AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 417 (AAC)

UKUT-AAC
AR v Secretary of State for Work and Pensions (ESA)
[2013] UKUT 417 (AAC) · 2013-08-28
The appeal is dismissed. For the reasons below, the decision of the tribunal is not wrong in law.

REASONS FOR DECISION

1 This is an appeal from a decision of the First-tier Tribunal brought with permission of a First-tier Tribunal judge. The appellant, R, was receiving employment and support allowance. He was sent the standard form ESA50 to confirm his ongoing entitlement. In his replies he identified several problems with his physical and mental health. These included the continuing effect on him of an accident in which one of his ankles was severely injured and consequent surgery on a number of occasions. He had resulting mental health problems and other health problems. He included with his replies a form Med3 from his general practitioner stating that he was not fit for work due to depression. He also included a letter from a consultant orthopaedic surgeon stating that problems with his ankle and the resulting pain stopped him working. R attended a medical examination by a registered nurse for the Secretary of State in January 2012. The standard computer form ESA85 report of that examination noted no physical or mental limitations to R’s capability for work. As a result his allowance was stopped.2 R appealed against this decision. Shortly before the appeal was heard, R’s local Citizen’s Advice Bureau sent in a short submission on his behalf. This pointed out that R had been found not capable of work in two previous medical examinations but that the Jobcentre had not produced the relevant paperwork. The submission reported that R had a number of physical problems alongside the consequences of the ankle injury in 2006. Six descriptors were put in issue: mobilising; sitting and standing; coping with change; getting about; social engagement; and behaviour. With regard to mobilising, the submission reported a discussion with R about the option of using a wheelchair.3 The tribunal held an oral hearing attended by R. The tribunal dismissed the appeal. It found none of the descriptors were met by R. In particular, he was mobile if account was taken of the use of a wheelchair. The reasoning of the tribunal on the use of a wheelchair is:
“[16] The test in relation to mobilising considers the use of any reasonable mobilising aid. [R] can and does use a wheelchair on occasions and he can get in and out of one. He would have sufficient strength to self propel a manual wheelchair as he has no problems with his upper limbs. He did not report breathlessness on stairs or walking so it is not accepted that asthma would cause breathlessness when propelling himself in a wheelchair (as submitted by the representative).
[17] He would be able to mobilise significantly further than 200 metres before needing to stop due to significant discomfort or exhaustion bearing in mind the fact that at present he can walk to and from his local shop and use stairs and go up and down the aisles of a supermarket on foot. He also confirmed at the tribunal that he should be able to self-propel and there would be no reason why he could not.[19] As minimal exertion is required to self propel a wheelchair the tribunal also decide that [R] would be able to repeatedly mobilise further than 50, 100 and the minimum scoring descriptor of 200 metres without stopping…”The tribunal gave reasons for dismissing each of the other descriptors put in issue by the appellant and representative.4 R’s representative at Citizens Advice put in a strongly worded objection to the decision of the tribunal about the use of a wheelchair. It also sought permission to appeal about other descriptors. This request for permission to appeal was granted by a district tribunal judge because the issue of the use of a wheelchair raised an issue of principle that it was appropriate for the Upper Tribunal to consider. I therefore concentrate on this aspect of the appeal. I deal with the other issues raised at the end of this decision. I invited comments from both parties about the use of wheelchairs and am grateful to Mr Hampton’s helpful submission in response for the Secretary of State.

Use of a wheelchair to mobilise

5 The reason why Citizens Advice discussed the use of a wheelchair with R is because the changes made to the previous descriptor about walking in the descriptors set out in Schedule 2 to the Employment and Support Allowance Regulations 2008 as amended from 27 March 2011. The equivalent test for the former incapacity benefit had long been in terms of the extent to which a claimant could walk, if at all. For those who could walk the test was “cannot walk more than ... metres without stopping or severe discomfort”. As all welfare experts are aware, alongside that was a similar test for the higher rate of the mobility component of disability living allowance that tested whether someone could walk a short way, often taken as about 50 metres, without severe discomfort.6 The test for employment and support allowance from 2011 is not a test of walking but a test of mobilising. The full test is descriptor 1 in the modified form of Part 1 of Schedule 2 to the Employment and Support Allowance Regulations 2008 provided for in SI 2011 288. If the columns in which the schedule is formulated are stripped out, the test is:

“ Physical disabilities

(1)Activity

1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.

