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 Manchester First-tier Tribunal dated 24 March 2010 under file reference 946/09/06134 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 4 September 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 will be at an oral hearing. 
(2)	The new tribunal should not involve any tribunal judge or other member who sat on the tribunal that considered this appeal at the hearing on 24 March 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 4 September 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 regional office of the Tribunals Service 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 4 September 2009.
(5)	The Secretary of State is to provide a supplementary submission for the new tribunal. This should be sent to the regional office of the Tribunals Service within one month of the issue of this decision.  The supplementary submission should include copies of:
(i) the complete ESA85 report completed by the examining doctor on 3 August 2009 (ref 155450).
(ii) the letter sent to the claimant on 4 September 2009 and the record of any associated decision, including the decision-maker’s WCA score sheet;
(6)	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;
(7)	The District Tribunal Judge responsible for making re-listing directions may wish to consider whether it would be appropriate to direct the production of copies of the claimant’s GP’s medical notes (see paragraph 48 below).

Directions (1), (4) and (7), but not Directions (2), (3), (5) and (6), are subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.  

REASONS FOR DECISION

What this appeal to the Upper Tribunal is about

1.		The First-tier Tribunal hears tens of thousands of appeals each year arising out of decisions by the Secretary of State to refuse a person employment and support allowance (ESA).  The vast majority of those appeals turn on whether or not the person concerned has “limited capability for work” (LCW, or, to use the old but no longer applicable language of incapacity benefit, is “incapable of work”).  The outcome of those appeals typically depends on whether or not the individual scores 15 points or more on the work capability assessment (WCA).

2.		This appeal is different.  There is no dispute that the claimant has “limited capability for work” (she scored 42 points in her WCA).  The question is whether or not she has “limited capability for work-related activity” (LCWRA).  This is important for at least two main reasons.  

3.	First, claimants who have limited capability for work-related activity are placed in the so-called “support group” and not subject to the “conditionality requirements”.  So they are not required to take part in work-focussed interviews or associated activity as a condition of getting benefit, unlike people with limited capability for work.

	4.	Second, claimants with limited capability for work-related activity qualify for the “support component” as part of their weekly benefit, which is paid at a higher rate than the work-related activity component payable in other ESA cases.

5.	When the Welfare Reform Act 2007 brought ESA into force, it was widely expected that 90 per cent of ESA claimants would fall into the work-related activity group and only about 10 per cent in the support group.  Assuming for present purposes that that estimate was broadly right, in practical terms the question is whether the claimant in this case is one of the most seriously disabled 10 per cent or one of the other 90 per cent of ESA claimants.  It is important to remember that the 10:90 split was a policy-maker’s estimate of the likely effect of the new rules.  It is not a quota.

6.	In legal terms, the question is whether the claimant only qualifies for the work-related activity group, by virtue of regulation 19 of, and Schedule 2 to, the Employment and Support Allowance Regulations 2008 (SI 2008/794; the “ESA Regulations 2008”), or whether rather she meets the conditions for the support group under regulation 34 of, and Schedule 3 to, the ESA Regulations 2008.

The background to the Secretary of State’s decision

7.		The claimant is a married lady now aged 56.  She has hereditary spastic paraplegia.  As a result, she has serious mobility problems.  In her ESA claim pack she stated “I cannot walk far after about 15-20 feet I have to stop and rest”.  She described using a wheelchair or a frame to get about.  She also has degenerative lumbar spine disease.   She has a carer (aside from her husband) and receives the higher rate mobility component and the highest rate care component of disability living allowance (DLA).

8.		On 3 August 2009 the claimant had a medical examination for the purposes of ESA.  According to the Department’s submission to the tribunal, the examining doctor apparently advised that the claimant had limited capability for work, scoring 42 points on the WCA, but that she did not have limited capability for work-related activity as she did not meet any of the relevant descriptors in Schedule 3 to the ESA Regulations 2008.  

