MR T HEWETT v MOTOROLA LTD [2004] UKEAT 0526_03_1602

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0526_03_1602Case No Appeal No. UKEAT/0526/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T HEWETTAPPELLANTMOTOROLA LTDRESPONDENT
Before
His Honour Judge Ansell Mr D EvansDate 16 February 2004
[1]APPEARANCES For the Appellant MR P EPSTEIN (of Counsel) Instructed by: Disability Rights Commission 2nd Floor, Arndale House Arndale Centre Manchester M4 3AQ For the Respondents MR T BRENNAN QC (of Counsel) Instructed by: Messrs Hammond Solicitors Trinity Court 16 John Dalton Street Manchester M60 8HS HIS HONOUR JUDGE ANSELL This is an appeal from a Decision of an Employment Tribunal sitting at Bristol on 3 April 2003, who in a Decision promulgated on 29 April held that at the relevant time Mr Hewett was not disabled within the meaning of section 1 of the Disability Discrimination Act 1995 . At the hearing Mr Hewett represented himself and the Respondents were represented by Mr Brennan QC, who has appeared before us. Leave for this hearing was given by His Honour Judge Peter Clark in Chambers on 7 July 2003. The issue before the Tribunal and before us is whether the long term impairment suffered by Mr Hewett of Autistic Spectrum Disorder and/or Asperger's Syndrome affected substantially his ability to carry out normal day to day activities, and in particular his ability to concentrate, learn or understand.[2]The Appellant was employed as a Firmware Engineer by the Respondents from 14 August 2000 to 27 October 2002. His initial claim was presented prior to his dismissal, contending that he had been unlawfully discriminated against in breach of section 5(1) of the Disability Discrimination Act 1995 in relation to the Respondents' assessment of his performance in its February 2002 appraisal, and that the Respondents had failed to make reasonable adjustments to the employment arrangements in respect of its employment policies and practice and failed to provide training supervision, assistance and failed to modify the procedures for assessment. In its Notice of Appearance the Respondents denied that the Appellant was a disabled person and denied discrimination. A second application was presented on 17 January 2003 following the resignation from his employment on 27 October 2002, making further allegations of less favourable treatment under section 5(1) of the Disability Discrimination Act , and further allegations as to failure to make reasonable adjustments under section 5(2). Again, the Respondents denied that the Appellant was a disabled person and denied discrimination. The proceedings were consolidated and the Tribunal directed that there should be a preliminary hearing of the issue as to whether the Appellant was, at the relevant time, disabled.[3]In his IT1 the Appellant contended that his impairment, without relevant medical medication or treatment, affected his memory or ability to concentrate, learn or understand and he gave two examples, namely that he:
" - is persistently unable to remember the names of familiar people such as family or friends; - is unable to adapt after a reasonable period to minor change in work routine."
[4]In his witness statement, which appears to have been accepted by the Tribunal, the Appellant said this:
"3. This disability has a substantial effect on my normal day-to-day activities, particularly in the following ways: a) The disability makes it hard for me to make and keep friends and to have intimate relationships, which leaves me deprived of the normal levels of support that contact with people can bring. Most of my life is spent as a solitary existence. b) The disability leaves me largely excluded from being part of the normal dynamics which exist between people, often causing isolation, exclusion and also rejection by others. I need to constantly remind myself of the existence and needs of others, which uses energy and leads to me being more susceptible to hitting my personal stress limit when relating with others. c) The disability makes interactions with others, particularly with people I've not met before, and groups of people where there are many dynamics involved between the individuals, highly stressful. These are situations which I dread and it takes considerable effort to overcome the urge to avoid these situations altogether. Trying to control the urges to avoid involvement and instead to listen and absorb what someone is saying often reduces my ability to pay attention to what is being said. People often get the impression that I am being rude and/or ignorant and this contributes significantly to the cycle of exclusion and rejection. d) Because of the stress associated with my disability, stressful situations in the workplace have caused me to be unable to concentrate on my work and I have been on sickness absence as a consequence of not being able to perform my duties. e) Because of the isolation that my disability imposes, I find it necessary to use counselling services on a weekly basis. This provides my one regular and reliable contact with another person, and with someone who also is able to understand and tolerate the effects of my disability so that I need not fear that the relationship will be destroyed by the effects of it. I have used weekly counselling since September 1993"
[5]Three medical reports were put before the Tribunal; firstly on behalf of the Appellant, the report of Dr A Wilkins, a Consultant Psychiatrist, of 23 April 2002, whose diagnosis was that Mr Hewett had many features of the Autistic Spectrum Disorder and:
"I would say that he probably conforms to a diagnosis of Asperger's Syndrome"
That report suggested that he was particularly well suited to working in the electronics industry, but made him a rather difficult man to manage or to integrate within the organisation as a whole, and suggested that he might require special assistance in relation to his management. Dr Wilkins suggested that a clinical psychologist would be a benefit to Mr Hewett, rather than unstructured counselling. The evidence before the Tribunal was that Mr Hewett had been seeing a counsellor every week for the last five years. Dr Muir, Mr Hewett's General Practitioner, in a report dated 17 January 2003, confirmed that he had seen Dr Wilkins' report and confirmed the diagnosis. In his view the key characteristics of the disorder included:
"(1) Difficulty of social relationships. (2) Difficulty with communication. (3) Special interests."
