Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                          Case No.  CE/551/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Robin C A White

 

Decision: The decision of the tribunal of 30 September 2013 is erroneous in law. I set it aside. I remit the appeal for determination at an oral hearing before a differently constituted tribunal.

 

REASONS FOR DECISION

Background and context

1.     The appellant, who was born on 1 May 1961, was in receipt of an employment and support allowance. His entitlement to that benefit fell for review.

2.     The appellant completed a limited capability for work questionnaire on 28 October 2011. He reported that he had problems with mobility because of peripheral neuropathy and used a wheelchair. He added:

Can use zimmer frame indoors but have had falls of late whilst using zimmer frame.

I cannot go out on my own without a carer pushing the wheelchair. Hence local hospital appointments/shopping etc have to be accompanied by a carer.

3.     The appellant reported difficulties in moving around and using steps. He said he could not move at least 50 metres before needing to stop and that he could not go up and down two steps without help from another person. He added:

I cannot walk. I can only paddle a wheelchair. Being a manual wheelchair, paddling distance depends on the terrain.

4.     The appellant reported no difficulties with sitting and standing, adding:

To stand I need to be holding on to a zimmer frame. My legs spasm so sometimes I fall to the floor.

5.     The appellant reported no difficulties with reaching, picking up and moving things, manual dexterity, communicating with people, other people communicating with him, getting round safely, continence, and staying conscious when awake. The appellant reported no difficulty with any of the mental, cognitive and intellectual functions, though he added in relation to the going out descriptor that he could not go out on his own because he needed someone with him to push his wheelchair.

6.     In the additional information box, the appellant wrote:

I feel I would benefit more if I had an electric wheelchair. I would be more independent. I am almost always 22½ [hours] indoors everyday because I have 2½ hrs of support daily which I use for occasions such as local hospital appointments and shopping.

7.     The appellant was referred for a medical examination and report with a healthcare professional. This took place on 25 April 2012 with a registered medical practitioner.

8.     The medical conditions are recorded as HIV positive, leg problem and hypertension. The HIV diagnosis and mobility problems seem to originate from 2008. The report indicates that the appellant said he had no problem with his arms, vision, speech or hearing (page 23 of the documents I have). It is reported that the appellant could move between seats by himself, could stand for a few minutes using a Zimmer frame, had no problems sitting down, could propel his wheelchair around his flat, but found it difficult to propel his wheelchair over uneven ground outdoors, though he could propel it around a supermarket, and was unable to use stairs due to weakness and pain (page 24).

9.     In the personalised summary statement, the doctor has recorded (page 39 of my documents):

… Although has significant difficulty walking evidence suggests that he is unlikely to have significant restrictions with mobilising using a manual wheelchair as has no upper limb problems. Evidence suggests restriction in using 2 steps. Although has difficulty standing, has no significant problems sitting down.

Reports no problems with upper limbs, just mobility problems. Can wash and dress himself, can cook, can do the ironing, can use the phone. Significant disability with upper limbs is unlikely.

10.  The doctor has also recorded, “There was no indication of an upper limb problem therefore examination not relevant.” (page 41). I would observe that no back problems are reported.

11.  Despite having noted the restriction in using two steps, the doctor did not apparently indicate the award of any points in this regard. Form ESA56 (page 46 of my documents) actually shows a nil points score by both the doctor and the decision maker. That is plainly not correct. Despite the confusion, it is clear that both the healthcare professional and the decision maker were of the view that the appellant could not mount or descend two steps unaided by another person even with the support of a handrail, so justifying the award of nine points.

12.  The decision maker on 2 May 2012 awarded nine points in respect of descriptor 1(b) but, since this fell short of an award of 15 points, concluded that the appellant had no entitlement to an employment and support allowance from and including 2 May 2012.

13.  On 17 July 2012 the appellant appealed against this decision on the grounds that more points should have been awarded. He indicated that medical evidence would be submitted through his representative.

