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[2009] UKUT 26 (AAC) (02 February 2009)

 


IN THE UPPER TRIBUNAL Case No CIB/3499/2008

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision: The appeal is allowed. The decision of the appeal tribunal sitting at Middlesbrough on 15 September 2008 involved the making of an error on a point 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 paragraphs 13 to 15 of the Reasons.

REASONS FOR DECISION
1. The claimant has, among other conditions, damage to his right leg following an industrial accident some 13 years ago. (His completed form IB50 refers to the left leg, but this appears to be a mistake.) He considered that for incapacity benefit purposes he had difficulties sufficient to attract points in relation to sitting, rising, bending and kneeling, standing, walking, stairs and manual dexterity. He attended a personal capability assessment medical on 1 July 2008 and was subsequently awarded the three points for which he had contended in relation to standing and stairs, but nothing in respect of any other category.
2. On appeal, the tribunal did not award any points for standing, but awarded three points for each of stairs, walking, sitting, rising and bending and kneeling. Because of the rule in regulation 26(2) of the Social Security (Incapacity for Work) (General) Regulations 1995 ("the 1995 regulations"), it was not possible to count the points both for walking and stairs, and so the claimant reached 12 points, three less than the threshold of 15.
3. In granting permission to appeal, I indicated certain concerns with regard to the tribunal's approach to the issue of rising from a chair. If the claimant had attracted the next level of points up for rising, he would have passed the threshold. The appeal is not supported by the Secretary of State.
4. Under regulation 24 of the 1995 regulations:

"the personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in the Schedule, or is incapable by reason of such disease or bodily or mental disablement of performing those activities."

Activity 5 in the Schedule is:

"Rising from sitting in an upright chair with a back but no arms without the help of another person".

A variety of descriptors are provided, as follows:

"(a) Cannot rise from sitting to standing 15

(b) Cannot rise from sitting to standing without holding on to something 7

(c ) Sometimes cannot rise from sitting to standing without holding on to something 3

(d) No problem with rising from sitting to standing 0."

5. In R(IB)2/03, Mr Commissioner Jacobs held that:

"a claimant who has to rely on some other part of the chair (the seat or the back) in order to deliver the force necessary to rise or to provide stability while rising is "holding onto something" and scores points. This is subject to two qualifications. First, the points are only scored if the claimant "cannot" rise from sitting without using his arms to provide power or stability. Second, the disability must arise from a specific bodily disease or disablement under regulation 25(3)(a) of the Social Security (Incapacity for Work)(General) Regulations 1995."

6. In this case, the claimant's evidence initially (94) was "I have to use my hands to push myself up – most times because of pain in left hip because of compensating". However, when questioned further (96) he indicated that it "depends on chair – sometimes I can".
7. The report of the claimant's medical indicated the advice of the doctor to the decision-maker in the following terms:

"Rising from Sitting

This means rising from an upright chair with a back but no arms, without the help of another person.

Rd No problem with rising from sitting to standing

Disagree [sc. With the claimant's own assessment]"

The behaviour observed during the assessment, on which the doctor's view was based , was "sat in an upright chair during interview for 44 minutes without obvious discomfort. Rose easily from the chair once unaided."

8. The tribunal recorded that "The Appellant told the tribunal that he cannot rise from sitting to standing without holding on to something. At first he claimed that this was most of the time but when asked to comment on the observations recorded by the EMP he modified this to say that his ability to rise unaided depended on what sort of chair he was rising from and that sometimes he had to hold on. The tribunal accepted this – 3 points."
9. I consider that the tribunal was thereby in error of law. The frequency with which the claimant can rise from other types of chair has no direct application to the defined activity of the Schedule of the 1995 regulations, which is specific as to the type of chair in issue. The Secretary of State in opposing the appeal has referred me to the decision in CIB/172/2997, where Mr Deputy Commissioner White commented:

"Let me deal firstly with the point concerning the designation of the chair in relation to descriptors 3 and 5. It is clearly important that the proper test is applied in every case. Where conclusions are drawn abut a person's capacity for sitting, care should be taken that minds are addressed to sitting in the type of chair described in the regulations. But in the normal course of events, I think it can be presumed (unless the tribunal record suggests the contrary) that it has considered both sitting and rising from sitting in an upright chair with a back but no arms. Form AT3(AWT) attached to the decision spells out the descriptor in full in recording the tribunal's decision in relation to it. I do not think the tribunal erred in law in this respect."

