DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

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

The decision of the Lancaster First-tier Tribunal dated 6 May 2011 under file reference 067/10/00965 involves an error on a point of law.  The First-tier Tribunal’s decision is set aside.  The Upper Tribunal is not in a position to re-make the decision under appeal. 

It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 9 September 2010 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 (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the hearing:

(1)	The appeal should be considered at an oral hearing.  

(2)	The new First-tier Tribunal should not involve the tribunal judge or medical member who was previously involved in considering this appeal on 6 May 2011.

(3)	The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision by the Secretary of State under appeal (namely 9 September 2010). 

(4)	If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal within one month of the issue of this decision.  Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).  

(5)	The new First-tier Tribunal 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 reach the same or a different outcome to the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 

REASONS FOR DECISION

The Upper Tribunal’s decision in summary

1.		The appellant’s appeal to the Upper Tribunal is allowed.  The First-tier Tribunal’s decision involves an error on a point of law and is set aside. 

2.		The case now needs to be reheard by a new First-tier Tribunal (FTT). I cannot predict what will be the outcome of the re-hearing.  The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the FTT will succeed on the facts.  So the new tribunal may reach the same, or a different, decision to that of the previous tribunal.  It all depends on the findings of fact that the new tribunal makes.

The background to the appeal to the FTT

3.	On 14 August 2010 the appellant, who had made a claim for employment and support allowance (ESA), completed an ESA50 questionnaire.  He set out the medication that he took for his heart, stomach and left arm problems, as well as for irritable bowel syndrome and described the effects of those problems on his daily life.  He also referred to panic attacks.  There is relatively little detail on the ESA50.  However, this may well be understandable as the subsequent medical report prepared for the Department noted that the appellant has literacy problems and requires help from his wife with correspondence.

4.	On 1 September 2010 a registered nurse or “health care professional” (HCP) examined the appellant on behalf of the Department. She completed the standard computerised ESA85 medical report.  She entered the option “none of the above apply” from the drop-down menu for each of the various physical and mental functions in the work capability assessment.  If the decision maker had adopted that report without further ado, the appellant would have scored 0 points and so be found not to have limited capability for work and not to be entitled to ESA.

5.	On 9 September 2010 the decision maker did indeed make a decision that the appellant could not be treated as having limited capability for work.  She accordingly superseded the earlier decision awarding ESA.  However, the decision maker concluded that the appellant should be awarded 6 points (a figure obviously still below the 15 point threshold required to continue qualifying for benefit). She awarded 6 points for the mental health descriptor 18d (“getting about”, namely “is frequently unable to get to a specified place with which the claimant is familiar without being accompanied by another person”).

6.	The appellant, in answer to the relevant question on the ESA50, had said that he did “not very often” have the confidence to go out on his own to familiar places.  In answer to another question, he had referred to getting panic attacks.  The HCP, in her ESA85 report, had justified her “none of the above apply” by reference to the fact that the appellant had come to the examination centre with his sister and that he went grocery shopping weekly.  However, the HCP had also noted in the explanatory box the contrary evidence that the “description of episodes is consistent with them being panic attacks, and these occur every week”.

7.	The decision maker justified her departure from the HCP’s nil score on the getting about descriptor with this short comment: “always shops with wife; HCP confirms consistent description of panic attacks”.  Reading several of the entries in the “description of a typical day”, one can quite understand why the decision maker formed a different view to the opinion expressed by the HCP.  She was exercising precisely the independence and objectivity that one would expect of decision makers, and not simply rubber-stamping the HCP report.

The appeal to the FTT

8.	The appellant’s representative, who was not locally based, was unable to attend the hearing before the FTT but made a 4-page written submission on his behalf.  This argued that the appellant should be awarded points for the following descriptors: walking (1(e), 6 points); standing and sitting (2(e) or 2(f), 6 points); reaching (4(d); 6 points); incontinence (10(a)(v); 9 points); getting about (18(c)), 9 points).  Neither the HCP nor the decision maker had thought points were appropriate for the first four functions; as regards the last, the representative was in effect arguing (none too convincingly, in my view, but that is a matter for the new tribunal to decide) that the effects of the appellant’s condition were more disabling still than the decision maker had given credit for when disagreeing with the decision maker.

9.	The appellant attended the FTT hearing on 6 May 2011 and gave evidence.  The hearing lasted just over half an hour, the tribunal judge taking a careful and detailed note of evidence.  The FTT’s decision notice, issued on the day, stated that the FTT had disallowed the appeal and confirmed the Secretary of State’s decision.  The decision notice also stated “The tribunal awarded 6 points for descriptor 2f [standing and sitting] and were unable to award any further descriptors”.  On that basis the appellant and his representative might be forgiven for thinking that the FTT had arrived at a score of 12 points, just short of the threshold.  However, that assumption was misplaced.

10.	The FTT’s subsequent statement of reasons found as a fact that the appellant’s abdominal pain could cause discomfort while sitting, and so the tribunal awarded 6 points for descriptor 2f. The statement of reasons then dealt with the “getting about” descriptor as follows.

