IN THE UPPER TRIBUNAL	Case No.  CE/2178/2014
ADMINISTRATIVE APPEALS CHAMBER

Before:	M R Hemingway: Judge of the Upper Tribunal 

Decision:	The decision of the First-tier Tribunal sitting at Gravesend on 31 January 2014 under reference SC172/13/01395 did not involve an error of law and shall stand.

REASONS FOR DECISION

The issue in this appeal

1.	The issue raised in this appeal is whether the appellant is entitled to employment and support allowance.  

The background

2.	The appellant was born on 31 March 1972.  He suffers from various health problems.  In April 2009 he fell from a first floor window and suffered fractures to both feet.  He also suffered vertebrae fractures.  In addition he has abnormal liver function, which is said by his GP to have been caused by previous alcohol misuse, and haemochromatosis.

3.	The appellant had been receiving incapacity benefit or income support on the grounds of incapacity for work since 31 January 2006.  On 28 January 2012 he was informed that the “conversion phase” by which recipients of such benefits are assessed for possible entitlement to employment and support allowance had commenced.  As part of the assessment process he was asked to complete a standard questionnaire known as form ESA50.  He did so on 21 October 2012.  In so doing he referred to the accident which had occurred in April 2009 and said that, as a result of its effects, he had to use a wheelchair most of the time though he did say he could stand for short periods and walk short distances with the aid of crutches.  As to the specific tasks enquired about in the ESA50, he said that he had difficulties with respect to moving around, standing and sitting, picking up and moving items (though this only appeared to relate to heavy items and items which might have to be picked up from a floor) and controlling his bladder and bowels.  By way of additional information as to continence, he explained that he would sometimes fail to move from his wheelchair to the toilet in sufficient time to avoid wetting or soiling himself.  He did not indicate any mental health difficulties of any sort.  

4.	The next stage in the assessment process was a medical examination which was conducted by a healthcare professional, on this occasion a registered nurse, on 9 January 2013.  A report of that date was produced.  The healthcare professional described the medically identified conditions as being a “musculoskeletal problem” and a “blood disorder”.  It was noted that the appellant was taking Ibuprofen which was described as a mild anti‑inflammatory painkiller.  The report contained information regarding his medical history and how he would spend his time.  Some informal observations were also noted.  It is apparent, though, that a physical examination was curtailed, seemingly, as a result of the appellant’s behaviour. The healthcare professional explained the appellant had “made sarcastic comments and swore”.  

5.	The respondent, armed with the information contained within the ESA50 and the healthcare professional’s report, concluded that the appellant’s previous award should not be converted into one of employment and support allowance.  This was because the appellant did not qualify for any points under the activities and descriptors contained within Schedule 2 to the Employment and Support Allowance Regulations 2008 and did not meet the requirements of regulation 29.

The appeal to the First‑tier Tribunal

6.	The appellant lodged a notice of appeal.  His representatives at Kent County Council filed a written submission on his behalf in which it was contended he was entitled to an award of 9 points because he could not mount or descend two steps, 6 points due to difficulties with reaching, 6 points due to difficulties with continence and an unspecified number of points under the descriptors linked to activity 15 which relates to “getting about”.  Further medical evidence was provided including three letters written by the appellant’s GP, Dr. W S Chan, dated 17 August 2011, 11 February 2013 and 28 May 2013 respectively.  

7.	The appeal was considered by way of oral hearing on 31 January 2014.  The appellant attended and gave evidence.  He was represented by Mrs L Spencer of Kent County Council.  Unsurprisingly, there was no attendance on behalf of the respondent.

