IN THE UPPER TRIBUNAL Case No  CE/538/2015

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Southampton on 26 November 2014 under reference SC203/14/00615 involved the making of an error of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 9 of the Reasons.

REASONS FOR DECISION

1. The claimant appealed against a decision dated 29 July 2014 that he no longer met the threshold of Limited Capability for Work from that date, having been awarded only 6 points, in respect of coping with social engagement. Some time between the date of his claim (4 July 2013) and the date on which he was examined (22 May 2014) form ESA50 had been completed in respect of him, but it was said to have been retained by ATOS for audit purposes and was not in evidence, something which the tribunal clearly considered unsatisfactory, but it decided not to adjourn for it to be retrieved.

2. The DWP’s submission proceeded by incorrectly setting out the version of schedule 2 as it stood prior to its amendment with effect from 28 January 2013 by SI 2012/3096.  The transitional provisions, which only applied to determinations before 27 July 2013, were irrelevant.  While it is not directly relevant to the ground on which I am setting the tribunal’s decision aside, I mention it so that the tribunal to which this case is remitted can ensure it applies the right version of the law.  In particular, since the ability to remain at a workstation will be in issue, the correct version is that which unequivocally provides that if a person can remain at the workstation by a combination of sitting and standing, that must be taken into account.

3. The descriptors in issue were 2b(iii) (remaining at work station) and 5c “cannot use a pen or pencil to make a meaningful mark with either hand”.  Additionally it was submitted that reg 29 (2)(b) applied (the reference in the submission to reg 25 appears to have been a slip).

4. The First-tier Tribunal found that the claimant, now aged 28, had come to  the UK as a refugee from Iraq when aged 16. It found that he “was born with congenital deformities of both hands which mean that the fingers on the right hand are fused together and the fourth and fifth fingers of his left hand are also fused.  He has functional thumbs on each hand, but with limited movement on the right.”  He also has mental health problems, for which he receives treatment.

5. Having failed to award him any additional points, the tribunal turned to regulation 29. It considered the impact of both the disability affecting the claimant’s hands and (up to a point) of his mental health problems.  What it did not do was make findings as to the range or types of work he could  do without the degree of risk to health envisaged by regulation 29(2)(b).  That, it was submitted on the claimant’s behalf, conflicted with Judge Poynter’s decision in JW v Secretary of State for Work and Pensions (ESA) [2011] UKUT 416 (AAC)  This was one of the two points which led DTJ Sutherland Williams to give permission to appeal, the other being in relation to activity 5.

6. The Secretary of State supports the appeal on the basis that the tribunal by failing to give some indication of the type of work the claimant might be able to do had been too vague and thereby had not fully complied with the decision of the Court of Appeal in Charlton v SSWP [2009] EWCA Civ 42.  He pointed out, further, that the tribunal had not explained what in this context it had made of the limitations on the claimant’s social engagement which the tribunal had accepted existed.  He invites me to set the tribunal’s decision aside on these grounds and remit it for rehearing, which I agree is the appropriate course.

7. It follows that I have received only brief submissions from the parties about descriptor 5 (c).  The tribunal found as fact that the claimant could write his signature.  It certainly is an issue before me (I am not clear whether it was before the First-tier Tribunal) whether he can do so with reasonable regularity but that is something for the tribunal to which this case is remitted to explore.  The claimant’s representative draws attention to varies definitions of “meaningful”.  In my view descriptor 5(c) is not concerned with marks that are “meaningful” in the sense of “having great meaning, eloquent, expressive” (per Collins dictionary).  That is a sense which might be appropriate when “meaningful” is applied to, for instance, glances, but is not a natural sense when applied to something such as rudimentary as a mark with a pen or pencil.  Rather , I consider that it in this context means “having meaning” as opposed to “not having meaning”.  Further than that I prefer not to go in this case.

8. There is also a challenge to the tribunal’s entitlement to reach the conclusion it did that no point-scoring descriptor was met in relation to activity 2.  Like Judge Sutherland Williams, I am not particularly attracted by the submission on that point but I do not need to rule upon it because if an error of law on that aspect was made, it will be subsumed by the re-hearing which has been ordered on other grounds.

9. I direct that:

(a) within one month of the date of the letter issuing this decision, the Secretary of State must file with the First-tier Tribunal a copy of the ESA50 or, if he is unable to do so, provide an explanation of the reason, giving details of the efforts made;

(b) the tribunal must conduct a complete rehearing 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.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against  – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

10. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

CG Ward

Judge of the Upper Tribunal

6 November 2015