(2) Descriptors and (3) Points

(a) Cannot either: (i) mobilise more than 50 metres on level ground without stopping in order to avoid

significant discomfort or exhaustion; or

(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significantdiscomfort or exhaustion.15 points(b) Cannot mount or descend two steps unaided by another person even with the support of ahandrail.9 points(c) Cannot either: (i) mobilise more than 100 metres on level ground without stopping in order to avoid

significant discomfort or exhaustion; or

(ii) repeatedly mobilise 100 metres within a reasonable timescale because of significantdiscomfort or exhaustion.9 points(d) Cannot either: (i) mobilise more than 200 metres on level ground without stopping in order to avoid

significant discomfort or exhaustion; or

(ii) repeatedly mobilise 200 metres within a reasonable timescale because of significantdiscomfort or exhaustion.6 points(e) None of the above apply.0 points”7 The new elements in this test are the change from a reference to “cannot walk” to “cannot ... mobilise” and the description of the activity being tested. The activity was previously:
“ Walking on level ground with a walking stick or other aid if such aid is normally used.”
The activity is now as above. Aside from the change to “mobilisation” there is the specific addition of a manual wheelchair as an aid and a change from considering aids normally used to aids that can reasonably be used. There is also express reference to the ability to mobilise “unaided by another person”. The omission of the reference to level ground in the activity is merely a drafting revision as the limitation to level ground is now in the descriptors.8 Schedule 2 takes effect under regulation 19 of the Employment and Support Allowance Regulations 2008. That regulation did not change in 2011. As the Secretary of State submitted in this appeal, the key provision in that regulation relevant here is regulation 19(4). This carries forward a provision first inserted in the equivalent provision in the Social Security (Incapacity for Work)(General) Regulations 1995 from 1997. The current wording from 2008 is:
“In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 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.”
9 This was the subject of consideration by Judge Levenson in the Upper Tribunal in RP v Secretary of State for Work and Pensions (ESA) [2011] UKUT 449 (AAC) , a case concerning the use of a walking stick. He considered that:
“16. It seems to me that the correct approach to regulation 19(4) is as follows. If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it. If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it. If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same. However, I do not agree with the Secretary of State that in this latter case there does not have to be any explanation of how the aid or appliance could help the particular claimant and that the advantages are obvious. The degree of detail is a matter for the tribunal on the facts of each particular case, but in my view, in the absence of actual use or prescription, there does need to be some explanation.”
10 The Secretary of State fully accepts that decision and submits in this appeal that it is the key to a proper understanding of the new mobilisation descriptor. I agree that it is a key. Indeed, this also explains the clear purpose behind the introduction of wheelchairs to the activity and the change from a test of walking to a test of mobilisation. Read strictly, someone could qualify under the former descriptor because he or she could not walk notwithstanding that he or she used a wheelchair successfully on a regular basis – using a wheelchair is not walking. With modern technology, an otherwise immobile person can become mobile in the right circumstances with a manual wheelchair. Now that serious efforts are being made under compulsion of law (the Disability Discrimination Acts and the Equality Act 2010) to make buildings “wheelchair friendly” and stepped entries to buildings are being removed this is increasingly relevant.11 There are in my view two complications in the changes to descriptor 1 in Schedule 2. The first is that the activity to be tested has been altered from the wording “normally ...used” in regulation 19 to “can reasonably be used” without any change in regulation 19. But regulation 19 still applies. So the actual test to be applied is now a double one: what is normally used and what is reasonably to be used. Whether something is normally used is simply a question of fact. Equally, if someone does normally use a manual wheelchair then plainly it is reasonable for him or her to do so. The problem arises where an individual does not normally use a manual wheelchair but there is evidence to suggest that he or she could do so. When does it become reasonable that one should be used? The second, which I return to below, is the interaction between descriptor 1 and the other descriptors in the Schedule now that wheelchair use is expressly to be considered. There has been, in my view, a failure to think through thoroughly how use of a wheelchair should be integrated into Schedule 2 and into the process of testing the descriptors in the Schedule in individual cases.