8.	The First‑tier Tribunal (F‑tT) dismissed the appellant’s appeal.  It concluded, as had the respondent, that no points could be awarded under Schedule 2 and that regulation 29 did not apply.  In its statement of reasons for decision (statement of reasons), supplied at the request of the appellant’s representative, it said that, although the appellant was still using a wheelchair, his use of one “was against accepted medical practice” bearing in mind the nature of his injuries and the length of time since the accident had occurred.  It noted he had claimed to have muscle wasting in his legs but said that it had invited him to lift his trousers so that his legs could be observed and no such muscle wasting was apparent.  It said that it was attaching little weight to the letters produced by his GP because they were based on what he himself had reported and because they were not sufficiently precise.  The F‑tT concluded he was capable of mobilising either with crutches or by the use of a wheelchair to the extent that he did not meet any of the descriptors under activity 1.  As to standing and sitting, it thought his ability to do this, and in particular what it found to be an ability to sit for lengthy periods, was sufficient to mean that no points could be scored in relation to the descriptors concerned with that activity.  As to continence, it found that the problem related only to urgency and that no points could be scored under activity 9.  As to going out, the F‑tT said it thought he would have no difficulties with respect to the descriptors under this activity either as a result of physical or mental health problems.  It is worth noting, though, in any event, that those descriptors are only concerned with inability as a result of mental health problems and the appellant had not claimed to have such problems.  The F‑tT also explained why it did not think regulation 29 applied, concluding that the appellant would be able to work safely in an appropriate retail environment.  

The permission application

9.	The appellant, through his representative, applied for permission to appeal to the Upper Tribunal.  His grounds, in summary, were to the effect that the F‑tT had erred in law in impermissibly carrying out a medical examination; in deciding that he should no longer be using a wheelchair and yet assessing him with respect to the mobilising descriptors on the basis that he could and did use one and in failing to properly evaluate the written evidence of the GP.  The grounds also included a protest by the appellant’s representative that she had not argued , as the F‑tT had indicated she had, that musculoskeletal problems and muscle wasting are the same thing.  

10.	Permission to appeal was granted by a district judge of the First‑tier Tribunal on the basis that the F‑tT may have erred by carrying out what might have amounted to a medical examination of the appellant and in assessing his ability to mobilise on the basis that he could use a manual wheelchair to do so when it had also expressed the view that his use of such a wheelchair was improper.

11.	In issuing case management directions I invited the parties to comment, in addition to the points made in the grant, upon the F-tT’s treatment of the GP’s evidence and to consider whether, if the F‑tT had erred in conducting an examination, any such error was material.  

The written submissions

12.	The respondent has, through Mr A Walker, provided a written response to the grant of permission to appeal in accordance with my directions.  Mr Walker has confirmed that the appellant’s appeal is not supported.  He says, in a nutshell, that since the appellant was using a wheelchair it was reasonable for the F‑tT to have assessed him on that basis.  As to the examination point, the F‑tT was simply attempting to resolve a conflict in evidence and no objection to the course of action it pursued was raised by the appellant or the representative at the hearing.  Further, if what it did in this respect amounted to an error of law it was not a material one because the question of muscle wastage in the lower limbs had little bearing on the appellant’s ability to propel a manual wheelchair and it was that which had led to him scoring no points in relation to mobilising.  The F‑tT’s consideration of the evidence provided by the GP had been adequate.  

13.	No written reply to the respondent’s response has been received from the appellant or his representative despite my directions making provision for one.  When it was brought to my attention that no reply had been received within the one month time limit I had originally laid down I gave further directions affording a one month extension of time but, nevertheless, nothing further has been forthcoming. In these circumstances I have considered it appropriate to proceed without the appellant’s reply.

My analysis of the arguments

14.	I shall, first of all, deal with the contention that the FtT erred in law by impermissibly conducting a “medical examination”.  That is the phrase used in the grounds of appeal and in the grant of permission. Section 20(3)(a) of the Social Security Act 1998 says that, at a hearing before it, the First-tier Tribunal “may not carry out a physical examination” (my underlining) of an appellant unless an exception prescribed by the Tribunal Procedure Rules applies.  No‑one has suggested that any such exception applies in this case and there is no basis for thinking so.  Accordingly, the general prohibition preventing such a physical does apply.  So, it must be asked whether what the F‑tT did, in this appeal, amounted to one.   

