AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 446 (AAC)

UKUT-AAC
AR v Secretary of State for Work and Pensions (ESA)
[2013] UKUT 446 (AAC) · 2013-09-09
[1]Both the claimant’s representative and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. I do however need to deal with the reason why I am setting aside the tribunal’s decision and also briefly to address a point concerning activity 16 (“coping with social engagement”) which may prove to be material when the case is reheard.[2]The claimant was born in 1959. There had been a medical assessment for incapacity benefit purposes in January 2011, in respect of which it appears he did not reach the points threshold. He had been on employment and support allowance since 15 October 2011. In a sparsely completed form ESA 50 he had indicated difficulties with activity 2 (standing and sitting) and 17 (behaving appropriately with other people). Questions in respect of descriptor 16 (coping with social situations) were left unanswered. Although he does have some physical problems, they are not the focus of the present appeal. When seen by the healthcare professional (“HCP”) he was noted (p43) to be drinking 6 litres of cider a day and to have been using amphetamines and cocaine since he was a teenager. He was observed (p55) to be “very unkempt, wearing dirty clothes, increased sweating was apparent”. He “gets annoyed if he can’t get his point across “and “prefers his own company” (p44). He had had counselling in the past and had (it appears relatively recently) been prescribed sertraline for depression. By a decision dated 22 February 2012 he was awarded 0 points.[3]The claimant attended the First-tier Tribunal on 6 September 2012 without representation. He confirmed his consumption of 6 litres of cider daily, which he obtained himself. His GP was aware of this but there had been no input from the Community Alcohol Team. He did not always remember to take his anti-depressant medication. He went out once a fortnight (presumably apart from buying cider as it would be very difficult on foot to buy 6 litres of liquid otherwise than daily) to the post office and for shopping. He had travelled to the tribunal by bus. His partner had died two years previously. His two nieces would come down at weekends and take him to the cemetery by car to visit the grave. He saw the GP when he needed to. He shopped round the corner. Mention was also made of ASDA, although the meaning to be given to the record of proceedings in that regard is not entirely clear. He was “always having trouble with people” and had been in trouble with the police a couple of years previously, but not in the last 6 months. Whether the last 6 months had seen no trouble with the police, or with anyone is, once again, not entirely clear. The tribunal dismissed the appeal.[4]So far as relevant, its reasons were: 11. …[W]hilst the tribunal accepted that the appellant did have a drinking problem it concluded that none of the descriptors /activities applied in this case. … Activity 16- the tribunal again accepted the appellant’s evidence that he is able to go to the shops alone where he can engage in social contact with people who are unfamiliar. Activity 17 – the appellant did report to the tribunal that he was “always” having trouble with people and that he had been in trouble with the police a couple of years ago. However, he had no incidents of this nature in the last 6 months and so the tribunal concluded on the balance of probabilities that this descriptor/activity did not apply.”[5]The claimant appealed to the Upper Tribunal, having by then secured the assistance of his local authority welfare rights department.[6]As regards activity 16, it was submitted that the tribunal erred in law in that:(a) it concluded that the contact in the shop was with people who were unfamiliar to the claimant without any evidence; and(b) it misinterpreted the descriptor by equating the minimal contact required to complete a transaction in a shop with social contact.[7]As regards descriptor 17, it was submitted that the tribunal made inadequate findings and gave inadequate reasons and erred by finding that the descriptors were not made out because of the lack of incidents in the six months leading up to the tribunal (which post-dated the date of decision).[8]I gave permission to appeal on 14 January 2013. On 12 March 2013 the Secretary of State’s representative filed a one page submission supporting the appeal and indicating that she agreed with the claimant’s representative’s grounds of appeal. She added that in the light of the decision of the three judge panel in JG v Secretary of State for Work and Pensions (ESA) [2013] UKUT 37 (then known as CSE/496/2012) she “ha[d] concerns that the First-tier Tribunal did not sufficiently address the claimant’s evidence regarding his use of alcohol and amphetamines”, though without particularising the basis for those concerns.[9]Shortly after the matter was referred back to me for decision, there was brought to my attention Judge Parker’s decision in KB v Secretary of State for Work and Pensions [2013] UKUT 152 (AAC) , which had only been given in February 2013 and which had not been referred to in the submissions I had received. That decision concerned “coping with social engagement” in the context of schedule 3, where the relevant descriptor (13) mirrors the terms of the highest scoring descriptor in schedule 2. It particularly addressed the interaction between regulation 34(2) of the Employment and Support Allowance Regulations 2008 (SI2008/794) (as amended) which provides that:
“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.” and the terms of the descriptor which refer (emphasis added) to when “engagement in social contact is always precluded.”
