IN THE UPPER TRIBUNAL	Case No.  CE/191/2010
ADMINISTRATIVE APPEALS CHAMBER

Before 	Upper Tribunal Judge L T Parker

Decision:

The appeal is allowed.  Permission to appeal was given by an upper tribunal judge.  The decision of the First-tier tribunal sitting in Cardiff on 27 September 2009 (the tribunal) is wrong in law.  I set aside the tribunal’s decision and return the appeal to a new tribunal for a wholly fresh hearing.  The upper tribunal is not in a position to remake the decision under appeal as further findings of fact are required.  The appeal is not supported by the Secretary of State but, for the reasons set out below, in my judgment, the tribunal erred in law.

REASONS FOR DECISION

Background

1.	The tribunal confirmed the decision of a decision maker (DM) on behalf of the Secretary of State dated 27 April 2009 superseding an award of employment and support allowance (ESA) from and including 19 January 2009; that award had been made on the basis the claimant was suffering from depression and low mood.  The tribunal accepted the reasons of the health care professional (the doctor) who had undertaken the medical examination on 15 April 2009 on which the DM then relied in making his supersession.  On his ESA questionnaire, the claimant described panic attacks, shutting himself off, not answering the phone or door.  The doctor did not accept any functional impairment which attracted points and this was followed by the DM.  

2.	The claimant appealed to a tribunal from the DM’s adverse decision.  He attended the hearing with his sister.  He produced a note from his general practitioner (GP), dated the day prior to the hearing, which stated he should refrain from work for 3 months and gave the diagnosis as “low mood, depression, agoraphobia, grief, bereavement”.  The claimant gave evidence to the hearing to which his sister had nothing to add.  

3.	To the doctor at the medical examination on 15 April 2009, the claimant said that he “always shops with family due to anxiety”.   At the hearing, his evidence included the following:

	“Shop with sister, all the time.  Can’t go into shop – floor comes up to me.  Left trolley in shop last time I went in.   We go shopping late at night.  I don’t like crowds.  …[My sister] does my paperwork for me.  Goes to PO for me.  When I go places – I get anxious…sit there without light on.  If problem in home, I’d ring [my sister].  Don’t like speaking on the phone to people.  Never go out with friends – not interested…was referred for MHT but I never went.  Walked out of dentist the other day.”

4.	The tribunal correctly noted that the burden of proof was on the Secretary of State to demonstrate that supersession of ESA was justified.  The tribunal narrated the evidence.  The tribunal dismissed the appeal having found as follows with respect to the mental health descriptors:

	“…The Tribunal found that the Appellant had no problem with concentration or expression and communicated well during the Tribunal hearing.  It was clear that he was self-caring and went about his daily business without problems.  He took his medication when needed, which assisted him with his asthma and his mild depression.  He has been offered help with respect to his problems with bereavement, but has not taken up that offer.  The Tribunal accepted the [doctor’s] findings after the formal examination of the appellant’s physical and mental abilities.  There was no other evidence produced by the appellant save for a sick note dated 8/10/09, the day before the hearing.  The Tribunal was satisfied that at the date of the decision the Appellant did not have limited capacity for work.”

Appeal to the Upper Tribunal

5.	The claimant appeals because of what he considers is a difference in opinion between the doctor and his own GP.  Upper Tribunal Judge Jupp gave permission to appeal for the following reasons:

	“Permission is given for further consideration of the adequacy of the tribunal’s findings of fact and the reasons for its decision.  It does not appear to have explained why the approved disability analyst’s report was accepted in preference to the claimant’s own evidence (see CIB/2308/2001 para 20).

	In particular, the tribunal did not investigate why the claimant did not follow up the referral to the mental health team.  The doctor’s report stated that “none of the above” applied with regard to coping with social situations despite the claimant’s evidence both in the claim form and at the examination to the contrary.  The claimant again confirmed this at the tribunal hearing, but his evidence was rejected, and the examining doctor’s evidence was preferred.  As indicated by the headings, (although this is not necessarily conclusive in itself), the statement of reasons does not contain a section where the reasons for its decision are addressed.”

