JW v Secretary of State for Work and Pensions (ESA) [2011] UKUT 416 (AAC)

UKUT-AAC
JW v Secretary of State for Work and Pensions (ESA)
[2011] UKUT 416 (AAC) · 2011-10-11

Decision

The claimant’s appeal succeeds.I set aside the decision given under reference 008/10/02178 by the First-tier Tribunal sitting at Wakefield on 16 November 2010.I make the additional findings of fact set out at paragraph 20 below and I re-make the decision of the First-tier Tribunal in the following terms:

The appeal is allowed

The decision of the Secretary of State made on 12 February 2010 and issued on 18 February 2010 is set aside.The claimant is to be treated as having limited capability for work.The claimant therefore continues to be entitled to employment and support allowance from and including 3 December 2009.The claimant is entitled to the work-related activity component of employment and support allowance from and including Monday 15 February 2010.The claimant does not have, and is not to be treated as having, limited capability for work-related activity. He is not entitled to the support component of employment and support allowance.

REASONS FOR DECISION

Introduction

1 At the date of the decision to end his entitlement to employment and support allowance ('ESA'), the claimant was 17 years old and suffered from a renal condition. According to his consultant nephrologist, that condition manifested itself as “recurrent episodes of severe bilateral loin pain and suprapubic pain associated with frank haematuria [ i.e., blood in his urine]”. Those episodes occurred “on a frequent basis (weekly)” and were of such severity that the claimant had required hospital admission to control the pain. In particular, the condition caused the claimant repeatedly to form kidney stones. At the time I have to consider, the precise nature of the condition was still under investigation and had been for many years. I am not told whether those investigations are now complete or, if they are, what the final diagnosis is.2 The claimant claimed ESA on 16 November 2009 and was awarded benefit from that date, pending assessment under the work capability assessment. Following that assessment, an officer acting on behalf of the Secretary of State decided on 12 February 2010 that the claimant was no longer entitled to ESA.3 The claimant appealed against that decision on the basis that, although he did not qualify for any points under Schedule 2 to the Employment and Support Allowance Regulations 2008 (“the ESA Regulations”), he should nevertheless be treated as having limited capability for work by virtue of regulation 29 (Exceptional circumstances) of those Regulations.4 The Tribunal was sympathetic to the claimant but did not feel able to allow the appeal. The relevant parts of its statement of reasons are in the following terms:
“Having decided the medical condition of the appellant [ i.e., that he suffered from a kidney problem] and how it might affect the [work capability assessment] and how the appellant had stated it affected him in his claim and appeal form and at the hearing and taking into account the submissions made on his behalf [the Tribunal] on the balance of probability found the following facts and made the following decisions in respect of exceptional circumstances:-
1. The Approved Disability Analyst (the ADA) in the Report had examined the appellant and given an opinion that exceptional circumstances did not apply.2. The Tribunal found the appellant to be a credible witness orientated in time place and person able to answer questions who was facing up to the unpleasant circumstances and difficulties of his illness. The appellant explained his illness that as an average he had one week off a month, if he did anything he got pain, the pain was like a knife in his back, he could take up to three to four days recovering after an attack (including up to two days to urinate), he was not academic, he had been on holiday for fourteen days ten of which he was in pain, if he had a job he did not know if he could do it, he wanted to start his life and was keen to do so. is mother explained that he was frustrated, had seven years of tests and nothing had happened, she did not know where to go next and her son would have to revalue his life3. The Tribunal then decided that exceptional circumstances did not apply because:-· The kidney problem although it caused considerable problems to the appellant was not life threatening.

· The kidney problem was uncontrolled by a recognised therapeutic procedure

· The mental attitude of the appellant was positive (he was also supported by his mother) he wanted to move forward with his life, had attempted in the past to do so and there was no reason to believe he would not try to do so again. There was no substantial risk to his mental or physical health if he were found not to have limited capability for work.”5 The claimant now appeals to the Upper Tribunal with the permission of Judge Powell.

