IN THE UPPER TRIBUNAL	Case No.  CIB/1595/2010
ADMINISTRATIVE APPEALS CHAMBER

Before:	Judge of the Upper Tribunal: E A Jupp

Decision:	The decision of the First-tier Tribunal given on 2 February 2010 under registration No. 228/09/03974 was erroneous in law.  Accordingly, the claimant’s appeal succeeds.  Under Section 12(2)(a) and (b)(i) of the Tribunal’s Courts & Enforcement Act 2007 I set aside the tribunal’s decision and remit the appeal for reconsideration by a differently constituted First-tier Tribunal of the Social Entitlement Chamber.

Directions:  My directions and guidance are set out in paragraphs 15 to 18 below.

REASONS FOR DECISION

1.	The claimant is a woman born on 8 February 1973.  She became incapable of work on 2 January 1997, the cause of incapacity being stated as back pain and depression.  She was entitled to incapacity credits.  The papers include the examining medical practitioner’s report from a previous examination on 1 February 2006 and the resulting score.  On that occasion, the claimant had scored nil in respect of physical descriptors, but 21 in respect of mental descriptors.

2.	She completed form IB50 on 10 February 2009 and was examined by a medical services health care professional (the HCP) on 20 April.  The nurse who completed that assessment recorded the claimant as looking unwell and tired, and that a smell of alcohol was detected although the claimant was sober.  Against the claimant’s own score of 73 points on the physical descriptors, the decision maker awarded 6 points for problems with manual dexterity, and 5 in respect of mental descriptors - two each as the claimant sat for hours doing nothing, and as stress was a factor in making her stop work, and one as she was anxious that work would bring back or worsen her illness.  As a result, her award of incapacity credits was superseded on 21 June 2009.

3.	The claimant appealed through her representative, the local law centre, on the grounds that the decision maker failed to appreciate the true extent of the claimant’s disabilities, which continued to satisfy the personal capability assessment (the PCA).  Further, the claimant had previously attended a number of medicals which had satisfied the PCA but, if anything, there had been a deterioration in her condition since she was last examined, successfully, for the PCA.  The decision was reconsidered but not revised.  The appeal proceeded.

4.	A skeleton argument was submitted by counsel on behalf of the claimant, seeking a further single point in respect of the claimant's sleep problems interfering with daytime activities.  This would enable the claimant to secure a score of 6 in respect of mental descriptors.  As regulation 26(1)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995 provides that an aggregate score of between 6 and 9 points in respect of mental descriptors should be treated as a score of 9 points when added to the score in respect of the physical descriptors, this would enable her to achieve the required score of 15.  

5.	Counsel submitted that the HCP had found that the claimant “adjusted her daytime activities to fit in with her sleeping pattern” and had also documented that the claimant usually slept poorly because of “thinking about things”.  In CIB/23/2009 Upper Tribunal Judge Wikeley stated “I accept the argument by the appellant’s representative that the [examining medical practitioner’s] findings about adjustment of daytime activities is tantamount to an interference with such activities”.

6.	The claimant opted not to have an oral hearing.  The tribunal dismissed her appeal and recorded on the decision notice that, based on its own evaluation of the evidence, it agreed with the Secretary of State’s selection of the descriptors applicable to the claimant.

7.	In the statement of reasons, the tribunal recorded:

“The submission made on behalf of the appellant was considered by the Tribunal but after considering the description of a typical day the submission in respect of the application of the further mental health descriptor was rejected.  It was recorded by the health care professional that although the appellant slept poorly because of thinking about things she usually got up from bed at 7.30.am.  There then followed a description of what the appellant did throughout the day.  There was no hint within that description of the appellant being compromised during the day because of her sleeping poorly at night.  As the appellant had elected for the appeal to be decided on the papers the Tribunal had no opportunity of questioning her to determine precisely what was meant by “sleeps poorly” and no opportunity of taking further evidence in respect of the descriptor DLe.  It was noted that at page 29 of the appeal bundle the appellant said “I sleep in the day sometimes” but in the absence of the appellant or further detail in the submission on her behalf that could not be further explored.  On the evidence before it the Tribunal finds that the descriptor does not apply.”

8.	The District Judge refused permission to appeal, stating that CIB/23/2009 was not authority for the proposition claimed and in any event were obiter as the issue in that case concerned panic attacks (this is not so, satisfying the descriptor on sleep problems interfering with daytime activities was part of the Judge’s decision, enabling the claimant to achieve the minimum score).  The tribunal had assessed the evidence and come to a conclusion, with clear reasons why it had done so.

