DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

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

The decision of the Cardiff First-tier Tribunal dated 7 September 2010 under file reference 188/10/01378 involves an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the claimant’s appeal against the Secretary of State’s decision dated 14 October 2009 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 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the re-hearing:

(1)	The re-hearing should be at an oral hearing.
 
(2)	The new tribunal should not involve the tribunal judge or medical member who sat on the tribunal that considered this appeal at the hearing on 7 September 2010.

(3)	The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal (namely 14 October 2009). 

(4)	If the claimant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the Cardiff regional office of the HM Courts and Tribunals Service (HMCTS) within one month of the issue of this decision.  To be of the most value, any such evidence must relate to her condition as at 14 October 2009.

(5)	The new tribunal must consider all the evidence afresh and 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 end up reaching the same or a different result to the outcome of the previous tribunal.

Directions (1) and (4), but not Directions (2), (3) and (5), are subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.  

REASONS FOR DECISION

The limits to what the Upper Tribunal has decided

1.		The right of appeal to the Upper Tribunal from a decision of the First-tier Tribunal is confined to matters of law.  The Upper Tribunal’s decision in this case is that the First-tier Tribunal (from now on, simply “the tribunal”) made a mistake in law.  For that reason, and that reason only, the tribunal’s decision is set aside.  The Upper Tribunal is not in a position to decide the underlying question (namely, does the appellant have limited capability for work?) itself.  So the case now needs to be reheard by a new First-tier Tribunal.  

2.		This means that the Upper Tribunal is making no decision on the underlying merits or facts of the case.  That is entirely a matter for the new tribunal.  The previous tribunal may have ended up at coming to the right result on the facts, even if it fell into error in law.  Alternatively, it may have come to the wrong result on the facts.  All that is irrelevant now, for all that matters is the decision of the new tribunal.  The fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication either way of what the result of the fresh tribunal may be.

The background to the appeal to the First-tier Tribunal

3.		The appellant is a young woman now aged 26 who lives with her parents (or did at the time in question).  She had ME as a teenager (page 80); she went to University but had to take a year out and left after four years but apparently without a degree (page 80 again); she was diagnosed with fibromyalgia in about early 2007 (page 17); she also had some sort of mental breakdown or psychotic episode in September 2008, resulting in a hospital admission (pages 17 and 81); she had worked in a shop for a while (page 43).

4.		On 25 August 2009 the appellant completed an ESA50 questionnaire. She described, as the tribunal succinctly put it, “someone who was significantly disabled by her condition and could do little for herself” (page 96, paragraph 4).

5.		On 23 September 2009, accompanied by her father, who also acted as her representative before the tribunal, the appellant underwent a medical examination by a Dr Kennedy for the Department.  Dr Kennedy reported (page 50) diagnoses of fibromyalgia, depression (a condition from which he said that she had made a good recovery: page 58), IBS and a visual problem.  He recorded what the appellant described as her “typical day” – although it is right to say that the appellant has now raised issues about how some features of that account were taken out of context.  However, the doctor’s overall conclusion was that she was unlikely to have a significant level of disability.

6.		Following that examination, a decision maker apparently concluded on 14 October 2009 that the appellant scored nil points on both the physical and mental health descriptors.  S/he accordingly decided that the appellant no longer had limited capability for work and so was not entitled to employment and support allowance (ESA).

7.		I say “a decision maker apparently concluded” advisedly, as there is no copy of the decision or the decision letter itself on file, although there is a copy of the score-sheet (pages 69-71).  Whilst that is regrettable, it is not fatal.  The appellant clearly got the letter, as she submitted an appeal (pages 7-13) and the decision was later reconsidered but not changed (page 72).
The First-tier Tribunal’s decision

8.		The First-tier Tribunal heard the appellant’s appeal on 7 September 2009.  The appellant attended with her father.  The hearing was certainly a fairly long one – 1 hour 20 minutes according to the record of proceedings.  The tribunal’s decision was to dismiss the appeal and to confirm the Secretary of State’s decision (page 93).   The tribunal judge subsequently issued a fairly lengthy statement of reasons for the tribunal’s decision (pages 95-98).

