IN THE UPPER TRIBUNAL Case No  UK/972/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Teesside on 8 December 2014 under reference SC227/14/00958 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 20 of the Reasons.

 

REASONS FOR DECISION

 

1. This appeal, made with the permission of a District Tribunal Judge, concerns the correct approach in claims for a personal independence payment where a descriptor may be satisfied by reason of one condition experienced by a claimant at some times, and by reason of another condition at some times (which may or may not overlap).

 

2. The operative disabilities for present purposes are those occasioned by chronic obstructive pulmonary disease (“COPD”) and those occasioned by rheumatoid arthritis.

 

3. The First-tier Tribunal correctly directed itself that it had to make findings based upon what the claimant could do safely, to an acceptable standard, repeatedly and within a reasonable time period:  Social Security (Personal Independence Payment) Regulations 2013, reg 4(2A). 

 

4. However, it also said (statement of reasons, para 11) that “the facts that were found to apply did so for more than 50% of the time, in accordance with regulation 7…”. That is not quite what regulation 7 does say and I do not think from the findings it made (see e.g. [6] below) it is what the tribunal actually did.  Regulation 7 is about applying descriptors to facts found, not to the findings of fact themselves. 

 

5. Regulation 7 provides:

 

“7(1) The descriptor which applies to C in relation to each activity in the tables referred to in regulation 5 and 6 is-

 

(a) where one descriptor is satisfied on over 50% of the days of the required period, that descriptor;

 

(b) where two or more of the descriptors are each satisfied on over 50% of the days of the required period, the descriptor which scores the higher or highest number of points; and

 

(c) where no descriptor is satisfied on over 50% of the days of the required period but two or more descriptors (other than a descriptor which scores 0 points) are satisfied for periods which, when added together, amount to over 50% of the days of the required period-

(i) the descriptor which is satisfied for the greater or greatest proportion of days of the required period; or

(ii) where both or all descriptors are satisfied for the same proportion, the descriptor which scores the higher or highest number of points.”

 

6. The tribunal’s findings on frequency appear in a number of places in the statement but were consistent both internally and with the claimant’s evidence given to the health care professional, which the tribunal accepted. Thus at para 101 of the statement it recorded:

“The Tribunal had found, in respect of the Daily Living activities that the number of bad days in a typical week upon which [the claimant] would be affected by his condition was 3 bad days a week for COPD, and 2 to 3 bad days a week depending on the weather for rheumatoid arthritis.  The Tribunal found, on the balance of the evidence, that [the claimant] had some restrictions on his bad days but not on other days.  The Tribunal found that this level of restriction would also apply to the mobility activities and it was consistent with his account of going into town on 4 days of the week.”

 

7. The conclusion that the claimant’s problems did not occur to a sufficient degree was used to defeat the award of points (or more points) for preparing food (para 32), washing and bathing (para 44), managing toilet needs or incontinence (para 55) and dressing and undressing (para 67). It was similarly applied to mobility (para 102).

 

8. At this point, it is right to acknowledge my indebtedness to the submission prepared by Mr Atkinson on behalf of the Secretary of State.  It has been sent for comment to the CAB acting for the claimant, who have replied without taking issue with any of it.  While it is not my general practice to adopt substantial parts of written submissions, on this particular occasion I can see no advantage in not doing so.

 

9. The claimant’s representative argues, if:

 

i)     the two “operative conditions” each, independently, cause scoring descriptors to be satisfied, and

ii)    they are independent in their likelihood of occurring on a particular day, then

iii)   as they are present for 2-3 days a week (arthritis) and 3 days a week (COPD) respectively, the probability of either them occurring is not less than 50% of the days in a given period, but is in fact more than this, and the tribunal erred in not properly considering this point.

 

All three of the above statements must be true for the error to matter materially.

 

10. The first question is whether each condition, individually, would satisfy enough descriptors to be material (i.e. actually result in an award of PIP at some rate.)  There needed to be specific findings on the impact of each condition on each activity, but there were not.  Although there is a thorough discussion of each activity there are no conclusions reached which focus exclusively on how each condition would, on its own, impact on the activity. Judging by the quotes at [12] below, it appears that the tribunal was often looking at how the two conditions, when combined, affected the claimant.  Simply, there are insufficient findings to be able to see if the claimant would satisfy enough descriptors, for both COPD and arthritis independently, for an award of PIP.  As the case is now being remitted, the new tribunal will have to make such findings.