15.	The F‑tT explained what it did in this way:

	“	15.	The Tribunal invited the appellant to lift his trousers up whilst seated in his wheelchair so that it could observe and assess for itself whether he had any muscle wasting in the limbs below the knees.  He lifted up his trouser legs himself up to his knees.  The Tribunal’s medical member, who had an expertise working for the Medical Foundation for the Care of the Victims of Torture and was therefore well suited to comment on such an issue, noted that there was no muscle wasting and in fact observed that the appellant had good tone and muscle mass in the lower legs.  He did not understand why the healthcare professional at the assessment had measured the size of his legs with a tape measure but that had been to establish whether there was any muscle wasting and the healthcare professional found no muscle wasting.  The Tribunal’s medical view was that the lack of muscle wasting indicated that he was using the lower limbs and doing so regularly.”

16.	So, the F‑tT had initiated the process and had done so for the purposes of ascertaining for itself, principally by the application of the medically qualified panel member’s expertise, whether there was evidence of muscle wasting or not.  The question would have been in the  F‑tT’s mind because the appellant had said, in his ESA50, that he had “some muscle wastage” in his legs and his GP, in the letters referred to above, had also referred to the presence of muscle wasting.  Contrary to what the F‑tT appear to suggest in the above paragraph, however, the healthcare professional had not expressed a view one way or the other about any evidence of muscle wasting.  This might be because of the discontinuance of the examination.  

17.	In CDLA/433/1999 which concerned a predecessor of section 20(3) with a similarly worded prohibition, it had accepted that a tribunal had conducted an examination of a claimant’s hands because it had described what it was doing as being an examination, even though it had done little more than look at the hands.  In R1/01(IB)(T) a three judge panel of Commissioners in Northern Ireland had concluded that a tribunal had erred in law by refusing to accede to a claimant’s request for it to view one of his knees.  However, it said the situation would have been different had the impetus come from the tribunal rather than the claimant.  By way of explanation it said this:

	“	19.	We wish to stress that there is a considerable and significant difference between a claimant requesting a Tribunal to look at some part of his body and the Tribunal itself making the request.  In our view it is perfectly legitimate for a Tribunal to observe and take account of what is obvious to everyone.  If it were clear to everyone that a man lacks three fingers on one hand, it would be wrong for a tribunal to ignore that fact if it is relevant to what the tribunal has to decide.  We also see nothing wrong, in a simple case, in a tribunal asking for a better look, particularly where the disability has been referred to and such a look is likely to assist the claimant’s case.  Why should the man with the missing fingers not be asked to hold up his hand particularly if he is placing emphasis on the loss of some of his fingers?  However, if the man wore a prosthesis which concealed the extent of his disability, or wore a glove, could a tribunal ask him to remove the prosthesis or glove so that they could have a good look at his disability?  In our view it would not be appropriate for such a request to come from the tribunal.  If such a request does not actually fall within the regulatory prohibition, it comes close to doing so.  There is also the practical difficulty that a prosthesis may be difficult to remove or a claimant may be embarrassed by its removal.  In practice, the simple removal of a glove or the turning up of a sleeve may not cause many problems.  Most claimants want their appeals to succeed and will probably offer to remove the glove, or whatever, once it becomes apparent that it is in their interest to do so.  Most of those who do not offer are likely to resist a request in whatever form it is put to them.  
						
		20.	What we think is not permissible is for a tribunal to ask a claimant to expose some part of the body which is covered by clothing.  A direct request is not permissible and nor is an indirect one which puts a claimant in the position of having to say ‘yes’ or ‘no’.  If a tribunal considers that it does not have enough evidence to decide some issue, it should adjourn so that the claimant can undergo a proper examination by a doctor.”

18.	The reference to the “regulatory prohibition” is a reference to a statutory provision in Northern Ireland equivalent to section 20(3).  The three judge panel appeared to take the view that inviting a claimant to show a part of the body covered by clothing was not permissible and that, if that did not amount to the conducting of a physical examination it came very close to doing so.  But the three judge panel did not find, in terms, that such would amount to an examination. It did not have to because the claimant before it had positively invited the tribunal to look at his knee.

