- I am satisfied that in
relation to activity 16 the FTT applied too narrow an approach, and that this,
unusually, is a case in which it is appropriate that I should make a final
decision.
- The FTT found that he was
able to get to the medical assessment alone on his bicycle, albeit that
the journey took him about an hour. Following a detailed consideration of
activity 15 concerning whether or not the appellant required to be
accompanied when outdoors the tribunal made the point that the reason he
went about on his bicycle was to avoid passengers who would be around him
if he went by public transport. They said that his problem was not getting
out to places but the prospect of having to be with other people on the
way. They concluded from that but it would make no difference if he were
to be accompanied, and I have no difficulty with the logic of that
finding, or its availability to the FTT on the evidence.
- The following paragraph,
number 18, deals with activity 16, coping with social engagement. The FTT
found that the appellant could cope with social engagement with people
that he knew, because he saw his father and his brother. It was said that he
did not like engaging with social contact with people he did not know,
“but he can cope”. The point was made that he went to the medical
assessment which was conducted by a nurse he did not know and that he was
able to go to appointments with people from his NHS mental health team. I would
agree that at least occasionally these people would not be known to him. The
fact that he went to some considerable lengths to bicycle an hour to the
medical assessment rather than go on public transport because of the
difficulties he might have encountering other people whilst travelling
was not addressed in the context of activity 16. This raises the legal
issue as to whether it is sufficient to justify an absence of point
scoring in relation to activity 16 the fact that a claimant has attended
the medical, and may attend other medical appointments (or similar formal
meetings) in his personal life.
- This issue arose in AR
v Secretary of State for Work and Pensions (ESA) [2013] UKUT 446 (AAC)
a case decided by Upper Tribunal Judge Ward. He dealt specifically with
the point at paragraph 18, having raised the difficulties that may be encountered
by those on the Autistic Spectrum Disorder, although his views are not
restricted to that condition.
18.
In my view, social contact in this sense is not the same as contact for
business or professional purposes. If one goes to a medical examination, or a
tribunal hearing, the rules are firmly established by the process and/or the
person conducting it, and are typically clearly defined, often in writing. If
the person being examined or whose case it is does not respond in a way that a
person without disability might, the person conducting it may because of their
professional responsibilities be expected within generous limits to accommodate
the non-conforming response and certainly not, as it were, to take a poorer
view of, or attempt to avoid further contact with, the person because of it.
That is precisely what is lacking in the social sphere, where people are free
to interact on their own terms and to accept the behaviour of another or to
reject it, and largely do so on the basis of the sort of unwritten rules to
which the National Autism Society guidance makes reference, an inability to
respect which could, in the words of the descriptor, be an indication of
“difficulty relating to others”.
- I agree, for the reasons that he stated, that it is insufficient
to use mere attendance at a medical – or for medical treatment generally-as
definitive of an ability to engage in social contact.
- Judge Ward also considered the recent decision of
Upper Tribunal Judge Parker in
[2013] UKUT 152 (AAC). He felt that in her treatment of the term “social
engagement” she had limited the scope of the term too far. Having set out
dictionary definitions which had been provided for him, with the caveat that
they are not the litmus test of statutory interpretation, he said at paragraph
28 et seq
28. I do not seek to
define “social “in activity 16 by reference to the dictionary definition
above. But for the reasons in particular in [17] –[22] I consider that the
mischief at which the statutory instrument was directed was such that unless
there is an element of the social such as is referred to in the definition
above or in some way which a tribunal may properly consider to be analogous, a
tribunal will be liable to being overturned on further appeal on the basis
either that it has not given any effect to the word “social” or that its
conclusion cannot be supported.
29. The focus of the
legislation is however on the nature of the contact, not the context in which
it occurs, albeit it is far more likely that such contact will take place in
some contexts than others. The point is well put by the representative in his
original submission.