Dr Muir set out that Mr Hewett found that certain situations requiring human interaction caused him stress, fatigue and mental pain and he continued as follows:
"He finds it hard to understand non-verbal signals and "coded messages", including facial expressions, aspects of human interaction which for the majority of us are instinctive"
[6]In respect of the effect on day-to-day activities, namely memory or ability to concentrate, learn or understand, Dr Muir wrote:
"Timothy's problems with social relationships and communication can lead to a problem in concentrating and paying attention to what is said, particularly if instructions involve human assumptions and coded messages. He regards himself as a "team player" and indeed wants to be a "team player", but only thrives when emotional overtones and coded messages are kept to a minimum. He can easily feel like an outsider."
Dr Muir said that this had had a serious effect on Mr Hewett which is more than minor or trivial, and that he had become socially isolated with few friends and no workmates, a characteristic of people with Asperger's Syndrome. Dr Muir found that the effects were long-term and had lasted more than twelve months.[7]The Respondents relied on a report from Dr Nicholas Myttas, a Consultant Developmental Neuropsychiatrist, who found that Mr Hewett had signs and symptoms suggestive of a "Pervasive Developmental Disorder", classified as F84 within the International Classification of Mental and Behavioural Disorders, where Asperger's Syndrome F84.5 is a sub-category, and he concluded that it falls along the autistic continuum on the mild end of the spectrum. He described it as an inherited congenital neuro-developmental condition, sometimes referred to as "High Functioning Autism" and that at the same time, he suspected that Mr Hewett also suffered from "Mixed Anxiety and Depressive Disorder", categorised as F41.2. These categories were not a mental illness, but a developmental disability, being a defect in a child's developmental process. As regards the effect on his normal day to day activities, Dr Myttas' report, quoted by the Tribunal, set out the position thus:
"Were Mr Hewett expected to socialise, take part in small talk, initiate and sustain conversations, answer questions in a reciprocal manner, expected to form and maintain relationships at a level beyond the concrete tasks that sustain him, manage people or lead a team, he would very likely, be inept. People with autistic traits are socially inept to a varying degree. They have some primary social deficits; they are inflexible, unyielding and stubborn. However, were his duties to be solitary, not requiring social interaction at a subtle level, clearly outlined and communicated in concrete, non ambiguous terms, and were he allowed to use his initiative and inventiveness, he should not have much difficulty."
