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Decision in brief

If descriptor 2(e) (needs assistance to be able to manage a therapeutic source to take nutrition) applies, that assistance cannot also be taken into account for Activity 3 – CSPIP/386/2015 and AS v SSWP (PIP) [2017] UKUT 104; [2017] AACR 31 applied, although the point may be revisited by a three-judge panel of the Upper Tribunal in a future decision

Decision in brief

The decision notice and the statement of reasons should be capable of being read together so that it may be understood what the tribunal decided and why – CCR/3396/2000 and CIS/2345/2001 applied

Decision in brief

Concession by Secretary of State that lip reading is ‘not considered an acceptable way to interpret verbal communication’ – to be followed by new tribunal – it is ‘pointless to disagree with a Secretary of State who wishes to implement legislation in a way that is perhaps more generous to claimants than the legislation strictly allows’

Decision in brief

Tribunal erred in holding that actually being allocated a NINO is the only way to satisfy the NINO requirement – can also be satisfied (per section 13(1B)(b) Social Security Administration Act 1992) by supplying evidence or information so as to allow a NINO to be allocated – where regulation 9 of the Social Security (Crediting and Treatment of Contributions, and National Insurance Numbers) Regulations 2001 applies, if the evidential requirements there are not met, the applicant has not provided sufficient evidence or information – if they are met, the applicant has provided sufficient evidence or information, unless the DWP has disclosed additional criteria which must also be met for a NINO to be allocated

Decision in brief

Test regarding ‘social engagement’ for ESA, as set out in JC v SSWP (ESA) [2014] UKUT 352; [2015] AACR 6 is about a different test and does not apply – not required to consider ability to develop friendships

Note from CPAG

Permission has now been granted for appeal to the Court of Appeal.

Decision in brief

Raises concerns about observation of rules 2 and 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (need for parties to be able to participate full and for responses to state grounds for opposing the appeal) – implications for appellant to be able to prepare his or case before a hearing

Note from CPAG

See also the article in Bulletin 264, p8.

Decision in brief

Descriptor will be satisfied if a claimant has a reasonable need to use incontinence pads (even on a precautionary basis) at might for the majority of the time, even if they are not in fact used by the claimant

Summary

This decision is another to address the question of the interpretation of words in Activity 1 (planning and following journeys) of the PIP assessment test, namely the reference to the claimant's ability to 'follow the route' of a journey. Although the decision is that of a single judge, it says the appeal concerned was 'identified as something of a test case' and a number of cases had been stayed behind it (paragraph 1 ).

In essence, Judge Ward had to decide whether the words 'follow the route' of a journey meant that the test was restricted to one of ability to navigate, with ability actually to begin the journey and personal interactions along the way left out of account (as held by Judge Jacobs in DA v SSWP [2015] UKUT 344 (AAC)), or also include a test of the claimant's ability to go out to follow the journey, taking account of psychological factors such as anxiety (as held by Judge Agnew in RC v SSWP [2015] UKUT 386 (AAC)). In the present decision, Judge Ward agreed with the approach of Judge Jacobs in DA - ie, that the test of ability to 'follow the route' of a journey 'focuses us upon the claimant's ability to navigate along pathways and is not concerned with the other possible problems that a claimant may have when being in the natural environment' (paragraphs 32-33).

The claimant in this case had anxiety and depression. She became nervous and anxious when out, and generally relied on friends and family to be with her in order to get about. However, she did not have any impairment on her ability to navigate when out. The First-tier Tribunal declined to award her 10 points under descriptor 1 (d) (cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid).

It was argued for the claimant that the decision of Judge Agnew in RC should be preferred to that of Judge Jacobs in DA. But Judge Ward preferred the decision in DA, and held that although the tribunal had erred in making insufficient findings of fact, he could nevertheless remake the decision to the same effect, so that the claimant's appeal failed. He considered that the position of someone who because of 'overwhelming psychological distress' either cannot go out or cannot do it without prompting was covered in descriptors 1 (e) and (b). Therefore, he agreed with Judge Jacobs's linguistic analysis of the descriptors in Activity 1 , and suggested that the emphasis placed on the significance of the word 'cannot' by Judge Agnew was misplaced: 'Even if as a matter of general language, it may perhaps be argued to be possible - at a stretch - to say that a person who cannot get out of the door because of anxiety "cannot" "follow the route", that would be to approach the descriptor in a vacuum' (paragraphs 28-29).

Comment from CPAG

Although not a decision of a three-judge panel of the Upper Tribunal or of a higher court, this decision undoubtedly tips the balance of current caselaw authority in favour of the 'ability to navigate' approach taken in DA. It therefore makes the arguments in favour of the more generous approach in RC, set out in the article in Bulletin 249 (p5), more difficult, and further appeals against the application of RC even more likely. Tribunals, however, remain free to adopt whichever of these decisions of single Upper Tribunal judges they prefer.