14.  No further evidence was provided. On 8 November 2012 the decision was reconsidered but not changed.

15.  On 19 September 2013, the appellant’s representative sent in a fax asking for an urgent review of the decision, on the grounds that the appellant had a social care package valued in excess of £16,000 per year involving three calls a day. It was argued that the appellant’s frailty meant that he should be awarded 15 points under descriptor 1(a), or failing that be found to have limited capability for work (and I think also limited capability for work-related activity) because of “exceptional circumstances in this complex case”.

16.  The fax was accompanied by a letter from the adult social care team confirming the three visits per day and adding:

The care allocation is designed to meet his personal care needs which include washing and maintaining personal hygiene, dressing and maintaining reasonable nutrition.

In our opinion [the appellant] can reasonably be described as a frail vulnerable service user requiring a significant care package. Our understanding is that he has exceptionally poor mobility as to require the ongoing use of a wheelchair.

17.  On 23 September 2013, the appellant’s representative sent in a letter to the tribunals service saying that she considered the appellant “should receive appropriate points to meet the Work related and Support group criteria’s [sic].” A copy of the letter dated 19 September 2013 from the adult social care team was also appended to this letter. Somewhat oddly, since this letter was addressed to the First-tier Tribunal, the final sentence reads:

We request that his case be reconsidered prior to the scheduled appeal hearing 30^th September 2013.

18.  There is also in the documents I have a letter dated 30 September 2013 addressed to the tribunal to which the earlier correspondence is attached and which asks the tribunal to consider:

Work-Related Activity Group – 1(a)(ii), 1(b), 2(b), 2(c)

Support Group—1(b)

19.  The appeal came before the tribunal on 30 September 2013. The appellant attended with his representative. There was also a support worker who apparently attended as a witness. The Secretary of State was not represented. There is a brief record of the proceedings. The outcome of the appeal was that the decision of 2 May 2012 was confirmed. A statement of reasons was subsequently provided which is dated 2 December 2013.

20.  The appeal now comes before me with the permission of a judge of the First-tier tribunal.

The grounds of appeal

21.  The appellant raises a number of grounds of appeal which may be summarised as follows:

(a)   The tribunal has misdirected itself on the proper interpretation of descriptor 1(a)(ii) in Schedule 2 to the Employment and Support Allowance Regulations 2008 in that descriptor 1(a)(ii) makes no mention of level ground and therefore the test in relation to repeatability requires consideration of mobilising other than on level ground.

(b)   The tribunal has failed to make sufficient findings of fact and to provide sufficient reasons for its decision, most notably in failing to take proper account of the care package which the appellant received, and in relation to the appellant’s upper limb function.

(c)   The tribunal has breached natural justice in declining to seek further medical evidence and in failing to take full account of the evidence of the support worker.

(d)   The tribunal has failed to provide adequate reasons for concluding that exceptional circumstances did not apply to the appellant.

22.  The support worker has provided her commentary on a number of the findings of the tribunal (page 73 of the documents I have).

23.  After the Secretary of State’s representative had submitted the response to the appeal and the appellant’s representative her observations on the response, Judge Jacobs directed that further submissions should be made in the light of SI v Secretary of State for Work and Pensions (ESA) [2014] UKUT 308 (AAC).

24.  Those submissions have now been received.

Did the tribunal err in law?

25.  Activity 1 and its descriptors—as in force at the material time—read as follows:

1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be, worn or used.

1. (a) Cannot either: (i)   mobilise more then 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or (ii)  repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion. (b)  Cannot mount or descend two steps unaided by another person even with the support of a handrail (c)  Cannot either: (i)   mobilise more then 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or (ii)  repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion. (d)  Cannot either: (i)   mobilise more then 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or (ii)  repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion. (e)  None of the above apply.

15                  9          9              6              0

26.  The appellant would only be assisted if descriptor 1(a) applied to him, since it is not disputed that he meets the requirements of descriptor 1(b). The application of descriptor 1(a) to him would also have the effect of passporting him to the support group since it would also mean that he met descriptor 1(a) in Schedule 3 to the Employment and Support Allowance Regulations 2008.