9.	The appellant’s father applied for permission to appeal on her behalf.  Understandably, those grounds were couched largely in terms of taking issue with the tribunal’s fact-finding.   District Tribunal Judge McLachlan refused permission to appeal, concluding that the tribunal was entitled on the evidence to come to the conclusions it had (page 103). 

10.	The appellant then sought further assistance from the Citizens Advice Bureau (CAB).

The proceedings before the Upper Tribunal

11.		Ms Challenor, the appellant’s CAB representative, advanced revised and more focussed grounds of appeal.  In summary, she argued that the tribunal failed to take the proper approach to the issue of the variability of the appellant’s condition, gave inadequate reasons for its decision in relation to certain descriptors and failed to explore the mental health descriptors, in breach of its inquisitorial duty.

12.		I subsequently gave permission to appeal (page 115).  At that stage I added, by way of comment, that it was arguable that the tribunal may have placed too much weight on the appellant’s trip to the USA on holiday in March 2010, or at least had failed to explain why it placed so much weight on that factor.

13.	Mr Michael Page, who now acts for the Secretary of State in these proceedings, supports the appellant’s appeal to the Upper Tribunal (pages 117-119).  He agrees that the tribunal erred on two points.  First, he says, the tribunal failed to explain why it placed so much weight on the trip to the USA, given section 12(8)(b) of the Social Security Act 1998 (see further below).  Secondly, he adds, the tribunal should have considered some of the mental health descriptors.  He therefore proposes that I set aside the tribunal’s decision and send the case back for re-hearing.

14.		For the avoidance of doubt, I should make it clear that Mr Page is not necessarily conceding on the part of the Secretary of State that the appellant meets the test for limited capability for work and is therefore entitled to ESA.  He is simply saying the tribunal took a wrong approach and the case needs to be re-heard by a different panel.

15.	I agree with Mr Page’s analysis.  As that is sufficient to decide that the tribunal’s decision should be set aside, and the case re-heard by a new tribunal, I do not need to deal in detail with the other grounds of appeal advanced by Ms Challenor.  That said, there is certainly some force in her argument that the tribunal failed to address the issue of the variability in the appellant’s condition.  However, for the benefit of both the previous and the next tribunal I should just explain briefly the two areas in which both representatives agree that the tribunal fell into error.

The appellant’s vacation in the USA

16.	In March 2010 the appellant flew to the West Coast of the USA for a 10 day holiday.  This fact clearly had a considerable impact on the tribunal.  The holiday was referred to frequently throughout the course of the tribunal’s statement of reasons (see pages 97-98, paragraphs 10-11, 13-15 and 20).  It was used both in general terms to cast doubt on the appellant’s account of her condition (paragraphs 10-11) and with regard to particular physical descriptors (paragraphs 13-15 and 20).  As I indicated when giving permission to appeal, the tribunal’s focus on this holiday was perhaps understandable, given the appellant’s claims in the ESA50.

17.	There was, however, a fundamental problem.  The Secretary of State’s decision on the appellant’s ESA claim was made on 14 October 2009.  The tribunal described the holiday as being “earlier” in 2000 (page 97, paragraph 10), when viewed from the date of the hearing (which was on 7 September 2010).  I accept the representative’s statement that the holiday was in March 2010 (page 118). So was the tribunal entitled to take the holiday into account?

18.	The short answer to that question is “Possibly, but possibly not” or “It all depends”. Section 12(8)(b) of the Social Security Act 1998 states that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”  The relevant decision in this case was made about six months before the vacation in question. So, on the face of it, the holiday was irrelevant.  

19.	However, the position is not that straightforward.  It is clear from decisions of the Social Security Commissioners that later evidence is admissible, provided that it relates to the circumstances prevailing at the time of the decision under appeal: see R(DLA) 2/01 and R(DLA) 3/01.  So the appellant’s ability to manage a long-haul holiday to the USA might well be highly relevant, if, for example, her condition in March 2010 was broadly the same as it was in October 2009.  I have to say that I am reluctant to conclude that the tribunal ignored such a well known proposition of law.

