CC v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Pre 28.3.11. WCA activity 1: walking) [2015] UKUT 62 (AAC) (05 February 2015)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

 

The decision of the Wolverhampton First-tier Tribunal dated 27 February 2014 under file reference SC053/13/04459 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the Appellant’s appeal against the Secretary of State’s decision dated 30 May 2013 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below. 

 

This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the hearing:

 

(1) The appeal should be considered at an oral hearing. 

 

(2) The new First-tier Tribunal should not involve the tribunal judge or medical member who was previously been involved in considering this appeal on 27 February 2014.

 

(3) The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 30 May 2013).

 

(4) If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional tribunal office in Birmingham within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above). 

 

(5) The new First-tier 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.

 

 

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

 

The Upper Tribunal’s decision in summary and what happens next

1. The Appellant’s appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal involves an error on a point of law. For that reason I set aside the tribunal’s decision.

 

2. The case now needs to be reheard by a new First-tier Tribunal (FTT). I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts.

 

3. So the new tribunal may reach the same, or a different, decision to that of the previous tribunal. It all depends on the findings of fact that the new tribunal makes.

 

The background to this appeal to the Upper Tribunal

4. The Appellant suffered from a number of medical conditions (visual, back, prostate and renal problems, as well as athlete’s foot). He has significant visual impairment as a result of an industrial accident some years ago. He suffers from glaucoma and at the time of the decision was registered as partially sighted. In 2013 his consultant had indicated that in principle the Appellant could be registered as fully blind but this was inappropriate as his sight could be improved by a further corneal transplant which was then pending.

 

5. On 30 May 2013 the Secretary of State’s decision maker made a “conversion” decision to the effect that the Appellant scored nil points on the work capability assessment and so did not qualify for employment and support allowance (ESA). On 27 February 2014 the FTT heard the Appellant’s appeal. The FTT awarded 9 points for descriptor 8(c) (navigation and maintaining safety, etc.) but otherwise dismissed the appeal.

 

6. The Appellant then appealed to the Upper Tribunal. His representative set out three grounds of appeal, relating to (i) the refusal to make an award for activity 2 (standing and sitting); (ii) the choice of descriptor for activity 8; and (iii) the FTT’s treatment of regulation 29 (exceptional circumstances).

 

The proceedings before the Upper Tribunal

7. In giving permission to appeal, I commented as follows:

 

‘1. This is in many ways a thorough and careful Tribunal decision. However, I am giving permission to appeal as some, if not all, of the grounds of appeal as set out by the representative are arguable. It seems to me the best point relates to the “getting around safely” descriptor. The decision maker awarded nil points under activity 8. The Tribunal awarded 9 for 8c. The representative argues that the Appellant should have scored 15 under 8b.

 

2. Activity 8b reads as follows: “Cannot safely complete a potentially hazardous task such as crossing the road, without being accompanied by another person, due to sensory impairment.”

 

3. It may be arguable that the Tribunal in Wolverhampton may have erred in two respects in its consideration of this provision.

 

4. First, the Tribunal recorded the Appellant’s evidence as being “he was able to cross the road using a zebra crossing but would not go somewhere unfamiliar” (26(f); see also (54)); his evidence was “credible and honest” (37). It  found the Appellant could “safely cross the road” (32). He did not use a stick and had had no incidents out walking (42); see also (57) and (58). However, has the Tribunal done enough to establish that the Appellant can (reliably and repeatedly) either (i) safely cross the road or (ii) safely cross the road but only using a zebra crossing? Perhaps he had had no incidents when out and about because he only went on familiar routes and only used zebra crossings or only crossed with assistance? So is the fact-finding by the Tribunal sufficient to rule out 8b?

 

5. Second, has the Tribunal actually missed the point about 8b? The test is not actually whether a person can safely cross the road unaided. Crossing the road is not the sole context for the application of 8b. The question to be answered is whether the claimant “cannot safely complete a potentially hazardous task such as crossing the road”. Presumably the range of “potentially hazardous tasks” is governed by the activity being “navigation and maintaining safety”. But surely it could include consideration of other potentially hazardous tasks? These might include e.g. walking along a country lane where there is no footpath; walking round a shop or workplace where there may be boxes or other obstacles at floor level; or perhaps even walking along a busy pedestrian route with bustling crowds. Has the Tribunal considered the proper scope of the test?’