Evidence of the appellant’s mobilising

12 As a result of the second of those complications, there are practical problems in a case such as this in the way both claimants and those conducting medical examinations are asked to report about it. The key questions in the ESA50 sent to claimants ask about “moving around” defining “moving” as:
“including the use of aids such as a manual wheelchair, crutches or a walking stick, if you usually use one, but without the help of another person.”
No question is directly asked about whether a wheelchair could be used by the claimant if it is not normally used. In other words, the question does not reflect the new descriptor. R made no comment about reasonable use in his replies to these questions, nor was he asked to do so. The representatives are to be commended in raising the subject with R ahead of the hearing.13 Nor as far as I can see does the standardised electronic formatting of the ESA85 computer generated report require that the health care professional using it to pay any attention to the reasonable use of a wheelchair where one is not actually being used. Having said that, the nurse who completed the report about R did deal specifically with the kind of wheelchair R used sometimes. The specific mentions about mobilising in that report are::Fractured and dislocated the ankle ...had had multiple surgeries on the problem ... states has been told will require further surgery in the future ...now has arthritis in the area ... under a specialist review ... pain in the area is constant and is made worse by walking.Under “description of a typical day” it is reported that:
“states when he goes shopping will use a trolley to support him will mobilise up and down stairs from his flat slowly, taking one step at a time... states when he goes shopping, will use a trolley to support him, when his ankle is bad he uses a wheelchair available at the supermarket. States wheelchair is electric. .. states has

still got crutches at home and will use them if the pain in his ankle is bad.”

The automatic transfer of comments within the ESA85 repeats the latter comments, but not the other comments, later in the report. The only relevant comment on clinical examination is of severe arthritis and swelling of the left ankle. The usual informal observation about the claimant walking into the examination room is that he did so with an abnormal gait. In the personalised summary statement it concludes:
“His lower limb function was consistent with his ankle difficulties, however, his upper limb function was normal, and he could use appropriate aids to help him mobilise.”
The conclusion for the description about mobilising was that none of the descriptors applied.14 Given the evidence it was plainly right for both Citizens Advice and the First-tier Tribunal to consider whether the appellant’s ability to mobilise in this appeal included the use of a manual wheelchair. It is not a case, unlike others I have seen, where the question of the use of a wheelchair appears to have been mentioned in an appeal for the first time at the tribunal hearing. See for example EW v Secretary of State for Work and Pensions [2013] UKUT 228 where the First-tier Tribunal had no submissions and very limited relevant evidence before it for a decision about non-walking mobilisation.

“if such aid can reasonably be used”