27.  I need first to address the interpretation point raised by the appellant’s representative.

28.  The appellant argues that the absence of the words “on level ground” in descriptor 1(a)(ii) means that when the test of repeatability applies, it is to be determined not in respect of level ground but in respect of “all conditions including stairs and the steep ramps that have to be negotiated normally by wheelchair users.”

29.  The Secretary of State’s representative argues that sub-paragraph (ii) must be read as following on from sub-paragraph (i) and that the ability to repeat the limit of mobilisation is to be tested in respect of level ground. It was never intended that there should be any distinction between the requirements of the first and second sub-paragraphs.

30.  The Secretary of State’s representative must be right. Although any conceivable ambiguity could have been avoided by the insertion of the words “on level ground”, I am satisfied that the only possible interpretation of the repeatability test is that it is on the same terms as the primary test. That is on level ground.

31.  The tribunal cannot be criticised for not addressing this issue, since the point does not appear to have been made to the tribunal. As far as I can see, it was first raised when seeking permission to appeal from the First-tier Tribunal. In any event, the tribunal correctly considered that the repeatability test required consideration of the ability to undertake the task “along level terrain.” (para.9(8) of the statement of reasons). The tribunal has not erred in this regard.

32.  The appellant is on stronger ground in relation to the adequacy of the tribunal’s findings of fact and reasons for its decision.

33.  There are a number of at least apparent contradictions in the evidence which the tribunal has not resolved, and which it could almost certainly have resolved by further exploring them with the appellant, his witness and his representative.

34.  It is accepted that the appellant uses a wheelchair because of weakness in his legs (seemingly arising from what is described as peripheral neuropathy), yet his own evidence is that he has sufficient strength in his legs to “paddle” his wheelchair along. I am advised by the appellant’s representative that this is not as effective a means of propulsion as propelling a wheelchair using arms to turn the wheels, and that it is harder work.

35.  The appellant is apparently saying that he cannot propel his wheelchair using his arms. Yet there is no evidence that he has any limitation in his upper limbs or back. Indeed, the appellant is recorded as telling the doctor that he had no problems with his upper limbs, and the record of proceedings and statement of reasons also indicate that he confirmed this to the tribunal. Despite this, there is also evidence that the appellant needs a carer to push his wheelchair when outdoors. The tribunal does not appear to have asked the appellant why he could not propel his wheelchair using his arms when outside his flat, or why he needed a carer to push his wheelchair all the time when outdoors.

36.  The letter from the adult social care team reports that the purpose of the three visits a day is “to meet his personal care needs which include washing and maintaining personal hygiene, dressing and maintaining reasonably nutrition.” Yet the appellant says in his limited capability for work questionnaire that he uses his daily care allocation “for occasions such as local hospital appointments and shopping” when his carer can push his wheelchair for him.

37.  This called for greater enquiry about what was actually delivered by way of the care package. The tribunal had before it both the appellant and a support worker. It would seem that the support worker gave evidence, but the record of proceedings is silent on this. There is no mention of any evidence from the support worker in the statement of reasons. Nor does the appellant appear from the record of proceedings to have been asked questions about his care package.

38.  The statement of reasons provides some explanation for the conclusion that regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 does not assist the appellant, but also says that the issue was not raised by the appellant’s representative. That is incorrect. The fax dated 19 September 2013 (page 58 of my documents) expressly raises the question of exceptional circumstances. The issue was apparently not explored in the oral hearing. If it was, that exploration was not noted in the record of proceedings.

39.  For the reasons set out above the tribunal’s findings and reasons in this case are inadequate and this constitutes an error of law. For this reason, I set the tribunal’s decision aside, and remit the appeal for a rehearing before a differently constituted tribunal.

The Access to Work Scheme

40.  The parties were invited to make observations on the possible effect on this appeal of the decision in SI v Secretary of State for Work and Pensions (ESA) [2014] UKUT 308 (AAC). Though it is not relevant on the facts of this appeal since the appellant has his own wheelchair, the Secretary of State has made some observations on the Access to Work Scheme. I think it will be helpful to record what I have been told about the scheme here.