His conclusion was:
"It is my view that his condition has had a mild effect on his day-to-day activities but that at times of stress, it would have had a more moderate effect. Those effects would last more than twelve months". "
[8]Dr Myttas' conclusions were that there was no substantial effect on Mr Hewett's day to day activities as regards memory or ability to concentrate, learn or understand. Dr Myttas concluded that Mr Hewett might have mild difficulty to link names to faces, although he had not observed that when he saw him, and that he had demonstrated remarkable memory for events. His obsessional traits could slow him down in carrying out certain activities and he does not take easily to change, but he did not form the impression that he was incapacitated to any significant effect. He would have mild difficulties in understanding the subtleties of human non-factual communication .[9]The Tribunal's findings and conclusions were set out in paragraphs 20 - 22 of their Decision as follows:
"20 In respect of memory or ability to concentrate, learn or understand. The tribunal finds that on occasions the applicant may have had his ability to concentrate impaired to some extent by the difficulty he faced in social interaction. He explained that when he had to have a meeting with someone, he would have to pluck up his courage to go and see them and this could affect his ability to concentrate. He said that particularly when he was stressed, his mind went blank. However, the tribunal does not find that such impairment was substantial. The respondent's evidence was that in his work Mr Hewett showed an ability to communicate effectively, could remember names and facts, could adapt to changes in work routine and it was plain from his work record that he had worked effectively in quite technically difficult jobs over a number of years. 21 The difficulties between Mr Hewett and his employers highlighted in the email communications before the tribunal appeared to relate to communication problems and social interaction. The tribunal notes that these were the matters highlighted by Dr Muir in his report. The tribunal accepts the evidence of Mr Hewett in this connection and that this aspect of the effect of his condition upon social relationships and relationships with colleagues caused him distress and difficulty. However, the tribunal is constrained by the specific factors set out in Schedule 1 to the Act, which do not include social interaction or communication. For the reasons stated above the tribunal do not conclude that the impact those difficulties had on Mr Hewett's ability to concentrate was substantial. Indeed Mr Hewett was highly articulate and effective in the giving of his evidence before the tribunal. 22 Conclusion: The tribunal therefore concludes that Mr Hewett suffered from the condition set out by Dr Myttas in paragraph 3,(ii) of his report. The conditions as set out by Dr Myttas are clinically well-recognised. The effect on Mr Hewett was long-term. It undoubtedly had an adverse effect as set out particularly in Dr Muir's report on his ability to participate in human interaction, social relationships and communication. However, those are not matters listed in paragraph 4 of schedule 1 DDA 1995 and therefore, not matters the tribunal is able to take into account. The tribunal does not find that the condition from which Mr Hewett suffered had a substantial and long-term effect on his ability to carry out normal day-to-day activities by reference to those matters set out in paragraph 4 of Schedule 1 to the Act."
[10]Mr Epstein's major complaint about these findings is in relation to the Tribunal's failure to deal with the issue as to whether an inability to understand through "the subtleties of human interaction" can fall within the definition of disability. The Law Section 1(1) of the Disability Discrimination Act 1995 provides that: "1 (1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.[11]Schedule 1 paragraph 4(1) provides that: 4. - (1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following- (a) mobility; (b) manual dexterity; (c) physical co-ordination; (d) continence; (e) ability to lift, carry or otherwise move everyday objects; (f) speech, hearing or eyesight; (g) memory or ability to concentrate, learn or understand; or (h) perception of the risk of physical danger. Section 3 of the Disability Discrimination Act 1995 provides that:
"3. (1) The Secretary of State may issue guidance about the matters to be taken into account in determining- (a) whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or (b) whether such an impairment has a long-term effect. (2) The guidance may, among other things, give examples of- (a) effects which it would be reasonable, in relation to particular activities, to regard for purposes of this Act as substantial adverse effects; (b) effects which it would not be reasonable, in relation to particular activities, to regard for such purposes as substantial adverse effects; (c) substantial adverse effects which it would be reasonable to regard, for such purposes, as long-term; (d) substantial adverse effects which it would not be reasonable to regard, for such purposes, as long-term. (3) A tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant."