The law

6 Regulation 29 of the ESA Regulations is in the following terms:

“ Exceptional circumstances

29. —(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) This paragraph applies if—

(a) the claimant is suffering from a life threatening disease in relation to which— (i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”7 For the sake of completeness, I should also quote regulation 35, which states:
“ Certain claimants to be treated as having limited capability for work-related activity
35. —(1) A claimant is to be treated as having limited capability for work-related activity if—(a) the claimant is terminally ill;(b) the claimant is— (i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or(ii) recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—(a) the claimant suffers from some specific disease or bodily or mental disablement; and(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.”

Exceptional circumstances

8 As the claimant accepted, and as Tribunal correctly identified in the first two of the three bullet points that end its statement of reasons, the claimant did not satisfy regulation 29(2)(a) because, although his condition was not controlled by a recognised therapeutic procedure, it was not life-threatening. Therefore the issue was whether he fell within regulation 29(2)(b), i.e., whether there would be a substantial risk to his mental or physical health if he were to be assessed as not having limited capability for work.9 I have set the Tribunal’s decision aside because:(a) its reasoning on that issue is flawed; and also because(b) the Tribunal has failed to take the steps required by the decision of the Court of Appeal in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 .

The Tribunal’s reasoning

10 I can quite understand the Tribunal’s obvious desire to reinforce the claimant’s positive attitude, to affirm the efforts he had made in the past to move forward in life and to encourage him to continue those efforts. But giving that type of positive reinforcement is not a substitute for giving adequate reasons for the Tribunal’s decision on the issue that was in dispute. The only reasoning on that particular issue appears in the final bullet point quoted at paragraph 4 above and involves a non sequitur: the conclusion expressed in the final sentence, namely that there is no substantial risk to the claimant’s health, does not follow from the assertions made in the preceding sentence about his positive approach to life.11 Whether there would be a substantial risk to a person’s health in any specified circumstances is a judgment of fact and degree. If the potential risk is to a claimant’s mental health, then the claimant’s mental attitude to the circumstances may be relevant in evaluating whether the risk exists and, if so, whether it is substantial. I have in mind the type of case discussed by the Court of Appeal in Charlton at [34] where
“the very finding of capability might create a substantial risk to a claimant’s health …, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused
12 In this case, however, no issue arises about the claimant’s mental health. Rather, he asserts that there is a substantial risk to his physical health. That assertion may or not be correct. But, if it is correct—if the substantial risk does exist—then that fact is not altered by the claimant’s attitude to it.13 To be specific, the claimant’s submission to the Tribunal was that he was only capable of manual work, and that undertaking such work was likely to trigger the type of episode described in paragraph 1 above. It is no answer to that submission to say that, if so, the claimant will embrace the situation with a positive mental attitude and do everything in his power to make the best of it.14 No other reasons are given for the Tribunal’s decision in relation to regulation 29(2)(b). It follows that the Tribunal’s reasons as a whole are inadequate and its decision must be set aside.

The Charlton decision

15 The Tribunal also erred by failing to follow Charlton and, as it is relevant to the way in which I have re-made the Tribunal’s decision, I must explain why.16 Charlton was concerned with regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995, under which the same legal issues arise as arose in this case. Moses LJ (with whom Pill and Lloyd LJJ agreed) held (at [35]) that the question posed by the regulation was:
“… whether a substantial risk should be foreseen in the light of the work the claimant might be expected to perform in the workplace in which he might be expected to be”.
That gave rise to the question of how the decision-maker was to identify the nature of claimant’s work and workplace. Moses LJ answered that question as follows (at [39]):
‘The correct approach has been identified by Deputy Commissioner Paines in CIB/360/2007 :-
“17. The degree of detail in which [the consequences of a finding that the claimant is capable of work] will need to be thought through will depend on the circumstances of the case… A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).
18. Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial.”’17 There will be some cases in which it is possible to say that any type of work will give rise to a substantial risk to the health of the claimant or some other person. An example is provided by the recent decision of the Court of Appeal in Cattrell v Secretary of State for Work and Pensions [2011] EWCA Civ 572 , in which a tribunal’s decision that any working environment would constitute a substantial risk to the health of claimant with a rubber and latex allergy was ultimately upheld. Another example might be the common case of an alcoholic or other drug addict who is undertaking an intensive and structured programme of rehabilitation that he would be unable to finish if he were obliged to work or to be available for, and actively to seek, employment.18 In such circumstances, it will be permissible for the Tribunal to conclude that a claimant falls within regulation 29(2)(b) without going through the process required by Charlton . However, I doubt whether there are any cases in which a Tribunal could decide that a claimant did not satisfy that regulation without first identifying both the work that he might be expected to perform and the workplace in which he might be expected to perform it. Even if I am wrong about that, this is not such a case.19 The Tribunal should therefore have followed CIB/360/2007 (as approved in Charlton ) and :(a) made findings as to the range or types of work for which the claimant was suited as a matter of training or aptitude and which his disabilities did not render him incapable of performing; and then(b) decided whether, within that range, there was work that he could do without the degree of risk to health envisaged by regulation 29(2)(b).It erred in law by failing to do so. For that reason also, the tribunal’s decision must be set aside.