41.  In SI v Secretary of State for Work and Pensions (ESA), the Upper Tribunal had this to say about the scheme:

80. However, it seems to us that the Access to Work scheme operated by Jobcentres may well make it unnecessary to consider in each case whether a claimant would be able to obtain a manual wheelchair.  If the Secretary of State is able to say that any claimant otherwise unable to obtain a manual wheelchair will be enabled to obtain one through the Access to Work scheme (or some other scheme) if a manual wheelchair is required to enable the claimant to take up an offer of employment, the question of the availability of manual wheelchairs will, for most if not all claimants, cease to be an issue in ESA cases.  The Secretary of State has not mentioned the Access to Work scheme to us but, if he has the sort of joined-up approach to assisting people with disabilities into work that we consider he should have, he ought to be able to provide short evidence-based guidance to decision-makers and submissions to the First-tier Tribunal to the effect that the Access to Work scheme or a similar scheme will act as such a safety net.  If, on the other hand, he is unable to show that such a scheme will fill in any gaps in the availability of manual wheelchairs, the question whether a claimant could obtain a manual wheelchair will remain a live one in ESA cases, that the Secretary of State’s decision-makers and submission-writers will need to address in each case.  As the Secretary of State controls the Access to Work scheme, the matter is in his hands.

42.  In the submission to me, the Secretary of State’s representative says:

9. The UT judges [in SI v Secretary of State for Work and Pensions (ESA)] referred to the Access to Work Scheme as a possible source of assistance with a manual wheelchair. However, that is not the case. The Access to Work Scheme is intended to support the additional costs of employing a disabled person, and helps over 30,000 disabled people to take up and remain in employment every year, providing support such as specialist aids and equipment, as well as help with travel to work. In order to obtain help under the Scheme, a person would need to satisfy the eligibility criteria. In summary, these are that the person must:

·            have a disability (as defined in the Equality Act 2010), or long-term health condition; and

·            be in or about to start employment or go to a job interview;

·            live and work in Great Britain;

·            have no other support available;

·            not be entitled to an incapacity benefit.

Where a person satisfies the criteria, the DWP disability employment adviser would work with the claimant and the employer to determine how the person’s disability can be supported in the workplace, including any reasonable adjustments the employment might have in place. The Scheme would not normally be used to fund purchase of a manual wheelchair, as it is expected that this would be provided by the appropriate wheelchair services in the area … . However, it could fund the extra costs of a specialist wheelchair if appropriate. Where assistance with travel to work is required, and no other method of transport is available, the Scheme might assist with the cost of taxis. It is my submission this would go some way towards enabling a claimant with mobilising difficulties to look for and start work.

 Guidance and directions for the new tribunal

43.  I note that there is no medical evidence from the appellant’s GP, which might resolve some of the apparent contradictions to which I have referred. I also note that the appellant’s representative has said that they do not have the funds to seek medical evidence.

44.  In these circumstances, a judge of the First-tier Tribunal might consider it appropriate for the tribunal to obtain  medical evidence from the GP before the rehearing of the appeal.

45.  The case to be made for the appellant has developed considerably in the submissions to me compared with the rather minimal submission that was put before the First-tier Tribunal. It would undoubtedly assist the new tribunal if the appellant’s representative presented a more developed written submission on behalf of the appellant. I put it no higher than that since I do not know either the expertise or resources available to the representative.

Some words of warning for the appellant

46.  The appellant must be aware that the new tribunal will be considering his circumstances as at the date of the decision under appeal, which is 2 May 2012. Section 12(8)(b) of the Social Security Act 1998 prohibits a tribunal from considering a change of circumstances (for better or worse) after the date of the decision under appeal. I am sure the appellant has been advised that, if there has been a deterioration in his condition, the proper course is to make a fresh claim for benefit.

47.  The appellant must not assume that he will necessarily win when this appeal is reheard. My decision does not address the merits of his appeal. It has been concerned solely with whether the tribunal in September 2013 erred in law. Everything is now once again in the hands of the First-tier Tribunal. He might win or he might lose.

 

 

Signed on the original                                                                            Robin C A White

on 19 November 2014                                                      Judge of the Upper Tribunal