Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
This decision is given under section 11 of the Tribunals,
Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference SC950/11/02925,
made on 15 May 2012 at Hull, did not involve the making of an error on a point
of law.
Reasons
for Decision
A.
The issue
1.
This case concerns regulation 29(1)(a) of the Employment and Support
Allowance Regulations 2008 (SI No 794) and the application of section 12(8)(b)
of the Social Security Act 1998, as interpreted by R(DLA) 2 and 3/01.
2.
Regulation 29(1)(a) provides:
29 Exceptional
circumstances
This
section has no associated Explanatory Memorandum
(1) A claimant
who does not have limited capability for work as determined in accordance with
the limited capability for work assessment is to be treated as having limited
capability for work if paragraph (2) applies to the claimant.
(2) This
paragraph applies if—
(a) the claimant is suffering from a life threatening disease in
relation to which—
(i) there is medical evidence that the disease is uncontrollable,
or uncontrolled, by a recognised therapeutic procedure; and
(ii) in the case of a disease that is uncontrolled, there is a
reasonable cause for it not to be controlled by a recognised therapeutic
procedure; …
3.
Section 12(8)(b) provides:
(8) In deciding an appeal
under this section, an appeal tribunal-
…
(b) shall
not take into account any circumstances not obtaining at the time when the
decision appealed against was made.
In R(DLA) 2 and 3/01, I decided that that provision limited
the circumstances that the tribunal could take into account, but not the
evidence that could be used to prove those circumstances. Take this simple
illustration. The claimant is diagnosed as having a particular medical
condition but only after the decision under appeal was made. The existence of
that condition was a circumstance obtaining at the time, although the evidence to
prove it only became available later.
B.
How the issue arose
4.
Mr C received incapacity credits from 9 September 1994 on the basis that
he was incapable of work. In 2011, the Secretary of State considered whether to
convert his case from incapacity benefit to employment and support allowance.
Mr C completed a questionnaire in June. He wrote that he had bladder cancer and
had to have treatment. His GP completed a fitness note, saying that his cancer
was in remission and asymptomatic. Mr C told the health care professional in
July that he was due to have another cystoscopy in August and that he experienced
pain when urinating and, sometimes, frequency. In August, the Secretary of
State decided that Mr C did not have limited capacity for work from 9 September
2011.
5.
Mr C exercised his right of appeal to the First-tier Tribunal. His
representative argued, as the only issue, that Mr C satisfied regulation
29(1)(a). He provided evidence from Mr C’s surgeon, who reported that,
following cystoscopies in December 2011 and February 2012, the cancer was still
prevalent around the neck of the bladder. He advised removal of the bladder and
fitting a stoma.
6.
The panel of the tribunal consisted of a judge and a medical member.
They dismissed the appeal, but the presiding judge gave permission to appeal to
the Upper Tribunal. The essence of his written reasons explaining the
tribunal’s decision is:
·
bladder cancer is a life-threatening disease;
·
Mr C’s cancer has not been cured, but that does not mean that it
is uncontrolled or uncontrollable;
·
there was no evidence of cancer following the December
cystoscopy, but it was found in February;
·
it may have been present but not evident earlier;
·
the surgeon said that a new tumour had developed;
·
in August 2011 (the date of the Secretary of State’s decision),
the prevailing medical view was that the cancer was under control;
·
it only became uncontrolled after the new tumour developed.
C.
The arguments on the appeal
7.
Mr C’s representative has argued that the letter from the surgeon,
although written after the decision under appeal, was evidence that the cancer
had been uncontrolled at that time. Under R(DLA) 3/01, the use of that
evidence was consistent with section 12(8)(b).
8.
The Secretary of State’s representative has not supported the appeal. He
has argued that the evidence shows that Mr C’s cancer was controlled in August
2011 but that control subsequently ceased to be effective.
9.
In reply, Mr C’s representative has made alternative arguments: either the
cancer was seemingly under control, but was not or it was uncontrolled because
it ‘came back’.
D.
My analysis
10. There
are two ways to approach this case. Both produce the same result: the tribunal
did not make an error of law.
11. The
first approach focusses on the proper role of the First-tier Tribunal. It is
responsible for finding the facts. The Upper Tribunal will only find an error
of law in respect of those facts if the First-tier Tribunal’s analysis of the
evidence was irrational or the judge has failed to explain the tribunal’s
decision adequately. As part of that process, the Upper Tribunal respects the
role of the specialist medical member of the panel that heard this appeal. In
this case, that role is evident from the nature of the evidence. The difference
between the parties’ arguments ultimately depends on the facts, which in turn
depend on the analysis of the evidence. The tribunal’s reasons do not appear to
me to disclose any irrationality on their face, whether or not I take account
of the medical member’s involvement. Indeed, the claimant’s representative has
not argued that they are. Accepting the tribunal’s findings, as I must, its
decision on the law is unassailable. Mr C’s cancer was under control until
after the decision was made.
12. The
second approach focusses on the circumstance to which section 12(8)(b) applies.
In most disability and incapacity cases, this will refer to a medical condition
or a particular disability. To take a random example from the current version
of Schedule 2 to the 2008 Regulations, a circumstance might be whether the
claimant can ‘pick up and move a 0.5 litre carton full of liquid’. In such a
case, it makes sense to say that later evidence shows that the claimant could
not perform that activity at the time of the decision. And that is entirely
consistent with the requirements of both the Schedule and section 12(8)(b). Regulation
29(1)(a)(i) is different. It does not refer to the claimant having a disease
that is uncontrolled or uncontrollable. It refers to the need for medical
evidence that that is so. In applying section 12(8)(b), the relevant
circumstance is the existence of the evidence of the state of the claimant’s
condition. In Mr C’s case, the evidence that his cancer had returned and
required surgery did not exist until after the Secretary of State made the
decision under appeal. In such a case, it makes no sense to say that later
evidence shows that there was evidence at the time of the decision. Such talk
is entirely inconsistent with the requirements of section 29(1)(a), as it
renders the requirement for contemporaneous evidence redundant. On this
analysis also, the tribunal’s decision on the law is unassailable. There
was no evidence that Mr C’s cancer was uncontrolled or
uncontrollable until after the decision was made.
13. For
either or both of those reasons, I must dismiss the tribunal.
|
Signed on original
on 10 June 2013
|
Edward Jacobs
Upper Tribunal Judge
|