9.	The claimant then appealed with my permission.  In giving permission I observed:

“
…….My own preliminary view would be that where a claimant is stated to adjust to an abnormal sleep pattern, that is not an indication that “sleep problems interfere with day time activities”, without further evidence, which here appears to have been limited to the claimant's submission that she sometimes fell asleep in the afternoon…..”

10.	The Secretary of State does not support the appeal.  His representative analyses the evidence of the claimant’s sleeping arrangements as follows:

“7….Bed – at any time.  Sleeps poorly – mind worries all time.  Waken @ different times.  Worn out next day.  Irritable“ - page 5 of bundle – Health Care Professional’s (HCP) report 1/2/06;

“I sleep in day sometimes & can’t sleep at night” – page 29 of bundle – self assessment form 10/2/09;

“Usually gets up at about 7.30 am” – page 50 of bundle – HCP’s report 20/4/09;

”Was very concerned and did not sleep well because of coming here today” – page 50 of bundle – HCP’s report 20/4/09;

“Usually sleeps poorly because of thinking about things” – page 50 of bundle – HCP’s report 20/4/09;

“Adjusts daytime activities to fit in with sleeping pattern.” – page 63 of bundle – HCP’s report 20/4/09.

He submits that the tribunal pointed out that CIB/23/2009 was only relevant to the facts of that case and could not be construed as a universal interpretation of the law, adding that this coincides with my own view as expressed above that one might not follow CIB/23/2009 as a matter of course, but the facts in the particular case in question should be considered.  He correctly draws attention to my having referred to the claimant falling asleep in the afternoon, whereas what she said, of course, which he did note, was that she sometimes fell asleep during the day.

11.	The Secretary of State’s representative also notes that:

“12. 	Thus, the tribunal had to determine from the evidence that the claimant had sleep problems as a consequence of a mental health condition and that such problems interfered with day time activities.  As far as the tribunal was concerned, the evidence that the claimant had a sleeping problem was accepted and, by implication, it would appear that it also accepted that such problems were as a consequence of a mental health condition.  However, it found no evidence that such problems interfered with her daily routine. It made reference to the HCP’s report, noting that the claimant normally rises at 7.30 am.  Although it was unable to ascertain how many hours the claimant might sleep at night, it felt that the HCP’s report showed the claimant to be reasonably active throughout the day without any hint of her routine being compromised through lack of sleep.  The tribunal also documented the claimant’s evidence that she sometimes sleeps during the day, but this could be for any number of reasons, the claimant telling the HCP, for instance, that she starts drinking when she gets up and consumes up to 12 cans every day (page 49).

13.	In my view, therefore, the tribunal was entitled to reach the conclusion it did, basing its decision on the evidence, or, more precisely, the lack of evidence supporting the claimant, that was presented to it.  It may well be that the claimant does adjust her daytime activity to fit in with her sleeping pattern, but, as the UT Judge states when granting permission to appeal, that is not necessarily an indication that sleep problems interfere with day time activities, and the claimant needed to show where her problem intruded on her day.  No evidence of such was laid before the tribunal.  Basically, there was no evidence that sleep problems interfered with the claimant’s routine, and, in my view, the tribunal was clear in its facts and reasons so as to be entitled to refuse a score under descriptor 16(e).”

11.	Not surprisingly, the response on behalf of the claimant is that the Secretary of State’s position that there is “no evidence” cannot be squared with the evidence listed at paragraph 7 of his submission, repeated at paragraph 9 above.  The submission adds:

	“5.	It is submitted that the Secretary of State’s analysis underlines the Appellant’s case that the [First-tier tribunal’s (FTT)] decision involves an error of law for inadequate reasons.  It is the Appellant’s case that the FTT has failed to identify and record matters that are critical to a proper determination of descriptor DL(e) so as to enable the parties to understand its thought processes when it made its decision (R(1) 2/06) para [49]).  As a result, it is not possible to tell whether, in reaching its conclusion on the facts, the FTT applied the law correctly.

	6.	It is not possible to tell how, having accepted that the Appellant sleeps poorly, the FTT’s conclusion that this did not affect any daytime activities that she would otherwise undertake, can be reconciled with the HPC’s finding (on page 63) that the Appellant: “[a]djusts daytime activities to fit in with sleeping pattern” when this is, in the words of CIB/23/2009 “tantamount to an interference with such activities.”