6.	The response on behalf of the Secretary of State concentrates on the last 3 sentences of the upper tribunal judge’s reasons when giving permission to appeal.  The submission states, firstly:

	“The Tribunal did not separate its statement of reasons into headings so its deliberations on each of the activities and descriptors are less clear than if each had its own paragraph.  However, I submit that this on its own is not an error of law.”

7.	The Secretary of State then turns to how the tribunal dealt with activity 19, which is set out in the submission:

	“Activity 19.  Coping with social situations					Pts

	a)	Normal activities, for example, visiting new places or		15
		engaging in social contact, are precluded because of
		overwhelming fear or anxiety.

	b)	Normal activities, for example, visiting new places or		 9
		engaging in social contact, are precluded for the
		majority of the time due to overwhelming fear or anxiety. 

	c)	Normal activities, for example, visiting new places or		 6
		engaging in social contact, are frequently precluded,
		due to overwhelming fear or anxiety. 

	d)	None of the above apply.					 0”

The Secretary of State’s submission continues:  “this activity is intended to reflect lack of self-confidence in social situations that is greater in its nature and its functional effects than mere shyness or reticence…the level of anxiety referred to suggests a specific and overwhelming experience of fear, resulting in physical symptoms or a racing pulse, and often in feelings of impending death such as may occur in a panic attack”.  The submission points out that the expert medical member on the tribunal is entitled to draw appropriate conclusions from the clinical examination; in the present case the doctor noted:-  “the claimant did not appear to be trembling, increased sweating was not apparent, he did not make rocking movements, he coped well at interview, he spoke at a normal rate, he experienced neither depersonalisation or derealisation….”

Discussion

Adequacy of Reasons

8.	There has to be a sense of balance about what a tribunal is required to set out in its statement.  An upper tribunal judge is concerned with whether the statement of reasons is adequate, perfection is not required, which can be judged only in the context of the evidence and submissions as a whole.  What matters is that a party should be able to discern the reasons why his evidence has failed to satisfy.  As the tribunal has given no indication why it preferred the doctor’s opinion to the claimant’s own evidence, the reasons are necessarily insufficient.

9.	Headings in a statement of reasons are not essential, whether this is, for example, with respect to individual activities and descriptors or relating to the distinction between findings and reasons.  However, headings do help to focus a tribunal’s mind on what is both relevant and required.  In any event, the crux is that the tribunal moved from “findings” to “decision” but nowhere, either in form or in substance, did it explain its reasoning.  If appropriate, the tribunal could have stated its  preference for the doctor’s opinion very simply by adopting his clinical findings as its own and stating what it read from those clinical findings on their application to the question whether the claimant did or did not fit a particular descriptor.  Without discussion of the clinical findings and what they objectively demonstrated on a balance of probabilities about the appellant’s functional impairment, it was in no way made clear to him why the Secretary of State had discharged the onus of proof.  

Activity 19: Coping with Social Situations

10.	The text of this activity is set out above, within my paragraph 7.  What is meant by “overwhelming” is a matter of fact and degree; it may have a medical connotation.  But that same qualifier of “fear or anxiety” is used in the three descriptors which each give a very different pointage; this has the result that the real distinction lies rather in how often preclusion of social activity is caused by the “overwhelming fear or anxiety”.   In any event, while the term may indeed reflect severe anxiety as is suggested on behalf of the Secretary of State, the guidance given to health care professionals is in no sense prescriptive.  

11.	The starting point with respect to the application of any descriptor is regulation 19(2) of the Employment & Support Allowance Regulations 2008 which provides:

	“The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.”