19.	It seems to me that what occurred at the oral hearing of 31 January 2014 as described by the F‑tT in the above passage did amount to a physical examination within the meaning of section 20(3) and I so decide.  This is because the process was initiated by the F‑tT so that it was not simply relying on an observation it would have made anyway, it focused specifically and exclusively upon particular parts of the appellant’s body (his legs from below the knee),  the enquiry it was pursuing was one which required the adjustment of clothing which was prompted by the F-tT’s request and because the enquiry it was pursuing was directed towards a question of a medical nature relating to a physical consideration being whether there was or was not evidence of muscle wasting in the appellant’s lower legs.  Further, the input of the medically qualified panel member was particularly relevant in reaching conclusions stemming from what was done as is illustrated by what the F‑tT had to say at paragraph 15 above.  Put another way, it is not apparent that the other tribunal member (the judge) would have been capable of identifying the presence or absence of muscle wasting without the assistance of the specialist medical member.  There may sometimes be scope for argument as to whether actions undertaken by a tribunal do or do not cross the line between mere observation and physical examination.  I would stress, though, that, in my judgment, physical contact is not necessary for an activity to constitute a physical examination.  It is enough if what takes place is an examination as opposed to an observation and that will turn upon a consideration of the sorts of factors referred to above.  Where all, or perhaps most, of the above factors are present then it seems to me it is very likely that it will be concluded that a physical examination has taken place.  I do not accept Mr Walker’s submission that what happened was permissible on the basis that the F‑tT was simply seeking to resolve what it might have thought was a conflict in the evidence.  This is because the F‑tT’s motivation is not relevant to the question of whether or not a prohibited examination was carried out.  I do understand why Mr Walker makes that submission and I understand why the F‑tT acted as it did.  It must be very tempting for a tribunal with an appropriately qualified and experienced specialist member to undertake the sort of exercise it carried out if it thinks that such will assist it in reaching a just conclusion.  Nevertheless, tribunals must be aware of statutory limitations to the nature and scope of their enquiries and, in this case, I do accept the appellant’s submission that the F‑tT crossed a line.  Nor do I think it right to say that the examination was permissible simply because no objection was raised by the appellant or his representative. This is because actual or implied consent is not and should not be regarded as being capable of overriding a statutory prohibition.  However, whether what it did constituted an error of law such as to justify the setting aside of its decision is another question which can only be answered once other challenges to the F‑tT’s decision have been considered. As was pointed out in CDLA/433/1999, if a tribunal’s decision is based on the evidence obtained from an examination that is an error of law that requires the tribunal’s decision to be set aside but, if the decision was ultimately based on other factors then it will or may not be.

20.	The next challenge mounted by the appellant related to the F‑tT’s treatment of the various letters, of a supportive nature, which had been written by his GP.  Those letters, for the most part, focused upon what the GP felt to be concerns with respect to the appellant’s ability to walk stemming from the injuries which had been caused as a result of the 2009 accident though the most recent letter, written after the date of the decision under appeal, referred to the haemochromatosis which was said to have caused some problems with balance.  The first two letters described the 2009 injuries as being severe and both indicated that the appellant’s ability to mobilise using crutches was extremely limited, it’s being suggested that he could only use his crutches for a very short distance of one to two metres.  It was also said,  in both letters, possibly a little inconsistently, that he needed “to use a wheelchair all of the time”.

21.	The F‑tT, of course, also had the report of the healthcare professional referred to above so the GP letters did not constitute the only medical evidence before it.  As to those letters, the F‑tT said this:

	“	19.	The Tribunal noted the numerous GP letters.  These were all supportive but the content of the letters was entirely based on what the appellant himself had reported and was not based on an objective assessment of the appellant’s medical conditions or functionality.  That was confirmed by the fact that the GP did not grade the severity of the appellant’s conditions and did not state precisely which of his conditions was continuing to cause the impairments claimed.  The medication he had been prescribed by the GP had been stopped and he was taking over the counter Ibuprofen only.  The GP’s letters were general and the Tribunal attached little weight to them in assessing whether the descriptors were engaged.”
						