11.	First, the FTT noted that the decision maker had awarded 6 points for getting about although the “examining doctor” (actually a nurse, a point I return to later) had not considered that appropriate.

12.	Second, the FTT made some findings of fact about the appellant’s walking physical capacity: “He can walk until he gets pains in his stomach or chest – 50 to 100 yards – and had walked 10 minutes from the car park to the medical...On a good day he can walk a mile to Asda... He walks 1 mile to Asda on Fridays and goes on short walks the other days of the week.  He often gets collected from Asda or gets a taxi home.” There was no analysis of the prevalence of “good” days over “bad” days.

13.	Third, there was even less detail on the mental health aspects of getting out.  True, the FTT found “he generally gets on OK with people and socialises with his family” (although the HCP had expressly noted that his family visited him, rather than he went out to visit them). The FTT further stated that “Although the Tribunal accepted that the Appellant is anxious, it did not accept that the episodes he described to the examining doctor as ‘panic attacks’ caused any significant functional restriction.”  As a result, “the Tribunal found the 6 points awarded by the decision maker for ‘getting about’ were not justified.”

The proceedings before the Upper Tribunal

14.	In summary Mr Steve Jones, the appellant’s representative, and a colleague of the representative who acted in the FTT proceedings, advanced two grounds of appeal on his behalf.  The first was that the FTT had failed to find sufficient facts and/or give adequate reasons for its decision not to award any points for the bending & kneeling and incontinence descriptors. The second was that the FTT had erred by removing the points awarded by the decision maker for the getting about mental health descriptor.

15.	Mrs Helen Hawley, who now acts for the Secretary of State in these proceedings, does not support the appeal to the Upper Tribunal.  In particular, as regards the first ground of appeal, while the FTT might have been more expansive in its reasoning, she argues that the tribunal reached a decision it was entitled to do on the evidence before it and provided an adequate justification.  On the second ground of appeal, she again contends that the FTT reached a decision that was open to it on the evidence and its findings of fact, notwithstanding the view previously taken by the decision maker.

16.	The second ground of appeal arguably raises wider issues of principle so I shall deal with that point first.

Ground 2: can the FTT remove points already awarded by the decision maker?

17.	The crux of the argument put forward by Mr Jones for the appellant is that in a case such as this, where a claimant has scored more than 0 points but less than 15 points (on the facts of this case, 6 points), he is entitled to regard those 6 points as “banked”, or “on account”, for the purposes of the appeal.  Accordingly, with those 6 points already “in the bank”, the claimant (on these facts) only has to show that he qualifies for a further 9 points to win his appeal.  Mr Jones, in a detailed reply to Mrs Hawley’s response, advances three main reasons for arguing thus: (i) natural justice demanded that the FTT give the claimant a ‘warning’ if it was minded to revisit points already awarded; (ii) “the section 12(8)(a) argument”; and (iii) inadequacy of reasons.

18.	First, Mr Jones submits that natural justice demanded in this case that the FTT should have given the appellant a ‘warning’ right at the outset of the hearing that the tribunal might decide to interfere with or remove points already awarded.  He suggests that this was essential to ensure a fair hearing, so that the appellant was aware of the case he had to meet.

19.	Second, Mr Jones argues that there is an analogy with section 12(8)(a) of the Social Security Act 1998. The FTT did not need to consider any issue which was not raised by the appeal.  If the FTT was going to explore the “getting about” issue, it needed to consider whether to exercise its discretion so to do and to explain why it had done so.

20.	Third, Mr Jones submits that the FTT simply failed to give an adequate account or explanation as to why the 6 points had been removed for this descriptor.

21.	My view is that these three points are really all part and parcel of the same natural justice point. I am not sure that I would go so far as Mr Jones argues in his written submissions.  For example, the case law on giving ‘warnings’ at the outset of hearings about the risk of less advantageous outcome typically arises where e.g. a claimant has an award of, say, the care component of disability living allowance (DLA) and is seeking an award of the DLA mobility component, but where the tribunal’s previewing of the case raises real doubts about entitlement to the non-appealed award of the care component.  The same might arise in the scenario where a claimant seeks a higher award of e.g. the care component and there are questions over whether any award at all is appropriate on the available evidence.  In other words, such ‘warnings’ are designed to protect the position of the claimant who may have something to lose – on one level the appellant in the present case simply had an adverse decision, denying him entitlement to ESA, which he was appealing.

22.	Furthermore, the argument that the appellant has some sort of protected or vested right to the 6 points awarded by the decision maker is problematic.  Most notably, it ignores the principle that the FTT is not simply reviewing the decision maker’s decision – it is standing in her shoes and can make any decision she could have made.  The appeal is by way of a rehearing (see R(F) 1/72 and R(IB) 2/04 at [25]).  