[10]As regards what is meant by “social engagement”,

Judge Parker held:

“Social Engagement 15. The representative argues that this concept does not include engaging with people in a formal, professional context, which has an element of compulsion, such as, for example, attending a medical examination, consulting a General Practitioner, attending a tribunal hearing. It is the representative’s submission that descriptor 13: “relates to a person’s ability to engage ‘socially’ with people voluntarily in a more informal context, among friends, relatives and strangers, in familiar or unfamiliar places”. 16. The submission on behalf of the Secretary of State disagrees: “Whilst contact of the type suggested by the claimant’s representative would fall within the scope of the descriptor it is my submission that contact of the type referred to by the tribunal would not be excluded. The ability to undertake social contact with doctors and lawyers in situations which are acknowledged to have the potential to be stressful is, in my submission properly to be taken into account when judging descriptor 13”. 17. On balance, I prefer the argument made on behalf of the Secretary of State. The representative’s suggested interpretation reads in words which are not included expressly or impliedly in the statutory language. “Social” qualifies “engagement” and “contact”; thus in its unadorned use, “social” is a simple reference to relations with other human beings and does not carry any connotations of leisure, pleasure and mutuality. Therefore, the tribunal did not err in relying, as constituting such “social engagement”, on the kind of business visits to which it referred in its statement. The representative’s objection that adopting the argument on behalf of the Secretary of State means that, for example, “anyone who claims the descriptor and attends the tribunal cannot succeed”, is now undermined by my conclusion that “always” does not mean “on every single occasion”; attending a tribunal hearing constitutes “social contact”, but if a claimant is otherwise reclusive, he may yet show that he is “always precluded” from “engagement in social contact”
. This is because “always” does not mean “every time” but only “repeatedly” or “often”. 18. What conduct amounts to the necessary “contact” or “engagement” is also a matter of fact and degree, likewise eminently suitable for consideration by a tribunal as a matter of common sense having regard to all the circumstances. At one end of the scale, if a claimant sat silently throughout his tribunal hearing then, outwith exceptional circumstances, a reasonable tribunal could hold that this did not amount to the necessary “contact” or “engagement”; similarly, monosyllabic responses in such a context is a borderline scenario. However, where, as here, the claimant communicated with the tribunal on an extensive basis, according to the record, then a conclusion that such did not amount to any “social engagement” or “social contact” would have been irrational. Thus the tribunal did not err in how it understood either “social” or “contact” or “engagement”; where it erred was in applying too strict a test in determining whether such was “always precluded”. “[11]I gave the parties the opportunity to make representations on this new decision. 12 In reply the claimant’s representative:(a) contrary to his earlier submission, agreed with Judge Parker on the meaning to be given to the word “social”;(b) submitted that Judge Parker erred in relation to the degree of participation required to constitute “engagement”; and(c) maintained the position that the tribunal’s findings and reasons on the point were inadequate in that the tribunal should have considered how often the claimant was able to visit shops and what interaction this involved with other people.[13]The Secretary of State‘s reply was that:(a) notwithstanding the terms of the earlier submission, the appeal was only supported in relation to activity 17 (though confusing references, both express and implied to activity 16 remain in paragraph 6 and 8 of the reply);(b) as regards (at any rate) activity 17 there were insufficient findings of fact, bearing in mind the long term nature of the alcohol and drug abuse shown within the 2012 HCP report, for “It is accepted that long term use of drugs and alcohol lead to other disabling conditions such as paranoias (sic), anxiety, depression , panic attacks. I submit that these matters ought to be explored in relation to whether he satisfied any of the criteria detailed in descriptor 17” and(c) the tribunal made insufficient findings about the earlier incidents and about the appropriateness or otherwise of the claimant’s behaviour in such occasions as he did have contact with others.