IN THE UPPER TRIBUNAL	Case No.CE/3010/2011
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I remit the case to be reheard by a new tribunal in accordance with the directions given below.

REASONS FOR DECISION

1.	 In this case, the claimant was in receipt of ESA from 1 December 2009.  He completed a limited capability for work questionnaire in October 2010, and was examined by an approved disability analyst (a registered nurse) on 10 November 2010.  The decision maker adopted the findings of the approved disability analyst that the claimant scored no points on the physical or mental descriptors and accordingly superseded the original award of ESA from and including the date of his decision, 15 November 2010.

2.	The claimant appealed, but, following an oral hearing attended by the claimant, his appeal was disallowed.  The tribunal agreed with the decision maker and the approved disability analyst that the claimant scored no points at around the date of the decision on the assessment under schedule 2 to the Employment and Support Allowance Regulations 2007 as to whether the claimant had limited capability for work.

3.	The claimant’s appeal, brought with the permission of a Judge of the Upper Tribunal, alleges errors of law on the part of the tribunal in relation to two descriptors:  descriptor 3, the bending or kneeling descriptor and descriptor 19, coping with social situations.

4.	In relation to bending and kneeling, the claimant had stated in the questionnaire that it varied whether he could bend, squat or kneel to pick something off the floor, and stand up again without help from someone else.  He explained that he was unable to squat or kneel under any circumstances.  He could bend about half way but with discomfort and was unable to pick objects off the floor.  The approved disability analyst noted that the claimant told him that he could load and unload “a washer” himself, using his left arm.  He bent with his left leg to squat about half way, placing his right leg out at an angle to avoid bending it under load.  He found that the claimant had forward flexion to his knees and squatted in an adapted fashion keeping his right leg straight.  He had a slightly limited right leg raise and some limitation in his right knee flexion.  Otherwise his lower limb movements were all normal and it was unlikely that he had a significant problem with his lower limbs.  He could bend forward to reach his knees.  Power in the left leg was normal.  

5.	Although reports were submitted, on appeal to the tribunal, from a GP and a senior Mental Health Practitioner, these concentrated largely on mental health issues.  The GP referred to right shoulder problems, but at p.82 was of the view that the claimant had no problems bending or kneeling.

6.	The tribunal accepted the medical evidence of the approved disability analyst and the GP.   It made no findings of fact, however, as to whether the claimant could bend his right knee normally when squatting, or whether he would need to keep his right leg relatively straight , bending only his left leg, in the manner used by him at the medical examination.  On this appeal it is contended that the tribunal erred in law because, if he could only go down bending one knee and keeping the other leg straight, that would not be squatting with the meaning of the descriptor.

7.	The claimant sought permission to appeal on this ground contending that the tribunal did not apply the descriptor correctly on the basis that squatting involved bending through your knees until your hips come lower than parallel, whereas the claimant bent only through one knee and in addition he held onto furniture for balance.  In response to the submissions of the representative of the Secretary of State on this appeal it is also said that the tribunal did not ask adequate questions to ensure that the claimant did not use support when dressing, loading his washing machine etc.

8.	In giving permission to appeal, Upper Tribunal Judge Jacobs observed that he was not sure this ground was arguable as he should be able to reach the floor in the manner he described, which was surely the function with which the descriptor was concerned.  I agree.  The question in relation to descriptors 3(b) and (c) is whether a claimant can bend, kneel or squat as if to pick up a light object as there described and straighten up again without the help of another person.  It appears to me that if a claimant can bend one knee, even with the other much less bent, or straight, so as to pick up that object and straighten up, then he cannot score on these descriptors.  A separate question is whether the tribunal properly investigated whether he needed to hold onto something when doing this.

9.	It is true that the tribunal might have specifically asked about holding on.  However, there is no mention by the approved disability analyst that the claimant held on when going down or up, as one might expect if that is what occurred.  Neither the approved disability analyst nor the claimant’s GP considered that the claimant would have any problem with these descriptors and in my judgment the tribunal was entitled to prefer the clear evidence of both experts to that of the claimant and gave good reasons for doing so.

10.	Secondly, it is said that the tribunal failed adequately to consider descriptor 19.  This provides that the claimant scores points if normal activities, for example, visiting new places or engaging in social contact, are precluded because of (or due to) overwhelming fear or anxiety.  This is to be read in the context of the heading to descriptor 19 “Coping with social situations”.  If such normal activities are precluded 15 points are scored.  If they are precluded for the majority of time, 9 points are scored and if they are frequently precluded, 6 points are scored.  This is not an entirely easy descriptor to understand.  “Normal activities” plainly includes more than just visiting new places or engaging in social contact, as these are given as examples.  There are other activities that might be regarded as normal activities in the context of coping with social situations.  On the other hand, it cannot have been intended that a claimant should be unable to engage in any form of social contract with any member of his family to qualify.  

11.	It does not appear to me to be necessary that all normal activities must be precluded but only that some more than minimal normal activities should be so precluded.  For descriptor (a) such preclusion should be all the time, or substantially all the time; for descriptor (b) it should be for the majority of the time and for descriptor (c) such preclusion should be frequent.  In each case the preclusion must be because of overwhelming fear or anxiety.

