IN THE UPPER TRIBUNAL 		Appeal No: CIB/3620/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright 

DECISION 

	The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Runcorn on 3.07.12 under reference SC121/11/00448 involved an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.     

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

DIRECTIONS

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

(1)	The new hearing will be at an oral hearing.

(2)	The appellant is reminded that the tribunal can only deal with his situation as it was down to 24.01.11 and not any changes after that date.

(3)	If the appellant has any further evidence that he wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Liverpool Appeals Service Centre within one month of the date this decision is issued.

(4)	By no late than one month from the date of issue of this decision the Secretary of State must have provided the First-tier Tribunal with copies of all previous IB85 assessments relevant to the appellant prior to the 14.01.11 IB85, or a written explanation as to why they are no longer available/do not exist.      

(5)	The First-tier Tribunal should have regard to the points made below and to the points made by Judge Pacey in his decision on page 125.

REASONS FOR DECISION 

 
1.	Despite the decision of the previous First-tier Tribunal that considered the appellant’s appeal having been set aside by the Upper Tribunal on 22.02.12 (Upper Tribunal Judge Pacey under reference CIB/2150/2001 – page 125), regrettably the First-tier Tribunals second attempt at deciding the appeal must also be set aside for want of adequate reasons.

2.	This is an appeal by the claimant from a decision of the Runcorn First-tier Tribunal (SEC) dated 3 July 2012. I will refer to the claimant from now on as “the appellant” and the Runcorn First-tier Tribunal that decided his appeal as “the tribunal”.
 
3.	The tribunal dismissed the appellant’s appeal from the Secretary of State for Work and Pension’s decision of 24.o1.11. The Secretary of State’s supersession decision of that date was to the effect that the appellant was not entitled to incapacity benefit from and including 24.01.11. This was because he had not scored the required number of points under the Personal Capability Assessment (the “PCA”).     
  
4.	Permission to appeal to the Upper Tribunal was refused in the first instance by a District Tribunal Judge on 19.09.12, however on the renewed application to the Upper Tribunal I granted the appellant permission to appeal on 27 November 2012.  My reasons for so doing were as follows:

“I consider it is arguable that the First-tier Tribunal may have erred in law in not giving adequate reasons in respect of the standing and bending/kneeling descriptors. Relevantly, it found as a fact that [the appellant] could stand for more than 30 minutes before needing to move around and was able to bend to pick up a piece of paper from the floor and straighten up again (see paras. 14 and 15 of the statement of reasons on page 143).  However, its reasons in respect of these two descriptors on the next page of the statement of reasons arguably do not explain the basis on which the tribunal came to these findings on the evidence.  If the bending could only be carried out with severe discomfort then it is very arguable that that bending should be discounted: see CIB/14587/10996.  But the First-tier Tribunal do not say why it rejected the evidence that the bending would cause severe discomfort.  Moreover, the tribunal did not make clear whether bending from sitting counts to exclude point scoring under the bending descriptor, which very arguably it ought not to.  As for standing, the reasons simply record [the appellant’s] evidence on this, which at a minimum, if accepted, would have given rise to an award of 7 points.  The reasons here very arguably do not explain why this evidence was rejected and what other evidence the tribunal relied on for its finding on standing”.

5.	The Secretary of State supports the appeal, in a helpful submission dated 8.02.13 (pages 197-198), and argues that the tribunal’s decision ought to be set aside for inadequate reasoning. I agree. He asks for the appeal to be remitted to the First-tier Tribunal to be re-decided.

6.	In his observation in reply, dated 19.03.13, the appellant asks for the Upper Tribunal to give reasons for its decision, and he asks for an oral hearing of his appeal to the Upper Tribunal (I think) because he wants the Upper Tribunal to decide whether he was in fact incapable of work as at 24.01.11 rather than remitting the appeal to be re-decided by the First-tier Tribunal.

7.	Although I can understand the appellant’s frustration at two First-tier Tribunals not having decided his appeal properly, I reject his requests for an oral hearing before the Upper Tribunal and that the Upper Tribunal decides for itself whether he was incapable of work as at 24.01.11. No hearing is needed to decide whether the First-tier Tribunal erred in law as I am satisfied on the papers before me that it did.  Moreover, this is not a clear cut case on the paper evidence that the appellant did score 15 points under the PCA as at 24.01.11: the Secretary of State’s decision that he is appealing was based on an assessment that scored him 0 points under the PCA.  Therefore I consider that what points, if any, the appellant ought to have scored under the PCA as at 24.01.11 requires further investigation; and that, in my judgment, is most properly done by the First-tier Tribunal, made up as it is of a lawyer and a medically qualified panel member.  

8.	Given the parties agreement that the tribunal erred in law, I do not consider that there is much more I need to say. There are two key problems with the tribunal’s reasoning.  