[14]I accept the Secretary of State’s concession in relation to Activity 17 and the case will have to be remitted for rehearing.[15]As the rehearing will cover all material aspects, it may have to address activity 16 and thus I need to return to it here. The first point to note is that the decision in KB has been appealed by the Secretary of State to the Court of Session on the regulation 34 issue. It remains to be seen what, if any, position will be adopted by the claimant (respondent) in that case and whether there will be any cross-appeal in relation to “social” engagement. In any event paragraph 17 of Judge Parker’s reasoning on ”social” engagement is influenced by the view she held of regulation 34 and, to the extent that the latter is called in question by the appeal, the former may require to be revisited also.[16]However, I in any event respectfully take a different view from the view of Judge Parker, taken “on balance”, as to what is meant by “social” engagement. I do so with some hesitation, as, in view of the withdrawal by the claimant’s representative of his earlier argument, which I consider was fundamentally correct, I have not had the benefit of full argument.[17]I start from the premise that dealing with others socially (in the sense originally put forward by the claimant’s representative in this case) is something that some people with a disability may find very difficult. Thus, as an illustration, the National Autism Society publishes at http://www.autism.org.uk/living-with-autism/communicating-and-interacting/social-skills/social-skills-for-adolescents-and-adults.aspx a guide entitled “Social skills for adolescents and adults” aimed at people with an autism spectrum disorder. It contains headings such as “How can I start a conversation?”, “What should I say during a conversation?” (containing examples of appropriate and inappropriate topics of conversation) “How can I end a conversation” and “Making friends” (with hints on distinguishing between “A true friend” and “Someone pretending to be a friend”). As the introduction to the Guide notes:
“People with an ASD often find social situations very difficult. There are so many social rules that people without an ASD learn instinctively. People with an ASD often have to work at learning these rules. It can often be confusing and cause anxiety as many social rules are unwritten and not spoken about.”
[18]In my view, social contact in this sense is not the same as contact for business or professional purposes. If one goes to a medical examination, or a tribunal hearing, the rules are firmly established by the process and/or the person conducting it, and are typically clearly defined, often in writing. If the person being examined or whose case it is does not respond in a way that a person without disability might, the person conducting it may because of their professional responsibilities be expected within generous limits to accommodate the non-conforming response and certainly not, as it were, to take a poorer view of, or attempt to avoid further contact with, the person because of it. That is precisely what is lacking in the social sphere, where people are free to interact on their own terms and to accept the behaviour of another or to reject it, and largely do so on the basis of the sort of unwritten rules to which the National Autism Society guidance makes reference, an inability to respect which could, in the words of the descriptor, be an indication of “difficulty relating to others”.[19]Schedule 2 to the Employment and Support Allowance Regulations 2008 was replaced with effect from 28 March 2011 pursuant to the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011/228. As the Explanatory Memorandum to the 2011 Regulations explains (paras 4.2 and 4.3), there had been a review led by the DWP which had engaged with disability organisations and the regulations implemented the recommendations of that review. The report of the review, published on 29 March 2010, explained the changes to the previous activities and descriptors. Thus, the predecessor to what is now activity 16 (then numbered 19) had dealt with “Normal activities, for example, visiting new places or engaging in social contact…” The report noted that:
“the [primary function of this activity is identifying functional capabilities in terms of social contact, making inclusion of the ability to visit new places inappropriate. … The individual’s ability to engage in social contact is the crucial ability.”