It is against that background that a tribunal, using its expertise, applies individual descriptors.  The primary condition is thus that there is a specific disease or bodily or mental disablement which causes the inability to perform the particular activity or task in issue.  If a claimant, for example, establishes mental disablement which results in fear or anxiety such that he is wholly unable to undertake normal activities like visiting new places or engaging in social contact, there would seem to be no free-standing need to demonstrate “overwhelming” fear or anxiety.  From the wording of the whole phrase, the use of “overwhelming” seems to add nothing once the other constituents are shown:  if the shoe otherwise fits, this would in itself appear to demonstrate that the fear or anxiety is correctly described as “overwhelming”.

12.	What is important, however, is that a tribunal explains how it has reached its conclusions on the application of descriptors, probably in terms of clinical features but not necessarily so.  So long as there are sufficient findings of primary fact to underpin any inferences drawn and its process of reasoning is adequately explained a tribunal may not be faulted.  The present tribunal accepted the doctor’s findings after his formal examination of the appellant, as it was entitled to do, but did not give even a brief explanation of how this meant that satisfaction of activities such as Activity 19, which possibly applied on the basis of the claimant’s own evidence, had been successfully refuted by the Secretary of State.   

Activity 18: Getting About

13.	This activity is in the following terms:

														Points

	“18(a)	Cannot get to any specified place with which the
		claimant is, or would be, familiar.  							15

	(b)	Is unable to get to a specified place with which the 
		claimant is familiar, without being accompanied by 
		another person on each occasion.  							15

	(c)	For the majority of the time is unable to get to a 
		specified place with which the claimant is familiar 
		without being accompanied by another person. 				  9

	(d)	Is frequently unable to get to a specified place with
		which the claimant is familiar without being 
		accompanied by another person							  6

	(e)	None of the above apply								  0”

14.	The main difference between 18(a) and other descriptors within the activity is that, to satisfy 18(a), the claimant’s condition must be so severe that he cannot even get about when accompanied; then the distinctions between 18(b) and the succeeding paragraphs relate to the incidence of the occasions when the claimant is unable to get about unless he has a companion.  18(a) and 18(b) each give 15 points, which satisfies the test, even though the functional impairment of a claimant under 18(a) is clearly more serious than that under 18(b).  There are instances of other activities, for example activity 15 and activity 16, where this is also the case:  the apparent rationale is the provision of an overall worst case scenario which obviously qualifies, combined with a recognition that, nonetheless, a less serious but still very severe functional impairment should also satisfy.  Thus it is already inherent within the schedule that differing degrees of disability, referable to the same activity, may nonetheless attract the same pointage.  

15.	With respect to descriptors 18(a) and 18(b) there is a further difference in the level of incapacity required, which is important in the present claimant’s case.  Descriptor 18(a) encompasses an inability to get to “any specified place” (my emphasis) whereas 18(b) covers an inability to get to “a specified place” (my emphasis).  S.6(c) of the Interpretation Act 1978 provides:  “In any Act, unless the contrary intention appears … words in the singular include the plural and words in the plural include the singular”.  As the word “any”, however, usually means “all”, particularly when expressly contrasted with the use of “a”, this provides the necessary contrary intention.  The deliberate use of different terminology implies that “any specified place” means, in effect, anywhere at all; whereas the phrase “a specified place” reads more naturally that it could include just one kind of place.  In the present case there is evidence that the claimant is unable to go to shops “without being accompanied by another person” and it is possible that that situation always obtains.  If, on the facts, the claimant is never able to go to shops, albeit those with which he is familiar, without being accompanied by, for example, his sister (as the evidence seems to suggest) then descriptor 18(b) potentially applies, even though the restriction is not as geographically all embracing as that under 18(a); it still represents a severe level of functional impairment.  

Summary

16.	The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised it will be a complete rehearing on the basis of the evidence and argument available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although there has been success in this appeal limited to issues of law, the decision on the facts of the case remains open.  The GP’s Med 3 of 8 October 2009, listing “agoraphobia” as one of the conditions in the claimant’s case, is after the date of the relevant decision, but it still would be evidentially relevant to the claimant’s circumstances in April of the same year if his condition did not improve in the intervening months.

			(Signed)

				L T Parker
				Judge of the Upper Tribunal

			(Date)	30 July 2010