Secretary of State for Work and Pensions v LC (ESA) (Employment and support allowance : Post 28.3.11. WCA activity 6: making self understood) [2014] UKUT 268 (AAC) (11 June 2014)

THE UPPER TRIBUNAL Appeal No. CE 3939 2013

ADMINISTRATIVE APPEALS CHAMBER

Secretary of State for Work and Pensions v LC (ESA)

DECISION

The appeal is allowed.

For the reasons below, the decision of the First-tier tribunal is set aside.

I refer the appeal to a new tribunal to decide the appeal again in accordance with the directions set out at the end of this decision.

REASONS FOR DECISION

1 The Secretary of State for Work and Pensions is appealing with permission of a First-tier Tribunal judge against a decision of the First-tier Tribunal sitting at Truro on 25 03 2013 under reference SC 208 12 01791.

2 The issue for decision by that tribunal was an appeal by the claimant against a decision that the claimant was no longer to be treated as having limited capability for work from 16 08 2012. The decision made on that date superseded the previous award of benefit to the claimant to stop entitlement to benefit.

3 The First-tier Tribunal held an oral hearing at which the appellant attended with her grandmother. The Secretary of State was not represented. There is a full record of proceedings of the hearing. The tribunal allowed the appeal. It found as fact that descriptor 16a of the descriptors in Schedule 2 of the Employment and Support Allowance Regulations 2008 applied. This is the highest level descriptor about coping with social engagement due to cognitive impairment or mental disorder. It applies to someone for whom:

“engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual.”

4 The tribunal also found that activity 13 of Schedule 3 was met. That is an identical test. That is, however, subject to regulation 34(2) of those regulations:

“A descriptor applies to a claimant if that descriptor applies to the claimant or 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.”

Regulation 34(2) is part of the regulation that enables Schedule 3. There is no direct equivalent in regulation 19, which enables Schedule 2, or the provisions that follow it save for the general rule in regulation 27:

“A claimant who at the commencement of any day has, or thereafter develops, limited capability for work as determined in accordance with the limited capability of work assessment is to be treated as having limited capability for work throughout the day.”

5 The Secretary of State asked for a statement of reasons for this decision and, having received it, appealed. There are in essence two grounds of appeal: that the evidence before the tribunal was such that it was perverse of the tribunal to make the finding it did about social contact and that the tribunal failed to restrict itself to the evidence at the time of the original decision.

The date of the original decision

6 I deal with the timing point first. The original decision was made on 16 08 2012. The appeal was heard by the tribunal on 25 03 2013. I agree with the Secretary of State that it is clear law that it is only the circumstances leading up to and at the date of the original decision that are relevant to the appeal. Later evidence of those circumstances is admissible but not later evidence of later circumstances.

7 The earlier part of the First-tier Tribunal statement of reasons (paragraphs [3] to [11]) sets out in summary form key aspects of the evidence recorded in the form ESA85 by the nurse who conducted the medical examination for the Secretary of State. That was undertaken shortly before the decision under appeal and is plainly timely evidence. The letter from the general practitioner is also timely evidence. That is quoted and accepted in paragraphs [21] to [24]. But the tribunal also considers aspects of the case that occurred after that date, for example the continuation of the claimant’s work (paragraph 13) and the recent steroid course (paragraph 18). Critically, the key finding of the tribunal is that “Activity 16(a) was satisfied because, unfortunately, engagement is (sic) social contact is now (emphasis mine) always precluded due to difficulty …”. Looking at the decision as a whole, I agree with the Secretary of State that it is not clear that the tribunal focussed only on the events at the relevant date when reaching that plainly ambiguous finding.

The extent of social contact

8 The more significant point is whether the relevant evidence supports the finding just noted.

9 There has been some discussion in the Upper Tribunal about the operation of descriptor 16 in Schedule 2 and with that the relevant descriptor in Schedule 3. Looking at the plain language, and setting aside for a moment the context, the test is concerned only with social contact. I do not need in the context of this case to consider forms of contact other than social contact. The tribunal rightly did not seek to make any point about the presence of the claimant at the hearing and nor did the Secretary of State.

10 The second point is that the focus is on the extent to which such contact is possible.

If contact with unfamiliar people is possible for some of the time, but not a majority of the time, then 16(c) provides that this is a relevant limit (6 points). Contact with familiar people is irrelevant at that level. If contact with unfamiliar people is “always precluded” then the relevant limit is higher (9 points). Again, contact with familiar people is not relevant. It is only if contact is “always precluded” with anyone, familiar or not, that the full 15 point level becomes relevant.

11 Once the level of preclusion is identified, the cause must also be considered. Is the preclusion caused by difficulty relating to others, or by significant distress experienced by the individual (or a combination of both)? If it is, then the preclusion is of a kind that entitles the individual to be regarded as limited to the extent set in the descriptor.