10. I am unable to take the Deputy Commissioner's remarks as providing the support for the Secretary of State's position for which they are put forward. The clear implication of the claimant's evidence is that his need to hold on was linked to the type of chair from which he was attempting to rise. The tribunal appears to have applied the test in relation to chairs generally – i.e. for some types he needs to hold on to rise, for others he does not, thus overall he sometimes has to hold on. I thus consider that, returning to the Deputy Commissioner's remarks, here "the tribunal record suggests the contrary" and this is not the "normal course of events". A tribunal applying the correct test needed to find more facts.
11. An appellate court or tribunal will not find an error of law unless it is material. Further, even if I hold that there is an error of law, I have a discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set aside the decision of the First-tier Tribunal. I have considered in this case whether to adopt either of these approaches. In general terms, one might imagine that if there is any sort of chair from which it is possible to get up without holding on, it might be an upright one without arms. Chairs, that are lower, or less upright, or which have arms which (if they cannot be held on to) might merely serve to provide an additional obstacle, might be harder. But these are matters of fact and I have concluded that it would be wrong for me to engage in conjecture as to how the claimant fares in rising from an upright chair without arms; this is particularly so, given that his stated difficulties in relation to rising are unusual ones – pain in the left hip from compensating for the injury to his right leg. Accordingly, there must be a new hearing for the necessary fact-finding to take place.
12. As to the points put forward on the claimant's behalf as his "reasons for appealing" (106), these have not been the subject of full representations because of the focus which developed on the issue of rising. As the case is being remitted anyway I do not need to resolve these issues. However, given the very clear note in the record of proceedings (93), I should have taken considerable persuading that the evidence as to walking distance was as alleged by the claimant. I also consider that a tribunal, including as it does a medically qualified panel member and a disability qualified panel member as well as a lawyer, was entitled to use its experience to conclude that the GP's evidence about walking distance probably was reporting what he had been told by the claimant. I can at present see no basis for challenging the adequacy of the tribunal's findings of fact.
13. When hearing the case afresh, the tribunal to whom this is remitted will have to examine all the descriptors which are in issue. So far as rising is concerned, as the activity being measured is the ability of "rising from sitting in an upright chair with a back but no arms without the help of another person", the tribunal will need to make adequate findings of fact as to the types of chair from which the claimant could rise without holding on and those from which he could not do so. In relation to rising from a chair of the type the legislation requires one to consider, the tribunal will need to make findings as to how the claimant does rise from it in order to determine whether this involves "holding on" and will need to make findings of the frequency of the need (if any) to hold on.
14. In making the above findings, the tribunal will have to decide what weight (if any) to put on the observation by the examining doctor that the claimant "rose easily from the chair once unaided" when no express indication is given as to the features of the chair, other than that it was "upright"- in particular, there is no indication whether it was with or without arms. Nor is it clear whether "unaided" as used by the doctor means "without the help of another person" (see the language of the description of the "activity" of rising in the 1995 regulations) thus leaving open whether or not the claimant needed to hold on – or whether it means "without holding on". In order to reach a view, the tribunal will probably need to question the claimant as to what he actually did at the medical examination and what sort of chair was involved. If, as I believe, the options discussed in this paragraph are standard options on the computerised IB85, it appears deficient in these respects.
15. The tribunal will need to look at matters down to the date of the original decision (4 July 2008).
16. The decision as to whether the personal capability assessment is met is entirely a matter for the new tribunal. Applying the guidance in this decision may lead to it awarding more, the same, or fewer points for rising, and in respect of the other descriptors, than the previous tribunal. The fact that the claimant has succeeded on this appeal on a point of law should, therefore, not be taken as an indicator of the final outcome.

(signed)

C.G.Ward

Judge of the Upper Tribunal

2 February 2009