Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference SC015/13/02085, made on 8 April 2015 at Coventry, did not involve the making of an error on a point of law.

Reasons for Decision

A.        The issue

1.         This case concerns Activity 16 in Schedule 3 to the Employment and Support Allowance Regulations 2008 (SI No 794):

This is a companion to Activity 15, which deals with conveying food or drink to the mouth. They form part of the test by which a claimant can show limited capability for work-related activity. They are unusual in at least two respects. First, there are no comparable Activities in Schedule 2, which deals with capability for work, as opposed to capability for work-related activity, although regulation 20(1)(g) provides for the same effect. Second, their contents seem more appropriate to a disability benefit than an incapacity benefit. Be that as it may, they are part of the test for capability to undertake work-related activity.

2.         In this case, there is no need for prompting and no disorder of mood or behaviour, so only descriptors (a) and (b) are in issue. The specific question that arises is whether the claimant can satisfy either descriptor on account of the difficulties he experiences as a result of his false teeth.

3.         Regulation 34 is also relevant:

34 Determination of limited capability for work-related activity

…

(3) In determining whether a descriptor applies to the claimant, the claimant is to be assessed as if-

(a) the claimant were fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or as the case may be,

(b) wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.

…

(6) In assessing the extent of a claimant's capability to perform any activity listed in Schedule 3, it is a condition that the claimant's incapability to perform the action arises-

(a) in respect of descriptors 1 to 8, 15(a), 15(b), 16(a) and 16(b)-

(i) from a specific bodily disease or disablement; or

(ii) as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; …

B.        History and background

4.         The claimant received incapacity benefit from 1996. In 2012, his capability for work was considered with a view to conversion to an award of employment and support allowance. The Secretary of State decided that he was not entitled to an award of that allowance from and including 8 November 2012. The claimant exercised his right of appeal to the First-tier Tribunal. The first hearing of his appeal took place on 31 December 2013. The tribunal found that he satisfied Schedule 2, scoring 18 points, and thereby had limited capability for work. It went on to find that he had no limited capability for work-related activity. Upper Tribunal Judge Gray gave the claimant permission to appeal against that decision and Upper Tribunal Judge Perez allowed the appeal on the ground that the tribunal had failed to consider regulation 35(2): CE/1295/2014. The rehearing took place on 8 April 2015. The tribunal came to the same conclusion as before.

C.        The evidence and reasoning on Activity 16

5.         The judge’s record of proceedings is not all legible. Doing the best I can, this is the claimant’s evidence to the principal questioning on Activity 16:

Teeth taken out 6 months before.
Now has false teeth.
First mention(?) I had false teeth.
Not think it was relevant.
…
Dental clearance before September 2012. At time of examination I had set of false teeth.
Wife put food in liquidiser.
Not as much now.
Depends on ???
I am able to eat if can suck or squash ???
Never use false teeth to eat.
They are uncomfortable.
Not all food ??? I could have a sandwich.
I went back to dentists.
Ridge too high so top slips. False teeth uncomfortable.
Able to chew a sandwich or pot noodle. Anything soft.

As far as I can tell, there is nothing in the remainder of the claimant’s evidence that adds to that passage.

6.         The tribunal found that Activity 16 did not apply. These were its reasons:

12. … The appellant did not mention any difficulty with this activity in the ESA50 or at the medical examination. At the oral hearing the appellant stated that he had false teeth but they are uncomfortable. The appellant gave oral evidence that he is able to chew a sandwich or a pot noodle or anything which is soft without his false teeth. The tribunal found that the appellant can chew or swallow food or drink without repeatedly stopping, experiencing breathlessness or severe discomfort. No points could therefore be awarded for this activity. 

D.       The appeal to the Upper Tribunal

7.         The claimant’s representative applied for permission to appeal arguing that:

·                the tribunal had made insufficient findings on the claimant’s ability to chew and swallow food with his false teeth;

·                the tribunal should have considered a reasonable range of food that would allow him a balanced diet, not just a limited diet of soft food.

