CE/1757/2011

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision and Directions

1. This appeal by the claimant, brought by permission of the District Tribunal Judge, given on 24th May 2011, succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting at Newcastle and made on 21st February 2011 under reference 228/10/04037. I refer the matter to a completely differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below. 

2. Those acting on behalf of the claimant should consider requesting the First-tier Tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The parties should regard themselves as being on notice to send to the clerk to the First-tier Tribunal as soon as is practicable any further relevant written medical or other evidence. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course. 

Background and Procedure

3. The claimant is a man who was born on 28th August 1985. He worked as a cleaner until about 2002 when he stopped work because of mental health problems. So far as concerns the present appeal the claimant was awarded ESA from 13th May 2010 because of these problems. On 21st March 2011 he completed form ESA 50. This is a 26 page questionnaire about limited capability for work and is reproduced in the Upper Tribunal file. He referred to alcohol abuse, anxiety, and the effects of these (including three attempts at suicide). He did not claim to have any of the difficulties in the various areas of physical activity referred to in the form.  

4. On 13th July 2010 the claimant was examined on behalf of the Secretary of State (for 17 minutes) by Registered Nurse Durkin. She recorded that the claimant had been abusing alcohol for six years and drinks eight cans a day [size and content unspecified] but “feels he is not dependent on alcohol”, drinking 100 units of alcohol weekly. She concluded that “From the condition history, typical day history, mental state examination findings and observed behaviour, there was no evidence of significant disability affecting learning tasks, awareness of hazard, managing daily life, completing everyday tasks and initiating and sustaining personal action … [or] ability to cope with change, get to familiar places, get to unfamiliar places and cope with social situations” or that his mental health and alcohol problems led to a health condition that was uncontrolled, uncontrollable or life threatening or posing a substantial risk to anyone.

5. On the basis of Registered Nurse Durkin’s report the Secretary of State decided on 26th July 2011 that as from 23rd July 2010 the claimant no longer had limited capability for work and was not entitled to ESA (there were also other reasons for non-entitlement prior to 26th July). On 10th August 2010 the claimant appealed to the First-tier Tribunal against that decision of the Secretary of State.

6. On 10th January 2011 (after the date of the Secretary of State’s decision but before the tribunal hearing) the claimant’s GP reported (page 58 of the file), referring to difficulties in the claimant’s personal life caused by his gambling problem, leading to an increase in alcohol consumption to 12 cans of lager daily by August 2010 and an attempt to self harm by jumping from a bridge in October 2010. The GP concluded that “he is likely to remain at risk of impulsive, risky behaviour”.

7. The First-tier Tribunal considered the matter on 21st February 2011. The claimant attended in person and was represented (although the Secretary of State was not). The tribunal confirmed the decision that had been made by the Secretary of State, although it did find that normal activities such as engaging in social contact were frequently precluded due to overwhelming fear and anxiety. On 24th May 2011 the District Tribunal Judge of the First-tier Tribunal gave the claimant permission to appeal against the decision of that tribunal so that the Upper Tribunal could consider the relevance of the effect of alcohol in this case. The Secretary of State opposes the appeal and supports the decision of the First-tier Tribunal. 

The Relevant Law

8. ESA was introduced by section 1(1) of the Welfare Reform Act 2007. Subject to the satisfaction of other conditions which are not relevant for the purposes of my decision, section 1(2)(a) of the Act provides that a claimant is entitled to ESA if he satisfies the “basic conditions”. The basic condition that is disputed in this case is defined in section 1(3)(a) as being that the claimant “has limited capability for work”.

9. Section 1(4) provides that:

	1(4) … a person has limited capability for work if – 
(a)	his capability for work is limited by his physical or mental condition, and
(b)	the limitation is such that it is not reasonable to require him to work.

10. Section 8 of the Act provides that whether a person’s capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations which provide for an assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or incapable of performing such activities as may be prescribed. 

11. The relevant regulations are the Employment and Support Allowance Regulations 2008. Regulation 19 and Schedule 2 provide for the assessment. Regulation 19(2) describes the assessment as an assessment of the extent to which a claimant “who has some specific disease or bodily or mental disablement is capable or incapable of performing the prescribed activities. Regulation 19(3) provides that a claimant has limited capability for work if he obtains a score of at least 15 points in respect of descriptors listed in Schedule 2. The findings of the First-tier Tribunal to which I refer above mean that 6 points were awarded in respect of mental health descriptor 19(c) in the case before me. This was below the threshold score.