23.	Be that as it may, the fact remains that both the appellant and his representative assumed (with good reason) that there was no dispute over the award of at least 6 points for “getting about”.  I do not think the appellant needed some sort of formal warning at the very start of the hearing to the effect that his points might go up or down.  However, at the very least the appellant was entitled to be put on notice at some stage, and before it was too late, that the FTT had misgivings about the 6 points awarded for “getting about”.  In doing so, it was important that the appellant had the opportunity to make his case in the knowledge of the arguments to the contrary.  For example, the FTT panel could have said something along the lines of “Now, we see that the decision maker awarded 6 points for “getting about”, which conflicts with the view taken by the medical examiner.  We’re not sure about the award of those 6 points.  So, we’d like to explore with you further what it is that stops you getting out and about...”

24.	In the present case, I agree with Mr Jones’s submission that “the appellant should have been invited to state his case so that at least when it came to the calculation of the score, he would still have, as a starting point, 6 points”.  The tribunal’s reasons compound the problem as they do not go far enough to explain why it was that the “getting about” score was reduced to nil.

Ground 1: the bending & kneeling and incontinence descriptors

25.	The other ground of appeal is a standard “facts and reasons” challenge.

26.	I do not think that the FTT can be criticised for failing to make more specific findings about the appellant’s ability to bend and kneel.  I say that as the representative’s detailed written submission to the FTT made no mention of this descriptor.  It is true that in his original ESA50 from the appellant had ticked the “it varies” box, but I think the FTT was entitled to take the view that by the time of the hearing the issues in dispute were those identified by the representative’s submission.  I am not sure there was anything that “jumped out” of the papers to suggest that the tribunal’s inquisitorial function meant it also needed to explore the bending and kneeling question.

27.	The same cannot be said of the incontinence descriptor.  This plainly was in issue. In her written submission, Mrs Hawley for the Secretary of State suggests that the appellant had stated on his ESA50 that he had “no problem” with controlling his bowels or bladder.  That is not strictly accurate; in answer to the question “Can you control your bowels/bladder” etc the appellant had ticked the “usually” box.  The clear implication was that he sometimes had such a problem.  The FTT also noted the appellant’s oral evidence that the two conditions causing him the most functional restriction were his heart problems and his IBS.  Thereafter there were no findings of fact or reasons to support them specifically directed to the nature and effect of the IBS and its significance, if any, for the incontinence descriptors.  If – and the evidence may or may not have supported such a finding – the appellant fell within descriptor 10(a)(vi), then he would have attracted a further 6 points.  His representative’s argument was that the appellant fell within the terms of descriptor 10(a)(v), scoring 9 points for incontinence. The FTT’s omission to address such issues head on amounts to a further error of law.  There are two further points to mention in passing.

28.	The first, as already mentioned, is that the FTT referred repeatedly to the “examining doctor’s” report.  In fact the HCP was a registered nurse.  At the end of the day this may not make any difference (see the decision of Judge Ovey in JF v Secretary of State for Work and Pensions (IB) [2011] UKUT 385 (AAC)). However, as Judge Williams noted in earlier case management directions in that appeal, “mental health nursing is a separate nursing specialism and assessment of the mental descriptors for incapacity benefit purposes is notoriously difficult” (at [42]).  The same obviously also applies to ESA assessments.  This may go to the weight to be attached to the HCP report.

29.	The second point is that – especially for an appellant who has difficulties with formal paperwork – the tribunal bundle was less than helpful.  It included a copy of the ESA50 and the HCP report.  However, there was no copy of the relevant version of Schedule 2 and the individual descriptors.  The appellant, therefore, was largely in the dark as to the criteria being used.  It is true that he had the assistance of a representative, who submitted a written submission, and he could doubtless have asked his wife to assist with the paperwork.  However, the overriding objective includes the aim of ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.  This sort of “one size fits all” official submission, especially as it lacked the list of the critical criteria for the different descriptors, must surely be capable of improvement.

What happens next: the new First-tier Tribunal

30.	Although I am setting aside the FTT’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the appellant has limited capability for work.  That is a matter for the good judgement of the new tribunal.  That tribunal must review all the relevant evidence and make its own findings of fact.  

31.	In doing so, the new FTT will of course have regard to section 12(8)(b) of the Social Security Act 1998.  This states that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added).  This means that unfortunately the new FTT will have to focus on the appellant’s circumstances as long ago as at 09 September 2010, the date of the Secretary of State’s original decision, and not the position as at the date of the new hearing.  

32.	I accept that it may be very difficult to think back to the position some 18 months ago.  However, that is the requirement as laid down by statute.  If there has been no real material change in the appellant’s condition over the intervening period, this may pose less of a difficulty both for the appellant in giving his evidence and for the new tribunal in assessing that evidence.  However, if there has been a material change in his condition, then the tribunal will need to pay close attention to the material dates.

Conclusion

33.		I conclude that the decision of the First-tier Tribunal involves an error of law.  I 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 also as set out above. 

34.		I repeat that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication either way as to the likely outcome of the re-hearing before the First-tier Tribunal.

Signed on the original			Nicholas Wikeley
on 28 May 2012				Judge of the Upper Tribunal