 

8. Mr Mick Hampton, who now acts for the Secretary of State in these proceedings, supports this appeal to the Upper Tribunal. He argues that further findings of fact are necessary and is therefore content on that basis that the appeal is allowed and the matter is remitted (or sent back) for re-hearing to a new tribunal. The Appellant’s representative agrees with that approach. I formally find that the FTT’s decision involves an error of law  as regards the second and third grounds of appeal as outlined below.

 

The three grounds of appeal

Schedule 2, Activity 2: standing and sitting

9. The Appellant’s representative argues that the FTT should have awarded 6 points for descriptor 2(c) given the Appellant’s problems with sitting. The FTT had decided that the Appellant was able to sit and stand for over an hour by a combination of both sitting and standing and so did not score any points under this activity. In doing so the FTT in effect applied the law as laid down in my decision in MC v Secretary of State for Work and Pensions (ESA) [2013] AACR 13; [2012] UKUT 324 (AAC).

 

10.  Mr Hampton does not support this ground of appeal, but quite properly draws my attention to a recent decision of a Tribunal of three Social Security Commissioners from Northern Ireland, MM v Department for Social Development (ESA) [2014] NICom 48 (Decision No: C10/13-14(ESA)), which disagrees with my decision in MC v Secretary of State for Work and Pensions. Mr Hampton indicates that the Secretary of State for Work and Pensions “does not necessarily agree with the ruling” in MM v Department for Social Development (ESA). Curiously, the Department for Social Development in Northern Ireland did agree with the ruling in MM.

 

11.  On the face of it this might raise a knotty issue of precedent. Should the new FTT follow the single decision of the Upper Tribunal in Great Britain in MC or the subsequent and conflicting decision of the Northern Ireland Tribunal of Commissioners in MM? On one reading the decision in MC is binding on the FTT, as a decision of a higher appellate tribunal in the same jurisdiction. On the other hand, the Northern Ireland decision concerns the same wording in parallel legislation and is a decision of a Tribunal of three Commissioners; it is therefore highly persuasive.

 

12. A three judge panel of the Upper Tribunal has confirmed that “If confronted with decisions which conflict, the appropriate decision-making authority and tribunals below must prefer the decision of a Three-Judge Panel of the AAC or a Tribunal of Commissioners to that of a single judge or Commissioner” (Dorset Healthcare NHS Foundation Trust v. MH [2009] UKUT 4 (AAC) at [37(ii)]). However, that observation was made in the context of appeals arising in Great Britain alone, without the added complication of any consideration of the impact of decisions taken in Northern Ireland.

 

13.  If it were relevant I would direct the new FTT to follow my decision in MC over the decision of the Northern Ireland Tribunal of Commissioners in MM. I say that for two reasons. First, the former decision is directly binding in this jurisdiction. Second, and in any event, I am not persuaded that my decision in MC is wrong. This might provoke the Rice-Davies riposte. However, the approach in MC is purposive in that it ensures the focus is on a practical and functional approach to the activity in question, i.e. the claimant could manage the combined activity and so did not score any points.

 

14.  In the event the conflict is not material on the facts. The terms of the relevant descriptors were amended with effect from January 28, 2013 so as to confirm the approach taken in MM. In the present appeal the Secretary of State’s decision was taken in May 2013, so the amended and clarified version of the descriptors applies.

 

Schedule 2, Activity 8: navigation and maintaining safety

15.  The decision maker had not awarded any points for navigation and maintaining safety. The FTT awarded the Appellant 9 points for activity 8(c), namely “Cannot safely complete a potentially hazardous task such as crossing the road, without being accompanied by another person, due to sensory impairment.” The Appellant’s representative now argues that the FTT should have awarded him 15 points for either “unable to navigate around familiar surroundings” (descriptor 8(a)) or “cannot safely complete a potentially hazardous task such as crossing the road” (descriptor 8(b)), in either case, as with descriptor 8(c), “without being accompanied by another person, due to sensory impairment.”