“That
is not to say that [contact with others to conduct a commercial transaction
such as buying groceries, buying a bus ticket or a medical consultation] could
never involve social contact: a person may have a chat with a shopkeeper during
the course of the transaction about the weather, the news or a recent sporting
event. In these circumstances the contact would involve an element of social
contact and therefore fall within the ambit of activity 16. However where a
person simply places his shopping on the counter and hands over the money I
submit the contact would not amount to social contact and would not therefore
fall within the ambit of activity 16.”
Similarly, if one knows
that ones GP has just got back from holiday one might ask about it and that
might constitute social contact, although the time for doing so may prove to be
slight compared to the time devoted to the medical reason for the visit. It
would follow that, if I had needed to decide the point, I would have concluded
that the tribunal failed to find sufficient facts in relation to activity 16.
- I accept what is said there.
I would add to Judge Ward’s reasoning the observation
that because for the important purpose of benefit entitlement, or indeed order
to effect treatment for a mental health condition, one may be able to summon up
reserves to attend such an appointment that may not be sufficient in relation
to a test which is of the ability to perform an activity reliably and
repeatedly.
- The approach of the FTT
focussed upon the attendance at formal meetings the missing of which as
likely to create significant problems. This was inappropriately narrow and
could not reflect the appellant’s probable difficulties in social
engagement. That was an essential issue in the case and the approach
constituted a material error of law.
My decision on the issue
of ESA entitlement
- I have considered whether
I should remit the matter to a fresh FTT for re-hearing. In this case,
however, I am conscious of the delay in time which has already occurred,
the decision having been made as long ago as December 2011, and the
further delay which would inevitably occur prior to listing the
re-hearing. I bear in mind that, given the histstory of 3 FTT appeals
having been determined on the papers despite at least one attempt to have
the appellant attend, and his strongly expressed wish not to attend a
hearing at the Upper Tribunal, it seems to me highly unlikely that he will
attend a further FTT hearing. If I am able to decide the case I should.
- The appellant’s medical
records are in the bundle, and I am able to discern from them the problems
with which his treating clinicians felt themselves to be dealing. That,
the ESA 50, the appeal letter and the letter written later by the
appellant to the FTT, together with the information set out in the report
of the HCP, enable me to make sufficient findings to determine the appeal.
My findings and reasons
- From the medical records I
note in particular an urgent referral in February 2011 to the PCMHT. That
team gave him telephone access to the Crisis Team. In February 2012 he
was accepted onto the Crisis/Home Treatment Team. Whilst after the date
of decision that has relevance as confirming ongoing problems between February
2011 and Feb 2012, and I am able to infer they were similar at the date of
decision, December 2011.
- In the ESA 50 at page 21
the appellant makes it clear that his problems dealing with people
socially relate both to people he knows and people that he does not. It
is clear from the medical evidence provided by his clinicians that he has
regularly reported a complete estrangement from his mother, and that he
sees his father and brother only every few months. There are references to
his having no friends, of persistently low mood despite engagement with
medical professionals and differing medications. There is little indication
of a lack of motivation to engage, although there are sometimes
difficulties in doing so. The picture is of longstanding problems with
profound difficulties engaging with others. This knowledge informs
remarks in the HCP report, such as the stated problems in going to the
supermarket, although he can go to the local shop, and the inability to
walk his dog (see page 27 of the HCP report). Those seems to me to be
indicative of a significant problem, and that is confirmed on page 74
where he says that he gets around on his bike so that he doesn’t have too
use public transport or walk on the street, which caused him anxiety. The
record of a typical day at page 26 says that he reports “he does not go
out really and does not like talking to people, you (sic) get anxious and
low in mood.” It also reports that he did try a learning direct course,
“but only stayed 10 minutes and then he walked out he could not cope with
being with other people.” On balance I find that the appellant is likely
to experience significant distress when engaging in social contact. The next
issue as to the extent of that.
