DG v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Post 28.3.11. WCA activity 9: absence or loss of bowel/bladder control) [2015] UKUT 370 (AAC)

UKUT-AAC
DG v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Post 28.3.11. WCA activity 9: absence or loss of bowel/bladder control)
[2015] UKUT 370 (AAC) · 2015-06-26
[1]This is an appeal against a decision of the First-tier Tribunal, sitting on 4 July 2014 at Nottingham, to dismiss the appellant’s appeal against a decision regarding his entitlement to Employment and Support Allowance (“ESA”). The appellant had been entitled to Incapacity Benefit on the grounds of incapacity for work or disability. He was then notified that the conversion phase, to assess his entitlement to ESA, had begun and completed a questionnaire, ESA50, on 9 June 2013. He attended for a medical examination on 12 July 2013. On 30 October 2013, the Secretary of State for Work and Pensions’ Decision-Maker decided that none of the qualifying descriptors of Schedule 2 of the Employment and Support Allowance Regulations 2008 applied to him and he was not entitled to an award of ESA. He appealed against that decision. In July 2014, the First-tier Tribunal confirmed the Secretary of State’s decision that the appellant was not entitled to ESA because he was not incapable of work. He scored no points on the limited capability for work assessment, when a score of fifteen or more was required for the appeal to be allowed. The Tribunal further found that the requirements of Regulation 29 were not satisfied.[2]The appellant has appealed against that decision to the Upper Tribunal. Permission to appeal was granted by Upper Tribunal

Judge Wright on 22 January 2015, on the following grounds:

“[1] I give permission to appeal on the First-tier Tribunal’s activity of “mobilising.”
It is arguably unclear whether the tribunal considered [the appellant]’s ability to mobilise without significant discomfort or exhaustion. The tribunal’s acceptance of [the appellant] being caused “constant pain” by his ankle (paragraph 10 on page 121), is at least suggestive that any walking was not done without significant discomfort. If a person continues walking despite significant discomfort and does not therefore stop, is he or she outwith scoring points for mobilising? (Moreover, no consideration was given to mobilising in a wheelchair). [2] In addition, it may be arguable that the tribunal approached descriptor 9(b) in Schedule 2 to the ESA Regs 2008 incorrectly in paragraphs 13 - 16 of its reasoning. On the face of its reasoning [the appellant] was in fact able to reach toilets quickly because he had arranged his lifestyle appropriately. However, isn’t the descriptor 9(b)’s focus on what occurs if a person is unable to reach a toilet quickly (i.e., a notional test) and not on whether in fact a person is able to reach toilets quickly?”[3]The respondent to this appeal (the Secretary of State for Work and Pensions) has filed written observations dated 23 March 2015. He accepts that the First-tier Tribunal (“the F-tT) erred in law in its treatment of the first issue identified by Judge Wright, and that the appeal should be remitted back for a fresh hearing on that basis. However, he submits that the F-tT’s approach to the second ground was appropriate and did not involve any error of law.[4]Against that background, I set out my own reasons for agreeing that the appeal should be allowed and the case remitted back to the F-tT for redetermination.[5]Ground 1: mobilising . Under this head of the appeal, the tribunal was required to assess whether the appellant was unable to “mobilise” over more than certain distances on level ground “without stopping in order to avoid significant discomfort or exhaustion”; or whether he could not repeatedly mobilise over such specified distances “within a reasonable timescale because of significant discomfort or exhaustion.” Points are awarded depending on the scale of the difficulties experienced; thus, the lowest possible award of points (6 points) would be awarded to a claimant who was unable to mobilise, or mobilise repeatedly within a reasonable timescale, over a distance of more than 200 metres. The tests are set out in Activity 1 of Schedule 2 of the Employment and Support Allowance Regulations 2008 (“the ESA Regulations”), and required the ability to mobilise to be assessed taking into account the assistance of aids that could reasonably be used, such as a walking stick or manual wheelchair.[6]In its Statement of Reasons, the F-tT tackled this topic by stating: [10] We had no doubts that [the appellant] had given us honest evidence and accepted that his ankle injury causes him constant pain, which sometimes flares up. We found that on most days he walks for 10 minutes to and from the swimming pool and that he also goes shopping about 3 times a week, which involves a similar amount of walking. Taking account of all the evidence, we found that, for the majority of the time, [the appellant] is able to walk more than 200 metres at a reasonable pace without stopping. We therefore awarded no points for this descriptor.”[7]The difficulty with this is that:(a) It leaves uncertain the relationship between “constant pain” (which the F-tT accepted that the appellant suffered) and “significant discomfort” which is the test set out in the ESA Regulations, Schedule 2. On its face, and having regard to the ordinary meaning of the words, it might be thought that someone who was experiencing “constant pain” was also suffering from “significant discomfort”. But that connection or conclusion is not made by the tribunal.(b) If the F-tT did accept that the appellant suffered from “significant discomfort” when walking, but continued walking despite this, then the respondent accepts that it was an error of law to regard this as meaning that the appellant could not score points for difficulties in mobilising. See the respondent’s submissions in response to the grant of permission to appeal (p145).