IN THE UPPER TRIBUNAL	Case No.CE/1980/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I substitute my own decision setting aside the decision of the decision maker dated 11 April 2012.  This leaves in force the earlier decision awarding the claimant employment and support allowance from and including 9 January 2012.

REASONS FOR DECISION

1.	This is an appeal with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 20 February 2013 dismissing an appeal from a decision of a decision maker dated 11 April 2012 superseding an earlier award of ESA made in January 2012.

2.	The claimant scored no points on any of the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008 (the 2008 Regulations) He has Brugada Syndrome, described at p.65 of the file, on a page downloaded from an internet site, as a potentially life threatening heart rhythm disorder characterised by a specific abnormal heartbeat called a Brugada sign, which is detected by an electrocardiogram test.  It is frequently asymptomatic, and this appears to have been the case with the claimant.  According to a letter dated 10 May 2012 from a locum at the claimant’s GP centre (p.14), his condition was diagnosed in 2011 in the course of treatment for supraventricular tachycardia.  Because the claimant was then asymptomatic from the point of view of Brugada Syndrome, he was not then undergoing any medical treatment but he was still under follow-up from the cardiologists and had been advised that he was to avoid stressful situations, overexertion and heavy lifting.

3.	Brugada’s Syndrome can cause ventricular fibrillation and sudden cardiac death even at rest.  According to information in the file downloaded from the internet, which the tribunal accepted, implantation of an automatic implantable cardiac defibrillator was the only effective therapeutic procedure.  The tribunal did not have the benefit of the cardiologists’ report or reports or their notes as to whether the claimant had been offered such an implantation, but it is clear from the locum’s letter of 10 May 2012 that the information he or she had gleaned from the notes was that he was not being treated because he was currently asymptomatic.  The claimant’s own evidence to the tribunal, as recorded in paragraph 13 of the statement of reasons, was that he had discussed the device with his doctors but they had neither recommended it nor ruled it out for him.  The information from the internet sites was that while the implantation was recommended for symptomatic patients, it was not recommended for asymptomatic patients.  The reasons for it not being so recommended are unclear, particularly as the information from www.brugada.org at p.68 of the file is that 

“Unfortunately, prognosis of asymptomatic patients with typical electrocardiogram is also poor.  In spite of not having any previous symptoms, also one third of these individuals presents a first polymorphic ventricular tachycardia or ventricular fibrillation within 2 years of follow-up.”

4.	Regulation 29(2)(a) of the 2008 Regulations provided as at the date of the decision in April 2012:

(2) This paragraph applies if –
	(a) the claimant is suffering from a life-threatening disease in relation to which –
		(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and
		(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure”

5.	The statement of reasons records that the tribunal needed to consider whether there was a reasonable cause for the claimant’s condition not to be controlled by the use of such a device.  It continues:

“13…. The Appellant’s evidence was that he knew about the device and that he had discussed the device with his doctors but they had neither recommended it nor ruled it out for him.  That evidence was inconclusive.  In reaching its decision the Tribunal relied on its own medical knowledge and expertise.  The Appellant is only 58 years old and generally in good health taking into account the injuries to his right shoulder and left arm.  He reported no other medical conditions in his own evidence or to the HCP.  The risk of death is high if arrhythmia strikes.  On balance, any possible side effects of the treatment including the risks inherent in any surgical procedure are likely to be out weighed by the considerable benefits of using the device.  The Appellant did not put forward any specific evidence to call in doubt the effectiveness of such treatment but made only the general assertion that it was not suitable for him.

 14. The Tribunal finds as a matter of fact that the availability of an implantable cardioverter-defibrillator offers an effective therapeutic procedure and that there is no reasonable cause for it not to be used to control the Appellant’s condition.”

6.	In approaching the matter in this way the tribunal was in clear error of law.  The evidence was that the claimant had been under the care of two cardiologists and that they had not recommended the implantation.  It is also clear that the claimant’s internet researches indicated, rightly or wrongly, that they were not used on asymptomatic patients.  While the tribunal, with the assistance of the medical member’s expertise, came to the conclusion that the implantation was appropriate, it appears to me that the claimant clearly had a reasonable cause for not having the implantation, in that he had consulted appropriate specialists who had not recommended it, according to the locum’s letter because he was asymptomatic.  There is no evidence that without their recommendation it would even have been available to him on the NHS, at least by the date of the decision, or affordable by him privately.  The fact that the tribunal took a different view from the cardiologists in no way prevents the claimant from having reasonable cause for not having the implantation when he had not been advised to have it and the procedure was not offered to him.

7.	In addition, it is at least arguable on the limited internet evidence that implantation was not a recognised therapeutic procedure in the case of asymptomatic patients but this is also not considered by the tribunal.  

8.	It follows that the tribunal was in error of law and I set aside its decision.  I have no hesitation in substituting my own decision that the claimant had a reasonable cause for not having the implantation for the reasons already given.  He was entitled to rely on the advice of his cardiologists as to whether he should have the implantation at that time.  The advice he received that its use was not ruled out is wholly consistent with its being found to be appropriate at a later date, and in particular if he became symptomatic.

9.	The further question is whether Brugada Syndrome in an asymptomatic patient is life threatening within the meaning of regulation 29.  In this context, I note the description of it in the statement of reasons as only potentially life threatening, reflecting the words used in the internet page at p.65 of the file.  There is limited evidence as to this before me, but it appears to me that the evidence from www.brugada.org that a potentially fatal attack occurs in one third of asymptomatic patients within two years of diagnosis entitles me to conclude that there was an immediate threat to the claimant’s life.

10.	I therefore consider that I am able to substitute my own decision for that of the tribunal.  It may be that the position will change with new treatments or a new approach to implantation in asymptomatic patients.  It may also be that at some stage the claimant will have an implantation and that as a result the immediate threat to his life will be removed.  In those circumstances it will be open to the Secretary of State to review the award. 

11.	While the claimant is to be treated as having limited capacity for work because he falls within regulation 29(2)(a) of the 2008 Regulations, he is not to be treated as having limited capability for work-related activity under regulation 35(1) at the date of the decision as he was not terminally ill (defined in regulation 2(1) as meaning that his death in consequence of a progressive disease was reasonably to be expected within 6 months).  Nor does he fall within regulation 35(2).  The tribunal has found, and in this respect I agree with the tribunal for the reasons it gave, that there is work the claimant could do without over-exerting himself and increasing the risk from his Brugada Syndrome.  I see no reason why he should not, if required to do so, take part in a work-focused interview and appropriate work-related activity without there being a substantial risk to his health, although bearing in mind his age, his health and his job prospects in the sort of physically undemanding jobs that he would be capable of doing without endangering himself, the Secretary of State, or those to whom responsibility for arranging such interviews and activity, may wish to consider how sensibly to exercise their discretion in these respects. 

(signed)		Michael Mark
			Judge of the Upper Tribunal
18 December 2013