IN THE UPPER TRIBUNAL	Case No.  CE/1703/2015
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 13 February 2015 is set aside and the case is remitted to the First-tier Tribunal to be reconsidered in the light of the reasons for this decision.

REASONS FOR DECISION

1.	This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal dated 13 February 2015 whereby it dismissed the claimant’s appeal against a decision of the Secretary of State dated 16 September 2014 superseding an earlier award of employment and support allowance and deciding that she was not entitled to employment and support allowance from that date because she did not have limited capability for work.

2.	When I granted permission to appeal, I suggested that there were arguable grounds of appeal in relation to the First-tier Tribunal’s decision in respect of Activities 1 and 15 in Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI 2008/794) and of regulation 29.  The Secretary of State concedes that the First-tier Tribunal erred in respect of Activity 1.  His position in respect of Activity 15 and regulation 29 is less clear but he concedes that the appeal should be allowed.

3.	In the light of the Secretary of State’s concession, I accept that the First-tier Tribunal did err in respect of Activity 1.  It awarded 6 points on the basis that the claimant could not repeatedly walk 200 metres, but it did not make any finding as to whether she could repeatedly walk 100 metres or, to the extent that it was implicit that it found that she could repeatedly walk that distance, did not give any reasons for the conclusion in order to explain its decision that descriptor 1(d) was appropriate and that descriptor 1(c) was not satisfied (see KB v SSWP (ESA) [2014] UKUT 126 (AAC)).

4.	The evidence suggests that descriptor 1(a) would not have been satisfied so that that error would not by itself have made any difference to the outcome.  However, I am satisfied that the First-tier Tribunal also erred as regards Activity 15.  

5.	Descriptors 15(b) and (c) apply where a claimant “is unable to get to a specified place … without being accompanied by another person”, where the specified place is one with which the claimant is respectively familiar or unfamiliar.  In relation to these descriptors, the First-tier Tribunal said –

“[The claimant’s] evidence was that, due to anxiety, she could leave home only if accompanied.  On further examination this is due to fear of her husband following the assault on 6 June 2014.  We reminded ourselves that to score points in part 2 of the WCA, the incapacity must arise from ‘a specific mental illness or disablement’.  In his case, [the claimant] was quite understandably afraid of meeting the man who had assaulted her.  She felt able to go out if accompanied, on the basis that in these circumstances she was less likely to come to further harm.  We gave this issue a great deal of thought, as it was important to disentangle the understandable and justifiable concern, indeed anxiety, about meeting her husband while out and about, from the issue of anxiety as a mental health condition.  We considered the HCP report and in particular the mental health state examination, and the GP printout at p228.  The evidence overall did not support a finding that ‘due to a specific mental illness or disablement’ she was unable to go out alone.  However, we did accept that she preferred to go out with others due to her concerns about her husband.  We returned to a consideration of this issue in relation to Regulation 29.  We awarded zero points for this descriptor.”

6.	The First-tier Tribunal clearly, and correctly, had in mind regulation 19(5)(b) of the 2008 Regulations, which provides that –

“In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapacity to perform the activity arises –
    (a)	…;
    (b)	in respect of any descriptor listed in Part 2 of Schedule 2, from a specific mental illness or disablement; or
    (c)	…”

7.	When I granted permission to appeal, I observed that –

 “… it is arguable that the First-tier Tribunal has not considered the extent to which anxiety might have added to the claimant’s fear.  Thus, arguably, the question was not whether her anxiety would have prevented the claimant from going out alone if she had not also been afraid of her husband (which was effectively the question the First-tier Tribunal asked itself) but was whether her fear of her husband would have prevented her from going out alone if she had not also been suffering from anxiety.  If the fear of her husband would not have prevented her from going out alone had she not been suffering from anxiety, the anxiety would have been a cause of her not going out and the condition of regulation 19(5)(b) would arguably have been satisfied even though the anxiety alone would not have been so disabling.”

8.	The Secretary of State’s representative has said that he is unsure what I meant, but he understands that I was raising the question whether the First-tier Tribunal had properly established the root cause of the claimant’s anxiety in the sense of identifying the primary cause.  Having reread what I wrote, I accept that it was not as clear as it would have been had I set out what I regarded as the relevant principle.

9.	However, what I meant – and what I consider is the correct approach, best giving effect to the purpose behind the legislation – is that the claimant’s “specific mental illness or disablement” had to be an effective cause of her inability to go out unaccompanied.  That is not the same as being the root cause or the primary cause.  In my judgement, where a specific mental illness or disablement would not by itself have been sufficiently serious to enable a claimant to satisfy a descriptor, it is enough for the purposes of regulation 19(5)(b) that it has made the difference between the claimant being able to satisfy a descriptor and not being able to do so even though there may have been another, perhaps more important, cause.

10.	The First-tier Tribunal’s reasons do not show what it meant by it being important to “disentangle the understandable and justifiable concern, indeed anxiety, about meeting her husband while out and about, from the issue of anxiety as a mental health condition” and are not sufficient in the circumstances of this case to show that it did not err in its approach.  Accordingly, it erred in law in its consideration of Activity 15.

11.	The errors in relation to Activities 1 and 15 might, together, have made a difference to the outcome of the claimant’s appeal to the First-tier Tribunal.  Accordingly, I agree with the parties that this appeal must be allowed and the case must be remitted to be re-decided by the First-tier Tribunal.  

12.	I do not consider that the panel of the First-tier Tribunal who must now rehear the case will be assisted by my considering the claimant’s other grounds of appeal and, since I have not had full submissions from the Secretary of State on them, I shall say no more about them.  

13.	The claimant has also raised the question whether an independent medical report should be obtained from a consultant orthopaedic surgeon.  However, the panel of the First-tier Tribunal will include a doctor among its members and it will be better placed than I to consider whether a consultant’s report is really required or whether, as is usually the case, it can properly determine the case without such a report.

Mark Rowland
23 November 2015