22.	It is true that to some extent the letters did appear to contain information which was likely to have simply been reported by the appellant to the GP such as the comment that he had to “bottom shuffle” when using stairs and that he was “not able to use a bath as he is unable to get in and out” of one.  However, the letters do, as noted, suggest particular difficulty with respect to walking and contain specific information regarding the injury sustained in the 2009 accident and what is described as consequent “fixed deformity of his ankles”.  The GP would, presumably, have been able to rely upon medical records relating to the appellant when writing the letters and I do not think it can be properly said, as did the F‑tT, that the content of the letters was entirely based on what the appellant himself had reported.  Further, although the F‑tT, elsewhere in its statement of reasons, made the point that the GP had not indicated in the letter of 28 May 2013 that use of a wheelchair was necessary, it did not take into account that the letter of 11 February 2013 appeared to have supported the proposition, on one reading at least, that such a wheelchair was necessary or, at the very least, appropriate.  To this extent, then, I do consider that the F‑tT erred in its consideration of the GP’s written evidence.  That evidence was, as I have indicated, for the most part, concerned with mobility difficulties and it will now need to be decided with that in mind, after I have looked at one remaining issue, whether any such error was a material one.  

23.	The third issue to be examined is the question of whether it was permissible for the F‑tT to assess the appellant as a wheelchair user, when considering the question of limited capability for work, whilst, simultaneously, concluding that his use of a wheelchair was “improper”.  

24.	The use of a wheelchair was directly relevant to the assessment in relation to the descriptors concerned with the activity of mobilising.  Given that the decision under appeal was made on 16 January 2013, the activity and descriptors to be applied were those in place prior to amendments of 28 January 2013.  At the relevant time activity 1 within Schedule 2 to the Employment and Support Allowance Regulations 2008 read as follows:

	“	1.	Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.”
		
25.	It is not necessary for me to set out the wording of the individual descriptors, as they were as at the date of decision, but, essentially, they related to a claimant’s ability to mobilise or repeatedly mobilise various distances and the ability to mount or descend two steps unaided by another person even with the support of a handrail.  

26.	It has not been argued, at any stage, that there is any particular significance in the point that the activities and descriptors to be considered are those which were in place prior to the amendments of 28 January 2013 or, indeed, those of 29 October 2013.    

27.	Many aspects of wheelchair use, and the reasonableness or otherwise of it, received full consideration in the decision of the three judge panel in SI v Secretary of State for Work and Pensions (ESA) [2014] UKUT 308 (AAC).  The Upper Tribunal noted the requirement to assess on the basis that a claimant would be using an aid which is normally used as contained in regulation 19(4) and the reference in Schedule 2 to reasonableness of usage as the activity read prior to the January 2013 amendment but observed that the amendment had not made any difference to the law and that whilst the words “normally” and “reasonably” mean different things they are related in that what a claimant normally does is an indicator of what he might reasonably be expected to do. The Upper Tribunal, in rejecting an argument advanced by the Secretary of  State, concluded that when considering the reasonableness of wheelchair use all the circumstances, and not merely medical considerations, were to be taken into account.  Further, the consideration of the reasonableness of the use of a wheelchair would be guided by the underlying principles of the work capability assessment and the legislation governing employment and support allowance.  In practical terms, for those who do not normally use manual wheelchairs, it was said that the test must be applied on the basis that the notional employer has a modern workplace and is prepared to make reasonable adjustments, that all medical considerations will need to be taken into account and that this would include attendant consequences such as muscle wasting, although a person not always using a wheelchair would have other parts of the day in which he or she could utilise his or her limbs and continue with ensuring the circulation of blood, that the home environment was potentially relevant and that the availability of a manual wheelchair was a question of fact to be proved by evidence.  

28.	The F‑tT, in its statement of reasons, said this:

	“	12.	The appellant attended the hearing in a wheelchair.  His decision to continue to use a wheelchair so long after the injuries to his heels (calcaneum) was not accepted as reasonable as it was against accepted medical practice and could not be justified so long after the accident.  The appellant stated that his Consultant had advised him against walking for two years.  That two year period ended in 2011.  His GP stated that by 17.8.2011 his ankles had a deformity but they had heeled (page 39).  The appellant had not provided any satisfactory explanation why he had to continue to use a wheelchair so long after the accident and so long after the period when he was expected to have fully recovered from his injury.

		13.	The Tribunal’s view that his use of a wheelchair was improper was consistent with what the appellant’s GP had written on 28.5.2013 (page 86).  The appellant’s GP had written a letter of support in which there was no mention that the appellant’s mobility was so limited that he had to use a wheelchair.  It did refer to his mobility being affected but not due to ongoing issues related to his limbs but due to high chromatosis or incontinence.  The letter did refer to spinal leg injuries but no detail was provided about the nature of the injuries or impairment.  The Tribunal found this peculiar and at odds with the appellant’s behaviour and his decision to use a wheelchair.”