9.		The examining doctor apparently advised that the following Schedule 2 descriptors applied:

Descriptor 1(b): Cannot walk more than 50 metres on level
ground without repeatedly stopping or severe discomfort			15

Descriptor 2(c): Cannot rise to standing from sitting in an
upright chair without physical assistance from another person		15

Descriptor 3(c): Cannot bend, kneel or squat, as if to pick up a light
object off the floor and straighten up again without the help of another
person										  6

10.		As a matter of simple arithmetic, those descriptors total 36 points. Presumably, if the Department’s submission referring to 42 points was correct, the examining doctor had also advised that another 6 point Schedule 2 descriptor applied to the claimant.

11.		In those circumstances the obvious thing to do is to check the examining doctor’s WCA report on Form ESA85 and/or the decision-maker’s associated WCA score sheet.  In the present case, however, the tribunal bundle included only the three pages from the ESA85 (“pages 11-77 of 22”) which referred to the assessment of limited capability for work-related activity.  The rest of the report – the claimant’s personal details, her description of a typical day, the examining doctor’s clinical findings and evaluation of relevant descriptors, and even the doctor’s signature – were all missing.  The decision-maker’s WCA score sheet was also missing from the bundle.

12.		Presumably someone in the Department responsible for preparing the bundle for the tribunal hearing took the view that the claimant’s appeal was simply about limited capability for work-related activity, and so there was no point in including the material relating to limited capability for work.  If so, that was a mistaken assumption, as will be seen.

13.		Returning to the timetable of events, the Department apparently wrote to the claimant on 4 September 2009 stating that it had been decided that she had limited capability for work but did not have limited capability for work-related activity.  I say “apparently” as again there is no copy of the Department’s letter on file.  However, there is the claimant’s letter of appeal, referring back to a letter she had been sent dated 4 September 2009.  She wrote: “The part of the decision I disagree with is that a return to work could be considered after more than six months and that I shouldn’t have to go to job focus interviews”.

14.		On 21 September 2009 a decision-maker on behalf of the Secretary of State issued an ESA “decision form” which stated that the claimant did not have limited capability for work-related activity, as none of the Schedule 3 descriptors applied.  Although described as a “reconsideration”, this decision was presumably technically a refusal to revise the missing decision of 4 September 2009.

The claimant’s appeal to the First-tier Tribunal

15.		The claimant’s CAB representative sent the tribunal a short but well-focussed submission on her behalf, including evidence by way of letters from the claimant’s GP and specialist registrar.  The submission argued that the claimant qualified for the support group under the walking descriptor in Schedule 3. The letter from the claimant’s GP confirmed the claimant’s diagnoses described at paragraph 7 above.  The GP also confirmed that “I have had a good look at her records” and noted that an MRI scan had shown multi-level degenerative disc disease.  The GP added:

		“As a result of her condition not only does she have marked spasticity of her lower limbs, she also has to deal with significant pain arising in her upper and lower limbs from her degenerative spinal disease.  This means that she cannot propel a wheelchair herself on a daily basis.  She is likely to have days when the pain is less severe and she is more able to propel herself a short distance but for a significant amount of her time would require her wheelchair to be manoeuvred by her husband or a family member”.

16.		The First-tier Tribunal heard the claimant’s appeal on 24 March 2010.  The claimant attended with her carer.  The tribunal dismissed her appeal.  The Decision Notice issued on the day stated that the tribunal was confirming the Secretary of State’s decision issued on 4 September 2009.

17.		The tribunal judge subsequently issued a Statement of Reasons.  This referred to the decision under appeal as being that of 21 September 2009.  This was wrong, but was an understandable oversight given the inadequacy of the tribunal bundle.  On closer scrutiny it seems reasonably clear that the Decision Notice referred to the correct decision under appeal.

18.		The tribunal went on to explain that it had been asked to consider descriptor 1(c) of Schedule 3 to the ESA Regulations 2008. This reads as follows:

SCHEDULE 3

ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED CAPABILITY FOR WORK-RELATED ACTIVITY

Column 1
Activity	Column 2
Descriptors	
1. Walking or moving on level ground.	Cannot—	
		(a)	walk (with a walking stick or other aid if such aid is normally used);	
		(b)	move (with the aid of crutches if crutches are normally used); or	
		(c)	manually propel the claimant’s wheelchair;	
	more than 30 metres without repeatedly stopping, experiencing breathlessness or severe discomfort.	

