AH v Secretary of State for Work and Pensions (ESA) [2011] UKUT 333 (AAC)

UKUT-AAC
AH v Secretary of State for Work and Pensions (ESA)
[2011] UKUT 333 (AAC) · 2011-08-22
[1]The claimant’s appeal fails. For the reasons set out below, I find that the decision of the Scarborough tribunal (“the tribunal”) given on 24 June 2010 was not erroneous in point of law. Accordingly, I dismiss the claimant’s appeal against its decision.[2]The claimant is now in her early 50’s. In 2005 she suffered a stroke, and it is agreed that this has left her with comparatively mild disablement. How mild that disablement is may be judged from the fact that until she ceased work, only 10 weeks before the medical examination giving rise to the decision under appeal, she was able to work in a fish and chip shop. She also suffers from osteoarthritis, which can cause more problems, and it was because of the chronic tendonitis which had developed over the greater trochanter on both sides that she had ceased work. In addition to the arthritis and chronic tendonitis, she suffered from raised blood pressure and high cholesterol levels. However these conditions of themselves are not productive of disablement.[3]A claim to employment and support allowance was made on 26 September 2009. This was supported by evidence from her GP stating that she had suffered from a stroke and had osteoarthritis of the hip. The claimant was sent a questionnaire in the form ESA50 which she completed on 27 October 2009. In this she listed various physical and mental health disablements, and mentioned in respect of the tendonitis that she was receiving painkilling injections every three months. She was called for a medical examination on 7 December 2009. The doctor who examined her considered that only 6 of the 15 points necessary to remain on employment and support allowance were satisfied. The decision maker considered the medical report, and accepted it with the result that from 17 December 2009 the claimant’s entitlement to employment and support allowance was superseded.[4]The claimant appealed against this decision on two points: the first was that her GP had given her a medical certificate saying that she was still unfit for work, and that the second point was that the medical report (ESA85) did not tally with what she had said in the questionnaire.[5]As to the first issue, I would point out to the claimant that the initial decision that she was not fit for work was made on the basis of a certificate from her own GP, saying that she was advised to refrain from work. However, continued satisfaction of the conditions for an award of employment and support allowance, and national insurance credits based on incapacity for work, is not reliant on a certificate from a claimant’s own general practitioner, but is dependent on satisfaction of the test set out in the legislation. Sections 8(1) and 9(1) of the Welfare Reformat 2007 provide as follows:
“ 8. - (1) For the purposes of this Part, 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. 9. - (1) For the purposes of this Part, 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 him to undertake such activity shall be determined in accordance with regulations.”
[6]The regulations made under the authority of the Welfare Reform Act 2007 are the Employment and Support Allowance Regulations 2008 (“the Regulations”). Regulation 19 of the Regulations deals with determination of limited capability for work:
“ 19. - (1) For the purposes of Part I of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition, and if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this part. (2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.”
[7]From this it can be seen that once this assessment stage has been reached, the test for incapacity for work is no longer whether the claimant’s own GP considered him or her to be unfit for work. The test is the assessment process set out in the regulations, which relates to the list of activities set out in Schedule 2 of the Regulations. These activities are not specific to any particular type of work, and for that reason, whether a claimant is fit for his or her usual employment is not relevant to the determination of the outcome of an assessment.[8]The second point made by the claimant in her appeal is that the medical report (ESA85) “does not tally with what was said in the questionnaire”. The requirement to complete the questionnaire (ESA50) is set out in regulation 21 of the Regulations, and it includes any information relating to a claimant’s capacity to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire. The questionnaire itself is designed to obtain the claimant’s own views on the range of activities set out in Schedule 2. The claimant was not aware of this. For example, at page 15 of the papers are the questions she was asked on manual dexterity. In this she has said that she has a problem with one hand, namely the thumb joint on her left hand. However she prefaces this by saying:
“This questionnaire is supposedly about my hips …”
It is not. The purpose of the questionnaire is to get the claimant’s own view on her ability to undertake the various activities on which the assessment will be conducted. Given the very narrow focus in some parts of the appeal, it is worth repeating here what the claimant’s own assessment was when she completed this questionnaire on 27 October 2009. Although she said she could not walk at least 200 metres before she needed to stop, the additional information she provides indicates that she is alright for the first 5 to 10 minutes she is walking and then she needs to stop. There are very few persons who would walk as little as 200 metres in the 5 to 10 minutes mentioned by the claimant. She expressed difficulty with standing and sitting, though saying that standing was more comfortable than sitting as long as she was able to move about and find something to “grap”. She said she had difficulty with sitting for a long time and always sat on the edge of a chair because it was easier to get up. She said she was able to get out of a chair without help from another person and was able to move from one seat to another without help. She considered herself to have great limitations in relation to the activity described as “bending and kneeling” and said that she could not bend to touch her knees and stand up straight again. This is an unusually severe level of restriction, and evidence elsewhere suggests that this was not an accurate account of the claimant as she was most of the time. She also said that she could not bend, squat, or kneel to pick up something very light off the floor and stand up again without help from someone else. Her answers to most of the other questions posed did not suggest that there was likely to be any degree of restriction which would obtain points under the statutory scheme. She completed the second part of the questionnaire, which relates to activities in Part II of Schedule 2, that is activities relating to mental, cognitive and intellectual functions. Under the predecessor to the Employment and Support Allowance Scheme, incapacity for work regulations provided that points could be obtained from Part I (physical) and Part II (mental health) parts of the Schedule only if the limitation in question was caused by a physical problem for Part I, and a mental health problem for Part II. As noted in CE/122/2010, it is not a condition of qualifying for a Part II Schedule 2 descriptor for ESA that the incapacity to carry out the relevant activity arises from mental illness or disablement: nonetheless, this does not mean that no attention at all should be given to what causes the limitation of which the claimant complains. For example, in the questionnaire the claimant says that though she is usually able to cope with small changes to her routine, she finds it far more difficult if the change to routine is unexpected and says this has been the case since she had her stroke. Although a stroke is a physical event which affects various physical processes, it has a mental impact which the claimant has reflected in this response. It is not necessary for her to be diagnosed with a mental health disorder in order to obtain points in such a situation.