29.	I have already noted that the F‑tT, at paragraph 13, appeared to overlook, when addressing the letter of 28 May 2013, that one written shortly prior to that by the same GP (in fact on 11 February 2013) had appeared to convey a view that use of the wheelchair, as at the date that letter was written was appropriate. That earlier letter was, of course, written only shortly after the date of the original decision under appeal.  The particular point taken in the grounds, though, and one of the bases upon which permission was granted by the district tribunal judge, related to the consideration of the appellant as a wheelchair user given the finding which the F‑tT did make that such was not  appropriate and, indeed, “improper”.  

30.	It is clear that the F‑tT thought that the appellant did not need to use one and was not, in fact, using one as much as he had claimed.  It is difficult to read what the F‑tT said at paragraphs 12, 13 and 15 (as to paragraph 15 I have in mind in particular the closing sentence) in any other way.  So, assuming for a moment that the F‑tT was right about all of that, was it also right to assess him on the basis that it was reasonable for him to use a wheelchair?  

31.	In my judgment the answer to that question is yes.  The F‑tT had evidence before it to the effect that the appellant did possess a wheelchair.  The appellant had never contended that he was unable to use one nor had he claimed, either in his ESA50 or in oral evidence, that he had difficulty in using one.  It had not been contended on his behalf by his representative that he had any difficulty in using one.  The evidence supported the proposition that, whether or not it was still necessary for him to use one, he was doing so to some extent and certainly had been doing so, seemingly at least for a two year period, since the date of his accident.  In looking at practical considerations, no issue had arisen regarding the obtaining of a manual wheelchair (he already possessed one) nor the ability to keep, use or store one at his home.  The only issue which might have been relevant, it seems to me, when looking at the question of reasonableness of the use of a wheelchair, was whether such usage, notwithstanding the appellant’s insistence that he had to use one which of course had not been accepted, might be injurious to his health.  Certainly, one can see an argument that the use of a wheelchair by a person who does not actually need one might lead to muscle wasting consequent upon a lack of exercise of the legs.  That, though, was not an argument which the appellant or his representative had pursued. There was no medical evidence suggesting the use of a wheelchair would be injurious in this or any other way.  It was not a consequence of the F‑tT’s view that it was reasonable for him to use a wheelchair that he would have to do so all of the time. Thus, on its findings, he could exercise when not using it so as to obviate the risk of muscle wasting.   Accordingly, on the unusual facts of this particular case, I would conclude that the F‑tT did not err in law in considering it reasonable for him to use a wheelchair and treating him on that basis, despite its view that one was not necessary.  It will I think be unusual that things are this way round.  The normal position will involve a tribunal considering a case where a claimant is denying an ability to use a wheelchair or contending it is not reasonable for him to do so with the Secretary of State arguing that it is. It seems to me it will be rare for a tribunal to be faced with a claimant positively asserting he can and does use a wheelchair to mobilise and its rejecting such a contention.  

32.	Having reached the above view it is now appropriate to return to the earlier considerations regarding the examination and the treatment of the GP’s written evidence.  As to the first of those points, the F‑tT had concluded from an examination it was not permitted to carry out that the appellant did not have muscle wasting to his lower legs.  This, it had concluded, supported the proposition that he was walking, albeit perhaps with the aid of crutches, more than he had indicated and that, in turn, supported the proposition that he did not actually need his wheelchair.  None of that impinged upon its conclusion that, since he possessed a wheelchair, it was reasonable to assess him, with respect to mobility, on that basis. None of that impinged upon his ability to use a wheelchair and as the F-tT observed, he had used it to attend the hearing.  He had said, in evidence and to the health care professional, that he used it frequently.  The F‑tT actually concluded that he could mobilise in excess of 200 metres with reasonable regularity either using his crutches or his wheelchair, in the alternative, but if it was wrong about the crutches its conclusion about the wheelchair would still stand. He could mobilise satisfactorily, to the extent that he would score no points under the relevant descriptors, whether he needed the wheelchair to do so or whether he did not but would use it anyway. In these circumstances, therefore, having decided that it was open to the F‑tT to conclude it was reasonable to expect him to use a wheelchair, its decision as to the non‑applicability of the mobilising descriptors which are concerned with distances a claimant can mobilise did not rest upon the conclusions drawn from the examination.  As to the consideration of the GP’s letters, there was nothing in them which suggested any inability to mobilise using a wheelchair.  Indeed, the opposite was implied.  Again, therefore, any error on the part of the F‑tT as to those letters did not impact upon its conclusion that mobilising for the relevant specified distances could be accomplished by the use of a manual wheelchair to the extent that no points under the relevant descriptors were to be awarded.  Again, therefore, no material error of law arose.  