20.	There is, however, no evidence that the tribunal actually had regard to this principle.  Even if it did, there is an inadequate factual basis, and no satisfactory explanation, for why the tribunal felt it could rely on the USA holiday in the way that it did.  For example, there is no finding in the statement of reasons that the appellant’s condition was essentially the same in October 2009 as it was in March 2010.  It may well have been, but the tribunal does not say so.  

21.	True, the appellant’s father states in his original grounds of appeal that his daughter was asked at the hearing whether her condition had become worse since the medical examination (page 100), which of course was slightly earlier than the decision under appeal to the tribunal. However, this point is not picked up in any detail in either the record of proceedings or statement of reasons.  According to the record of proceedings, all she said was that she was “I am worse now” (page 88).  This may have been the answer to the question reported by her father.  But there is no fact-finding or reasons in the statement of reasons which ties in her comparative circumstances at the three key dates (the date of decision under appeal, the date of the vacation and the date of the hearing).

22.	At the very least, as Mr Page submits, some sort of explanation was called for as to the significance of the USA trip, given the terms of section 12(8)(b) of the 1998 Act.  The tribunal’s failure to do so amounts to an error of law.
23.	By way of a postscript, I should add that the tribunal’s approach in the present case is one that is often seen in tribunal decisions, in relation to both ESA and disability living allowance (DLA) appeals.  There is no doubt that many tribunal judges and members ask appellants about their holidays.  There is nothing wrong with this at all, if it is relevant and focussed.  The danger, however, is that some tribunals may jump from a simple finding of fact that the claimant had managed on one occasion in the last year to negotiate an airport to go on holiday to the conclusion that therefore s/he cannot possibly either have limited capability for work or be entitled to the higher rate mobility component of DLA.  Such tribunals do so at their peril, as they arrive at an outcome without passing Go, or at least the departure gate for proper fact-finding and adequate reasoning.

24.	In the present case the walking descriptor for ESA was one of those functions put in issue on the appeal.  The dangers of taking too simplistic an approach to airport transfers has been highlighted in a number of decisions in relation to the higher rate mobility component of DLA (see for example Deputy Commissioner Mark in CDLA/3165/1998 and Judge Poynter in CDLA/2108/2010). As Mrs Commissioner Jupp observed in CDLA/3331/2006, “Although walking through an airport is usually indoors, and thus does not fall within regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991, it may be of some evidential value but only if the appropriate findings of fact can be made” (at paragraph 3).  Those findings of fact must also, of course, bear in mind section 12(8)(b) of the 1998 Act.

25.	Tribunals should be wary of becoming fixated on the fact that an appellant may have undertaken a long-haul flight to some exotic holiday destination.  The reality, unsurprisingly, is that most social security claimants are not frequent flyers.  For some people, if they do fly, it is for a holiday of a lifetime or because of some pressing family business.  Given that the assessment of the effects of a person’s condition for the purposes of both DLA and ESA is meant to be looked at in the round, it may be more helpful for tribunals to focus rather more on (for example) the sort of walking that claimants do in a typical week, rather than on an infrequent and quite probably exceptional foray through a major domestic airport.

The mental health descriptors

26.	The appellant had a history of depression, including a hospital admission as described above.  She also described a “fibro-fog” as a disabling feature of her fibromyalgia.  She included details in several of the boxes on the ESA50 relating to the mental health descriptors (pages 31 and 33-38).

27.	The appellant told the tribunal, however, that she saw herself as affected by physical constraints, not mental health issues, and as being confined to her house (page 88).  The tribunal picked up on this statement (page 97, paragraph 9), and repeated it later (page 98, paragraph 19: “she said herself her problems were physical”).  The tribunal’s findings on the mental health descriptors were at best cursory as a result, running to barely six lines of text in a generously sized font (page 98, paragraphs 18 and 19).