[9]The complaint that the medical examination did not “tally” with what was said in the questionnaire is to misunderstand the adjudication process. The ESA50 questionnaire helps the health care professional conducting the medical examination to judge the claimant’s capability not only on the basis of examination findings, but also taking into account what the claimant him or herself had said about their ability to perform the various actions in the questionnaire. This helps provide a better picture of what the claimant is usually able to do than can a ‘snapshot’ assessment on the day, as well as facilitating an assessment of the reliability and credibility of the claimant’s self assessment generally. Where the activities normally carried out are consistent with clinical findings and observed behaviour, this will lend greater credibility to the claimant’s assertions concerning areas in which no examination findings or direct observations are possible. Of course, the converse also applies.[10]The claimant was able to obtain representation to support her in her appeal against the finding that she did not have limited capability for work. Her representative wrote to her GP hoping to get some evidence which would support the claimed limitation on walking. While the GP agreed that the claimant had problems which would limit her mobility, he said it would be quite difficult to put an exact figure on the distance she could manage, and to try to put a figure on it would involve him taking a wild guess (page 60 and 61 of the bundle). The claimant, her daughter, and her representative attended the oral hearing of the appeal, and there is a detailed note of the evidence at pages 63 to 70. Having heard the claimant’s evidence, the tribunal added a further 6 points to the 6 points which had been awarded by the decision maker, but her appeal still failed as she did not obtain the 15 points minimum necessary to be found to have limited capability for work. The claimant’s representative asked for a full statement for the tribunal’s reasons for its decision, and this appears at pages 73 to 75. It shows that the tribunal took careful note of the evidence before it, and it, and it dealt with all of the points in contention. It gave detailed reasons for accepting that walking should not score more than the 6 points awarded by the decision maker, and for reasons it set out accepted that she was not able to stand for more than 30 minutes. The tribunal’s consideration of the activity “bending and kneeling”, was very detailed, and I will return to this. The tribunal dealt with manual dexterity but found that no points were awardable. The tribunal considered the mental descriptors and while accepting that there was no diagnosis of a mental health problem it accepted that the claimant might get a little confused from time to time because of the earlier stroke. However, it considered that this would be insufficient to place her within any of the mental descriptors claimed. It supported this by reference to the “typical day” set out in the medical report and noted that this was indicative of a good level of functioning. The tribunal’s decision in this respect was well explained.[11]To return to “bending and kneeling”, the tribunal stated that:
“… for the appellant to fall within this descriptor she would have to require the help of another person to straighten up again. At no point did the appellant suggest to us that this was required.”
It was on this point that Judge Wikeley granted permission to appeal, and stayed consideration of the case until Judge Turnbull issued his decision in CE/917/2010. The point at issue here was that while paragraph 3 of Schedule 2 provides in sub‑paragraph (b) and (c) that a claimant’s ability to perform the activity must be assessed on the basis that the claimant is able to perform the activity without the help of another person, as Judge Turnbull noted, the Schedule is silent on the question of whether the use of any other aid is to be disregarded. Specifically, should the claimant get the points under descriptors 3(b) or (c) if the activities can only be achieved by holding on or pushing up on something? Some of the descriptors in Part I make specific reference to using aids if such aid is normally used, for example this is the case with activity 1, walking, and also hearing, and vision. Regulation 19(4) of the Regulations provides:
“In assessing the extent of a claimant’s capability to perform any activities listed in Part I of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.”
The submissions made by the Secretary of State to Judge Turnbull argued that using support such as furniture if required was implicit in the descriptor, because the only exclusion specified was where assistance from another person was required.[12]In the predecessor benefit, incapacity benefit, although the Schedule itself was silent on the question of how a person’s ability to achieve the activity should be adjudged if it could only be achieved by holding onto furniture or other objects, this requirement has been read in by successive Commissioners over the years. In the view of Judge Turnbull, the fact that the descriptors in the ESA Schedule are silent on this question does not mean that it is not to be taken into account. In his view, whether the activity can be achieved only with the use of aids, whether human or non‑human, must be taken into consideration. This is because the activities to be tested, namely bending, kneeling or squatting, are activities which involve primarily the use of the legs and back, and therefore an accurate assessment cannot be achieved by considering the extent to which the strength of a person’s arms, using aids, helps the person achieve the activity in question.[13]The Secretary of State’s response in the present appeal points out that Judge Turnbull did not exclude use of a stick or other such non‑human aid. Judge Turnbull noted that it was explicit in the Regulations that such non‑human aids were to be taken into account.[14]To apply this to the present appeal: much of the debate in this matter has focused on the claimant’s evidence that she could do housework on her hands and knees, “all fours”, as she puts it. If she could only straighten up from the activities in 3(b) and 3(c) by clinging on to furniture and hauling herself up, then, applying Judge Turnbull’s test, she should be found not to be able to do it, and awarded the relevant points. However, getting up from the floor is not the test. The test under paragraph 3 of Schedule 2 does not attempt to assess this.