The First-tier Tribunal gave permission to appeal on the issue ‘whether chewing food requires the use of teeth.’

8.         On the appeal, the Secretary of State’s representative argued that there was no error of law in the tribunal’s decision. His argument was this:

·                The issue in this case was decided by Upper Tribunal Judge Wikeley in WC v Secretary of State for Work and Pensions [2015] UKUT 304 (AAC).

·                As the claimant already has dentures, ‘it could reasonably be expected that he would obtain a set of dentures that he would be able to use to chew food.’ With these, he could eat any kind of food.

·                The legislation does not prescribe the type of food. He should be able to maintain a balanced diet eating as he does, with his wife liquidising the more solid food.

9.         The claimant’s representative argued that there was an error of law. His argument was this:

·                Judge Wikeley was concerned with a different legal issue.

·                An aid or appliance must be effective and enable the claimant to carry out the activity.

·                It was not reasonable for the claimant to use his false teeth.

·                Even if he did, he would not be able to chew.

·                Mere discomfort would not justify avoiding an aid or appliance.

·                The claimant did not use his false teeth because they were ineffective.

·                The tribunal made no finding about what led to the claimant needing his teeth removed. It was very likely a result of a specific bodily disease or disablement or treatment.

·                Only eating soft food would be detrimental to the claimant’s health, especially given his other health conditions.

·                The descriptor deals with the basic and essential task of eating and drinking to survive.

E.        WC v Secretary of State for Work and Pensions

10.      This is a decision of Upper Tribunal Judge Wikeley. He was concerned with the issue whether ‘or’ in Activity 16 should be read conjunctively or disjunctively. I am not concerned with that issue. In the course of dealing with it, the judge made some comments that are relevant to this case. He undertook what he called a reality check by asking whether a person who lost their false teeth would satisfy a descriptor. His answer was: no. First, because of regulation 34(3)(b), which deals with aids. Second, because of regulation 34(6), which requires the incapability to arise from a specific bodily disease or disablement or from treatment for the same. On the facts of the case, the judge said that the claimant could chew food, swallow liquid, and eat solid, albeit soft, food in the form of pot noodles and bread soaked in soup. He had lost no weight, which was indicative of having no significant problem with swallowing food.

11.      Judge Wikeley referred to the 7 Final version of the Training & Development Revised WCA Handbook produced by Medical Services for the Department for Work and Pensions (9 February 2015). The relevant part of the commentary on Activity 16 reads:

The Support Group criteria relating to ability to eat and drink again reflect a severe level of disability.

They may reflect severe upper limb impairment such as in severe neurological conditions, disorders of the head and neck perhaps as a result of extensive surgery for head and neck cancer resulting in significant disruption of normal anatomy, or disorders of the GI tract resulting in motility problems. This may be the case in disorders such as motor neurone disease, or previous cerebrovascular accident (CVA).

F.        Analysis

12.      Judge Wikeley’s decision is not determinative of this case. He was concerned with a different issue and his comments were made in that context. They are, though, helpful in showing how the same factual issues arose in a different legal context.

13.      A physical difficulty is only relevant in so far as regulation 34(6)(a) is satisfied. There is no evidence that the claimant’s difficulties with his false teeth arise from a specific bodily disease or disablement or from treatment. It is not appropriate to blame the tribunal for failing to enquire. The claimant and his law centre representative put this Activity in issue and should have known what evidence was necessary to establish their case. It was not available and the tribunal could not have found that regulation 34(6)(a) was satisfied. So, the tribunal could not have decided in the claimant’s favour on Activity 16. That makes any error that it may have made immaterial. I will, though, say something more, as I have had argument from both representatives.