[12]Paragraph C20 of the Guidance issued under section 3 (SI 1996/1996) provides that "Memory or ability to concentrate, learn or understand C20 Account should be taken of the person's ability to remember, organise his or her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than is normal. Account should be taken of whether the person has persistent and significant difficulty in reading text in standard English or straightforward numbers. Examples It would be reasonable to regard as having a substantial adverse effect -• intermittent loss of consciousness and associated confused behaviour;• persistent inability to remember the names of familiar people such as family or friends;• inability to adapt after a reasonable period to minor change in work routine;• considerable difficulty in following a short sequence such as a simple recipe or a brief list of domestic tasks. It would not be reasonable to regard as having a substantial adverse effect -• occasionally forgetting the name of a familiar person, such as a colleague;• inability to concentrate on a task requiring application over several hours;• inability to fill in a long, detailed, technical document without assistance;• inability to read at a faster than normal speed;• minor problems with writing or spelling."[13]Further, the Secretary of State under section 53 of the Disability Discrimination Act 1995 may issue a Code of Practice for the elimination of discrimination and section 53(6) provides that:
"(6) If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question"
Paragraph 4.58 of the Code provides that:
"In some cases a reasonable adjustment will not work without the co-operation of other employees. Employees may therefore have an important role in helping to ensure that a reasonable adjustment is carried out in practice. It is a reasonable adjustment for an employer to communicate in a particular way to an employee with autism (a disability which can make it difficult for someone to understand normal social interaction among people). As part of the reasonable adjustment it is the responsibility of that employer to seek the co-operation of other employees in communicating in that way."
[14]In Goodwin -v- The Patent Office [1999] IRLR 4 , Morison P, giving the decision of this Court, set out very helpful guidance as to the Tribunal's approach with regard to the determination of the issue of disability. At paragraph 22 he said thus:
"The tribunal should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament, but with due regard to the ordinary and natural meaning of the words in question. With this legislation, tribunals are given explicit assistance in two forms, which should detract from the need to adopt a loose construction of the language. - Guidance issued on 25 July 1996 under s.3 of the Act by the Secretary of State (Statutory Instrument No 1996/1996) with statutory effect from 31 July 1996; and - Code of Practice issued on 25 July 1996 but with statutory effect from 2 December 1996."
[15]Further, at paragraph 26 he set out the four different conditions that have to be satisfied before a Tribunal can find that an applicant has a disability within the meaning of the Act. "26(1) The impairment condition Does the applicant have an impairment which is either mental or physical? 27(2) The adverse effect condition Does the impairment: affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in para 4(1) of Schedule 1 to the Act, and does it have an adverse effect? 28(3) The substantial condition Is the adverse condition (upon the applicant's ability) substantial? 29(4) The long-term condition Is the adverse condition (upon the applicant's ability) long-term?" At paragraph 35 Morison P said thus:
"The focus of attention required by the Act is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do. The Act is looking to see whether the capacities listed in para 4(1) have been affected. These capacities are those which will be required, to a greater or lesser extent, to carry out normal day-to-day activities, whether at home or at work."
At paragraph 40 he defines the term "substantial" as meaning more than minor or trivial. Finally, at paragraph 42 of the Decision Morison P considered the effect of medical treatment - the so-called "deduced" effect, setting out the position thus. "The tribunal will wish to examine how the applicant's abilities had actually been affected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant's abilities to carry out normal day-to-day activities is clearly more than trivial. "[16]In both Vicary -v- British Telecommunications PLC [1999] IRLR 680 and Leonard -v- Southern Derbyshire Chamber of Commerce [2001] IRLR 19 this Court made it clear that the Guidance issued pursuance to section 3 is only meant to be illustrative and not exhaustive. In Leonard this Court criticised the Tribunal for misapplying the Guidance by "in effect using it as a checklist and slavishly following it". As regards the Tribunal's general function and whether it should have a more inquisitorial role in disability discrimination in cases, the position was made clear by the Court of Appeal in McNicol -v- Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 , where at paragraph 26 Mummery LJ set out the position thus:
"26 As to the function of the tribunal it was submitted that it should adopt an inquisitorial and more proactive role in disability discrimination cases, as they can be complex and involve applicants, whose impairment leads them to minimise or to offer inaccurate diagnoses of their conditions and of the effects of their impairment. I do not think that it would be helpful to describe the role the employment tribunal as "inquisitorial" or as "proactive"
. Its role is to adjudicate on disputes between the parties on issues of fact and law. I agree with the guidance recently given by Lindsay J in Morgan v Staffordshire University [2002] ICR 475 , 483, para 20. The onus is on the applicant to prove the impairment on the conventional balance of probabilities. In many cases there will be no issue about impairment. If there is an issue on impairment, evidence will be needed to prove impairment. Some will be difficult borderline cases. It is not, however, the duty of the tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties. That is a matter for the parties and their advisers. Sensible and sensitive use of the tribunal's flexible and informal procedures and its case management powers enable it to do justice on this issue by reminding the parties at the directions hearing of the need in most cases for qualified and informed medical evidence, bearing in mind that an unrepresented person may need some explanation about what is involved and what is required and also bearing in mind the cost of obtaining such."[17]Mr Epstein in his submissions complains firstly that the Tribunal failed at all to deal with Mr Hewett's inability to understand, in terms of understanding normal social interaction among people notwithstanding that the issue had been raised both in Mr Hewett's own statement and in the medical reports. He pointed to those passages in Mr Hewett's statement that refer to Mr Hewett being excluded from being part of the normal dynamics which exist between people and his reduced ability to pay attention to what is being said when he was trying to control the urges to avoid involvement. He referred to Dr Muir's report and Mr Hewett's difficulty in understanding "non verbal signals and coded messages" and Dr Myttas's report which referred to Mr Hewett's duties having to be "clearly outlined and communicated in concrete, non ambiguous terms" from which a Tribunal would be entitled and should infer that Mr Hewett had difficulty in understanding issues at a more subtle level. Insofar as the Guidance at paragraph C20 and the examples therein quoted appeared to relate the issue of understanding to knowledge, the spoken word or written instructions, he reminded us that the Guidance was only meant to be illustrative and that, in accordance with Goodwin , a purposive approach should be adopted. In particular, he placed considerable reliance on the fact that autism was specifically quoted in paragraph 4.58 of the Code of Practice "which can make it difficult for someone to understand normal interaction among people". He also criticises the Tribunal's Decision for focusing on what Mr Hewett could do rather than what he could not, and for focusing on his performance at the workplace notwithstanding that the issues of his difficulty with social interaction outside the workplace had been raised, both in his statement and by the doctors.[18]He accepts that in paragraph 20 the Tribunal did deal with Mr Hewett's ability to concentrate, making a finding that his difficulty was not substantial. Mr Epstein criticises this Decision again in the light of(1) the purposive approach;(2) the need to focus on what Mr Hewett cannot do;(3) the error in excluding social interaction from the scope of their enquiry, and(4) the evidence accepted by the Tribunal as set out in Mr Hewett's own evidence regarding his communication problems. However we cannot find any substance in this criticism and are satisfied that within their findings, and in particular in paragraph 20, the Tribunal did deal with the issue of concentration and made findings that were appropriate.[19]As regards the issue of deduced effect, Mr Epstein contends that both in the IT1 and in Mr Hewett's own statement, it was made clear that he had been receiving counselling on a regular basis, and thus the issue was sufficiently raised for the Tribunal to make proper enquiries as to the nature of the disability, after discounting such treatment. However, Mr Epstein accepts that there was no evidence before the Tribunal either from the counsellor or from the doctors as to whether Mr Hewett's condition would have been more serious had he not received the regular counselling. As McNichol makes it clear it is not the duty of the Tribunal to obtain evidence or to make sure that adequate medical evidence is obtained by the parties. Further, in Woodrup -v- London Borough of Southwark [2003] IRLR 111 , in a case dealing with the deduced effect, Simon Brown LJ said at paragraph 13:
"I would add this. In any deduced effects case of this sort the claimant should be required to prove his or her alleged disability with some particularity. Those seeking to invoke this peculiarly benign doctrine under para 6 of the schedule should not readily expect to be indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary."
