“[7] The HCP carried out a physical assessment and took a full history from [the appellant], including details of her general daily routine. [The appellant] had travelled to the assessment by way of a 15 – 20 minute car journey …. She was able to walk in the local area for 4-5 minutes. The HCP reported that she was able to shop for 1 hour using a trolley as a support. [The appellant] stood for 25 minutes using 1 crutch and sat for 2 minutes. The HCP found evidence of a slight reduction in her ability to bend her hips and knees and outwardly rotate her hips. ….. [9] The HCP concluded that in relation to lower limbs [the appellant’s] observed behaviour was not consistent with significant disability. In relation to upper limb restrictions the HCP concluded they were medically unexplained and inconsistent. [10] In oral evidence [the appellant] said that her back symptoms consisted of spasms, shooting pains which made her back hot like a radiator, She said she suffered from diarrhoea up to 2 – 3 times a month. [11] She described her walking ability as poor. She said she could walk for 4 – 5 minutes stopping every lamppost. She said that if she walked one aisle of the supermarket she would be in agony for three days thereafter. She said she took 30 minutes to walk a distance that would take 2 minutes for a normally-mobile person. She said her soiling from her bowels was due to being unable to reach the toilet due to mobility. She said she had 3 accidents a month but she did not use any pads…. [12] We accepted [the appellant] suffered with back pain but there was a great deal of discrepancy between the level of disability described by the HCP and [the appellant]. To reconcile this we looked at the medical evidence that had been called for by the previous tribunal. [The appellant] had visited her GP on one occasion between 1 st July 2011 and the date of the decision on 8 th January 2013 for investigation of a chest rash. She was receiving no specialist input for her IBS and was using first-line antispasmodic medication. She was using over-the-counter painkillers and this corroborated the medical member’s view that her prolapse discs [sic] were unlikely to be causing the level of pain and disability she was claiming. As all her claimed disabilities stemmed from her back pain we found on balance that she was unlikely to be suffering the level of disability claimed on the ESA50. We therefore preferred the evidence of the HCP.”
“The key to applying the words of Activity 1 lies in making findings of fact relevant to those words that are as specific as the evidence allows. And, if the claimant is present at the hearing, the tribunal should ensure that it obtains evidence that is sufficient to that purpose. Just to take one example: the tribunal should have probed Mr H’s evidence that he “could not repeatedly do 50 metres”
“20 The tribunal should then have done what Commissioners have repeatedly told tribunals to do: weigh the evidence on the issues in the case. In this case, as in too many others, the tribunal took the short cut of preferring the evidence of the examining medical practitioner as a whole to that of the claimant as a whole (see its reasons set out above). Having dismissed the claimant’s evidence as exaggerated, it then assessed the examining medical practitioner’s report against the general practitioner’s report and preferred the examining medical practitioner report to that of the general practitioner because it directly answered the questions that the tribunal had to answer, and the general practitioner did not. That approach is fundamentally wrong. The tribunal did not assess the evidence from all sources together in one “weighing” exercise on the issues in dispute. Instead, it adopted a sequential approach to the sources of evidence, cutting out the evidence of A by reference to B, then C by reference to B, etc, so ending up only with the evidence of B. In so doing, it concentrated on the sources of evidence rather than on the relevant conflicts in the evidence. Although it states that it “carefully considered and weighed” all the evidence, its statement gives no evidence of that. There is no comparative analysis of the evidence on any of the seven physical descriptors expressly put in issue by the claimant in her grounds of appeal to the tribunal.”
“How far could the appellant walk without stopping? What made her stop? How did she feel? How soon could she proceed? How often could she repeat the process?”
“[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 to27 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….”
“[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.”