12.	In the ESA questionnaire, the claimant described himself as suffering from depression.  He indicated no problem with any of the mental descriptors except going out, when he said that he did not always feel confident enough to leave home and go out to places he knew.  Specifically, he stated that the thought of meeting new people or going to new places did not make him anxious or scared (p.26).  In describing his condition to the approved disability analyst, he described himself as having low mood and low motivation in relation to anxiety and depression, and to his getting irritable of late and some anxiety, but no panic attacks (pp.35, 46).  His behaviour at the examination was normal.

13.	While the report of a senior Mental Health Practitioner dated 6 January 2011 identified significant mental problems, dating back to when she first saw him in November 2010, they are largely depression related.  She does refer to his having recently reported experiencing symptoms of panic when in unfamiliar surroundings, but that suggests that the symptoms of panic were after the date of the decision on 15 November 2010 and were not then present.  They were not referred to in an earlier report dated 16 December 2010 (pp.77-78), although other serious mental problems are identified there.  It would also indicate that the symptoms of panic had not at that stage precluded him from visiting unfamiliar places, or that they were overwhelming.

14.	His GP submitted a short report which was faxed on 24 March 2011, and which states that moderate to severe anxiety/depression started in July 2010, and that he was agoraphobic and had little social contact.  A comment at p.80 suggests that agoraphobia was first reported on 6 January 2011.  However, the GP identified problems with memory and concentration (descriptor 14(c)), for which there was evidence at the time of the decision maker’s decision in November 2010, with coping with change (descriptor17(c), and with coping with change (descriptor 19(a)).

15.	The tribunal preferred the claimant’s account of his problems when he completed the ESA questionnaire together with the evidence of the approved disability analyst, pointing out that the GP had not seen the claimant until after November 2010 and that there was evidence of a significant deterioration of mood after this time and an increase to suicidal ideation.  It also noted that the claimant visited a counsellor weekly, went to the examination centre alone and shopped at the supermarket.

16.	In seeking permission to appeal, it is pointed out that these last places were familiar places with the exception of the examination centre, which it was said he could only cope with by coming by taxi.  It is also said that he was not asked about other places he attended alone and where and if he went out alone and with which he was unfamiliar.

17.	Descriptor 19 is concerned with normal activities, not getting to a specified place unaccompanied.  Insofar as visiting new places is concerned for the purposes of descriptor 19, there is no requirement, unlike descriptor 18, that the claimant should be unaccompanied.  The normal activity of visiting new places is not precluded because the claimant needs to be accompanied.  Further, again unlike descriptor 18, the reason why the claimant is precluded from normal activities must be overwhelming fear or anxiety.  The claimant had stated in the questionnaire that although he had problems with going out, he did not have them if there was somebody to go with.

18.	In the end, however, I am not satisfied with the way in which the tribunal dealt with the evidence of the GP.  In relation to the physical descriptors, the tribunal relied in part on the evidence of the GP which went against the claimant and  which it said was based on surgery notes (p.97, paragraph 10).  It then went on to reject the GP’s evidence on the mental descriptors in support of the claimant on the basis that the GP produced no evidence to support his statements (p.98, para.13).  

19.	So too, with the Mental Health Practitioner’s evidence, it is said that she had only known the claimant from November 2010 (para.15).  But 15 November 2010 was the date of the decision.  There is no enquiry as to how the claimant came to be referred to the Mental Health Practitioner (in his questionnaire he refers to an appointment on 21 October 2010 at a local primary care centre for mental health – see p.7) or for how long the GP had been treating him.  He also states that he was diagnosed with depression and given citalopram on 17 September 2010, with that dosage being increased, apparently, on 13 October 2010 – see p.8, where he also stated that the tablets made him tired by day and kept him awake by night and that he had slight memory loss.  I also note that 2 GP’s appear to have been treating him (see pp.3 and 8) and that the GP’s report came from a third GP, who may have had to rely on the notes of the others.  

20.	Finally, I note that the report at p.80 (whether of the Mental Health Practitioner or the GP is not entirely clear) is specifically stated to be as of 22 November 2010, very close to the date of the decision.

21.	I have come to the conclusion that the tribunal has failed to give adequate reasons for its rejection of the professional mental health evidence put forward by the Mental Health Practitioner and the GP.  I therefore set aside the decision as in error of law and I remit the matter for rehearing before a new tribunal, which could well be assisted by a direction for the production of the claimant’s GP’s medical records and any contemporary notes made by the Mental Health Practitioner.  The result is that all the descriptors claimed will need to be re-examined by the new tribunal as at 15 November 2010 on the basis of the evidence before it.  It will need to consider the condition of the claimant at that time, and will need to bear in mind that a condition may well have deteriorated before that was picked up by the GP or Mental Health Practitioner, and that this will depend in part on when the claimant was seen by them.

22.	Unless the claimant’s condition has now improved, he may also wish to consider a further claim for ESA, since on the evidence his condition may well have deteriorated after 15 November 2010 and any such deterioration cannot be taken account of by the new tribunal in coming to its decision on this appeal.  Any such new application would involve consideration of differently worded descriptors introduced early in 2011 in place of those which applied in November 2010.  The rehearing of the present appeal will however be by reference to the descriptors applying at the date of the decision in November 2010.

(signed)		Michael Mark
			Judge of the Upper Tribunal

			3 July 2012