15 The tribunal’s reasoning, to which the representative took strong exception, is set out above. It puts directly in point in this appeal the proper interpretation of the test “if such aid can reasonably be used”. As the submission for the Secretary of State notes, this has led to some divergence of focus in decisions of tribunals The extent to which different focuses are open on the wording of the activity is illustrated by two recent decisions to which I drew the attention of the parties in directions in this appeal. The Upper Tribunal in Scotland first had issues about wheelchair use put to it. In the first of a series of similar decisions from Scottish UT judges, Judge Gamble decided that the approach was a wide one. In DM v Secretary of State for Work and Pensions [2012] UKUT 376 Judge Gamble stated that the test of reasonableness was
“one requiring a broad exercise of ... independent judgment to all the factors that are relevant in each individual case. Those factors should not be restricted to a consideration of the claimant’s physical ability to use a wheelchair.”
16 By contrast, in Northern Ireland Commissioner Stockman took a narrower view:
“the reasonableness or otherwise of using an aid should be judged purely in the context of its potential use to enhance functional ability.”
17 London-based Upper Tribunal judges have since been faced with similar questions in a number of appeals. The Secretary of State drew my attention to some in the submission in this case and others have since been published.18 In AS v Secretary of State for Work and Pensions [2012] UKUT 334 (AAC) , Judge Lane expressly adopted the views of Judge Levenson in RP about regulation 19(4), and applied it to the use of aids generally in a way that is relevant here. The test put by Judge Lane is:
“If the claimant does not use a particular kind of aid or appliance and one has not been prescribed or recommended, then the decision maker or FTT is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same.”
That test is not wheelchair-specific because the case did not concern the use of wheelchairs. However, it serves to emphasise that the use of wheelchairs is not a standard solution to mobility difficulties but one of the ways in which aids may resolve or assist with difficulties.19 In CSE 617 2012 Judge Jupp followed the same approach as Judge Lane but without reference to the earlier case. Judge Levenson’s test was again approved in a context where the First-tier Tribunal found that a claimant was both able to walk and to use a manual wheelchair. However, the immediate relevance of a wheelchair in that case was limited to the question whether the appellant could sit for any length of time.20 More recently the brief decision of Judge Rowland in JC v Secretary of State for Work and Pensions (ESA) [2013] UKUT 219 (AAC) covers similar ground. In that case a First-tier Tribunal ignored the appellant’s medical evidence about the undesirability of the appellant using a wheelchair because of the need for her to be kept independently mobile as much as possible. In doing so it erred in law. Judge Rowland notes that if evidence of this kind were available in earlier decisions they may have been reconcilable on the facts.21 Another recent decision is that of Judge White in AB v Secretary of State for Work and Pensions, CE 4267 2012. He was considering an appeal from a decision of a First-tier Tribunal that decided that a wheelchair could be used by the appellant without, apparently, asking the appellant about it and without receiving any evidence about any wheelchair use by the appellant. In discussing the mobilisation descriptor, Judge White commented on the decision of Judge Gamble in DM :
“[12] The issue of the reasonableness of the use of a walking aid or manual wheelchair was first considered in DM v SSWP (ESA) [2012] UKUT 376. I agree that the matter of reasonableness requires a broad exercise of judgment in relation to a variety of factors. These will in my view always include (a) whether the use of the aid or wheelchair has been suggested or recommended (or indeed not recommended) by health care professionals, and why; (b) whether the claimant’s health is such that he or she could use a walking stick or other aid or propel a manual wheelchair; (c) whether the claimant has access to a walking stick, or wheelchair, or other walking aid; and (d) whether, in the case of the use of a wheelchair, the claimant’s living environment makes the use of a manual wheelchair practically feasible. For example, the situation of a person living on the upper floor of a block of flats without a lift is very different from that of a person living in a bungalow without any steps leading to it.
[13] There may be different considerations in relation to the walking aid under consideration if one is not already used by a claimant. The particular aid in issue must be identified. For example, it may be relatively easy to acquire and use a walking stick, but much more difficult to acquire and make effective use of a wheelchair. The claimant’s living environment may be largely irrelevant in the case of using a walking stick, but highly relevant in the case of using a manual wheelchair.In determining whether a particular walking aid or manual wheelchair can reasonably be used, many factors are likely to be relevant, and a tribunal should take account of all the circumstances of the case in coming to a judgment on the question of reasonableness. I do not provide an exhaustive list of the circumstances which might be relevant, since that might be more hindrance than help in exercising this judgment in individual cases by suggesting some sort of comprehensive list of relevant circumstances. But I do indicate in paragraph 12 above what I consider to be the very minimum considerations for an adequate decision.”22 In the most recent decision issued on the point, Judge Gray in TB v Secretary of State for Work and Pensions [2013] UKUT 408 (AAC) took a different view:
“[29] The case law is set out by Commissioner Stockman in paragraph 36 of MG v Department for Social Development. I follow that line of authority: accordingly I respectfully disagree with the decision of Upper Tribunal Judge Gamble in DM v Secretary of State for Work and Pensions that personal circumstances such as living in an unsuitable building should be considered in the test of whether a manual wheelchair can reasonably be used. For these reasons I limit specific consideration of the test that I promulgate as to whether a wheelchair or other aid can reasonably be used to the medical impact, which will involve consideration of the potential physical and mental consequences for a claimant or appellant.”

