) and that the regulation 29 assessment was not conducted in accordance with the requirements in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42. 

10. I have decided this appeal without holding an oral hearing before the Upper Tribunal.  Both parties expressly indicated that they did not require one and, having considered rules 2 and 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I have concluded it is not appropriate to hold such a hearing and that I am able to justly determine the appeal without one. 

11. I have concluded that the tribunal did err in law in failing to undertake a sufficiently full and holistic consideration with respect to regulation 29(2)(b).  In this context, I do consider that regulation 29 had been placed in issue and was, therefore, a matter for the tribunal to properly determine.  The appellant had suggested that his physical difficulties “limited my ability to work” when completing his ESA50 and his former representatives at the Nottingham and Nottinghamshire Refugee Forum had, albeit quite obliquely, raised the issue in saying that the appellant was “not able to take employment with his present medical condition”.  In any event, of course, the tribunal did consider the matter.

12. Part of its consideration, though, had it been following the approach set out in Charlton in full, would have contained an assessment as to the range or type of work which the appellant was capable of performing or which he might reasonably have been expected to undertake. It would then have considered the question of the risk envisaged by regulation 29(2)(b) in light of what conclusions it had reached as to that.  In other words, it would have asked itself, having decided the range (based on matters such as experience, training, aptitude, health etc), whether there was work the appellant could have done within that range without that risk arising. It is, in general terms, more likely that a full assessment will be needed where a person suffers from mental health difficulties rather than physical difficulties, as Mr Page alluded to in his submission.   However, that is not to say that a full assessment will not be required where, as here, the difficulties relied upon by a claimant are predominantly physical in nature.  The tribunal had seemed to accept that the appellant had properly been awarded 9 points with respect to mobilising so it had acknowledged there were physical difficulties of some substance.  If it was not accepting the correctness of the 9 points awarded by way of mandatory reconsideration it would surely have explained, in its statement of reasons, why not.  It did not enquire into the question of what type of work the appellant might be capable of performing or, at least, it did not make any findings at all about that.  However, it did have information before it, as contained in the healthcare professional’s report, to the effect that he had not worked for some five years, that his last occupation was a warehouse operative and that his main reason for leaving his previous employment had been his state of physical health.  So, there were indications that he had, most recently, been performing physical work and that his physical condition might not have been sufficient to enable him to continue in that particular line of employment.  It did not have or appear to have sought any information regarding other work experience he might have had or any qualifications he might have possessed.  It did, though, have a clear indication that his skills in using the English language might have been limited because he had had the benefit of an interpreter at the hearing.  So there was some reason to think that the range or type of work he might reasonably have been expected to undertake would be somewhat limited.  It seems to me, although I accept that this is quite finally balanced, in these circumstances, the tribunal was required to conduct a proper assessment as to the range or type of work he might reasonably be expected to undertake before going on to consider, informed by its conclusions as to that assessment, whether that type of work might trigger the risk required by regulation 29(2)(b).  I do, therefore, conclude that the tribunal erred in law such that its decision falls to be set aside.

13. My having reached this point it is not really necessary for me to say anything further regarding the other bases upon which I granted permission to appeal.  As to the question of how long the appellant sat for at the medical examination and whether the 54 minutes, as recorded, was a continuous period of sitting, that is simply a question of fact which the new tribunal will now have to resolve.  I do note that his former representatives in their submissions to the first tribunal indicated, presumably on the basis of his instructions to them, that he did not “sit for 54 minutes straight” but that, rather, he “had taken a two minute break from sitting down half‑way through the assessment”.  It appears from the statement of reasons that the appellant had told the first tribunal that, in fact, he had only sat for five minutes.  On the face of it that might seem to be inconsistent with what he had told his representatives but, nevertheless, all of this is a matter which the new tribunal will, in the context of the descriptors linked to the activity of standing and sitting, wish to probe.  Of course, the new tribunal will bear in mind that it is concerned not only with the ability to stand and sit but also, with respect to descriptors 2(b) and (c), the question of ability to remain at a work station so that if there is no necessity to move away within the prescribed time periods contained in the descriptors then points are not scored.  That was a matter which the first tribunal was alert to 

14. As to the delay in the preparation of the report, I see no reason to doubt the information obtained by Mr Page to the effect that procedures are such that the factual information is taken and stored on the date a claimant is seen.  Indeed, it is reasonable to suppose that that is what would happen.  Therefore, it does not seem to me that any delay, so long as it is not overly long, in returning to the task of completing the report, of itself, demonstrates any arguable error in law.  It seems to me it will often by the case that experts of various sorts will obtain information for the purposes of an expert report but then write the report at a later date.  Had I not been persuaded by the arguments regarding regulation 29, therefore, I would not have allowed the appeal on the basis of the delay in the completion of the report. 

15. As to disposal of the appeal, as will have become apparent from what I have said already, I have decided to remit to a new and differently constituted tribunal.  No one has suggested I should attempt to re-make the decision myself and, indeed, my having set aside the decision of the first tribunal, there are facts to be found which are better found by a new First‑tier Tribunal as an expert fact‑finding body which will have a range of expertise, including medical expertise, available to it.

16. I would just wish to add one brief final comment.  It seems to me that a consideration of the type or range of work a claimant might reasonably be expected to undertake is something which is often (though by no means always) missed by a tribunal.  Often that will not be fatal. Indeed, as was made clear in NS , cited above, it will sometimes not be fatal even if regulation 29 is not referred to at all.  However, there will be cases, as here, and it seems to me they are not infrequent, where there are indications that the range might be limited for various reasons, perhaps a lack of experience of or aptitude for certain categories of work, perhaps a difficulty with written or spoken English, perhaps an established physical or mental disablement, perhaps something else, such that a proper consideration of this aspect is needed.  Of course, the test does not require anything like the sort of detailed analysis which might be involved in, say, testing the degree of risk to health by reference to specific jobs or job descriptions.  A short assessment, perhaps only a couple of sentences or so, will often be enough.  A tribunal will often already have some background information in the documents before it and will be able to ask questions about the sorts of matters referred to above if an oral hearing is held. Where competent representatives are involved it may well assist a tribunal if any written submission lodged in advance of a hearing can specify whether and on what basis regulation 29 is relied upon and can deal with, if thought to be relevant, the question of the range or type of work.

17. In light of all of the above, therefore, this appeal to the Upper Tribunal succeeds.  The decision of the First‑tier Tribunal of 20 January 2015 is set aside.  The case is remitted to a new and entirely differently constituted First‑tier Tribunal so that the decision may be re-made. 

(Signed on the original) 

M R Hemingway

Judge of the Upper Tribunal

Dated 7 October 2015