19.		The tribunal stated that the claimant’s evidence did not support a conclusion that the Schedule 3 descriptor 1(c) applied.  The tribunal found the claimant’s own evidence to be inconsistent with that contention and took the view that the medical evidence she had provided also did not support her case.  The tribunal concluded that the claimant “should be able to propel her wheelchair at least 30 metres without repeatedly stopping, experiencing breathlessness or severe discomfort.”

The appeal to the Upper Tribunal

20.	Mr Martin White, the claimant’s CAB representative, has advanced two grounds of appeal.  The first is that the tribunal made insufficient findings of fact, and in particular misunderstood the claimant’s evidence about what she did at the gym.  The second is that the tribunal failed to explain adequately why it had rejected the GP’s report.

21.	Mr Michael Page, who now acts for the Secretary of State in these proceedings, agrees with both these grounds of appeal.

22.		I agree with the analysis of both representatives for the following reasons.  

The tribunal’s findings of fact

23.	The principal reason given by the tribunal for finding that the claimant’s evidence was inconsistent with her argument that the Schedule 3 descriptor 1(c) applied to her was as follows:

“Her lifestyle was not consistent with this in that she is able to spend half an hour in the gym going from one machine to the next.  She starts by using her arms and legs, pulling it like a rowing action for 3 minutes, then she spends 3 minutes using her arms and legs up and down fast, then various other machines including 2 lots of 5 minutes on the bicycle which would require the use of her arms.  In order to control these machines and use her arms, she would have to manipulate the machinery with her hands.  It was the view of the tribunal she had more use in her hands than she claimed.”

24.	At first sight this fact-finding and reasoning seems compelling. The reader might be forgiven for thinking that the claimant is “working out” energetically.  I also recognise that the circumstances in which a tribunal’s findings of fact can be successfully challenged on appeal are limited (see R (Iran) v Secretary of State for Home Department [2005] EWCA Civ 982 at paragraph 9).  In the present case the tribunal made detailed findings about the claimant’s activities at the gym, based on the oral evidence noted in the record of proceedings.  However, the claimant was also asked at the hearing how her gym work was different from using a wheelchair and she replied “machine does all work”.

25.	As Mr Page very fairly points out, the record of proceedings does not actually record that the claimant is using her arms and hands to operate the machines.  Whilst this might appear to be a matter of common sense, Mr White states that the claimant had told the tribunal that she used special gym equipment for people with disabilities.  It is said that she explained that her arms and legs were placed in the machines and the machines then manipulated the limbs rather than the other way round.  This account would appear to be consistent with the tribunal judge’s abbreviated note that the “machine does all the work”.  It is difficult then to see how the tribunal could conclude that she was herself “pulling it like a rowing action for 3 minutes”.  There were also no findings as to what assistance, if any, the carer provided at the gym.  All this amounts to an error of law.

26.	The tribunal gave two other reasons for not accepting the claimant’s evidence.  The second reason given was that the claimant had said “she had not been examined by her own GP or a specialist for the last 12 months”.  The third was that if the claimant had been suffering as much with her hands as she claimed “then the tribunal would expect her to have reported this to her GP and for the GP to have sent her for further investigations”.  However, on her ESA questionnaire (Form ESA50) the claimant had said she had a variable problem with her hands and that her GP “thinks it could be arthritis”.  The record of proceedings shows that she made the same point at the hearing, which rather undermines the tribunal’s implied finding that she had not reported the problem to her GP.  To that extent there is a finding of fact which is not supported by the evidence before the tribunal. This takes us to the tribunal’s treatment of the GP’s evidence.

The tribunal’s decision to reject the GP’s evidence

27.	The tribunal said it did not rely on the GP’s evidence for two reasons.  

28.	First, the GP’s comments “were based on the GP’s opinion as to the level of pain the appellant suffers.  The report was not based on examination of the appellant nor did it contain clinical findings to support its conclusions and was not consistent with the neurological findings” (in the registrar’s report).  Second, the report was written “a few months after the date of the decision when the appellant said she had worsened”.