Accordingly, we can find no fault on the part of the Tribunal on this aspect of the case.[20]Mr Brennan, in response, dealing with the main issue as to "understanding" reminds us firstly that within the IT1, to which we have made reference above, there was no reference to any alleged failure to understand through poor social interaction among people. He also contends that Mr Hewett's own statement is in very general terms, and whilst making reference to difficulties in respect of social contact, his case insofar as it was relevant to Schedule 1 paragraph 4 was limited to difficulties in concentrating on his work which problems were dealt with by the Tribunal in paragraph 20 of their Decision. Accordingly he argues that the Tribunal in its Decision were dealing with the case advanced to them, namely that the impairment was one of concentration, which is why they did not deal specifically with any arguments in relation to the concept of understanding.[21]In any event he argues that the phrase "memory or ability to concentrate, learn or understand" addresses educational or learning difficulties and does not require the Tribunal to address where an applicant falls below normal on a broad spectrum of personality differences which may contribute to his or her social success and happiness. In other words, he contends that paragraph 4(1)(f) is meant to cover learning difficulties rather than life skills, and in support of this contention relies on the assistance given within the guidance paragraph C20, whilst recognising that such guidance is only meant to be illustrative rather than exhaustive.[22]As regards paragraph 4.58 of the Code of Practice, he firstly makes a point that the Code is not meant to be of guidance or assistance with regard to the definition of disability, but is meant to be a code for employers in the hope that there will be elimination of discrimination in the field of employment against disabled persons. He also makes the point that the Respondents are not contending that all forms of autism would not fall within the definition of disability, merely that on the facts of this particular case, which falls at the lowest end of the spectrum, Mr Hewett does not satisfy the statutory test.[23]Finally, he contends that even if there were any difficulties in understanding, as Dr Myttas put it, "the subtleties of non factual communication" there were, as Dr Myttas found, mild difficulties and would not satisfy the test of "substantial" ?[24]We have not found this an easy case to determine as to whether this experienced Chairman and Tribunal fell into error in their approach, but after considerable consideration, we are unanimously of the view that their approach to the concept of "understanding" was at fault in failing to acknowledge that someone who has difficulty in understanding normal social interaction among people, and/or the subtleties of human non factual communication can be regarded as having their understanding affected and that concept is not limited simply to an ability to understand information knowledge or instructions. We come to this view for the following particular reasons:(1) Whilst both the IT1, and to a certain extent, Mr Hewett's witness statement were drafted in quite general terms, there was clear evidence before the Tribunal from both Dr Muir and Dr Myttas, regarding Mr Hewett's difficulties in understanding the more subtle aspects of human interaction. We have already referred to Dr Muir setting out Mr Hewett's difficulties in understanding non-verbal signals and coded messages, and Dr Myttas' evidence referred to the clear necessity for matters to be outlined and communicated to Mr Hewett in concrete non-ambiguous terms, from which we infer that were matters not communicated in that way, Mr Hewett would have difficulty in understanding them. Dr Myttas' report ended up with the conclusion that Mr Hewett did have mild difficulties in understanding the subtleties of human non-factual communication.(2) Despite the clear guidance from the authorities, particularly Goodwin , that Tribunals in construing the language of this Act should consider both the guidance and the Code of Practice; there is no reference in this Tribunal's Decision to the Code of Practice, and particularly to paragraph 4.58, wherein the Code appears to acknowledge that autism, meaning a disability which can make it difficult for someone to understand normal social interaction among people, clearly falls within the scope of the Act.(3) The purposive approach to construction, now suggested for all employment legislation, particularly the Disability Discrimination Act , leads us to take this broad approach to the concept of "understanding".(4) Whilst the Guidance refers to understanding in terms of, for example, understanding, spoken or written instructions, it does refer to account being taken of the person's ability to "take in new knowledge". In this case, there was clear evidence, particularly from Dr Myttas, that if knowledge was not outlined to him in clear and concrete non-ambiguous terms, he might have difficulty in understanding it or appreciating it.(5) The issue of understanding which the Tribunal should have addressed did not require them to adopt an inquisitorial approach within this case. The general material had been placed before them within the Appellant's own witness statement, and as we have indicated above, the particular difficulties were clearly articulated in at least two of the medical reports.[25]In conclusion, therefore, we are of the view that the Tribunal were in error in not accepting that the Appellant's ability to understand was affected by his impairment. Whether that effect was substantial is an issue that we cannot determine. Mr Epstein has urged us to say that the overwhelming evidence in this case pointed to Mr Hewett's difficulties in understanding being more than trivial, but that is an issue for a Tribunal to determine. Accordingly we propose to allow this appeal and to remit this matter back to the same Tribunal for them to consider whether the issue as to whether Mr Hewett's ability to understand was substantially affected. The re-hearing, it seems to us, need only concern itself with the issue of substantial, based on our decision that his ability to understand was affected by the impairment.