- It seems to me that, using
the meaning of “always” in the context of a similarly worded descriptor,
number 13 of schedule 3, as interpreted by Judge Parker in KB v Secretary
of State for Work and Pensions [2013] UKUT 152 (AAC), the appellant satisfies schedule 2 descriptor 16 (a). She said at paragraph 14:
14. Therefore, in order to make use of regulation
34(2), but mindful of the distinction in activity 16 of Schedule 2 between
“always” and “for the majority of the time”, I conclude that “always
precluded”, as used in activity 13 of Schedule 3, and likewise as used in
activity 16 of Schedule 2, is not an all or nothing test; rather, it means
“repeatedly” or “persistent” or “often”. A “majority” may be constituted by
events which happen only on 50.1% of the possible occasions, but a greater
frequency is required by the use of the word “always”. It is a question of
degree, but a fact finding tribunal is eminently suited to applying these
subtle nuances of difference in a common sense way. It suffices to say in the
present case, that because a claimant attends one tribunal hearing, and his GP
accepts that he comes to the surgery very occasionally, does not necessarily
entail the conclusion, as the tribunal clearly considered that it did, that it
“cannot be said that engagement in social contact is always precluded”.
- I find that the appellant
has a persistent problem engaging with others, whether he knows them or not.
Satisfaction of schedule 2 descriptor 16 (a) in its turn satisfies
schedule 3, activity 13 of that schedule being a mirror descriptor. He
therefore has limited capability for work-related activities and enters
the support group.
The regulation 29 issue
- I have resolved the points
issue in the appellant’s favour, so what I say concerning the subsidiary
issue of regulation 29 is obiter. Nonetheless, I will deal shortly with
the question of whether, in considering whether or not the appellant had limited
capability for work under regulation 29 (2) (b) the FTT failed fully to
consider the criteria set out in the case of Charlton-v- SSWP[2009]EWCA
Civ 42 in relation to difficulties both at work and getting to work.
- The particular and
somewhat unusual issue which arose in this case was in relation to the
journey to and from work. Where the tribunal has found that someone goes
to some significant lengths to avoid people on public transport there
should there be specific consideration of how they might get to work, and such
considerations would involve looking at the practicalities of the work they
had decided that the appellant might perform being available within the
appellant’s locality, that is reasonably accessible by bicycle. If it was
not there would need to be specific findings made as to whether the
journey on public transport might constitute a substantial risk to the
physical or mental health of any person, given the appellants accepted
difficulties dealing with random members of the public.
- In addition to this there
was what appeared to be a finding at paragraph 23 that the appellant was
non-compliant with his medication; although the sentence does not directly
correlate to the regulation 29 issue it is in the paragraph that discusses
that regulation. If the FTT was saying that compliance with medication
would ameliorate the risk, if any, to the health of the appellant or
others there should have been a finding as to whether the non-compliance was
an aspect of the appellant’s mental health condition or whether it was
something within his control, the question being whether he was choosing
not to comply with his regime of medication.
- Since this decision there
has been a change in regulation 29, and this is raised in the submission
of the Secretary of State. From 28 January 2013 the relevant parts of the
regulation read:
(2)Subject
to paragraph 3 this paragraph applies if…
(b) the claimant suffers from some specific disease
or bodily or mental disablement and, by reason of such disease or disablement,
there would be a substantial risk to the mental or physical health of any
person is the claimant was found not to have limited capability for work.
(3)
paragraph (2) (b) does not apply where the risk could be reduced why a
significant amount by-
(a) reasonable adjustments being made in the
claimant’s workplace; or
(b) the claimant taking medication to manage the
claimant’s conditions where such medication has been prescribed for the
claimant by a registered medical practitioner treating the claimant.
- It seems to me that,
although I do not have to decide this issue for a decision in this case
which was prior to that amendment, subparagraph (b) makes little
difference, because if a condition was resolved by taking medication to
the extent that there was not substantial risk, whether pre or post the
amendment, the non-functional descriptor would not apply; if a condition may
be resolved or alleviated to the extent that risk was reduced to below
substantial risk by medication which was not taken regulation 29 (2) (b)
would not apply where the non-compliance was through election, but may
where the condition
itself generated the non-compliance. This issue may, but will by no means
always be, a problem for those with mental health conditions irrespective of
whether the consideration is pre or post the amended version of regulation 29.
Upper Tribunal Judge Gray (signed
on the original)
20 January 2014