[8]I note that the respondent’s submissions are consistent with the approach set in the Department for Work and Pensions’ Medical Services Handbook (the Revised WCA Handbook), which states: “A task must also be completed reasonably. If a person can complete a task but suffers significant pain or distress in doing so, they should be considered incapable of the activity.” (p30); “The end point is when the claimant can reasonably proceed no further because of substantial pain, discomfort, fatigue or distress.” (p81, emphasis added); “If a particular descriptor activity could only be performed by inducing significant breathlessness or distress, a higher descriptor must be chosen.” (p81).[9]It may be that this issue will arise comparatively rarely. Although it would be a finding for the First-tier Tribunal to make on the basis of all the evidence before it, it could well be that the fact that a claimant did repeatedly mobilise over (say) 200 metres would be a reasonable indicator of the fact that he or she did not in fact suffer significant discomfort in doing so. However, if the “pain threshold” has been reached but is habitually ignored by a determined individual, that should not in my view imply that points cannot be awarded under Activity 1.[10]For this reason, I consider that the case must be remitted back for re-determination. However, as a result of the respondent’s concession (see 7(b) above), there has not been full argument on the point. There has been some discussion whether or not descriptor 1(d)(i), for example (“Cannot either: (i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion …”) applies if the pain is not the consequence of mobilising, but is always present. See AW v SSWP (ESA) [2011] UKUT 75 (AAC) which considered earlier versions of these descriptors. My decision is based on the facts of this case and the approach taken by the respondent, and would not, of course, prevent fuller argument in an appropriate case.[11]For the sake of completeness I also note that (as Judge Wright stated) there was no consideration of whether a wheelchair ought reasonably to have been used: see the terms of Activity 1. This of course is a possibility that would only fall to be considered if the tribunal on remission back considers that the descriptor might otherwise apply.[12]Ground 2: incontinence . The assessment of this issue was based on descriptor 9(b) in Schedule 2, which required an assessment of whether the appellant:
“The majority of the time is at risk of 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, if not able to reach a toilet quickly.”
[13]On this issue, the F-tT stated in its Statement of Reasons:
“[13] We asked [the appellant] how his manages with his bladder and bowels when he goes swimming. He said that he did not eat before he goes swimming and, if he needs to go to the toilet, can get out of the pool. If he thinks that something is going to happen he will not go swimming…. If he goes out anywhere he always finds out where the toilet is. He has been caught in embarrassing places when he has not been able to get to a toilet when he needed to. His last proper accident was about 6 months ago when going to the bank. [14] The ESA85 records that [the appellant] does not use any incontinence aids, does not take any medication for his continence problems and has not been referred to a specialist. It also records that he wets himself in slight quantities due to pain and not being able to walk fast enough to get to the toilet. [15] His doctor has confirmed (page 93) that he suffers from a bowel problem which means he has to rush to prevent an attack of faecal incontinence. [16] We accept that [the appellant] does have trouble keeping complete control of his bladder and bowels. However, we find that he has learnt to manage his condition by regulating his food intake before going out and by knowing where the nearest toilet is. Although he does suffer some leakage on a fairly regular basis, it is not sufficient to cause him to wear pads. We find that he is not for the majority of the time at risk of loss of control leading to an extensive evacuation of his bowels or bladder and that this descriptor does not apply.”
[14]As Judge Wright observed, the F-tT appears to have concluded that the appellant was in fact able to reach toilets quickly because he had arranged his lifestyle appropriately. The issue is whether descriptor 9(b)’s focus is, however, upon what occurs if a person is unable to reach a toilet quickly (i.e., a notional test) and not on what happens because in practice a person has been able to reach toilets quickly.[15]The descriptor, or its statutory predecessors, have been considered in Upper Tribunal decisions that make it plain that the tribunal must focus on whether or not there is a risk of losing control that exists for the majority of the time. See NH v Secretary of State for Work and Pensions (ESA) [2011] UKUT 82 (AAC) , where in the context of a claim regarding urinary continence (and at a time when the descriptor required “full” evacuation), Upper Tribunal Judge Lane stated: “10. … It seems to me that the Secretary of State has focussed too much on whether the event (the full voiding of the bladder) actually occurred, rather than on the risk of the event occurring to the required extent. The assessment of risk is a common task for doctors and lawyers, though not necessarily an easy one. In drafting the descriptor as the Department did, it is plain that it is an assessment that tribunals were meant to make.11. The three factors in the analysis here are: the risk of losing control so that the claimant cannot control full voiding of the bladder if not able to reach a toilet quickly.12. A risk is a chance. It may exist without it ever actually occurring. The risk must be of losing control over those muscles involved in preventing the outflow of urine from the bladder. …. The facility which a claimant must be able to reach must be a toilet, not a roadside verge or other such makeshift.13. A tribunal will probably need ask itself a series of questions in deciding whether an appellant satisfies this descriptor. The starting point is whether he suffers from a condition (or conditions) which, in the tribunal’s medical experience, may lead to a loss of bladder control. If so, a risk of losing control clearly