Analysis of the decision

23 The difference of the focus of Commissioner Stockman in MG v Department for Social Development from that of Judge Gamble in DM v Secretary of State for Work and Pensions should be viewed against the decisions that have followed. They plainly do not stand in isolation. I add as a note to the citation from the decision of Judge Gray that Commissioner Stockman looked in detail in his decision at the decision of Judge Levenson in RP v Secretary of State for Work and Pensions and then at the reasoning of Judge Gamble in DM v Secretary of State for Work and Pensions. He then took into account the reasoning of (then) Commissioner Jacobs in R(IB) 2/03 about the need for a functional analysis of descriptors and the subsequent broader jurisprudence carrying that view forward to the analysis of descriptors for employment and support allowance.24 I do not consider it necessary to engage in a further detailed analysis of those two decisions in what is and must be essentially a question of fact. Judge Gamble commented in DM that “I must stress that the application of the text of the activity must always be on an individual basis.” As Judge Rowland suggests, the difference of approach in those decisions may be a reflection of specific evidence. It is a difference that is in my view less than the resulting individual decisions (which, as in all cases, must reflect the evidence in the specific appeals) suggests. The detailed discussion in the decision in MG starts in the same way as the other decisions cited above with a discussion of regulation 19 and the decision of Judge Levenson. Where the decision (and that of Judge Gray) parts company with the others is in the basis for the conclusion that in that case that the tribunal did not err in law in its finding that the appellant had no relevant restriction in his ability to mobilise when his reasonable ability to use a wheelchair was taken into account. In particular, as Commissioner Stockman identifies from paragraph [37] of his decision, there is a concern about how far the application of this descriptor involves a departure from a purely functional analysis. But what functions are to be analysed?25 The consideration of a “purely functional” approach to disability testing for benefit purposes has been seen as part of this general area of the law since Lord Hoffman, giving the opinion of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKUT 44, stated that the purpose of the "cooking test" in section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992:
“is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance. It is a notional test, a thought-experiment, to calibrate the severity of the disability. It does not matter whether the applicant actually needs to cook. As the form DLA 1 said, "try to imagine how much help you would need if you tried to do this." No doubt some people (disabled or otherwise) do need to cook or prefer to do so, although home cooking seems to be fighting a losing battle against convenience foods and ready-cooked meals. Not for nothing is the notional meal contemplated by the cooking test described in the authorities as "traditional". ...On the other hand, even if a person needs to cook and has the motor skills to do so, he may still need assistance; to obtain the ingredients which the test assumes him to have, or because he is culinarily incompetent. So in my view the Court of Appeal was wrong to lay such emphasis upon the fact that unless the applicant could cook more or less every day, she would not enjoy a reasonable quality of life.”
26 The “cooking test” is a free-standing test the context of which is, as Lord Hoffman spelt out in that paragraph, the award of a specific amount of benefit. Further, the test is that someone is so severely disabled that he or she “cannot prepare a cooked main meal for himself”. Drawing a comparison with the current issue, I have seen no discussion anywhere in the jurisprudence about the “cooking test” that looks at whether the claimant actually has, or has access to, a kitchen or a traditional cooker or a microwave or a slotted spoon or a perching stool or any of the other accompaniments discussed in claims for that allowance. The approach is that if the claimant had these aids then whether he or she could use them and use them safely. The question quoted from the DLA1 by Lord Hoffman is, with respect, in my view, the nub of the matter.27 In R(IB) 2/03 (a decision taken some time before the House of Lords decided Moyna) Judge Jacobs contrasted a functional analysis of a descriptor in the then version of Schedule 2 with a linguistic analysis. The specific descriptor was that of rising from sitting in an upright chair with a back but no arms without the help of another person. He adopted a functional analysis and did so on the basis of authority.28 How does that approach apply to the mobilisation descriptors? As Judge Jacobs observed, they are a series of descriptors by which to judge the application of one of a series of activities to an individual claimant to see if the general test in regulation 19 of the Employment and Support Allowance Regulations 2008 are met. And, as Judge Wikeley emphasised in MC v Secretary of State for Work