Reasons for the re-made decision

20 I make the following additional findings of fact:(a) When he was aged ten, or thereabouts, the claimant was on the learning disability register maintained by the local authority.(b) The only qualifications held by the claimant are GCSEs at Grades E and F(c) The claimant has no—or at any rate, little—experience of the world of work.(d) As a matter of training and aptitude, the claimant is only suited to unskilled manual work.(e) Except during the type of episode set out in numbered paragraph 2 of the Tribunal’s statement of reasons (as quoted at paragraph 4 above), the condition from which the claimant suffers would not prevent him from performing, at least, light to moderate manual work, such as working as a cleaner or caretaker or a canteen assistant, or as a porter, or from working on some factory assembly lines.(f) However, on a balance of probabilities, even light manual work would lead to an increase in the frequency with which such episodes occur.(g) The probability that such episodes would become more frequent constitutes a substantial risk to the claimant’s health.21 My reasoning is as follows:(a) The Tribunal tactfully accepted the evidence of the claimant’s mother that her son is “not academic”. Unfortunately, I have had to go into greater detail on the point. The evidence underlying the finding of fact about the learning disability register comes from the claimant’s GP. The other findings about the claimant’s aptitude, experience and qualifications are based on the written submission made to the Tribunal by the claimant’s representative. The representative works for an experienced and reputable firm of solicitors and may be presumed to be acting on instructions from her client, whom the Tribunal found to be a credible witness.(b) I accept that the claimant’s qualifications are a credit to him. His school did not expect him to do better than a Grade G at GCSE. He can therefore be justly proud of the effort he put into exceeding those expectations. However, when one looks at those qualifications from the point of view of a prospective employer, it is improbable that the claimant would be accepted for a job that needed any significant level of academic achievement or intellectual skills. The claimant and his mother are both realistic about this and accept that the claimant is only likely to obtain manual work. In my judgment, they are right to do so.(c) I am satisfied that—if one ignores the probability that such work would increase the frequency of the exacerbations he suffers—the claimant could do the type of jobs I have identified. It is possible that he could also do heavier manual work but I do not need to consider that possibility in detail because I have concluded that even light manual work constitutes a substantial risk to the claimant’s health.(d) I have decided that the activity involved in light manual work would increase the frequency of the exacerbations from which the claimant suffers because: (i) the evidence of the claimant is that, in his experience, activity has this effect. Again, the Tribunal found the claimant to be a credible witness;(ii) the notes maintained by the GP practice with which the claimant is registered record that one of the doctors there specifically advised the claimant that working was likely to have that effect; and(iii) the claimant’s consultant nephrologist advised him to refrain from work until the investigations she was conducting were concluded. Given the claimant’s desire to work, and the well-known beneficial effects that work has on the health of those who are able to do it, the only possible reason for such advice is that the consultant thought there was a real risk that working would make matters worse.(e) The only evidence to the contrary is the report of the nurse who examined the claimant for the purposes of the work capability assessment. As the tribunal noted, the nurse was of the opinion that regulation 29 did not apply. So far as relevant she stated that there was “no evidence to suggest that the [claimant’s] health problem … poses a substantial risk to anyone”. The reference to there being “no evidence” suggests that the nurse did not have access to the evidence from the GP and Consultant that were available to the Tribunal and are available to me. The alternatives are either: (i) that the nurse did have access to those documents but did not consider them to be evidence (in which case, I disagree and hold that the evidence of the GP and Consultant outweigh her evidence); or(ii) that my judgment as to what constitutes a substantial risk to a person’s health differs from the nurse’s.(f) There is a limit to the extent to which it is possible to explain a judgment about what amounts to a substantial risk to a person’s health. In deciding that the probable increase in the frequency of acute episodes amounts to such a risk, I have been particularly influenced by the excruciating levels of pain reported by the claimant, and which kidney stones are known to cause. I have also been influenced by the evidence of prolonged obstruction to the claimant’s urinary flow.22 It follows from my findings that the claimant falls to be treated as having limited capability for work by virtue of regulation 29(2)(b) and that he therefore continues to be entitled to ESA from the date it was stopped.23 The next question I have to decide is the rate of entitlement, which in this case depends upon whether the claimant is entitled to the work-related activity component or the support component. He is only entitled to the support component if he satisfies one or more of the descriptors in Schedule 3 or falls within regulation 35 (quoted at paragraph 7 above). He does not:(a) The wording of the continence descriptors in Schedule 3 is such that, if the claimant satisfied one of them, he would also have limited capability for work, and it is conceded that that is not the case.(b) As far as regulation 35 is concerned, the claimant, happily, is not terminally ill. Neither is he receiving, or recovering from, chemotherapy. I can safely assume that he is not pregnant. Therefore regulation 35(1) is not satisfied.(c) Undertaking work-related activity, as opposed to undertaking work, would not carry with it the same risk of increasing the frequency of the acute episodes and therefore regulation 35(2) is not satisfied either.24 As the claimant is to be treated as having limited capability for work but is not entitled to the support component, he is entitled to the work-related activity component. An award of that component takes effect from the beginning of the fourteenth week of entitlement (see regulation 7(38) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) which, in this case, falls on Monday 15 February 2010.