12.	I am persuaded by the argument on behalf of the claimant that the Secretary of State’s analysis in fact highlights the failure of the tribunal to weigh the evidence as it should have done, and to give adequate reasons for its decision.  There is certainly evidence of disturbed sleep.  There is evidence of some daytime problems although, it has to be said, not a great deal of detail on which a tribunal could base a decision.  It is possible that if the tribunal had addressed this descriptor as it should have done, it would have concluded an adjournment was necessary, given the significance of the single point available for this descriptor as to whether or not the claimant achieved a sufficiently high score to pass the test overall.  In the initial appeal against the decision maker’s decision, the claimant’s representative asserted that, far from improving, the claimant was in fact deteriorating (and she did score 6 on the physical descriptors on this occasion which she had not done on the previous occasion) so that it was important for the tribunal to make clear findings of fact and to make plain the reasons for its decision.  I am satisfied that it did not do so in respect of whether the claimant satisfied this descriptor and that it is appropriate for the decision to be set aside and remitted for further consideration by a differently constituted tribunal.

13.	The claimant’s representative’s relies on CIB/23/2009 where the Judge accepted that the EMP’s finding about adjustment of daytime activities was tantamount to an interference with the activities of the claimant, in that case.  In giving permission to appeal, I indicated that I was not then persuaded that that wording alone is sufficient to indicate that a claimant satisfies the descriptor, and that further findings of fact would be necessary in each case.  In my judgment the wording indicates that a claimant does not have a normal sleep pattern and that some adjustment is made to deal with this.  It flags a potential problem and that satisfaction of the descriptor is in issue, but as Mr Commissioner Jacobs, as he then was, held in CIB/5336/2002:

	“14.	 The claimant’s representative argues that interference is not limited to preventing the claimant undertaking daytime activities. I accept that argument. Daytime activities may be prevented completely, or only be possible at certain times of the day, or be possible but only very intermittently or very slowly. All of these are potentially ways of interfering with the activities. Any of them is sufficient to satisfy the descriptor. This is subject to two qualifications. First, they must result from sleeping problems. Second, as with the word ‘cannot’ in descriptor 15(a), the issue depends on the proper use of language. When is a change in the activities undertaken or the pattern that would otherwise be followed an interference? A minimal change may not be sufficient to amount to an interference. So, for example, the fact that the claimant cannot start her daytime activities until a little later than normal or needs a rest at some time during the day, is not necessarily sufficient to satisfy the descriptor. Nor would it be necessarily be an interference just because the claimant has to change the time or order in which she performs the activities. This is a question of fact and degree, turning on the proper use of language”.
I emphasise the final sentence, that this is a question of fact and degree, turning on the proper use of language, so that a proper judgment can be made.
14.	Without further evidence, the phrase “adjusts daytime activities to fit in with sleeping pattern” is not conclusive.  If that sentence is one of the automatic pre-prepared responses available to an HCP completing form IB85, (and I note that it appears to have been used also on the earlier EMP's report in 2006) then I suggest that consideration is given to its removal or, at the very least, improvement by amplification.

DIRECTIONS

15.	The new First-tier Tribunal must hold an oral hearing and conduct a complete reconsideration of the issues that arise for decision in this appeal, together with any others which merit consideration, subject to the discretion provided by section 12(8) of the Social Security Act 1998.  It must make and record full findings of fact on all necessary points, with reasons for its acceptance of the evidence which is preferred and why the other evidence is rejected.  It should bear in mind that the claimant also suffers from alcohol dependence, which may be relevant to her daytime activities.

16.	It must not take account of circumstances which did not obtain at the date of the original decision appealed against, 21 June 2009, but must take account of any evidence which came into existence after that date, but which relates to the circumstances as at that date.  If the claimant is minded to submit further evidence, she will also appreciate that this must relate to whether or not she satisfied the descriptors which she contends applied to her at 21 June 2009, and not at the date any report is given.  In any event, full details should be made available to the tribunal in respect of the problems asserted in connection with her sleep problems.

17.	The claimant is advised to make every effort to attend the new hearing if at all possible, failing which, again if at all possible, she should be represented.  If she considers it will be difficult to travel to the hearing, she should contact the tribunal clerk to discuss what arrangements may be made to help.  

18.	The claimant will bear in mind that my decision is limited to matters of law; the new tribunal will make its decision on the evidence before it and the outcome may not be different or may be less or more helpful to her.

19.	For the reasons stated, the claimant’s appeal succeeds.  As further findings of fact are necessary I am not in a position to remake the decision under section 12(2)(b)(ii) of the Tribunal, Courts and Enforcement Act 2007, I remit the appeal for reconsideration.

(Signed)                  E A Jupp
Judge of the Upper Tribunal

      24 November 2010