 

16.  The FTT found as a fact that the Appellant could only read the top line of an eye chart with one eye and the second line with the other eye. Describing the Appellant’s evidence as credible, the FTT found he could go to familiar places alone but could not get to unfamiliar places, and so satisfied descriptor 8(c). The FTT also concluded that “he was able to cross the roads using crossings and had not had any incidents whilst out and about” (see further grant of permission above).

 

17.  Mr Hampton accepts that the FTT erred in law in two respects in its approach to this activity. First, the FTT had failed to make findings as to the variability of the Appellant’s vision problems in different lighting conditions, an issue which had been flagged up in the evidence before the tribunal. Second, the FTT had concentrated exclusively on the Appellant’s ability to cross the road by a zebra crossing and not considered the wider connotations of descriptor 8(b).

 

18.  I agree with Mr Hampton’s analysis on both points. As to the former, the FTT needed to address the issue of variability, at least in a broad brush way, and bearing in mind the requirement is for an ability to perform the specified activity with reasonable regularity. As to the latter, the test under descriptor 8(b) is whether the claimant “cannot safely complete a potentially hazardous task”, of which crossing a road is simply one illustration. This is similar to activity 11(a) (learning tasks), where the task in question (e.g. setting an alarm clock) is an example of a simple task, and not an exclusive and exhaustive definition.

 

19.  The Appellant’s oral evidence to the FTT should be noted in this context. He said “I have to use the zebra crossing … I have to wait till the car’s stopped at the crossing. I wouldn’t go to somewhere unfamiliar… I have a disabled bus pass. I can get bus alone. I have to wait and see what bus it is when it stops.”

 

20.  Furthermore, the FTT’s focus on crossing the road led it into error in another way. Even considering that particular task to the exclusion of any other potentially hazardous tasks involved in navigation and maintaining safety, the descriptor cites the example of “crossing the road”, not “crossing the road by a zebra crossing”. Thus on those terms the question is “can the claimant safely cross the road without being accompanied?” not “can the claimant safely cross the road by a zebra crossing without being accompanied?” True, the overall activity is defined in terms of navigation and maintaining safety “using a guide dog or other aid if either or both are normally, or could reasonably be, used”. However, it does not seem to me that a zebra crossing (or indeed any other type of pedestrian crossing”) is an “other aid” for this purpose. The “other aid” must be something which the claimant can take about with him or her and use to cross the road safely whether or not there is a designated crossing.

 

21.  Mr Hampton also expresses the view that even the award of descriptor 8(c) may be open to question, as the Appellant’s evidence did not appear to be consistent. If there is a disparity between the Appellant’s evidence as given at different times, it is possible that reflects (a) a deterioration over time and/or (b) the effects of variability in lighting conditions. Those are issues of fact which the next FTT is best placed to resolve.

 

Regulation 29 (exceptional circumstances)

22.  Mr Hampton reiterates his doubt as to whether the Appellant should properly have scored any points under activity 8. However, assuming that at least descriptor 8(c) applied, Mr Hampton accepts that the FTT needed to provide a convincing answer as to why it then felt there would be no substantial risk to the Appellant’s health on the journey to and from work. The FTT’s finding in the context of regulation 29 that the Appellant could “get about safely and see right in front of him at a short distance” was not obviously, without further explanation, consistent with its decision to award 9 points for descriptor 8(c). I agree this amounts to an error of law.

 

What happens next: the new First-tier Tribunal

23.  There will need to be a fresh hearing of the appeal before a new FTT. Although I am setting aside the FTT’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the Appellant is entitled to ESA (and, if so, at what rate). That is a matter for the good judgement of the new tribunal. That new tribunal must review all the relevant evidence and make its own findings of fact. 

 

24.  In doing so, however, unfortunately the new FTT will have to focus on the Appellant’s circumstances as they were as long ago as May 2013, and not the position as at the date of the new FTT hearing, which will obviously be getting on for two years later. This is because the new FTT must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). As noted above, the decision by the Secretary of State which was appealed against to the FTT was taken on 30 May 2013.

 

Conclusion

25.  I conclude that the decision of the First-tier Tribunal involves an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above. 

 

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 5 February 2015 Judge of the Upper Tribunal