 

11. Turning to point (ii), do the conditions occur independently?  There is no reason to believe that COPD and the arthritis would be causally connected, or occur only at the same times, being completely separate conditions affecting different aspects of the body.  Therefore, in the absence of any evidence suggesting a connection, it is reasonable to assume that they occur at different times to one another.

 

12. The tribunal do not comment on whether the conditions occur independently or not.  However, their findings suggest that they expect that the COPD and arthritis (when they are ‘bad’) occur at the same time:

 

(For Activity 1) “The tribunal found that [the claimant] did not reasonably require use of a perching stool for more than 50% of the occasions upon which he was preparing food. His evidence to the tribunal was that he had up to 3 bad days a week with COPD and rheumatoid arthritis” (paragraph 29)

 

(For Activity 5)  “The tribunal found that his conditions affecting his back and his breathing did so for only up to 3 days in an average week. Again the tribunal’s finding was that at other times, he was not restricted”. (paragraph 54)

 

(For Activity 6) “The tribunal found that having some restriction in reaching to put on socks and trousers on up to 3 days of the average week would be consistent with his evidence to the Tribunal and the available evidence as to how often he had bad days due to his back and breathing. This equates to less than 50% of occasions in an average week however” (paragraph 65).

 

13. The Tribunal have erred in law by proceeding, without evidence, on the footing that both conditions occurred at the same time.

 

14. Had they approached each condition as occurring independently, then, following their finding from paragraph 101 quoted at [6] above, they could not also have made the findings from paragraphs 29, 54 and 65 quoted at [12] above.

 

15. Then, is point (iii) true? Do the two conditions occur often enough that they could be present more than 50% of the days? Instinctively it would seem so. The only time when they would occur on only 3 days in a week is when they actually by chance overlap entirely. Every other week they must occur on at least 4 days. Is that lack of precision satisfactory, or do we have to use probability theory in order to work this out? While, as Mr Atkinson observes, it does seem quite a burden on tribunals if this is the case, it is difficult to see how else the matter could be resolved with certainty. Once the tribunal made findings as to the frequency of certain conditions, it created a mathematical fact regarding whether regulation 7 could be met or not. 

 

16. The probability will depend on whether one considers the frequency of the effects of arthritis occurring to be 2 or 3 days a week. Mr Atkinson set out the appropriate mathematical process and it appears in the schedule to the present decision.

 

17. If we say that the effects of rheumatoid arthritis occur three times a week (and those of COPD occur three times a week), then following the rules of probability, this amounts to the effects of either condition occurring 4.71 times a week. Therefore such effects (either of COPD or arthritis) would be present for over 50% of the days.

 

18. If we say the effects of rheumatoid arthritis occur two times a week (and those of COPD three times a week), following the same approach above, the probability figure of either condition occurring becomes 4.14 times a week. Therefore whether the claimant experienced the effects of the rheumatoid arthritis for 2 or 3 times a week it would not matter, a condition would be present for more than 50% of the days.

 

19. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

 

20. I direct that 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.

 

21. 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

10 November 2015

 

SCHEDULE

 

 

Please see below a standard textbook explanation of working out probability in these cases. Please note that the problem in hand is not a mutually exclusive case (i.e. the occurrence of one condition does not prevent the other from occurring).

* * *

* * *

 

If we say that the rheumatoid arthritis occurs 3 times a week then the probability that regulation 7 is satisfied is worked out as follows: 

 

• Probability(A or B) = Probability(A) + Probability(B) – Probability(A and B)

 

·         The probability of event A (arthritis) occurring, 3/7, is added to the probability of event B (COPD) occurring. 3/7 + 3/7 =6/7.

 

·         However, this probability (6/7) also includes the times on which the COPD and arthritis both occur. This must be subtracted. It is double counting.

 

·         The probability of the COPD and arthritis both occurring is 3/7 x 3/7 = 9/49.

 

·         We need to subtract 9/49 from 6/7. To do this we convert 6/7 into 42/49 (by multiplying by 7). We can then do the simple sum 42/49 - 9/49 = 33/49. This is the probability of an operative condition being present on a given day.

 

·         33/49 can otherwise be understood as 4.71/7, if you were looking at this on a weekly basis (as we have been here).

 

·         Therefore the descriptor is satisfied for more than 50% of the days.