and Pensions [2012] UKUT 324 (AAC) (a decision in descriptor 2, sitting and standing at a workplace), the wording of each descriptor must be considered both within the framework of regulation 19 and in its context.29 All the decisions cited have the common ground that the mobilisation test is an actual test, not a hypothetical test. But I suggest that the equivalent question to that in the DLA1 that Lord Hoffman endorsed should be the central approach here in cases of doubt. If the claimant had a manual wheelchair could he or she reasonably use it? I therefore reject the broadening of the test to look at issues such as whether the appellant could afford to buy a wheelchair.29 Much of the difference between the decisions since the initial broad decision of Judge Gamble arises from aspects of the factual evidence in the individual cases. That presents two evidential problems. The first, as Judge Rowland commented, is in the available evidence about medical, and in particular orthopaedic, assessments about the use of a wheelchair. This is something on which Commissioner Stockman details the Northern Irish approach in MG. I do not know if that approach is followed elsewhere in the United Kingdom, but clearly it will be important in some cases to know the local approach.30 The other, on which I have commented above, is the absence of evidence in individual employment and support allowance cases about the reasonableness of wheelchair use. As noted, the ESA50 does not specifically demand such information. Nor does the ESA85 computer format appear to do so. So there are cases where a tribunal has no actual evidence of the reasonableness of wheelchair use. If the Secretary of State has not raised the point and there is no oral hearing then any tribunal that ventures into this territory will have difficulty in showing the evidence on which the decision is based.31 Another difference that emerges from the above decisions is one on which I have seen little discussion. It is the implicit view taken by different appellants and tribunals about what is involved in using a wheelchair. This arises from what is in my view a weakness in the drafting of the Schedule. The test analysed meticulously by Judge Jacobs in R(IB) 2/03 was a clear and specific test (rising from sitting) that stood alone from the other descriptors. That does not apply here.32 I must therefore turn to the precise test with both linguistic and functional points in mind. It is, first, important to bear in mind that the test is now “mobilising unaided by another person”. So the essential test is whether a claimant can use a manual wheelchair without assistance from anyone else. As noted above, the reference to the activity being unaided is new and presumably must therefore in part be there because of the addition of the use of a wheelchair.33 The second issue is: what activity is being tested? The test is “mobilising … with … a … manual wheelchair”. That is to be tested by the various descriptors, including “cannot … mobilise more than 50 metres …” No attention appears to have been paid in this to what “mobilise” means. Some have taken the view that this is a test of someone already in a wheelchair. The First-tier Tribunal in this case took the view that it must also involve considering whether the individual can get into and out of the wheelchair. That in my view is correct. The test, literally, is “mobilising … with” not “mobilising… in”. Walking is not tested in practice by notionally putting claimants in the middle of a vast open level plain and asking them to walk in one direction until they have to stop. It is tested by asking how far they can walk from their front doors. Often that gives rise to discussions about steps. But that is dealt with by another descriptor for mobility. There is no other descriptor for getting in and out of a wheelchair but that must happen as an inherent part of mobilising with a wheelchair. So that must be part of this test both functionally and linguistically.34 Behind this is a broader issue on which there is disagreement. A person using a wheelchair unaided needs not only to get into it and out of it but also handle it when not in it. That is of course not a serious problem with most other mobility aids such as walking sticks. Modern aids of that sort, including zimmer frames, are very light and robust and easy to handle and lift. That is not so of many manual wheelchairs, particularly the standard issue wheelchairs available in some areas. Does “mobilising … with … a … manual wheelchair” involve handling it while not in it? What, for example, is the relevance of the fact that someone lives upstairs with no lift or ground level storage available?33 It is this issue that causes particular problems with the consideration of mobilising using a wheelchair and on which there has been disagreement. It arises, I suggest, because of the way the reference to wheelchairs has been grafted into Schedule 2 without any obvious guidance from the context in the schedule to the various physical activities, let alone other issues, involved in using a manual wheelchair. These simply do not arise when assessing ability to walk unaided by a person with or without a stick. An individual’s