29.	In my assessment the first reason is flawed. I accept that the issue of inconsistency with (the very short) registrar’s report is a matter of judgment for the tribunal.  However, the GP had expressly stated that he had “had a good look at her records”.  In addition, the tribunal simply made no mention of the report by the Department’s examining doctor.  But, as we have seen, this was seriously deficient in its own way.  The tribunal bundle included just the three pages mentioned, with no clinical findings at all. The only material medical “evidence” produced by the Department to the tribunal was the single sentence (on “page 15 of 22”) containing the examining doctor’s opinion that “although the client has a severe problem walking, the history, examination and observed behaviour suggest that they can manually propel a wheelchair more than 30 metres.”  At the very least the tribunal should have adjourned to get sight of the full ESA85 report.

30.	As to the second reason, on the face of it this is a factor which could justify discounting the GP’s report.  This is because the tribunal (on 24 March 2010) had to consider the position as at the date of the decision under appeal (4 September 2009) and not as at the date of the GP’s letter (22 January 2010) (see further below).  However, as Mr Page points out, the GP had also referred to the variability in the claimant’s condition and its effects.  The tribunal simply made no findings on this aspect of the evidence.  It should have considered how the claimant’s condition varied at the time of the decision under appeal.  In doing so, the tribunal should have had regard to regulation 34(2) of the ESA Regulations 2008:

“(2) A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.”

31.	In broad terms regulation 34(2) appears to put on a statutory footing for ESA purposes the “reasonable regularity” test approved by the Tribunal of three Social Security Commissioners in reported decision R(IB) 2/99 in the context of incapacity benefit.

32.	For these reasons I find that the tribunal’s decision involves an error of law.  The tribunal’s decision is accordingly set aside and a rehearing directed, subject to the Directions above.  It may also be helpful for the tribunal to consider the following points.

The approach to descriptor 1(c) of Schedule 3 to the ESA Regulations 2008

33.	The test for qualifying for the support group is plainly intended to be more stringent than the criteria for those who only qualify for the work-related activity component, i.e. those who have limited capability for work but not limited capability for work-related activity.  This is reflected in the structure of Schedules 2 and 3 respectively.

34.	First, Schedule 2 covers 21 different functional activities, whereas Schedule 3 comprises only 11 functional activities.  So, for example, difficulties with bending and kneeling may score for the purpose of the Schedule 2 descriptors (LCW) but do not count for Schedule 3 (LCWRA).

35.	Second, the Schedule 2 functional activities are each divided into a number of separate descriptors, each in turn scoring 6, 9 or 15 points.  It is therefore possible to meet the 15 point threshold required by regulation 19(3) by scoring 6 points under each of three different functions.  This process of aggregation is not possible under Schedule 3.  The Schedule 3 descriptors do not attract specific scores: a person either meets the test laid down by the descriptor in question or does not.

36.	There is, however, equally some common ground between the two Schedules. 

37.	First, there is inevitably some overlap between the functional activities covered, although there are important differences in terminology (so, e.g. walking under Schedule 2 is concerned with “walking with a walking stick or other aid if such aid is normally used”, whereas Schedule 3 is concerned with “Walking or moving on level ground”.

38.	Second, subject to any such differences, and whether dealing with Schedule 2 or Schedule 3, “the First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor”, as Judge Jacobs explained in GS v Secretary of State for Work and Pensions (ESA) [2010] UKUT 244 (AAC) (at paragraph 14), a case concerning the manual dexterity descriptor. Further, as Judge Jacobs commented, “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. The reference to shirts and blouses is for the purpose of illustration. They are not words of definition or limitation” (GS at paragraph 13).

39.	So far as descriptor 1 in Schedule 3 is concerned, which deals with “walking or moving on level ground”, Mr Page helpfully refers to the Department’s Training and Development ESA Handbook, prepared by the Office of the Chief Medical Officer on behalf of the Department for Work and Pensions (DWP).  For reasons that are not obvious, this handbook is available on the Disability Alliance and Rightsnet websites but not on the Department’s own website.  It is, of course, fundamentally a training and development handbook and, as Mr Page points out, is not binding on either decision-makers or tribunals (see also RA v Secretary of State for Work and Pensions [2010] UKUT 301 (AAC) at paragraph 9).

