DECISION
OF THE UPPER TRIBUNAL
(ADMINISTRATIVE
APPEALS CHAMBER)
Decision
This
appeal by the claimant succeeds.
Permission to appeal having been granted by me on 9 December 2013, in
accordance with the provisions of section 12(2) (a) and (b)(ii) of the Tribunals,
Courts and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure
(Upper Tribunal) Rules 2008 I set aside the decision of the First-tier Tribunal
sitting at Manchester and made on 18 June 2013 under reference SC 063/13/01993.
I re-decide the appeal as follows:
The
appeal against the decision of the Secretary of State dated 6 June 2012 is
successful. That decision is set aside. I substitute a decision that from the
date of her conversion from incapacity benefit to employment and support
allowance the appellant has Limited Capability for Work Related Activities. She
satisfies Regulation
35 (2) Employment and Support Allowance Regulations 2008 and enters the Support
Group.
The
background
- This
matter concerned an award of Employment and Support Allowance to the
appellant following her conversion from income support based upon
incapacity. She had been in receipt of that benefit from 4 December 2000.
The decision was made on 6 June 2012 that, although she had Limited
Capability for Work she did not have limited capability for work related
activities and she did not gain entry to the Support Group.
- That
decision was made following the appellant having completed a form ESA 50,
and a healthcare professional, a registered nurse, having reviewed the
papers. That review was set out pages 29 and 30. The facts as set out
there indicate that none of the descriptors of schedule 3 were found to
apply; there is no observation made as to whether or not regulation 35 was
considered.
- There was some
delay after that, because the appellant did not make her appeal in time
although it was accepted. A note in the action plan (which I refer to
below) says that the appeal was received on 21/12/12, although the
Secretary of State response to the FTT states that it was received on 29
January 2013. The difference seems to me to be immaterial, but the delay
in her appealing explains why the appeal was not heard until 18 June 2013.
The appeal
before the FTT
- The
appellant had not sought an oral hearing, and the FTT dealt with the case
upon the basis of the papers alone.
- Before
the FTT the issue was whether the appellant entered the support group
either by satisfying one of the descriptors, or via the application of regulation
35 (2) of the Employment and Support Allowance Regulations.
- The
response of the Secretary of State at paragraph 5 mentioned the
possibility of a person being "treated as having limited
capability for work related activity where there would be a serious risk
to health if the claimant is found not to have limited capability for work
related activity." That is not strictly the statutory test, but
it approximates to it, and it is the only matter in the response that
relates to it. The paragraph concludes "from the available
evidence, the decision maker found that none of these conditions
applied." Neither the decision at page 31 nor the
“reconsideration" decision at page 32 make specific reference to
regulation 35, but it was considered by the FTT.
- The
FTT confirmed the decision to place the appellant in the work related
activity group.
The
appeal to the Upper Tribunal
- In
granting permission to appeal I asked the Secretary of State to address a
number of issues, which I highlight below. I asked:
·
Is the brief
reference to regulation 35 in the FTT statement of reasons sufficient,
particularly given the apparent absence of evidence as to the nature of
work-related activities?
·
Is there any
evidence that was considered by the Secretary of State that was not within the
FTT papers?
·
Was there any
work-related activity that the decision maker had in mind to which the
appellant might have been suited or unsuited?
·
Did the
tribunal fail to deal with a material issue, by not enquiring as to, or
commenting upon the specific difficulties that the appellant alleged she had
when asked to engage in work-related activities. The response mentions this,
and it is set out in the reasons for appealing at page 2.
- In a
helpful submission Ms Taylor on behalf of the Secretary of State accepts
that the FTT fell into error of law in their highly limited treatment of
regulation 35, particularly in view of the appellant’s evidence in her
letter of appeal to them, and that further exploration of the issue, and
fact-finding was required.
- She
confirmed in that submission that there was no evidence considered by the
Secretary of State’s decision maker that was not within the papers, and
she said that it was “impossible to say what work related activity the
decision maker had in mind.”
- She was
able, however, to obtain from the relevant job centre a copy of the action
plan that was compiled at a series of interviews specifically set up to
explore what, if any, work related activity the claimant could reasonably
be expected to undertake, and she has attached that plan to her submission.