Coda: The form of decisions

25 Before concluding this decision, I would like to say something about the form in which the Tribunal’s statement of reasons has been produced.26 Under the Practice Statement , Form of Decisions and Neutral Citation: First-Tier Tribunal and Upper Tribunal on or after 3 November 2008 , issued by the Senior President of Tribunals on 31 October 2008, First-tier Tribunal decisions (including written statements of reasons) must be prepared for delivery, or issued as approved decisions, with paragraph numbering. That Practice Statement is concerned, among other things, with the reporting of decisions. As the decisions of the Social Entitlement Chamber are rarely reported, it may be that some judges in that chamber have formed the view that the requirement that paragraphs should be numbered does not apply to them. If so, that is a misapprehension: the Practice Statement applies to all chambers of the First-tier Tribunal and compliance with it is not optional.27 The Upper Tribunal needs statements of reasons to be numbered for precisely the same reasons as the First-tier Tribunal needs the papers in the appeals they are hearing to be paginated. So do District Tribunal Judges when deciding post-hearing interlocutory applications. The efficient conduct of the further appeal or application requires that all parties and the judge should be able to refer to particular passages in the statement without circumlocution. If they cannot do so, making submissions, conducting hearings, and giving reasons for the decision all become more difficult. That is so irrespective of the whether the First-tier Tribunal’s decision is upheld or set aside.28 The statement in the present appeal is not a particularly bad offender (although it contains passages that I have not quoted, and which are not numbered). Even so, I have been driven to making references such as “the first two of the three bullet points that end the statement of reasons”. It would have been easier for everyone, including the readers of this decision, if I had simply been able to refer to “paragraphs X and Y”.

(Signed on the original)

Richard Poynter Judge of the Upper Tribunal

11 October 2011

Cited in 1 later judgment