ability to walk is to be tested on level ground. But that is in part because if he or she can walk but cannot mount or descend two steps unaided then there is a separate descriptor dealing with that. The underlying assumption when the physical descriptors in Schedule 2 were identified is that this descriptor tests lower limb abilities. Other descriptors test other abilities. That assumption does not work with wheelchair use.34 Use of a manual wheelchair assumes, I suggest, inability to use lower limbs and then goes on to test far more than that. In doing so the descriptors overlap with several other descriptors in a way the walking test does not and in a way that the current drafting of Schedule 2 as a whole leaves unclear. For example, the Schedule used to contain the test of rising from sitting. That was the subject of the analysis in R(IB) 2/03. That test has gone. But it has not gone if use of a wheelchair is being considered because it must be considered whether someone can get into and out of such a chair unaided. Other examples are the descriptors for picking up and moving objects. Considering the use of a wheelchair by someone already in it involves testing upper limb capacity in a way that is not dealt with at all under the descriptors for “picking up and moving or transferring by the use of the upper body or limbs” or “manual dexterity”. They do not extend to the issue of picking up and moving a manual wheelchair or controlling a manual wheelchair. But how else does someone handle a manual wheelchair without assistance from another person? And how can someone mobilise using a wheelchair if they cannot handle it before or while getting into it?35 The only guidance in the drafting of this activity is that it must be considered if “such aid can reasonably be used”. Continuing for the moment with a functional analysis, can a claimant reasonably be expected to use a wheelchair to mobilise (including getting into it and out of it) without the aid of another person if he or she cannot reasonably be expected to handle the wheelchair whilst preparing to get into it, or after getting out of it? _36 On any analysis, reasonable use of a wheelchair must involve several aspects of bodily functional ability aside from the lower limbs. But the standard forms ESA50 and ESA85 used for assessing whether a person does or does not meet the descriptors for Schedule 2 do not deal with those issues. That is perhaps not surprising because the tests in Schedule 2 itself do not deal elsewhere with, for example, upper limb use of a wheelchair or the necessary lung and related capacities (both expressly put in issue in this case).37 Some decisions, starting with that of Judge Gamble, have started with the test of reasonableness and argued that this is to be determined in all the circumstances. This must, it is argued in this case, include noting that R lives upstairs and has nowhere to store the wheelchair downstairs. Judge Gray expressly rejected that approach in TB v Secretary of State for Work and Pensions. “Personal circumstances such as living in an unsuitable building” are not part of the test for reasonable use of a wheelchair. She puts it thus (at paragraph [29]):
“I limit specific consideration of the test … to the medical impact, which will involve consideration of the potential physical and mental consequences for a claimant…”
38 I agree with Judge Gray to the extent that putting an “all the circumstances” test into this descriptor carried the danger of testing the context too widely. I disagree with her in what appears to be a constrained view of the “medical consequences”, which I take to include mental health issues as well as physical issues. I agree with that. But it has to be asked in every case whether this particular claimant can reasonably mobilise with a manual wheelchair without the assistance of any other person as a practical question. That is not a hypothetical question involving the appellant being placed in the wheelchair and expected to stay there. And it cannot be resolved by a few observations of a claimant without any reference to the actual requirements of wheelchair use by her or him. The user has to be able to get into it and out of it unaided and has to be able to deal unaided with the other aspects inherent in using a wheelchair to mobilise. That involves looking broadly at the whole physical and mental functional ability of the claimant and not merely at lower limb use.39 It follows that if the use of a wheelchair is put in issue, then the Secretary of State must be prepared to show the evidence to explain why it is put in issue. If, for the reasons discussed in this decision, that has not happened then a tribunal dealing with the issue must consider carefully whether there is any evidence about wheelchair use. If there is no such evidence, then it must be prepared to embark on a consideration of each of the physical and mental aspects of using a wheelchair to mobilise that are inherent in such use so that its decision is evidence based. That cannot be confined to extrapolation from the other descriptors. Nor in many cases with a tribunal be able simply to rely on the findings in the ESA85. It requires specific evidence and specific findings.