Summary

This is the first UC decision from the Upper Tribunal.

The claimant stopped work in December 2014, and claimed UC on 6 January 2015. Earnings from the employment were paid to him on 16 January. An amount of £364.35 was taken into account for the purposes of his UC. The claimant disputed that on the basis that the money should not have been taken into account, as it was earnings in respect of a period before his claim for UC. The First-tier Tribunal rejected his appeal.

Judge Jacobs dismissed the claimant's further appeal, as the tribunal had not erred in law. There was no dispute that the money paid to the claimant counted as earned income, under regulation 52(a)(i) of the Universal Credit Regulations 2013 No.376 (paragraph 9). On a new claim, under section 5(1)(b) of the Welfare Reform Act 2012, income can be calculated on the assumption that an award will be made, allowing a UC assessment period to be fixed (paragraph 10). Finally, it was clear that the money was received during the assessment period, even if was earned earlier. Therefore, it counted as part of the claimant's earned income under regulation 54(1 ), and it did not matter that the employment from which it was derived had ceased to exist by the time of payment (paragraph 11 ). The claimant's appeal must therefore fail.

Summary

This decision of a three-judge panel of the Upper Tribunal was made to decide the extent of the duties of the First-tier Tribunal in an ESA appeal, where medical reports and previous decisions have not been provided to the tribunal, or where there may be such reports but the tribunal is unaware of them. In so deciding, the Upper Tribunal considered in particular the previous decision of Judge Wright in ST v SSWP (ESA) [2012] UKUT 469 (AAC) (Bulletin 238, p14).

The facts in the present case included that the claimant had been entitled to ESA since 2010, failed the work capability assessment in 2012 and had her appeal against that disallowed by the First-tier Tribunal. Before the Upper Tribunal, it emerged that the claimant had in fact appealed successfully against two previous failures of the work capability assessment, but that information (including the decisions made by the previous tribunals) were not before the tribunal that considered the challenge to the 2012 failure. It was submitted for the claimant that the tribunal had erred in proceeding without the previous decisions, as although the claimant had not specifically requested that, the tenor of her appeal letter and reference to additional medical evidence amounted to a submission that her condition had not changed since she was last awarded ESA and the tribunal was, therefore, obliged to seek the previous decisions.

Judges Mullan, Ward and Lunney held that the tribunal had not erred in law and, therefore, the claimant's further appeal did not succeed. Tribunals are not always under an obligation to have regard to previous medical reports or decisions and, on the facts of the present case, the previous decisions were not relevant. The judges agreed with Judge Wright in ST that the Secretary of State was under an obligation to provide 'relevant' evidence to the tribunal. They also agreed that could include previous medical reports and decisions (paragraphs 72-76). But that concerned the obligations to the tribunal of the Secretary of State; to the extent that ST held that a tribunal that proceeds without such evidence will always have erred in law, the judges disagreed (paragraph 78). The judges said: 'we emphasise that a First-tier Tribunal is entitled to call on whatever evidence it considers relevant. .. we can envisage a situation where a First-tier Tribunal considers that it has sufficient relevant evidence before it to determine the issues arising in the appeal without the requirement to call for evidence which is missing because the Secretary of State has failed in his duty to provide it' (paragraph 79).

The judges endorsed (paragraph 83) the approach taken by the Northern Ireland Commissioner in JC v Department for Social Development (IB) [2014] AACR 30 [2011] NI Com 177. There it was held that the requirement for the tribunal to consider evidence from previous assessments 'depends entirely on the relevance of the earlier assessments', but also that a tribunal is required to consider such evidence 'where an appellant asserts that there has been no change in his medical condition or disablement and that the evidence associated with previous assessments is relevant to that continuing medical condition' (paragraph 50 (vi) and (vii) of JC, quoted at paragraph 40). Where relevant reports may exist but the tribunal is simply unaware of them, the judges again endorsed the approach in JC that the tribunal should consider whether evidence from the previous adjudication history 'assists in the assessment of the claimant's overall capacity' (paragraph 85, quoting paragraph 52 of JC).

Comment from CPAG

This decision makes clear that, in general, it is for the tribunal to decide if it needs to have regard to previous medical reports or decisions. The Upper Tribunal was given evidence that, in the light of ST, decision makers making submissions to tribunals are told to include evidence from earlier assessments where there 'has been no clear change or the appellant says that their condition has not changed or has worsened'. Where the evidence nevertheless is not included in the papers, appellants and their representatives who want the tribunal to have regard to it should be as clear about the relevance of such evidence as possible. A tribunal that proceeds without such evidence may err, for example, by failing to ask itself the right questions or make relevant findings of fact.