14.      The argument has assumed that the false teeth are an aid or an appliance for the purpose of regulation 34(3)(b). If that is right, I prefer to see them as an aid rather than an appliance, but they are one or the other and it does not matter which. On this basis, I accept the argument by the claimant’s representative that an aid should be effective in assisting with the activity and that the claimant’s current set is not. That, however, is not the end of the matter. I accept the argument by the Secretary of State’s representative that the claimant could reasonably be expected to obtain a better fitting pair of dentures. There was no evidence before the tribunal to indicate otherwise. This was a further difficulty in the claimant succeeding under Activity 16. However, is it right that the false teeth are an aid or appliance? They could also be a prosthesis and come within regulation 35(3)(a). If so, they are only taken into account if used, which they are not, at least for eating, and no issue arises of whether they could reasonably be expected.

15.      The legal issue that arises may be framed in different ways. One is the way that the tribunal put it in giving permission: does chewing require the use of teeth? The difficulty with this formulation is that there will be issues of degree. This case has been presented as an extreme example of a person who has no useable teeth for chewing. There will be other less extreme cases. For example, a person might have only some teeth or no molars. It is tempting, as the claimant’s representative has done, to revert to dictionaries, which generally refer to the use of teeth. But those definitions do not take account of the particular context in which the words are used. Nor do they specify what sorts of food are envisaged. A young child whose molars have not developed is still able to chew certain foods.

16.      This brings me to another way to frame the issue, which is to concentrate on the food rather than the chewing. As I put it in my preliminary observations: what sort of food is envisaged by the descriptor? Again, there is a range of possibilities. It is not necessary to be able to eat any food, from the most tender to the toughest. That would set too demanding a standard. But liquidised food is a liquid, more akin to a drink than food, and does not require chewing.

17.      A third, and better, way to frame the issue is to take the whole expression and ask: what is involved in chewing food? That at least preserves the immediate context. It makes the expression as a whole the object of the enquiry, rather than its individual components. It does not, though, produce any clear answer.

18.      On any formulation, it is important to remember the context, which is a test of whether a claimant’s capability for work and for work-related activity is restricted sufficiently to qualify for an employment and support allowance. The disability need not have a direct effect on the performance of work or work-related activity, as feeding oneself is not going to be involved in either case. So the scope of the Activity cannot be calibrated by its effect in those contexts.  Nevertheless the effect of satisfying a descriptor in terms of benefit entitlement indicates that the disability should be significant. It must be such that ‘it is not reasonable to require’ the claimant to undertake work or the activity, to use the language of section 8(1) and 9(1) of the Welfare Reform Act 2007. The passage in the WCA Handbook reflects that, although it is not presented (and must not be taken) as a comprehensive statement of the physical conditions that can lead to the disabilities in Activity 16(a) and (b).

19.      The fact that the claimant is or is not able to maintain an adequate level of nutrition is of evidential value, but it is not decisive and must not be used as a substitute for the test in the legislation. It is possible to maintain an adequate level of nutrition by means of fluids only. Maintaining nutrition is of evidential value, the significance of which can only be judged in the context of the case as a whole. That is how Judge Wikeley used it. But it is not the test itself. In other words, it is not permissible to reason that a person who has maintained weight and a good standard of nutrition must therefore be able to chew food. That would subvert the descriptors by substituting one test for another.

20.      Adequate nutrition is linked to the issue of eating and drinking for survival. That was part of the argument by the claimant’s representative. I have always preferred to interpret disability and incapacity legislation by reference to the functions involved, but I note that increasingly, at least in the context of employment and support allowance, the Secretary of State and the Upper Tribunal’s decisions are taking account of the practical context as well as just the physical or mental function. I can, though, see no context of work or work-related activity where claimants feeding themselves would arise. Given that, it seems to me that survival is not a useful test to use.

21.      Those remarks are very general and come nowhere close to providing an answer to the difficulties of interpretation and application that arise under Activity 16. They are, however, the best I can provide on the arguments I have received and outside the context of a specific set of facts to focus the mind on a case that cannot be decided on other grounds. It is difficult to envisage every possible combination of problems that a person may have with chewing food and, accordingly, dangerous to try to identify an interpretation that will provide a clear answer for all of them.