EM v Secretary for Works and Pensions (ESA) [2014] UKUT 34 (AAC)

UKUT-AAC
EM v Secretary for Works and Pensions (ESA)
[2014] UKUT 34 (AAC) · 2014-01-23
[1]This is an appeal with the permission of Upper Tribunal Judge Williams from a decision of the First-tier Tribunal dated 13 October 2012. By that decision the tribunal dismissed the claimant’s appeal from a decision of the Secretary of State dated 12 April 2012 which superseded from that date an earlier decision awarding employment and support allowance (ESA) from 19 October 2011.[2]I refuse the claimant’s request for an oral hearing because I am setting aside the decision of the tribunal. The matter will have to be reheard by a new tribunal at an oral hearing when the claimant will be able to attend and put her case. She will need to do so and should consider getting advice and representation from a welfare rights organisation or similar body in relation to the hearing and the medical and other evidence she should obtain for the hearing. The evidence[3]In completing form ESA50 on 1 November 2011, the claimant claimed a number of different problems arising from back pain and also claimed to have a problem with continence and with several mental health descriptors. In relation to continence she stated “When I go to toilet I do have to change clothes as I try to sit down and wee. I always have to change my underwear.”[4]The claimant was examined by an approved disability analyst, a nurse, on 28 March 2012. In the report of the claimant’s description of a typical day it is stated that she reported that she had to go to the toilet often, that if she was in pain she might not make it in time, so she tried to go in time, and that she did not wear pads. She was not seeing anybody about this. In relation to the continence descriptor the nurse stated that none of the descriptors applied, but in completing the section relating to supporting medical evidence she stated that no examination was carried out for continence and the only evidence provided in support of her view was what the claimant had said about her typical day. In her personalised summary, the nurse again repeats some of what she was told but qualifies the earlier statement that she was not seeing anyone about her continence problem in that the nurse states here that she was not seeing a specialist, suggesting that she could have been seeing her GP. I further note that the claimant has stated in her letter of appeal to the First-tier Tribunal (file, p.3) that “I wear large disposable nappies as I can’t get up quickly, then I wet my self.”[5]I note that if she did wear large disposable nappies that would suggest that the problem went beyond dribbling.[6]In relation to the mental descriptors, the claimant had stated in form ESA50 that she did not go to places she did not know because, wherever she went, she needed to hold onto someone when in pain and because she was scared to go to places she did not know, and that she only went to places she did know with her son. She was too nervous to meet people she did not know. However, the nurse reported in relation to the claimant’s typical day that she had stated that she had no problem socialising or interacting with people. The nurse concluded that the claimant had no problem getting about, but the so called supporting medical evidence was a repetition of what the claimant is said to have told her, none of which appears to relate to her ability to get to a specified place with which she was unfamiliar without being accompanied by another person. The closest one gets to such evidence is that, having been brought to the examination centre by her son, she entered it alone. Plainly getting out of a car at an unfamiliar place and entering it alone is not the same as getting there by herself. I also note that in her letter of appeal she stated that she went in alone but what she had said was that her son had waited with her in the waiting room for over an hour but then had to go to pay for further time in the car park and that the nurse knew that.[7]In relation to social interaction, the nurse again considered that none of the descriptors applied, and again simply quoted what she had been told by the claimant. In relation to social contact with somebody unfamiliar to the claimant, the evidence related exclusively to social contact with friends and relations except for the statement “No problem socialising or interacting with people”, a statement which is almost certainly not the words used by the claimant but a summary of what the nurse understood her to say. There is no indication here of what questions she was asked or why it could be understood from what she said that she was referring to social contact with people with whom she was unfamiliar.[8]The other main problem for the claimant related to back pain and its effect on her. It is unnecessary for the purposes of this appeal for me to consider those issues although they will be matters which the new tribunal will have to consider afresh with all the other issues.[9]The claimant was unrepresented throughout on her appeal. In her notice of appeal and accompanying letter she challenged the accuracy of what the nurse had reported in a number of respects in particular in relation to what she did and what help she needed. I have already referred to corrections in relation to the claimant’s bladder continence and going into the examination centre alone. Most of the others related to her back problems and include the information that she had seen her GP about her back and had been referred to a specialist.