Summary

The claimant had a brain tumour, epilepsy and a back problem, and had difficulties with tiredness, concentration and failing to finish tasks. However, he was scored no points under activity 13 of the work capability assessment – ie, for ‘initiating and completing personal action’ (which means ‘planning, organisation, problem solving, prioritisation or switching tasks)’. Upholding that, the First-tier Tribunal held that the claimant could perform actions such as brushing his teeth and washing for the majority of the time and was able to go out by himself and get to the shops.

Judge Jacobs held that the tribunal had erred in failing to explain what it made of the detailed arguments put for the claimant and leaving it unclear how it approached activity 13 (paragraph 42). However, that did not mean tribunal had necessarily erred in that approach, and a new tribunal would have to decide the matter again. It was ‘neither necessary nor appropriate to define “personal action”.’ They were ordinary words that had to be given their normal meaning (paragraph 23). But applying those involved consideration of the context of the legislation, which under section 8(1) of the Welfare Reform Act 2007 was to determine, ‘whether it is not reasonable to require [the claimant] to work’ (paragraphs 25–26).

Tribunals ‘must apply common sense in deciding what constitutes an action’ (paragraph 28). Actions undertaken merely out of habit were not to be considered as their performance does not demonstrate mental, cognitive or intellectual function (paragraph 30). Action must be ‘effective’, so that the purpose of carrying out and completing the action was achieved – eg, someone with obsessive compulsive disorder might carry out particular actions, but not so as to make them effective (paragraph 31). Personal action means ‘planning, organisation, problem solving prioritising or switching tasks’: here the word ‘or’ must be read conjunctively, as meaning ‘and’ (paragraph 33). Although only actions that involved all of those should be considered, it was not required to identify a particular action (eg, dressing) in which all those tasks could not be completed: it may be that one action illustrates inability to plan, whereas another (eg, cooking) showed inability to prioritise tasks (paragraphs 33–34). It is wrong to prejudice a claimant by considering only a limited lifestyle: ‘It may be that someone whose daily life is limited to the basic actions of survival and watching the television would have difficulties if required to undertake any action that was more complicated’ (paragraph 36). Splitting an action into its component parts could render the legislation redundant: bearing in mind the foregoing, tribunals were wrong to have treated cleaning teeth and washing as ‘separate and sequential’ personal actions (paragraphs 28 and 37 – the judge’s implication seems to be that although these are not distinct actions, they can be taken together as component parts of a of a personal action).

Summary

In this joined appeal one claimant (AT) was profoundly deaf but had no sight impairment, the other claimant (VC) had impaired vision but no hearing difficulty. The issue in both cases was the interpretation of activity 7 of the work capability assessment (understanding communication), and in particular whether a claimant must be unable to understand or have difficulty in understanding communication by both verbal and non-verbal means in order to satisfy the relevant descriptors, or whether inability/difficulty by only of those means is sufficient.

Judge Markus QC held that inability/ difficulty by only one of those means was sufficient, so that it was not required to have such problems with both verbal and non-verbal communication. The relevant legislation was set out in Schedules 2 and 3 of the Employment and Support Allowance Regulations 2008 No.794. Activity 7 of Schedule 2, concerning limited capability for work, was at issue in AT’s case; activity 7 of Schedule 3, concerning limited capability for work-related activity, was at issue in VC’s case. In both cases, the judge noted that while some previous caselaw had held that difficulty in either verbal or non-verbal communication was sufficient, doubt had been cast on that by Judge Turnbull in both CE/2942/2013 and CE/1539/2014 [it is not clear why neutral citation numbers are not cited here] (paragraphs 13–14). In the present decision, the judge also considered that the statutory wording was ambiguous as to the correct approach (paragraphs 36–42).

Given the ambiguity, the judge turned to the legislative history of the provisions, which could include both explanatory memoranda and exchanges between the DWP and the Social Security Advisory Committee, as an aid to interpretation. The materials submitted by the Secretary of State in the present cases were therefore admissible (paragraphs 43–45). Using those, the judge concluded that ‘it is clear from all the materials that the legislative intention since ESA was introduced has been that in order to qualify under a relevant descriptor a claimant need be impaired in either hearing or vision (but not both) or, as amended, in understanding either spoken or written communication (but not both)’ (paragraph 48). The judge then applied that principle to the claimants’ entitlement in both cases. However, regarding AT, the judge referred the case to a new tribunal, as there was a dispute concerning the claimant’s ability to lip read about which the tribunal had given inadequate reasons, and consequently it was not settled exactly which descriptor in activity 7 of Schedule 2 should apply (paragraphs 55–68).