It now appears at page 56 of the Upper Tribunal file.
- That
further evidence, which post dates the decision but (save for the final
paragraph, which for practical purposes I ignore, it being a very
significant time after the decision under appeal) predates the FTT
hearing, and would have been extremely useful to inform the tribunal of
the practical problems that the appellant, together with the job centre,
had encountered in attempts to enable her to engage with work related
activities. Although these matters postdate the decision, to my mind they
shed light on the situation as it existed at the date of the decision, and
this further evidence enables me to re-decide the appeal against the
conversion decision, rather than remit it for further fact-finding.
- The
Secretary of State has indicated that they would be content for me to
decide the matter finally. I do not do so in the way the Secretary of
State recommends in the submission, however.
- For the
avoidance of doubt I do not consider that my decision in MT-v-SSWP [ 2013]
UKUT 0545 (AAC) is relevant to this decision. The essential point in that
case was the lack of any indication of work related activities either in
contemplation of the decision maker at the time of the decision under
appeal or in fact expected of the appellant subsequently. The position
here is very different because there is good evidence of what was expected
of the appellant, from which I am able to assess the extent of any risk to
health if she were found not to have limited capability to work related
activity at the relevant date.
My
findings of fact
- The
appellant suffers-in addition to her physical problems or perhaps because
of them-from depression. This was a diagnosed condition at the date of the
decision under appeal, and at that time manifested itself in functional
problems, including difficulty engaging with other people, a lack of
tolerance for noise or the behaviour of others and a lack of confidence which
often affected her ability to leave home unaccompanied. These problems
had and continued to have significant adverse effects upon her activities
of daily living. They were likely to be exacerbated by her being required
to engage in work related activities, even at a low level such as
attending interviews and courses to discuss or improve her skills, for
example IT skills.
- Any
exacerbation of her functional difficulties was likely to result in a
substantial risk to her mental health and, because of the probable
interrelationship between her physical and mental health difficulties, her
physical health also.
My reasons
for the findings of fact
- The
findings of the FTT were that none of the Schedule 3 descriptors applied
to the appellant; although the comment that her mental health was not
causing significant problems at the relevant time is insufficiently
explained given her evidence, the diagnosis and the medication, I agree
that on the evidence, even that now produced, she is unlikely to have
satisfied any of the mental health descriptors of schedule 3, the terms of
which require an extreme level of functional difficulty in very specific
areas. The other question for the FTT, and now for me, is whether the
provisions of regulation 35 (2) are satisfied. It reads as follows:
35(2)
A
claimant who does not have limited capability for work related activity as
determined in accordance with regulation 34 (1) is to be treated as having
limited capability for work related activity if-
(a)
the claimant suffers from some specific disease or bodily or mentally
disablement; and
(b)
by reasons of such disease or disablement, there would be a substantial risk to
the mental or physical health of any person if the claimant was found not to
have limited capability for work related activity.
- There has
been no dispute in this case that subparagraph (a) is applicable. It is
settled law that the risk to health referred to in subparagraph (b)
includes the health of the claimant.
- The ESA 50,
the self-assessment form which was completed by the appellant’s daughter
on her behalf on 21/4/12 speaks of mental health problems and citalopram,
(an antidepressant/anti-anxiolytic) is mentioned as medication being taken
at that time. Mention is made of the depression making the appellant uncomfortable
being around people, disliking noise and being very unconfident. There are
further mentions of mental health difficulties including problems coping
with change and having difficulties in leaving the house without somebody
that she knew. She was also said to become angry quickly, which upset
people.
- As of 11/1/13,
the date of the GP’s letter at page 6, the appellant was said to suffer
from depression. The prescription of an antidepressant at the date of
the ESA 50 (April) militates strongly towards the conclusion that clinical
depression existed at the date of the decision (June). The letter of
appeal (December) made a number of references to problems caused by mental
health difficulties.
- The
effects of her depression were not taken into account by the healthcare
professional in her scrutiny report, and although the appellant’s account
of her mental health problems in the ESA 50 were before the decision
maker, it is likely that they were considered not to have functional consequences
in the decision on 6 June 2012. The response to the FTT at paragraph 6
refers to a significant level of disability due to physical problems but
makes no reference to mental health issues.
