IN THE UPPER TRIBUNAL Case No  CE/2771/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE FORDHAM QC

 

Decision:  The appeal is allowed. The decision of the First-tier Tribunal (the tribunal) sitting at Chesterfield on 21 March 2012 under reference SC031/12/00109 involved the making of an error on a point of law. The tribunal’s decision is set aside and the case remitted to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in the final paragraph of the Reasons.

 

REASONS FOR DECISION

 

1.          On 25 August 2011 (page 29) the Secretary of State determined that the claimant was entitled to employment and support allowance (ESA) on the basis of limited capability for work, but not limited capability for work-related activity. The claimant appealed to the tribunal. After a hearing on 21 March 2012, the tribunal refused that appeal for reasons it gave later (page 51). This is the claimant’s appeal from the tribunal’s decision. No oral hearing of this appeal has been requested by either party and I am satisfied in all the circumstances that I can proceed to determine this appeal properly and justly without one.

 

Descriptor 12: coping with “any” change

 

2.          The central question in this case is whether the claimant meets any of the statutory criteria regarding limited capability for work-related activity. One such criteria involves the position where, by reason of the claimant’s physical or mental condition, this descriptor (descriptor 12) applies to her:

 

“12. Coping with change. Cannot cope with any change, due to cognitive impairment or mental disorder, to the extent that day to day life cannot be managed.”

 

The relevant statutory provisions are regulation 34(1) of, and Schedule 3 paragraph 12 to, the Employment and Support Allowance Regulations 2008.

 

3.          The tribunal found that because there was an occasion when the claimant had coped with a change, descriptor 12 could not apply to her. That reasoning involved these steps. (1) The tribunal focused on the word “any” (underlined above) in descriptor 12. (2) The tribunal examined the example which the claimant had put forward (page 19), concerning an occasion on 13 July 2011. (3) The tribunal found that on that occasion the claimant, albeit with difficulty, “did cope with the change”. (4) The tribunal ruled that this was fatal to her claim. The key passage in the tribunal’s reasons is §11 (page 53).

 

Regulation 34(2): “majority” of the time/occasions

 

4.          Regulation 34(2) of the 2008 Regulations provides that:

 

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.”

 

So – it would be enough it the claimant could not cope with change “the majority of the time” or “on the majority of the occasions” when she attempts to do so.

 

5.          The tribunal did not mention regulation 34(2), nor address how it was satisfied. The reason was evidently because the tribunal regarded the clear words of descriptor 12 as overriding regulation 34(2). Certainly, this was why it refused permission to appeal (page 57): “The concept of ‘reasonable regularity’ does apply to the descriptors in Schedule 3 but not where the specific wording of a descriptor indicates the contrary. The use of the word “any” in relation to activity 12 … would indicate that any concept does not apply to these activities”.

 

Analysis

 

6.          In this appeal, the claimant submits (page 63 §1, page 77) that the tribunal went wrong in law, because regulation 34(2) does apply to descriptor 12. The Secretary of State agrees (page 72 §4.2), but submits that the error was immaterial and is not a sufficient reason to overturn the tribunal’s decision. I shall need to return to the latter point.

 

7.          I agree with both parties that this was an error of law. My analysis is as follows.

 

(1)       The regulations should be read, if possible, as a coherent whole and it is necessary to see if there is an interpretation which avoids a conflict between regulation 34(2) and descriptor 12, reconciling the two. In my judgment there is such an interpretation, and therefore it is not necessary for one to give way to the other.

 

(2)       The combined effect of these provisions is that a claimant can say: ‘the majority of the time, I cannot cope with any change’.

 

(3)       The word “any” brings in changes of differing degree of significance. An individual will fail if, the majority of the time: (a) they cannot cope with significant change but (b) they can cope with less significant change. That is the consequence of the word “any” in descriptor 12. An individual will succeed if, the majority of the time they cannot cope with “any” change, even a less significant change. It is not of itself fatal that the claimant can sometimes cope with a change.

 

Descriptor 13: “always”

 

8.          The claimant has identified the descriptor 12 point as her “main contention” on this appeal (page 77). Given my conclusions on the erroneous approach to descriptor 12 (above) and its materiality (below), it is a sufficient basis for my decision to allow the appeal and remit the case for a rehearing afresh. But I have not overlooked the similar way in which the tribunal dealt with “always” in descriptor 13. In the circumstances, it is sufficient for me to say this.

 

(1)       Descriptor 13 was raised by the claimant alongside descriptor 12 (page 54). It is fair to say that the point was not specifically developed (pages 63-66). Nor – perhaps unsurprisingly – was it responded to by the Secretary of State (pages 72-73).