exists.14. Next, is the loss of control likely to be such that the appellant cannot control the full voiding of the bladder? This seems to be asking no more than, if the appellant starts to urinate, will he be able to stop before his bladder is completely empty. … While it is impossible to dictate what questions should be asked, the following may be of help: a) What did the appellant say about the problem in the ESA50? b) How does the appellant describe the extent of his problem? The tribunal may well need to ask fairly intimate questions about the appellant’s bladder control. c) Is there evidence from the GP to support the appellant’s claim? If a person is unable to stop himself from completely emptying his bladder, his GP is likely to know about it, to have prescribed appropriate medication and probably incontinence pads (which are otherwise expensive). d) Does the appellant go out and about without any obvious restrictions and precautions? e) Does the evidence of his typical day as recorded by the AHCP or given in oral evidence reflect concerns about the risks of incontinence? 15. Although the descriptor is about risk and not the materialisation of the risk, it will generally be relevant to find out whether the claimant has ever unexpectedly emptied his bladder fully. If he has not, it may be because he never goes far from a toilet. On the other hand, if he has a normal lifestyle and still has never lost full control of his bladder, it may be that there is no real risk of it happening. If he has lost control fully but infrequently, it may be that the appellant has learned techniques to minimise the risk to the point where it is too trivial to be legally significant, or that the instances of loss of control did not materially involve the condition of which he complains. ” (italics added).[16]“The most important point made by Judge Lane is that a risk may exist notwithstanding that there are few, or no, occasions when it materialises” (per Upper Tribunal Judge Rowland, KB v Secretary of State for Work and Pensions (ESA) [2014] UKUT 126 (AAC) , paragraph 12). Furthermore, it seems to me that the passage highlighted in italics directly addresses the relevance of “precautionary” measures adopted by a claimant. On the one hand, they may constitute cogent evidence of the very existence of a real risk; but, at the other end of the spectrum, coping techniques could “minimise the risk to the point where it is too trivial to be legally significant”.[17]Presumably, in such a case there would need to be an analysis of those precautions or techniques, and whether or not they could be maintained in a workplace. More particularly, it seems to me that any coping technique that was based on the ability to reach a toilet quickly would need to be disregarded, because that is the effect of the test set out in descriptor 9(b); it focuses on what will be the result “if” the appellant is “not able to reach a toilet quickly”. This is presumably because immediate access to toilet facilities cannot be guaranteed in all situations or workplaces. It will therefore be apparent that I agree with Upper Tribunal Judge Wright that the statutory test, which asks the tribunal to assess risk, is to that extent a notional one.[18]I note for the sake of completeness that incontinence problems may be compounded by physical difficulties in reaching a toilet sufficiently promptly, due to mobility issues: see PC v SSWP [2015] UKUT 285 (AAC) . I do not think that this contradicts the approach above; physical mobility problems will reinforce the existence of a risk, in particular cases.[19]The respondent’s submissions in this appeal are to the effect that the “tribunal found as fact that the claimant does not, for the majority of the time, have complete control of his bladder and bowels, but, although he does have leakage, it is not such as could be described as full evacuation or that requires a change of clothing”. So, submits the respondent, he “has a certain degree of control that prevents full evacuation and, thus, would not satisfy the relevant descriptor.”[20]I have set out the F-tT’s reasons above. I accept that the tribunal made the findings relied upon by the respondent (see paragraph 16 of the Statement of Reasons). However, the F-tT also noted evidence to the effect that if the appellant could not reach toilets quickly, he was at risk of accidents: see the references to being caught in embarrassing places when he has not been able to get to a toilet when he needed to and the “proper accident” about 6 months ago (paragraph 13) and the reference to the doctor’s evidence that the appellant suffered from a bowel problem “which means he has to rush to prevent an attack of faecal incontinence.” (paragraph 15). The difficulty is that its final conclusions on this issue at paragraph 16 focus on the effect of the appellant’s lifestyle changes or coping mechanisms:
“However, we find that he has learnt to manage his condition by regulating his food intake before going out and by knowing where the nearest toilet is.”
Given that the first precaution might well be difficult in a situation when the appellant was out of his home for more than a short period of time, and given also my view that the descriptor does require a decision maker to ask what be likely would happen (and how often) if a claimant was not able to reach a toilet “quickly”, I have reached the conclusion that the tribunal failed to demonstrate that it had focussed on the issue of risk , and that its conclusions at the end of that paragraph are tainted by that failure.[21]This is not to say that, on remission, the appellant would necessarily succeed under this head. But the evidence of the nature of his difficulties requires to be re-evaluated by a freshly constituted tribunal. Conclusions[22]For all these reasons, I have reached the conclusion that the appeal should be allowed and the case remitted back to the First-tier Tribunal for a full re-consideration.[23]The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the available evidence. Signed (on the original) Eleanor Grey QC Judge of the Upper Tribunal Dated 26 June 2015

Cited in 1 later judgment