- The problems
which the appellant describes in her letter of appeal are largely borne
out by the difficulties documented by her work related activity adviser
who saw her both before and following the decision of 18 June.
- The action
plan, which was said to include some work related activities, showed certain
action items based upon a number of conversations beginning with an
initial interview on 28/9/11 (that is to say prior to the decision in June
2012), in which it was indicated that the appellant would like to find
employment in the future, but was unsure of what she would be able to do
in view of her health problems.
- Chronologically
the next note is from 31/05/2012 where it was said that the appellant was
not looking for work due to her health problems. She was said to have
regular appointments at the hospital. A women’s centre was discussed with
her. She was aware of that facility, but she was said to be unable to
attend due to her health condition. The comment was made that she was
clearly in pain during the interview and struggled to stay seated during the
time she was there. Charities and the support they can offer with advice
on pain management was also discussed with her. I note that this interview
took place a week before the decision under appeal, 6/6/12.
- Other
entries which are relevant to my findings are that on 2/10/12 it was said
that the appellant was visiting a consultant at Burnley Hospital fortnightly
to see what could be done further to help her neck. Her right arm was said
to be affected and she had severe pains in her head and arthritis in her joints.
The adviser discussed with her the possibilities of volunteering and going
to courses, and an action item on that date reads as follows “to
continue to receive my for entitlement to ESA I will attend work programme
information session at Bootstraps, Tontine Street, when the date is
notified.”
- On 13/11/12
she was said to be on able to attend an information session, because she
had an appointment at Burnley Hospital. It was noted that she also saw a
psychiatrist and a physiotherapist there. She was issued with details of
drop-in IT sessions. On that date the action item read “to continue to
receive my full entitlement to ESA I will complete a basic CV form to show
my adviser on my next attendance.”
- Critical to
my decision is the note made on 21/12/12. It was said that the appellant
had attended Learn Direct three times, but that it had made her neck and
head pains worse and her GP had told her to avoid using the computer.
Volunteering was discussed, but it was said that she could not cope when
around other people, that she got overwhelmed with noise.
- It was on
that day that her appeal against the decision that she had limited
capability for work, but not limited capability for work related
activities, was said to have been received. The letter of appeal deals
with the problems that she has experienced in attending courses. Further
notes during February, April and May 2013, that is to say prior to the
tribunal hearing, indicate that she had tried work-related activities
again, but “could not cope”. In April she was said to be not well enough
to attend, although she had been to CTP (which I take to be the Community
Training Portal which is referred to elsewhere in the document) once
again, and had started to do IT work at home where her family were on hand
to help. In May, although she was continuing with an IT course with the
help of her daughter, she was said to have severe headaches due to a
change in medication, and was too drowsy to attend. She was told on that
occasion that she must attend the next appointment.
- The
consistency of the difficulties flagged up in these entries shed light on
the extent of the vulnerability of the appellant’s health at the date of
the decision under appeal. They are indicative of the difficulties the
appellant set out in the ESA 50 being an accurate account of her problems
at that time (April). The problems that she outlined there are sufficient
to conclude that it was likely that there would be a substantial risk to
her health if she was found not to have limited capability for work
related activity. In particular I note the references to problems engaging
with other people and the notes made by the work adviser as to these
problems leading to her being unable to cope with various activities, and
her GP advising her to stop using a computer, due to the effect it had on
her neck and head pains. I compare the position set out in the ESA 50 with
the circumstances which in fact pertained after the decision in June, and
I infer that the coincidence of symptoms and functional problems enable me
to conclude that the evidence in the ESA 50 was a fair and accurate
account of the problems at that time, and they were substantial.
- In granting
permission to appeal in this case, I reminded the Secretary of State that Upper
Tribunal Judge Jacobs in AH
v Secretary of State for Work and Pensions [2013] UKUT 118 (AAC) (CE/3261/2012)
decided that he must provide sufficient information about work-related
activity for the claimant to present a case and the tribunal to make a
decision. Had the ‘action plan’ which predated the FTT hearing in June
2013 and which I have been given had been presented to the FTT they would
have had that information, and the further appeal may have been avoided.
Paula Gray
Judge of
the Upper Tribunal
Signed on
the original on 20 June 2014