9.	First, and taking matters in reverse order from the way I addressed them when giving permission to appeal, there are in my judgment no reasons of the tribunal to explain why it found as a fact that the appellant could stand for more than 30 minutes before needing to move around. The specific reasons given are at paragraphs 26 and 27 of the statement of reasons.  However all they do is refer to what the appellant said in his IB50 (where he said he could not stand for 10 minutes without having to sit down to sit) and his oral evidence to the effect that if he had eaten and the reflux was reduced he could possibly stand for 5 to 10 minutes following which would need to move around and belch.  No comment is made by the tribunal as to whether it accepted this evidence or not, less so the reasons why it was not accepted (if that was the case).  The evidence simply hangs in the air. However, I simply fail to understand why this evidence supports the tribunal’s view that the appellant could stand for more than 30 minutes before needing to move around.  What is said in reasons does not support this finding at all as it refers to standing for up to 10 minutes only.  If the tribunal did not accept the appellant’s evidence on standing then it needed to say this and why, and also why it found he could stand for more than 30 minutes before needing to move around.  

10.	Furthermore, the general reasons given in paragraphs 16-18 of the statement of reasons do not take matters any further.  I have no doubt that having as its medically qualified panel member a consultant who specialised in the upper gastrointestinal tract would have assisted the tribunal in deciding this appeal. However, that still does not explain why the appellant’s evidence on standing supported the finding the tribunal made on this activity.

11.	Second, the reasons given do not explain adequately why the tribunal concluded that the appellant could bend to pick up a piece of paper form the floor and straighten up again.  Again, one of the reasons the reasoning is here inadequate is because it mainly just recites the appellant’s evidence without saying what the tribunal made of it.  More particularly however, one part of the appellant’s evidence was that he could bend from standing to pick up a £5 note from the floor but that this would cause him severe discomfort.  It is, as I have said, entirely unclear what the tribunal made of the evidence and why.  However, in so far as it accepted that bending with severe discomfort took the appellant out of scoring for bending, it was wrong to do so. Mr Commissioner Rice’s guidance in paragraph 7 of CIB/14587/1996 remains apt:

“There would seem to be no doubt that the claimant is capable of bending and kneeling. However, can he do so without discomfort, and can he do so with reasonable frequency? For I do not think that it is enough to treat him as capable of bending or kneeling if he can only do so subject to excruciating agony or, if having bent or knelt once, he is unable to repeat the exercise for hours or days thereafter. It is all a matter of degree. Can he bend and kneel without, at least too much discomfort, and can he repeat the exercise within a reasonable time. In other words, can he in the general sense of the word, in the course of his normal every-day activities, be said to be capable of bending and kneeling? It will be a matter for the tribunal to determine”.   

12.	In addition, in its reasons on bending and kneeling the tribunal referred (again without comment) to the appellant’s evidence that he could easily bend from a sitting position.  In so far as the tribunal took this into account as, or as part of, the relevant test, I accept the Secretary of State’s submission that it was wrong in law to do so. The test under the bending and kneeling descriptor involves bending or kneeling from a standing position and not from a seated position. This proposition is implicit in what was said by Mr Commissioner Lloyd-Davies (as he then was) in paragraph 5 of R(IB)2/02 (where he refers to bending in the back and the knee, the latter action not usually being necessary if a person is bending to the floor from a seated position) and paragraph 20 of R(IB)3/02. It is also implicit in Upper Tribunal Judge Turnbull’s decision in the similar bending and kneeling test in the “old” Schedule 2 to the Employment and Support Allowance Regulations 2008: SC –v- SSWP (ESA) [2011] UKUT 48 (AAC).  Perhaps more importantly, a test of bending from sitting is inconsistent with language used in respect of the first descriptor under the bending and kneeling activity in paragraph 6 in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995. This descriptor refers to someone who “[c]annot bend to touch his knees and straighten up again”, a bending action which would be completely unnecessary if the person was seated as he can just reach out and touch his knees from that position.  Moreover, Mr Commissioner Williams’ (as he then was) decision in CIB/15262/1996 is plain authority for the proposition that the test starts from an upright position (see paragraph [11] of that decision).                              

13.	It is for all these reasons that the tribunal’s decision dated 3.07.12 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence. 

14.	Given the length of time the appellant has been “on” incapacity benefit and incapable of work (from 4.01.2000), it seems very likely that the 14.01.11 IB85 was not the first IB85 that would exist for the appellant during the period of this award. It is for that reason that I have made direction 4 above: see ST –v- SSWP [2012] UKUT 469 (AAC).  

 (Signed) S. M. Wright
Judge of the Upper Tribunal
                                                                                                          
Dated 15th May 2013