[20]That that was the view of the legislator may in any event be inferred from comparison of the wording of the former activity 19 and the present activity 16, which it is not necessary to set out in full.[21]The review also discussed the proposal to abolish the former activity 21 (“dealing with other people”). It noted that “This activity was developed in part to ensure that the assessment identified individuals with Autistic Spectrum Disorder who would affect significant challenges working. However, proposals for other activities mean that these functional limitations are identified elsewhere in the assessment and that the specific requirement no longer remains.[22]It is thus clear, both as one would infer from the participation of organisations concerned with disability in the process and from the passage quoted above, that the difficulties faced by people with autistic spectrum disorder were in mind.[23]I am not, of course, to be taken as suggesting that because people with ASD were in mind, every problem such a person might face must be taken to score points. Nor am I suggesting that activity 16 applies only to people with that condition, nor that the present claimant’s difficulties are attributable to that condition. The key point is that the difficulties faced by people with ASD serve to illustrate that there is a context in which “social “ contact or engagement need not be taken with the broader meaning favoured by Judge Parker of referring to “relations with other human beings”. The Work Capability Assessment is concerned with assessing whether a person’s physical or mental condition limits their capability for work, a process which involves grading the severity of the impact of the condition through the award of points. It is entirely in accord with the purpose of the Work Capability Assessment that it should assess difficulties which a significant number of people do, in varying degrees, actually have.[24]It respectfully seems to me that the view in KB of what is “social contact” has the effect of rendering the words virtually otiose. Descriptor 16(a) could simply have said “Engagement with others…” and 16(b) and (c) “Engagement with someone unfamiliar to the claimant”.[25]I respectfully disagree with

Judge Parker’s view that:

““Social” qualifies “engagement” and “contact”; thus in its unadorned use, “social “ is a simple reference to relations with other human beings and does not carry any connotations of leisure, pleasure and mutuality. Therefore, the tribunal did not err in relying, as constituting such “social engagement”, on the kind of business visits to which it referred nits statement.”
It does not in my view follow (“thus”) from the premise that “social” has the meaning described. Nor, I consider, is it necessarily appropriate, without more, to look to the “unadorned” use of the word, when the word has a wide range of meanings and the question is what meaning the word has in the statutory context in which it is used.[26]The claimant’s representative’s original submission drew attention to the range of definitions in the Concise Oxford Dictionary, one of which, on which he sought to rely, was “relating to or designed for activities in which people meet each other for pleasure.” Given the nature of human interaction in the social sphere (when a distinction is drawn between that and the professional or business transaction) and the legislative context of the amendment, that in my view was much nearer the legislator’s intention. With the aid of the full Oxford English Dictionary (online version as at 6 September 2013) one can get even closer, with its definition of “Marked or characterized by friendliness, geniality, or companionship with others; enjoyed, taken, carried out, etc., in the company of others.” Tellingly for present purposes, where we are concerned with “contact” and “engagement” the list of illustrations of the usage then gives more than a dozen examples of it being used “Of communication, interaction, an activity, etc.”[27]I am conscious of the words of Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163, at 1171:
“It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament.”
[28]I do not seek to define “social “in activity 16 by reference to the dictionary definition above. But for the reasons in particular in [17] –[22] I consider that the mischief at which the statutory instrument was directed was such that unless there is an element of the social such as is referred to in the definition above or in some way which a tribunal may properly consider to be analogous, a tribunal will be liable to being overturned on further appeal on the basis either that it has not given any effect to the word “social” or that its conclusion cannot be supported.[29]The focus of the legislation is however on the nature of the contact, not the context in which it occurs, albeit it is far more likely that such contact will take place in some contexts than others. The point is well put by the representative in his original submission. “That is not to say that [contact with others to conduct a commercial transaction such as buying groceries, buying a bus ticket or a medical consultation] could never involve social contact: a person may have a chat with a shopkeeper during the course of the transaction about the weather, the news or a recent sporting event. In these circumstances the contact would involve an element of social contact and therefore fall within the ambit of activity 16. However where a person simply places his shopping on the counter and hands over the money I submit the contact would not amount to social contact and would not therefore fall within the ambit of activity 16.” Similarly, if one knows that ones GP has just got back from holiday one might ask about it and that might constitute social contact, although the time for doing so may prove to be slight compared to the time devoted to the medical reason for the visit. It would follow that, if I had needed to decide the point, I would have concluded that the tribunal failed to find sufficient facts in relation to activity 16.[30]I do not need to deal with any other error on a point of law that the tribunal may have made. Any that was made will be subsumed by the rehearing.[31]I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case entirely afresh. The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (22 February 2012) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision. To the extent that the tribunal has to consider activity 16, it must apply the present decision.[32]While I have not relied upon it in relation to setting aside the decision of the tribunal and do not need to make any direction by reference to it, the decision in JG v SSWP cited by the Secretary of State does repay reading in relation to ESA cases involving those who are dependent on alcohol.[33]The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted. (signed) C.G.Ward Judge of the Upper Tribunal 9 September 2013

Cited in 1 later judgment