[10]On 21 June 2012 a 4 page fax was sent to the claimant’s GP (the fax number is the same as that of the GP at p.95). Pages 3 and 4 of the fax found their way at some point onto the appeal file, but there is no indication of when or how, or whether there was a covering letter. Pages 1 and 2 were not there and there was no indication of their contents in the file before the tribunal. Page 3 of the fax was a diagnostic report of the claimant’s back following an MRI scan of the claimant’s lumbar spine which had revealed various degenerative changes one of which impinged on a nerve root. The statement of reasons[11]In August 2012 the claimant indicated on the standard form that she did not want an oral hearing, and the appeal was determined without a hearing on 13 October 2012. In the statement of reasons it is stated that an adjournment for oral hearing or further medical evidence was felt not to be appropriate as the tribunal determined it had sufficient medical evidence to enable a decision to be made. Much of the statement of reasons relates to the claimant’s back problems and their effect on her ability to perform various descriptors.[12]I note in passing that the statement of reasons seeks to deal with issues raised by the claimant in a letter following receipt of its decision. It may help a claimant to see the answers to the points raised in this way, but the specific answers will not have been part of the tribunal’s reasons for its decision and the tribunal judge should take care to make this clear. The answers should be no more than a postscript to the statement of reasons. If they are incorporated as part of the reasons, an appeal may succeed because the statement of reasons is not actually the tribunal’s reasons for its decisions but the subsequent reasoning of the tribunal judge. In the present case, I do not need to consider this further.[13]In relation to continence, the tribunal found as follows:
“e. Continence – a bladder problem caused her to have to wear pads and to change her underwear weekly: the Tribunal found the description in the appeal that the bladder problem was due to ‘being unable to get to the toilet quickly enough’ did not amount to incontinence – in the medical/descriptor sense. Nil points.”
[14]In relation to the mental health descriptors the tribunal found that there was no evidence of any mental health, intellectual or cognitive impairment and “it seems to the Tribunal that the Appellant ticked this descriptor in error. Nil points.”[15]The only other paragraph of the statement of reasons possibly relevant to the decision in respect of either continence or the mental health descriptors is paragraph 8 which reads:
“The medical examination itself appeared to be a full and expert assessment of the appellant on the day: the Healthcare Professional’s observations and clinical findings together with the recorded description of daily activities were consistent with the Healthcare Professional’s conclusions and the respondent’s decision.”
The descriptors[16]As pointed out by Judge Williams in giving permission to appeal, “3 The specific issue of continence arises in this case because the appellant’s replies to the questions in the standard from ESA50 indicate continence problems weekly such that she has to change her underwear. 4 The relevant descriptor is that in paragraph 9 of Part 1 of Schedule 2 to the Employment and Support Allowance Regulations 2008. It is both relevant and decisive if the main test is met monthly because it results in the appellant “scoring” 15 points. As such, no other descriptor need be met for a claim to be made. Further, if the main test is met weekly, as the appellant contends here, then the directly equivalent test in paragraph 8 of Schedule 3 to the Regulations may also be met, with the result that the appellant will be placed in the support group. 5 The specific test to be applied for the award of employment and support allowance in this and similar cases is:
“At last once a month experiences: (i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder … sufficient to require cleaning and a change in clothing.””
[17]The activity to which paragraph 9 of Schedule 2 to the Employment and Support Regulations 2008 (the 2008 Regulations) relates was in 2012 “Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the presence of any aids or adaptations normally used.” This description has since been modified to require that the absence of control should be whilst conscious and that it should be “despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used”. That modification, however, only applies from 28 January 2013.[18]Activity 8 in Schedule 3 to the 2008 Regulations is in similar terms except that the marginal words describing the activity include “extensive evacuation of the bowel and/or voiding of the bladder” [the italics are my own and identify the change from the marginal words describing activity 9 in Schedule 2].[19]As I held in LB v SSWP , [2013] UKUT 352 (AAC) , descriptor 9(i) requires not full evacuation or voiding (as had been required by the descriptor in its original form up to 27 March 2011) but only extensive evacuation or voiding sufficient to require cleaning and a change of clothes, and this must be despite the presence of any aids or adaptations normally used. In addition regulation 19(4) of the of the 2008 regulations provides that in assessing the claimant’s capability to perform any activity listed in Part 1 of Schedule 2 (the physical descriptors) he is to be assessed as if wearing any prosthesis with which he is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.[20]It appears to me on the face of the description of the activity that the aids and appliances there referred to are internal devices which control the evacuation of the bowel or voiding of the bladder, such as an artificial valve manually operated to open and close the bladder. Sanitary pads and similar devices do not affect control over the evacuation of the bowel or the voiding of the bladder but only the consequences of such an event occurring. Whether this was the intention of the draftsman may be open to doubt given the recent amendment, from 28 January 2013, which refers to aids and adaptations which are not only used but also worn. However, it is clear that sanitary pads are aids which affect a claimant’s ability to perform an activity in that their use may result in there being no need for a change of clothing.[21]In LB v SSWP , I dealt with the proper approach to such aids as follows:
“10. In RP v Secretary of State , [2011] UKUT 449 (AAC) , Judge Levenson gave guidance as to the proper approach to the use of aids and appliances as follows: “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.” 11. Following this decision, which was concerned with the use of a stick when there had been no medical advice to use a stick, guidance was issued to decision makers by the DWP (Memo DMG 24/12). In relation to those physical descriptors which specifically refer to the use of aids, including continence, it observes that decision makers should apply the test in a way that displays consistency between the work capability assessment as a whole and the assessment of each descriptor in particular (para.6). It goes on to state that the decision maker should establish whether the claimant normally uses an aid or appliance, and if not, whether the use of it has been prescribed or advised. If a claimant does not have an aid or appliance which they have been prescribed or advised to use, the decision maker should establish whether it would help the claimant, why they are not using one and whether the explanation is reasonable. 12. The guidance goes on to state that the decision maker must consider all the circumstances in deciding whether it would be reasonable to assess the claimant as using an aid that they have not been prescribed or that they have not been advised to use. Factors identified include whether (1) the claimant possesses the aid or appliance; (2) the claimant was given specific medical advice about managing their condition, and it is reasonable for them to continue to follow that advice; (3) the claimant would be advised to use an aid or appliance if they raised it with the appropriate authority such as a GP or occupational therapist; (4) if it is medically reasonable for them to use an aid or appliance; (5) the health condition or disability is likely to be of short duration; (6) an aid or appliance is widely available; (7) an aid or appliance is affordable in the claimant’s circumstances; (8) the claimant is able to use and store the aid or appliance; and (9) the claimant is unable to use an aid or appliance due to their physical or mental health condition. 13. It appears to me that these are all useful matters to be considered in appropriate cases, and, as the DWP guidance makes clear, they are not the only factors that may be relevant. 14. I note that as the requisite loss of control has to lead to extensive evacuation or voiding, it appears to exclude dribbling post urination even if that might lead to a change of clothes and cleaning being required.”
[22]In giving permission to appeal, Judge Williams also raised the question of what would be a sufficient change of clothing, commenting “I assume this cannot in most cases mean a complete change of clothing as that would rarely be a consequence even of considerable levels of incontinence. And there may be a factual interaction with the question of appliances if, for example, a pad or a padded garment is on the facts regarded as an appliance and not as clothing.”[23]I agree with this. All that is required is a change of clothing, not a complete change. Further, while pads are not normally regarded as items of clothing, pants are so regarded. While pads can be disposed of once soiled, clothes are normally retained. In practical terms, bearing in mind that the activity is dealing with matters of personal dignity and social acceptability, it appears to me that almost any change of clothing would count for this purpose since the soiled clothing would then have to be retained in the workplace for the rest of the day by the person who has soiled him or herself with the real risk of the clothing in question being seen or smelled by others in the workplace. If, however, pants are disposable, then in my view it would be likely to be the responsibility of the employer to ensure that there were facilities for them to be disposed of. Further it does not appear to me to have been intended that a change of disposable protective sanitary wear was to be relevant, since that would normally be needed in the event of the sort of accident contemplated by the descriptor. For those reasons, I would not consider that in most, if not all, circumstances a change of such wear was properly to be included in a change of clothing.[24]I note that the representative of the Secretary of State on this appeal has drawn attention to guidance in the Medical Services Handbook which states “In terms of continence problems as a result of time taken to get to toilet facilities because of poor mobility, this issue would not be considered in this activity area as mobilising issues are covered elsewhere.”[25]This statement is wholly misguided both in relation to the descriptor as it was at the time of the decision and as it now is. In descriptor 9(a)(i) the only question is whether at least once a month the claimant experiences loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder sufficient to require cleaning and a change of clothes. The fact that this is because the claimant is unable to reach a toilet in time because of other physical problems is irrelevant, as one would expect bearing in mind that the purpose of the descriptor is to deal with questions of personal dignity and social acceptability . This is made even clearer, if that were possible, by the wording of descriptor 9(b) where the question is whether there is a risk of loss of control if not able to reach a toilet quickly. Loss of control at least once a month because the claimant cannot reach a toilet quickly plainly qualifies for 15 points if the other requirements are met.