12. Regulations 20 and 29 set out certain circumstances in which a claimant is to be treated as having limited capability for work regardless of the assessment score. There is no evidence that, and it is not suggested that, regulations 20 or 29((2)(a) can apply in this case, but the rest of regulation 29 provides as follows: 

29(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) This paragraph applies if – 
	(a) …
(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.

13. In Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42, R(IB) 2/09 (on appeal from CIB/0143/2007) the Court of Appeal considered the application for the purposes of incapacity benefit of the equivalent wording to that of regulation 29(2)(b), making it clear that the same approach applies for the purposes of ESA (which has replaced incapacity benefit) (paragraph 4). The provision is to be understood in the context of the general type of work that the claimant would otherwise be likely to be able to do, depending on background, experience, and the type of disease or disablement in question. “It is not possible and certainly not sensible to more prescriptive” (Lord Justice Moses at paragraph 38). 

14. Section 12(1) of the Tribunals, Courts and Enforcement Act 2007 empowers the Upper Tribunal to set aside a decision of the First-tier Tribunal but only where the making of that decision involved the making of an error on a point of law

The Grounds of Appeal and Conclusions

15. There are three grounds now in issue. The first relates to descriptor 19(a). This carries 15 points, which would replace the 6 points in respect of descriptor 19(c), and applies if:

19(c) Normal activities, for example visiting new places or engaging in social conduct, are precluded because of overwhelming fear or anxiety.
 
19(b) applies if such activities are precluded for the majority of the time; 19(c) applies if they frequently precluded; so it can be deduced that 19(a) applies if they are totally precluded. The First-tier Tribunal recorded the claimant’s evidence that he did go out two or three times a week, which could include going to friends, going to the pub (although he would need a drink beforehand) and going with family for a meal at a new place, but also that “He drunk some 3 ½ cans [of alcohol to get here”. It concluded that “whilst he may need a drink to boost his confidence he was able to perform these activities and they were not precluded because of overwhelming fear or anxiety. The grounds of appeal argue that any ability dependent on alcohol should, for public policy reasons, be disregarded. The Secretary of State disagrees and suggests that the use of alcohol to achieve these activities can be compared with the use of self-hypnosis or relaxation techniques or anti-anxiety medication.

16. I agree with the Secretary of State in principle (and smoking might be another comparable activity) but it is matter of degree. A small glass of beer or lager before going out might be one thing, half a bottle of vodka would be something else. In the latter kind of case (just as an example), although descriptor 19 might well not apply, regulation 29 would be brought into play (see below).

17. The next ground relates to descriptor 21(f), which carries 6 points:

21(f) The claimant misinterprets verbal or non-verbal communication to the extent of causing himself or herself significant distress on a frequent basis.

The First-tier Tribunal found that “[The claimant] did describe being paranoid and did not like going out because he felt people were looking at him because of his problems with spots and his teeth. However, these events are not frequent …”.  The grounds of appeal argue that since the tribunal awarded points in respect of 19(c) (that normal activities such as engaging in social contact were frequently precluded due to overwhelming fear and anxiety) on the basis of paranoia, the award of points in respect of 21(f) should follow. I accept that the First-tier Tribunal could be criticised for not explicitly referring to this and certain other descriptors, but I do not accept the claimant’s argument. First, there might not have been a misinterpretation – people might actually have been looking at him. Second, the tribunal found that “these events are not frequent”. That would preclude awarding points in respect of 21(f).
18. The third and final ground relates to regulation 29(2)(b) (the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work). The First-tier Tribunal considered this in the context of attempts at self-harm. In respect of alcohol it stated (paragraph 18) “the alcohol problem would not be a risk because on the evidence of the appellant he can function with the amount he consumes for example before he goes out”.

19. Both parties deal with this latter issue but neither really addresses it clearly. It seems to me that if a claimant has to drink significant amounts of alcohol before going out, even to the pub, and 3 ½ cans of alcohol before facing the First-tier Tribunal then it is incumbent on the First-tier Tribunal to consider whether and how much alcohol he might need to drink before going to work, on the way to work, and while at work, in order to actually work. Significant amounts on a daily basis might well pose a substantial risk to his own health and also (depending on the nature of the work) to the health of others. The First-tier Tribunal was in error in not giving proper consideration to this issue. The new panel must do this.

20. For these reasons this appeal by the claimant succeeds.

H. Levenson
Judge of the Upper Tribunal 
27th June 2012