Application to this case

40 I have set out above the consideration given by the tribunal to the use of a wheelchair by R. There is in this case evidence of wheelchair use (the powered wheelchair at the supermarket). This was raised with the appellant both by his representative and at the hearing. It considered not only the appellant being in the chair but getting into it and out of it. It found that there were no relevant upper limb or breathing problems and he confirmed he could self-propel. It is also relevant that the tribunal found, on the appellant’s own evidence, that he could drive a car (which meant he could get into and out of it) and walk 30 metres across the road to the local store. In other words he was not totally immobilised when not in a wheelchair.41 The representative took issue with the tribunal finding because, it was represented, “we are talking about an NHS or Red Cross wheelchair which are not only heavy but difficult to manoeuvre, let alone propel”. Further, the appellant “has not undertaken any serious physical activity in the last 4 years (since he injured his ankle)… he is 9 stone overweight and asthmatic …” Those are essentially issues of fact. The appellant had attended the hearing so the tribunal clearly had the chance to take those points on board. And, indeed, the tribunal expressly dealt with breathlessness.42 The Secretary of State supported the appeal by reference to a range of factors. In particular, R lives in a flat with 12 steps to it. There is no evidence that a wheelchair is available to R. He has nowhere to store the wheelchair and he would have financial problems getting one.43 The danger with this wide approach is that it not only goes beyond any functional analysis of the function of using a wheelchair when the claimant is in it. It also goes beyond what needs to be determined to see whether a claimant can reasonably be expected to use a wheelchair to mobilise. The logic behind these comments would involve a means test to see whether it was reasonable to expect a claimant to buy one, and perhaps even that it was reasonable to expect a claimant to move so that storage is available at ground level for a wheelchair. That goes beyond the scope of regulation 19 and indeed employment and support allowance as a whole. I do not therefore accept the submission of the Secretary of State as made. It goes too wide.44 .I conclude that the tribunal in this case did apply the descriptor correctly. It had reason to consider the use by R of a wheelchair to mobilise and it had express evidence about wheelchair use before it. It saw the appellant and discussed this with him. It was able to rely on his direct evidence about wheelchair use. In so doing, it focussed on the difference between use of a manual wheelchair and use of an electric wheelchair. It considered not only whether he could use a wheelchair when in it but whether he could get into and out of it. It considered that the only significant physical limitation to the appellant from this perspective was the deformity and pain in his ankle. As part of that, it considered that the appellant did have some limited walking ability and that he could use a car, and that again was based on his evidence. And it took into account, so far as I can see, each point about wheelchair use put expressly to it for decision, namely the chronic asthma, diabetes and weight issues. The one point on which I would agree with the representative is in the comment by the tribunal at paragraph [19] that “minimum exertion is required to self propel a wheelchair”. I am not entirely surprised at the comment made by the representative about whether any of the panel had actually tried to use a Red Cross wheelchair. But I do not regard that comment as undermining the decision of the tribunal to such an extent as to constitute a material error.45 I therefore dismiss the appeal on this point.

Other descriptors

46 The other issues raised for R were sitting and standing; coping with change; getting about; social engagement; behaviour with others; and exceptional circumstances. The tribunal decision includes a headed section on each of these issues. The grounds of appeal assert that these were dealt with insufficiently and lacked depth. The First-tier Tribunal judge granting permission to appeal did not comment on these issues, but did not restrict the grant of permission. I have therefore considered the. But the Secretary of State’s submission assumes that permission to appeal was granted by an Upper Tribunal judge on the mobilisation point and does not comment on the other points.47 The general thrust of the grounds of appeal is that the tribunal took a decision that was wrong on the facts and did not adequately explain why. However, the question is whether it erred materially in law both in its decisions and in the adequacy with which it explained them. That is to be considered together with the evidence and submissions before the tribunal and the record of proceedings. That record is in this case clear.48 In my view the tribunal decision, read in this context, deals specifically with each of the descriptors expressly put in issue and explains separately the thinking of the tribunal on each of them. Indeed, it goes beyond the list put in issue to consider other mental health issues such as learning tasks and awareness of hazards. It also deals with the question of substantial risk. There is reference in the reasons to what R stated in the claim form, what he reported in the medical examination, and what R told the tribunal at the hearing.49 One final point, raised before the tribunal but not in the grounds of appeal, is the absence of earlier medical records. I do not think this is material in this case. The tribunal was clearly dealing with the new employment and support allowance descriptors and did not have any reason to question the appellant’s own evidence about the injury to and consequent problems with his ankle. Nor were the histories of his depression (which was recent) or diabetes ignored. The tribunal also took into account the asthma put in issue by the representative although it was not mentioned in the ESA85 medical report.50 I therefore see no error of law by the tribunal on these issues either. I must therefore dismiss the appeal.

David Williams

Upper Tribunal Judge

29 08 2013

[Signed on the original on the date stated]

Cited in 1 later judgment