[26]The mental health descriptors relied on include the question whether the claimant can get to a specified place with which she is unfamiliar without being accompanied by another person and whether social contact with someone unfamiliar to her is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by her. Although expressed to be mental descriptors these descriptors can be satisfied because, in whole or in part, of physical factors ( KP v SSWP , [2011] UKUT 216 (AAC) ; KN v SSWP , [2011] UKUT 229 ; RM v SSWP , [2011] UKUT 454 ). Conclusion[27]The claimant’s letter of appeal (p.3) states that she used large disposable nappies but she told the nurse that she did not wear pads. This may have been a breakdown in communications between them or a failure on her part to explain clearly the precautions she took. The tribunal found that she wore pads. The claimant’s evidence was that she sometimes did have accidents. There was no medical examination in relation to continence. The tribunal needed to consider the extent of the accidents and their frequency. It was wrong in law in stating that a bladder problem due to being unable to get to the toilet quickly enough did not amount to incontinence for the purpose of the descriptor. It may have been influenced, as the nurse may have been, by the incorrect statement in the handbook. There were no clinical findings and the recorded description of the daily activities were inadequate to enable the question to be answered whether the claimant scored 15, 6 or no points in relation to continence.[28]The tribunal’s finding that the claimant ticked the mental health descriptor boxes in error are also wrong in law. It is plain that she did not tick the boxes in error. She explained clearly that she could not go to unfamiliar places, or indeed any places, unaccompanied partly for physical reasons which the tribunal ignored and partly because she was scared which suggests a possible mental health problem as does her statement that she was too nervous to meet people she did not know.[29]This was an unrepresented claimant making what appears to have been an initial claim for benefit. It is typical of such claimants that they do not know what they have to establish and do not understand the way in which evidence is obtained – hence the common assumption that the tribunal could and would approach their GP or consultant for information. In addition the tribunal had two pages from a fax sent to the claimant’s GP and had no way of knowing what was in the rest of the fax or whether it had been sent with anything else such as a GP’s report.[30]As Judge Rowland observed when considering when an oral hearing should be directed before striking out a claim, “Many litigants in person are better at expressing themselves orally than in writing and, as a class, they are notoriously bad at understanding what evidence is required in order to support their cases and how it should be presented or obtained. Moreover, decisions on fact or as to the exercise of a discretion cannot usually be challenged where an appeal lies only on a point of law or the only method of challenge is judicial review.”[31]It is true that the claimant had stated that she did not want a hearing but this was pre-eminently a case in which the tribunal could not deal fairly and justly with the claim without explaining to the claimant that more information was needed and what that information was. In my judgment it failed properly to exercise its discretion in considering whether to adjourn both because it failed to appreciate the factual issues in the case and because it misunderstood the law in relation to both continence and the mental descriptors. The same errors of law repeat in its conclusions on the issues in the case.[32]I note that the representative of the Secretary of State has contended that even when the claimant produced a medical report from her GP, after the hearing, in support of her case, it still did not indicate any continence problem or any mental health problem. That may be because she had never been consulted about such problems or it may be because she was concentrating on the mobility problems arising from the claimant’s spinal issues or because she did not appreciate the relevance of any continence problem in assessing the claimant’s entitlement. Those are issues which may be resolved if she were to produce a new report for the new hearing I am directing.[33]I am unable to resolve the factual issues I have identified. The matter must be remitted for rehearing by a new tribunal which should approach it as indicated above. If the tribunal were to conclude that the claimant scores 15 points under descriptor 9(a)(i), then it would seem to follow that, if voiding occurred at least once a week rather than at least once a month. descriptor 8(a) in Schedule 3 would also apply to the claimant. The voiding of the bladder would only need to be extensive and not full as previously required under the old descriptor 6(a)(d). The requirement in Schedule 3 that the claimant should have to clean herself and change clothing covers descriptor 8(a). The relevant Social Security Legislation volume, vol.1 for 2012-13, at para.9.402, is wrong in including this requirement as part of descriptor 8(b) instead of, as in the original, covering both 8(a) and 8(b).[34]The claimant should consider obtaining help in presenting her case from a welfare organisation or similar body and should also consider, preferably with such an adviser, what further evidence she may be able to put forward or obtain. She should not assume, because the matter has been referred back to a new tribunal, that she will be successful. She may succeed but she may also easily fail at the new hearing. She should make every effort to attend a hearing and answer the tribunal’s questions, but if she feels unable to do so, she should explain why, provide medical evidence of any health problem and provide written evidence dealing with the matters I have raised. (signed) Michael Mark Judge of the Upper Tribunal 23 January 201 4

Cited in 2 later judgments