IN THE UPPER TRIBUNAL Case No CE/3809/2014

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Attendances: The applicant attended in person. The respondent was not required to be, and was not, represented.

Decision: I refuse permission to appeal. I direct that a copy of this determination, anonymised by removing the front sheet, be placed on the Chamber’s website as if it were a decision.

REASONS

1. The case highlights presentational errors in the DWP submission which may occur in other cases also, and in the relevant volume of Sweet and Maxwell’s Social Security Legislation.

2. The applicant had been placed in the work related activity group but sought to be placed in the support group. For that, he relied on his bowel troubles. Put shortly, he has IBS, the effects of which in his case are that he is constipated for four days or so, following which the build-up of faecal matter is such that he has to spend a lengthy session in the lavatory (put at 3-5 hours, even with the use of laxatives) in order to pass it. This process causes considerable discomfort, and resulted at the date of decision in a prolapse of the rectum in about 50% of occasions, which he had to take steps to deal with. He says, and I accept, that the effect of all this is exhausting.

3. The First-tier Tribunal (“FtT”) dismissed his appeal against a decision dated 19 March 2013, holding that “the activity, number 8, which deals with incontinence is about the opposite problem to which [the applicant] suffers.” It was of course referring to the activity in Schedule 3 of the Employment and Support Regulations 2008, as amended to the relevant date.

4. The applicant sought to argue that the FtT had read into descriptor 8 a limitation which was not there and sought an oral hearing of his application where he could make the point good, to which I agreed.

5. Para 8 of schedule 3 in the form with which we are concerned was introduced by SI 2011 No.228. It is set out below, replicating the layout of the Queen’s Printer’s copy, which is what is definitive.

The key point is that in the right-hand column after “collecting device” the word “sufficient” appears on a new line. From that it is clear that the words “sufficient to require the individual to clean themselves and change clothing” qualify both limb (a) relating to loss of control and limb (b) relating to leakage of the contents of a collecting device.

6. Whether or not the applicant’s difficulty could properly be regarded as a “loss of control”, it does not cause him to have to change his clothes. It follows that the FtT was quite right and that he has no realistic prospect of challenging that on appeal.

7. The terms of the DWP’s submission to the First-tier Tribunal were misleading in that it had set out the descriptor as follows:

“At least once a week experiences

(i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or

(ii) substantial leakage of the contents of a collecting device sufficient to require the individual to clean themselves and change clothing.”

This version, with the line spacing adopted and an apparent run-on after “collecting device”, fails to give effect to the layout as discussed in paragraph 5 above and is misleading to claimants and the FtT. I encourage the Secretary of State to change it if it has not been done already.

8. A similar misleading run-on appears in Sweet and Maxwell’s Social Security Legislation 2014/15 Vol 1 at para 9.395 (in relation to the now amended version of the descriptor) and has appeared in previous years also. The editor is aware of the point and it will no doubt be corrected in future editions.

CG Ward

Judge of the Upper Tribunal

12 February 2015