DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the Appellant.

The decision of the Sunderland First-tier Tribunal dated 11 June 2012 under file reference SC236/12/01303 does not involve an error on a material point of law.  The decision of the tribunal stands.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

Introduction
1.	The Appellant, a woman now aged 50, has an adult daughter who, very tragically, has terminal cancer. The question for the First-tier Tribunal (the FTT) was whether, as a result, the Appellant had limited capability for work and so was entitled to employment and support allowance (ESA).

2.	The FTT dismissed the Appellant’s appeal at a paper hearing. The tribunal thus confirmed the Secretary of State’s decision that there was no entitlement to ESA on the facts. She had previously scored 0 points at a medical.

3.	For the reasons that follow, I have decided that there is no error of law in the FTT’s decision. It follows that the tribunal’s decision stands.

The Appellant’s case 
4.	The Appellant’s case has been consistent throughout. She has said the same thing to the medical examiner, to the Department, to the FTT and to the Upper Tribunal. She says that she has depression as a result of her daughter’s illness, that she is (entirely understandably) desperately worried about her daughter and wishes to spend what time remains with her.

The evidence before the First-tier Tribunal
5.	In May 2011 the Appellant claimed ESA. She completed an ESA50 questionnaire in June 2011, stating that she had depression but that her GP had not prescribed her any medication because it was addictive. On 28 December 2011 she had a medical examination for the purposes of ESA. The doctor completed an ESA85 report, noting both that the Appellant was not currently on any medication and the reason given. On 14 January 2012 the decision maker decided that the Appellant was no longer entitled to ESA.

6.	About a month later, on 16 February 2012, the Appellant appealed. She said that she was “really bad with depression and anxiety ... I need to spend as much time with her [the daughter] as possible, and I cannot do this with a job”. She added that her GP had increased her medication from 20mg of Fluxomine to 30mg. She included a sick note from her GP, who declared her not fit for work on the basis of anxiety.

The First-tier Tribunal’s decision
7.	The FTT, having decided it was appropriate to proceed on the papers (as the Appellant had also requested), confirmed the decision to disallow ESA. The appeal was accordingly dismissed. In the course of its decision, the FTT explained as follows:

“8. We found that alleged depression was well controlled, her doctor actually wrote ‘anxiety’ in the sick note produced, and did not lead to any significant functional impairment for the purpose of the ESA descriptor. It is monitored at GP level with no current medication and no evidence of any recent specialist referral.

9. In her additional evidence the Appellant mentioned that her daughter was very ill, but this was not a factor mentioned elsewhere at the relevant time. In any event we found that whilst this fact was obviously stressful, it was not a significant mental impairment for the purpose of ESA descriptors.”

The proceedings before the Upper Tribunal
8.	The Appellant’s grounds of appeal were as set out at paragraph 4 above. As she said, “I just wish this wasn’t happening, any parent would understand losing a daughter”.

9.	I gave the Appellant permission to appeal, giving the following reasons:

‘1. Your grounds of appeal are understandable. You point out that your (adult) daughter sadly has terminal brain cancer and that you are depressed and argue that you cannot work.  However, issues of fact are for the First-tier Tribunal to decide. The Upper Tribunal can only interfere if there has been some error of law. 

2. I am giving permission largely because of paragraph [9] of the tribunal’s statement of reasons. This includes a factual error, as you had indeed told the examining doctor about your daughter’s prognosis (see p.40 under the history of depression). However, it is unclear if the tribunal’s mistake on this point made any difference to the outcome. The tribunal also describe your condition as “alleged depression”, whereas the DWP doctor recorded depression as medically identified. In addition, the tribunal regarded it as not being restricting as it was not subject to medication, but you had explained that your GP had been concerned about possible addiction (p.21).

3. The tribunal’s fact finding may have been insufficient. Your evidence was that you could not cope with unplanned changes (p.33). The examining doctor thought this was not a problem (p.50), but the reason given (goes to bed and rises at different times) is hardly that persuasive. There may also be a doubt as to the tribunal’s treatment of the exceptional circumstances rule in regulation 29.’ 

10.	Lesley Worrall, who now acts for the Secretary of State in these proceedings, does not support the Appellant’s appeal to the Upper Tribunal. She therefore proposes that I dismiss the appeal against the tribunal’s decision.  Ms Worrall makes the following points: (i) the examining doctor’s report found no significant difficulty with mental health functions; (ii) it was true that the FTT had failed to spot that the Appellant had told the doctor about her daughter’s illness; however, (iii) there was no evidence of a severe depressive illness (see also the typical day as noted by the doctor) and (iv) the FTT’s treatment of the possibility of exceptional circumstances applying (under regulation 29), whilst brief, was sufficient on the facts of the case

11.	In reply, the Appellant repeats the points she has made before, as noted above.

The Upper Tribunal’s analysis
12.		My conclusion, in summary, is that the FTT’s decision does not involve an error of law. I therefore dismiss the Appellant’s appeal. I agree with the analysis of Lesley Worrall.  In summary, my reasons are as follows.

13.	First, the FTT can only decide the case on the evidence put before it. The original decision maker had made his decision on 14 January 2012. A fortnight before the Appellant had told the examining doctor that she was not on any medication for depression. This had plainly changed by 16 February 2012 (although even then the dose is a relatively low one). The FTT was clearly very much aware about the daughter’s terminal illness. The FTT’s mistake in assuming that the examining doctor had not been told about that is not a material error which affected its decision in any way. This is because the FTT was well aware of the fact and took it into account.

14.	Second, the evidence before the FTT did not suggest that the Appellant had any serious problems with the various activities laid down in the mental health descriptors. It was clear from the evidence that the Appellant had difficulties sleeping. However, this was not enough to meet any of the scoring descriptors. In addition, the description of a typical day did not raise any real prospect that any mental health points were relevant.

15.	Third, I accept that on any reckoning having the misfortune to have a child with terminal cancer is, in plain English, an exceptional circumstance. However, that is just the rubric or heading to regulation 29. In order to qualify under regulation 29(2)(b), the claimant must have a condition which means that there would be a substantial risk to the mental or physical health of any person if they were found capable of work or work-related activity. There was no evidence on which the FTT could conclude that the Appellant herself would be at any such substantial risk. One may well speculate, of course, that there might be a substantial risk to the daughter’s mental or physical health, but again there was no evidence to that effect. Should the FTT have adjourned to seek further evidence? I think it was entitled to proceed. The Appellant’s own evidence from the examining doctor’s report was that she visited her daughter regularly and spent about 2 hours a day with her. There is, of course, no reason why that level of input could not also be maintained when claiming jobseeker’s allowance, or indeed when in either part- or full-time work.

16.	The reality is that ESA is not designed to cover a difficult case such as this. If the daughter was in receipt of the middle or highest rate of the care component of disability living allowance (DLA), then of course a claim by the Appellant for carer’s allowance might be appropriate. That may or may not still be the case today.

Conclusion
17.		For the reasons explained above, the decision of the First-tier Tribunal does not involve any material error of law. Whilst having sincere sympathy for the Appellant’s situation, I must therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11).  

Signed on the original				Nicholas Wikeley
on 28 January 2013					Judge of the Upper Tribunal