40.	Bearing those qualifications in mind, the discussion of descriptor 1 in Schedule 3 in the Training and Development ESA Handbook is as follows (at p.21; “FME” is an abbreviation for further medical evidence):

“This illustrates a severe level of disability relating to the lower limbs and upper limbs. Consideration of the diagnosis, medical treatment and functional effects must be obtained, usually by requesting FME from a practitioner involved in the claimant’s care. The descriptor relates to the ability to independently move useful distances by any of the means listed above. If they are unable to walk or move on level ground to the degree stated, it would not be considered reasonable to expect the claimant to participate in work related activity, because of their severe mobility restriction. 

This support group could, for example, apply to a claimant with quadriplegia, who has upper and lower limb weakness, and therefore cannot walk or manually propel a wheelchair. A claimant who was paraplegic, and had normal upper limb function should be able to propel a manual wheelchair and therefore would not fall into this support group.

Claimants with very severe cardiorespiratory problems may have to be considered in this category.

If the claimant is assessed at the LCW/LCWRA medical examination, information about their abilities may be obtained from the clinical history, typical day history, observation and clinical examination. (See section 3.3 for further details of assessment at the LCW/LCWRA medical examination).”

41.	In the context of the present case, I just make the following three observations.

42.	First, although there is no statutory requirement to do so, the Department itself does not appear to have sought further medical evidence from a relevant practitioner, e.g. the GP (the claimant provided her own evidence to the tribunal from her GP).

43.	Second, in this case the claimant was of course subject to a medical examination, as envisaged by the final paragraph of this guidance, but as we have seen most of this evidence was not put before the tribunal.  True the appeal was about whether the claimant fell within Schedule 3.  However, the evidence collated to support the conclusion that she had limited capability for work under Schedule 2 might well have been relevant to that issue.  It should be made available to the next tribunal.

44.	There is a further reason why the full ESA85 report must be made available. In her letter of appeal the claimant had stated that “the part of the decision I disagree with is that a return to work could be considered after more than six months” (see paragraph 13 above).  Yet on one of the three pages of the ESA85 report included in the bundle (page 17 of 22), the examining doctor recorded that “I advise that a return to work is unlikely in the longer term... The client’s Paraplegia is an inherited, gradually worsening neurological disease so the return to work is not likely to happen in the longer term.”  There would appear to be a conflict between what the examining doctor said and what the claimant was told by the Department. It is therefore important that the new tribunal sees both the full ESA85 report and the letter to the claimant dated 4 September 2009, together with any associated record of the original decision.

45.	Third, the statement at the end of the second paragraph of the extract above from the Training and Development ESA Handbook highlights the issue for the next tribunal. There is no dispute but that the claimant has paraplegia.  The question, in effect, is whether she also has normal upper limb function and so should be able to propel a manual wheelchair within descriptor 1(c).  In evaluating the evidence on that issue, the new tribunal must take into account the issue of variability as required by regulation 34(2) of the ESA Regulations 2008 (see paragraph 30 above).

What happens next following the Upper Tribunal’s decision?

46.		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 Manchester, subject to the directions listed above (section 12(2)(b)(i)).  

47.	I wish to stress that I am making no decision, or even expressing any view, on the issue of whether the claimant has limited capability for work-related activity and so belongs in the support group.  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 and that the claimant does belong in the support group.  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.

48.	I must also draw attention 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” (my emphasis).  The relevant decision in this case was made over a year ago, on 4 September 2009.  Because of section 12(8)(b), the issues for the new tribunal are not the appellant’s mobility problems as of the date of the re-hearing later in 2011.  This is a re-hearing.  The tribunal will therefore have to focus on the appellant’s mobility issues as they were on 4 September 2009.  In that regard the tribunal may find it helpful to have a copy of the claimant’s GP medical notes for that period.  However, that is a matter left to the good judgment of the District Tribunal Judge responsible for making any further re-listing directions in the light of local knowledge.

Conclusion

49.		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 17 January 2011					Judge of the Upper Tribunal