33.      There is, though, descriptor 1(b) which relates to an ability to mount or descend steps. The F-tT, although it said it was considering “each claimed descriptor in turn” did not specifically address the ability to use steps. It did not do so, presumably, because having found (through an impermissible method) that there was no muscle wasting such that the appellant was more active than claimed and having decided, for reasons which in part involved legal error (see paragraph 22 above) that the GP letters were only to be accorded little weight, it was obvious he could manage two steps. The appellant’s representative did not raise this as a specific point of concern in the grounds of appeal but, in any event, even if the F-tT’s failure to specifically address this descriptor was an error, it could not have been material, absent the award of points under any other descriptor, given that it could only have led to an award of 9 points which would have been below the 15 point threshold.     

34.	There are some further considerations it is necessary to touch upon.  The appellant’s representative had suggested points should be awarded in relation to the descriptors concerned with the activity of reaching when preparing a written submission for the benefit of the F‑tT prior to the oral hearing.  There has, since that submission was prepared, been a change of  individual representative but the organisation employing both the first and second representative has been the same.  The F‑tT did not refer to the contention regarding reaching when explaining its decision.  However, no complaint is made about that in the grounds of appeal to the Upper Tribunal.  Further, it is clear from a careful reading of the submission that the then representative (the first one) had been arguing for points on the basis of a claimed inability to reach “down to the floor” in order to pick up items.  The descriptors, though, test the ability of a claimant to raise either arm above certain levels, the lowest being a top pocket of a coat or jacket.  In these circumstances it was not an error for the F‑tT to disregard the contention regarding the reaching descriptors even though it had been expressly raised. 

35.	As to the F‑tT’s consideration of the descriptors relating to “continence” it had noted a reference in the letters written by the GP to “faecal incontinence” in the letters of 17 August 2011 and 11 February 2013.  The F‑tT, noting the lack of any recent referral for specialist consideration, had concluded, notwithstanding what the GP had to say, that the problem was one of urgency rather than incontinence.  That conclusion is not the subject of any specific attack in the grounds of appeal to the Upper Tribunal but, I suppose, it might be  thought that those grounds, whilst seemingly directed principally or exclusively towards the mobility issue, encompassed, if only by implication, a complaint regarding the treatment of the GP’s view as to incontinence.  However, what the GP had to say about that particular matter was quite limited.  What he said in both letters was that the appellant “sometimes” may suffer “some faecal incontinence if he is not able to get to the toilet in time”.  That does not read as an indication of a serious or significant problem. Given the use of the words “sometimes” and “may” and the seeming suggestion that the problem would only arise as a consequence of the appellant not being able to get to a toilet on time, it was open to the F‑tT to conclude, for the careful reasons it gave at paragraph 32 and 33 of its statement of reasons, that what was being described did only amount to urgency.  

36.	The appellant’s competent representative has not sought to raise any other issues in the grounds of appeal or subsequently.  No complaint is made regarding the F‑tT’s treatment of any other descriptors nor its consideration or regulation 29.

37.	For the reasons set out above, therefore, I conclude that although the F‑tT did make errors none of them were material. Accordingly, this appeal to the Upper Tribunal is dismissed with the consequence that its decision of 31 January 2014 shall stand.

			(Signed on the original)   
							M R Hemingway
							Judge of the Upper Tribunal

			Dated:				28 May 2015