CE/2275/2011

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision 

1. This appeal by the claimant, brought with my permission given on 19th December 2011, succeeds. In accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting in Stoke and made on 5th January 2011 under reference 049/10/00802. I substitute my own decision. This is to the effect that as from 1st November 2009 the claimant has both limited capability for work and limited capability for work related activity and (subject to the satisfaction of the other conditions of entitlement) is entitled to employment and support allowance (“ESA”) on this basis. I refer to the Secretary of State any questions relating to payment of arrears of any benefit.

The Legal Background

2. This appeal involves a limited point of legal interpretation, but one which has consequences for the way in which the claimant is entitled to ESA. In summary, if the claimant were to be found to have limited capability for work related activity she would be placed in the support group, would receive the support component (a higher amount of benefit) and would not have to participate in the various interviews and activities in which she would otherwise have to participate.
 
3. Section 1(2)(a) of Welfare Reform Act 2007 provides that a claimant is entitled to ESA if she satisfies the “basic conditions”. The basic condition relevant in this case is defined in section 1(3)(a) as being that the claimant “has limited capability for work”.

4. Section 1(4) of the Act 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.

5. Section 8 of the 2007 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. 

6. Regulation 19 of and Schedule 2 to the Employment and Support Allowance Regulations 2008 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. 

7. Section 9 of the 2007 Act provides that whether a person’s capability for work related activity is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require her to undertake such activity shall be determined in accordance with regulations.
 
8. Regulation 34 of and Schedule 3 to the Employment and Support Allowance Regulations 2008 provide for this determination. Where “by reason of the claimant’s physical or mental condition” at least one of the descriptors set out in Schedule 3 applies to the claimant for the majority of the time or on the majority of the occasions on which the claimant undertakes or attempts to undertake the relevant activity, her capability for work related activity is limited such that it is not reasonable to require her to undertake such activity.  

9. The above underlining is mine and is intended to show the distinction between the two types of assessment.

Background and Procedure

10. The claimant is a woman who was born on 22nd May 1981. She had worked in the pottery industry until late 2008. So far as concerns the present appeal the claimant was awarded ESA from 28th October 2008 on the basis that she was suffering from depression and diabetes. On 16th February 2009 she completed form ESA 50. This is a 26 page questionnaire about limited capability for work and is reproduced in the Upper Tribunal file. She referred to a number of physical difficulties as well as to depression, lack of confidence, panic attacks and “nerves”. A subsequent letter on her behalf from the CAB referred to “very severe post natal depression” after the birth of her daughter in July 2009. There had been care proceedings in relation to the baby and unsubstantiated allegations of abuse.

11. On 12th October 2009 claimant was examined on behalf of the Secretary of State by Dr Seehra. Dr Seehra was of the opinion that such descriptors applied as would not carry any points. On this basis the Secretary of State decided on 1st November 2009 that as from that date the claimant no longer had limited capability for work and was not entitled to ESA. On 2nd December 2009 the claimant appealed to the First-tier Tribunal against that decision of the Secretary of State. 

12. On 14th December 2010 a report was signed by the local MIND Counselling Service Manager. This confirmed that they had first seen the claimant in October 2008 due to work related stress and she returned later. It was clear to them that throughout the relevant period she would have been in a very poor state of health and unable to seek or retain work, was depressed and anxious because of all that had happened and was unable to make decisions. “The overwhelming nature of the circumstances would have a very detrimental; effect on anyone’s ability to operate in a normal functioning way” (page 71 of the file).

13. The First-tier Tribunal eventually considered the matter on 5th January 2011 and allowed the appeal to the extent of deciding that as from 1st November 2009 the claimant had limited capability for work. The tribunal accepted the evidence from the appellant that because of her depression she needed encouragement from someone else to start and keep on with routine jobs, every day. It also accepted the evidence from MIND. The tribunal found that descriptor 16(a) in Schedule 2 applied. This carries 15 points and at the relevant time read as follows:

16(a) Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks).
 
14. It was not necessary for the tribunal to find whether any other descriptor in Schedule 2 did or did not apply and it did not do so. It did state in paragraph 12 of its statement of reasons that:

“We were not asked to consider any Activities under Schedule 3 of the ESA Regulations 2008 by the appellant or her representative, but we took the view that none of them did”.

The Appeal to the Upper Tribunal 

15. When I refer hereafter to the claimant doing something in the proceedings or arguing a particular point, I am intending to refer to actions or points made on her behalf by her representatives.

16. On 16th May 2011 the claimant applied for permission to appeal to the Upper Tribunal, essentially on the grounds that if the First-tier Tribunal finds that descriptor 16(a) of Schedule 2 applies, then it must consider (and apply) descriptor 10 of Schedule 3. At the relevant time descriptor 10 read as follows:

	10. Personal Action

(a) Cannot initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks);

(b) Cannot initiate or sustain personal action without requiring daily verbal prompting given by someone else in the claimant’s presence; or

(c) Fails to initiate or sustain basic personal action without requiring daily verbal prompting given by someone else in the claimant’s presence owing to a severe disorder of mood or behaviour.

17. The claimant argued that 16(a) in Schedule 2 and descriptors 10 (a), (b) and (c) in Schedule 3 “correspond exactly”.

18. On 13th July 2011 the District Tribunal Judge of the First-tier Tribunal (who had chaired the panel on 5th January 2011) refused permission to appeal to the Upper Tribunal on the basis that the Schedule 3 assessment was more stringent and a person could only enter the support group if they had a severe level of functional limitation. He cited the statement of the Minister in the relevant parliamentary committee considering the legislation that “we intend to place in the support group only the minority of customers (sic) who are so severely impaired that it would not be reasonable to undertake work related activity”.

19. The claimant renewed her application direct to the Upper Tribunal and on 19th December 2011 I gave permission to appeal on the basis that it raised genuine issues of law. Unfortunately, this was not issued for three months.

20. The Secretary of State (in a written submission of 25th April 2012) opposed the appeal and supported the decision of the First-tier Tribunal, essentially on the same basis as that explained by the District Tribunal Judge when refusing permission to appeal. The claimant referred to the absolutely identically worded “reaching” descriptor in 4(a) of Schedule 2 (which carries 15 points) and descriptor 4 in Schedule 3, as an example which rebuts the suggestion that a person qualifying under Schedule 3 must inevitably be more severely impaired than one who qualifies under Schedule 2.

Conclusions

21. Irrespective of what the Minister told the relevant committee, looking at the wording of the legislation and regulations I cannot find any support for the Secretary of State’s argument that a person qualifying under Schedule 3 must inevitably be more severely impaired than one who qualifies under Schedule 2. The claimant’s reference to the reaching descriptors is persuasive on this point.

22. The only difference between the wording of descriptor 16(a) in Schedule 2 and descriptor 10(a) in Schedule 3 is that 16(a) contains a cause of the inability to carry out the specified tasks (cognitive impairment or a severe disorder of mood or behaviour). Arguably this actually makes 16(a) narrower than 10(a). In any event, the First-tier Tribunal having found that 16(a) applies, it is a necessary consequence that 10(a) applies, leading to the decision that I have made above.

23. For the above reasons this appeal by the claimant succeeds.

H. Levenson
Judge of the Upper Tribunal 
14th August 2012