12 The language of these tests seems to me to be ordinary English, but that must be seen in the context of the enabling provisions if relevant. And inevitably that leads to close examination of two of the terms in that descriptor: “always” as against “a majority of the time” and “unfamiliar”. No point was taken about the meaning of “unfamiliar” here because the tribunal found all social contact to be precluded. If that point becomes relevant before the new tribunal then I direct its attention to the decision of Judge Ward in AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 0552 (AAC). I agree with him that attendance at a medical examination or a tribunal is not social contact. It is open to decision on the facts, in my view, what happens when an individual will only meet unfamiliar people if a familiar person is also present - something with which tribunal judges are familiar. For example, the claimant attended the tribunal hearing in this case with her grandmother.

13 The critical question is whether “always” means “always” given the context of regulation 34(2). On this I agree with the persuasive analysis of Judge Mark in LM v Secretary of State for Work and Pensions (ESA) [2013] UKUT 552 (AAC). It is plain from the wording of descriptor 16 read as a whole that “always” cannot mean “for a majority of the time”. I agree with him that descriptor 16(a) cannot be read down to meet the test in regulation 34(2) because that test is the test in 16(c). It must be a noticeably higher preclusion than that. And in my view that is stressed by the difference between “always” having problems engaging in social contact with strangers (16(b)) and “always” having problems engaging in social contact with anyone (16(a)). The only other help given by the context of the regulations is the long-established rule in regulation 27 that satisfaction of the test during part of a day means that the test is met that day. So “always” can be read as meaning “every day” but not “every moment”. That may be important where, as here, the claimant stated that her problems are variable.

14 In practice, establishing these levels of preclusion usually will be part of the same evidence-gathering process as that of determining why social interaction is precluded. In some cases it may be that the reason for the problem (severe mental health limitations preventing social interaction, for example) establishes of itself the extent of the problem. In those cases there may be little difficulty in establishing the true level of preclusion. But in many cases, as this one, the cause indicated does not establish any particular level of social preclusion.

15 The test being applied by the tribunal in this case is therefore a high one, and a finding that it applies a majority of the time or to some social situations only is not enough. What was the evidence before the tribunal? First, in her replies in the standard ESA50 the claimant states that her ability to engage in social contact varies and that she has no problems with the other social or cognitive functions. Second, this is not specifically mentioned in the notice of appeal or the accompanying letter from the general practitioner. Third, her general evidence to the nurse conducting the ESA85 examination is of good days and bad days. But she also gave evidence to the nurse of working 12 hours a week as bar staff, usually working on Sundays, Mondays and Wednesdays. The work included interacting with customers and talking to them. Relying on this information, the nurse found no problems with social interaction. The tribunal discussed the claimant’s work and meeting people at the hearing. It records from that that the work ended before the hearing, but some months after the original date of decision.

16 The tribunal nonetheless went on to make the finding noted above. And it supported that by the finding that this was caused “because of the worry that she is predisposed to have and also the onset of the asthma which is caused to her (paragraph 25).”

17 Following the usual procedure, the claimant was invited to comment on the submissions made for the Secretary of State. Her submission in reply was a robust defence of the decision on the facts. As she had no representative or legal help with the appeal, I did not expect her to deal specifically with the legal points. But it does not provide a basis for removing the problems or closing down the doubts I have set out above.

18 The claimant stresses that her work at the bar was accepted as exempt work for the purposes of her claim for benefit. The Secretary of State does not disagree with that. But the Secretary of State is correct to point out that while this does not prevent a claim for benefit, it does not stop the evidence that an individual can undertake the work being relevant evidence about the application of specific descriptors to the individual.

19 I agree with the Secretary of State that the tribunal has not shown on what evidence it was able to find that the claimant was always precluded from social contact with anyone. It is not even clear that social contact with familiar people was precluded at all. Further, it is not clear why the reasons found by the tribunal as causing the preclusion applied to social contact with familiar people. Did those reasons preclude social contact with her grandmother or other members of her family? Nor does the tribunal explain how it could reconcile its finding of “always” with the clearly established evidence that the claimant worked at the relevant time part time three days a week in a bar on her own, so I assume without other (familiar?) staff present.

20 I therefore set aside the decision of the tribunal. It must be reheard by a different tribunal.

21 I have made no comment on the application of any other descriptor to this case. That is not to be taken as any guidance that no other descriptor is relevant. That is an issue for the new tribunal to consider on all the evidence.

22 Finally, I must emphasise to the claimant that this decision and the further hearing apply only to the decision made on 16 08 2012 stopping her award at that time. It may be that her current circumstances are such that she would now be entitled to make a new claim. If so, this decision does not prevent her making that claim, and she need not wait for the rehearing before considering doing so. But she is advised to consider seeking help from a Citizens' Advice bureau, welfare rights office, solicitor or other welfare law expert and to obtain updated medical evidence of her limitations if she wishes to do so.

Directions for new hearing

A The new hearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a tribunal judge.

David Williams

Upper Tribunal Judge

11 06 2014

[Signed on the original on the date stated]

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