 

(2)       Although it has not been necessary for me to address the point, it does seem to me that the better view is that the same considerations should apply to the word “always” in descriptor 13 (coping with social engagement) as apply to the word “any” in descriptor 12.

 

(3)       Accordingly, the provisions could again be reconciled if the claimant is entitled to say that ‘the majority of the time’ social engagement is never possible (ie. ‘always’ precluded). In other words, descriptor 13 like descriptor 12 applies to a complete inability to cope (“any”, “always”), and regulation 34(2) deals with the broad time-line in which that complete inability is experienced (“the majority of the time”).

 

(4)       Having said that, I would accept that the position is less clear than under descriptor 12. Descriptor 13 does not say, as it could, “any engagement” or “any social contact”. Moreover, “always” has a temporal nature, which means it is more apt to conflict with the (temporal) provision found in regulation 34(2).

 

Materiality

 

9.          The Secretary of State submits that, notwithstanding the accepted error of law on descriptor 12, the appeal should not be dismissed because the tribunal’s conclusion on the facts was substantively unassailable. At one point it is said that the tribunal “reached the correct decision” (page 72 §4.2), but the Secretary of State elsewhere rightly recognises that the question is whether the tribunal “made the only decision which a Tribunal, properly instructed as to the law, could have made” (page 71 §1.3). This is not in my judgment a case where the point was trivial, nor was dealt with by further or independent reasoning, so that the focus is on whether (page 74 §4.11) the decision was “the only one which could rationally have been reached”. If so, the error of law could properly be said to have been immaterial.

 

10.      The strength of the Secretary of State’s point lies, in my judgment, in the fact that the claimant had chosen to give an “example of not being able to cope with small changes” (page 19). If her best example of inability to cope with changes in fact demonstrated an ability to cope then it is implausible to think that what happened the rest of the time could be any more favourable to her claim, especially when the question was whether there was an ability to cope with change the majority of the time.

 

11.      I see the force of that, but I do not accept that it is a legally proper way to dispose of this case. The claimant described the events of 13 July 2011 as “[a]n example of not being able to cope with small changes” (page 19), and she evidently thought it was a good example. But she did not actually say it was the best example. She was clearly seeking to rely on a pattern of not coping with change. She had said: “I do tend to panic at just small changes to my routine due to my anxiety, for example if I thought my parents were in, then they said they would have to go out this would make me go into a panic instantly, and my anxiety would affect me, making me feel I can’t cope. Or if my mum said we were going to a place I was used to I would be fine but say if she said we aren’t going there now we are going to another place that wasn’t familiar to me that would make me panic and become anxious” (page 19). I find it impossible to say that no rational tribunal, on exploring the evidence of that pattern, could come to the conclusion that descriptor 12 was satisfied. Given its approach to “any” in descriptor 12, the tribunal’s questions did not explore the wider pattern, but focused on the claimant’s example (pages 45-46). I must guard against merely substituting my own judgment on the merits, or speculating as to what might have been forthcoming. I remind myself that the claimant was entitled to a decision of the merits before a specialist tribunal properly directing itself in law, which she has not had. In my judgment, it is not inevitable that the tribunal would have dismissed the appeal had it directed itself correctly in law, nor that a tribunal reconsidering the case afresh would do so.

 

Conclusion

 

12.      The material error of law which I have identified is sufficient reason why the decision cannot stand and must be set aside. This is a case in which all the evidence and submissions ought to be considered, afresh, by the specialist first-tier tribunal entrusted with the primary function of deciding questions of fact and merit. I do not need to deal with the other submissions, including as to the totality of the evidence and the material from the GP. It will be for the tribunal to revisit what it makes of the events of 13 July 2011 itself (page 53 §11, addressed by the Secretary of State at page 72 §4.4), as to whether this evidences not coping with change (the effect of the roadworks on the bus journey to Matlock) or coping with change (staying on the bus and arranging a 3-mile taxi taking another route). The tribunal will no doubt note as I have that this was said to be “the only time I use public transport” (page 20), and was described as an “emergency plan” to get to meet up with her sister in Matlock so as to deal with the anxiety of being alone (pages 19, 45). It will be for the tribunal to consider any question as to descriptor 13, any question as to regulation 35(2), the question of what to make of the claimant’s attendance of an anxiety programme (achieved only by meeting up beforehand with an accompanying support worker: page 53 §12), and the aura migraines (which were raised by the claimant: pages 7 and 15).

 

Directions

 

13.      The differently constituted tribunal must conduct a complete rehearing of the issues that are raised by this appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. The tribunal must deal with any procedural questions, as may arise, on their merits. The tribunal must consider all aspects of the case, both fact and law, entirely afresh. The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the 1998 Act – but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of the decision: R(DLA)2/01 and 3/01.

 

 

 

MJ Fordham QC

Judge of the Upper Tribunal

26 April 2013