28.	Ms Challenor submits that the tribunal failed to consider the mental health descriptors in any meaningful way. She refers to the decision of Judge Lane in LF v Secretary of State for Work and Pensions (ESA) [2010] UKUT 352 (AAC), where she criticised the fact that “The tribunal did no more than state their conclusion without examining relevant evidence given by the appellant in her ESA50” (at paragraph 24). Mr Page also submits that simply because the appellant viewed fibromyalgia as a physiological condition is no reason why the tribunal should not have considered the mental health descriptors properly.  I agree with both representatives.

29.	It is worth highlighting in this context an important difference between the rules governing incapacity benefit and the ESA regime.  

30.	In incapacity benefit cases the physical health descriptors apply only to an incapacity arising “in respect of a disability... from a specific bodily disease or disablement”, whilst the mental health descriptors apply solely to “a disability... from some specific mental illness or disablement” (Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311), reg. 25(3)).  This provision undoubtedly poses some difficulty with complex conditions such as chronic pain syndrome (see e.g. CIB/5435/2002).

31.	The rules for ESA are different. Regulation 19(5) of the Employment and Support Allowance Regulations 2008 (SI 2008/794) provides as follows:

“(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—
(a) a specific bodily disease or disablement;
(b) a specific mental illness or disablement; or
(c) as a direct result of treatment provided by a registered medical practitioner, for such a disease, illness or disablement.”

32.	There is, therefore, no artificial partitioning in the legislation requiring mental health descriptors to be scored only in relation to mental health conditions and physical descriptors only being applicable to physical conditions.  It may be, of course, that as a matter of evidential weight a tribunal is not satisfied that a physical condition gives rise to a score for a mental health descriptor, or vice versa, but the linkage is possible in appropriate cases.

What happens next following the Upper Tribunal’s decision?

33.		For the reasons explained above, the decision of the tribunal involves an error of law.  I must therefore 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 rehearing by a new tribunal in Cardiff, or any other convenient venue, subject to the directions listed above (section 12(2)(b)(i)).  

34.	I emphasise again that I am making no decision, or even expressing any view, on the issue of whether the claimant has limited capability for work.  That is a matter for the judgment of the new tribunal. So the new tribunal may actually end up coming to the same result as the previous tribunal and so dismiss the appellant’s appeal against the Secretary of State’s decision.  Or it may decide that the Secretary of State (and the previous tribunal) was wrong.  It is for the new tribunal to decide which of those options is appropriate, having reviewed the relevant evidence, applied the law outlined above and made its own findings of fact.

35.	The tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on 14 October 2009.  This is a re-hearing, so the issue is not the appellant’s condition at the date of the fresh hearing.  However, the new tribunal may have regard to subsequent evidence, or subsequent events, for the purpose of drawing inferences as to the circumstances obtaining at that time: see R(DLA) 2/01 and R(DLA) 3/01.
36.	Furthermore, as Judge Jacobs has explained, “the First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor” (see GS v Secretary of State for Work and Pensions (ESA) [2010] UKUT 244 (AAC), at paragraph 14).  That was a case concerning the manual dexterity descriptor, but Judge Jacobs’s point is of general application.  Further, “it is important to appreciate the context. The ultimate purpose of the descriptors is to test a person’s capability for work. They test the claimant’s manual dexterity for work-related purposes. They do not test the claimant’s ability to self-care” (at paragraph 13).
 
37.	The tribunal will need to consider carefully the variability of the appellant’s conditions and make appropriate findings of fact. If the tribunal rejects evidence submitted by or on behalf of the appellant, it must provide a sufficient explanation why it has done so and must give adequate reasons for its conclusions. 
 
Conclusion

38.		For the reasons explained above, the decision of the First-tier Tribunal involves an error of law.  I must therefore 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 as set out above.

Signed on the original				Nicholas Wikeley
on 31 May 2011					Judge of the Upper Tribunal