(b) provides that 9 points will be awarded if the claimant:

“Cannot bend, kneel or squat, as if to pick up a light object such as a piece of paper, situated 15 centimetres from the floor on a low shelf, and to move it and straighten up again without the help of another person.”
This explicitly involves assessment of an action which is momentary in nature. The item is specified to be light, for example a piece of paper, and at above ground level. Such a light item could be picked up with one hand, and therefore use of a walking stick as an aid to balance in the other would be reasonable.

(c) is:

“Cannot bend, kneel or squat, as if to pick up a light object off the floor and straighten up again without the help of another person.”
Again, use of a walking stick in one hand to help support or balance the person while bending for the few seconds it takes to pick up a light object from the floor is an activity in respect of which it is entirely proper to take account of the non‑human aid.[15]Clearly, in its consideration of bending and kneeling, the tribunal applied the wrong test to the wrong activity, but not, I find, to the exclusion of consideration of the correct test. It is not correct that the claimant can only obtain the points if she required the help of another person to straighten up. However, as the Secretary of State’s representative notes in his or her response, the claimant’s own testimony was that she did a lot of housework on her hands and knees and where there was nothing else to help her, she either used her stick to get herself back up, or pushed on the floor. Given that the test is nothing like as extreme as getting up from the floor, the tribunal’s findings support its conclusion that the claimant did not obtain any points from bending. Given that she could get up from the floor using her stick if nothing more substantial was available, it is clear that she could usually achieve the less taxing activities at issue in the Schedule.[16]Accordingly, while the tribunal was wrong to find the claimant could only obtain points under this activity if she required to be physically hauled up by another person, the claimant’s own evidence was consistent with the tribunal’s finding that she was able to perform the activities under paragraph (14) using non human aids. (Signed on the Original) A Ramsay Judge of the Upper Tribunal Date: 22 August 2011

Cited in 1 later judgment