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Summary

The claimant appealed against the decision refusing him disability living allowance. On the appeal enquiry form, he ticked a box indicating that he did not want an oral hearing. Neither did he indicate that he had a representative, although his council welfare rights service had assisted him with the claim form - it was unaware of his return of the enquiry form, the DWP submission and ultimately of the hearing. The tribunal considered the case on the papers and refused the appeal. Following issue of the tribunal decision, the claimant's representative applied on his behalf for the decision to be set aside, on the grounds that had the welfare rights service been aware that a hearing was being arranged, it would have advised that the claimant request an oral hearing and would have provided a submission. The application was refused on the basis that no ground under rule 37(2) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685 was made out.

Judge Turnbull refused an appeal to the Upper Tribunal against the refusal to set aside. There was no ground made out under rule 37(2). Despite an earlier thought that there may be an argument that a party to the appeal was not present at the hearing, the judge held that 'hearing' in rule 37(2)(c) referred to an oral hearing. Here there was no oral hearing, so no party could be held to be absent (paragraph 14). There was no other error in the refusal to set aside. There was no 'procedural irregularity' (ie, a ground under rule 37(2)(d)), as although the appeal papers were sent to the claimant and not to the welfare rights service, it had not been identified as the representative for the purpose of the appeal. Neither was there any breach of natural justice: it was 'entirely the claimant's fault' that he did not have an oral hearing or seek further help from the welfare rights service; and even if that was due or partly due to the claimant's mental health problem, that still did not mean that there was a breach of natural justice (paragraphs 15-16).

Decision in brief

Claimant's delayed return of form Ml 12 with mortgage information resulted in supersession for change of circumstances - but the change of circumstance was the expiry of the 13-week waiting period, and Secretary of State already aware of that-therefore not a late notification of change - default rule that change takes effect from date it occurred applies, with result that housing costs backdated to end of waiting period

Summary

The claimant had breathing problems, arthritis and the after-effect of a fractured ankle. She scored nil points for mobilising in the work capability assessment. On appeal, the tribunal decided that although she satisfied the work capability assessment via a combination of points for mobilising and continence, she was in the work related activity group and not the support group. Regarding mobilising, the tribunal found that the claimant, with use of a walking stick and walking ‘slowly’, was able to walk ‘for 1–2 minutes on level ground without significant discomfort or exhaustion’ and ‘with pauses’ could do so repeatedly within a reasonable timescale.

Judge Paines allowed the claimant’s further appeal, and remitted the case to a new tribunal, on the basis that the tribunal had not given adequate reasons for its decision regarding mobilising. However, the tribunal had not erred in all respects. It had decided that descriptor (a)(i) of the mobilising activity did not apply. That descriptor applies if the claimant cannot ‘mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion’. Judge Paines held that although the word ‘stopping’ (there and in other mobilising descriptors) was not distinct from ‘pauses’, so that any interruption of mobilising to avoid significant discomfort or exhaustion would suffice, the tribunal correctly understood that. Its reference to ‘pauses’ related rather to (a)(ii), which applies where the claimant cannot ‘repeatedly mobilise more than 50 metres within a reasonable timescale because of significant discomfort or exhaustion’. The tribunal had found that the claimant could walk 50 metres without stopping, and then could repeat that after a ‘pause’. That would amount to repetition ‘within a reasonable timescale’ and the tribunal had not erred here (paragraphs 21–24). Also, on the facts of the case the tribunal had not failed to adjourn to get the papers relating to the claimant’s award of the high rate of the mobility component of disability living allowance. All such adjournments were a matter for the tribunal’s discretion and in this case the tribunal had ‘reasonably ample’ material on the ESA claim, so that the failure to adjourn did not amount to an error of law (paragraphs 30–36).

However, the tribunal had erred in not adequately explaining its translation of the claimant’s walking time (1–2 minutes) into an estimate of walking distance. The judge agreed that the reference to walking ‘slowly’ would reasonably be interpreted as walking at 40–60 metres per minute. But allied to the reference to 1–2 minutes, which translates into a distance range of between 40 metres (assuming a minute’s walking at 40 metres a minute) and 120 metres (assuming two minutes’ walking at 60 metres per minute). That was not adequate to explain the finding that she could walk 50 metres (paragraphs 25–28).

Summary

The claimant had a number of physical health problems. He was considered to have failed the work capability assessment. The First-tier Tribunal dismissed his appeal, although it did award him 6 points in the mobilising descriptor for inability to repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion. The tribunal took into account doctor’s evidence that he would have problems with ‘repeated use of a wheelchair after propelling himself over 100 yards’, and also found that the claimant ‘walked a significant distance to his examination. He would probably have to stop a number of times due to discomfort’.

Judge Rowland allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in not properly considering points in the mobilising descriptor from problems with ability to mobilise repeatedly. Firstly it should have considered descriptor 1(a)(ii) of the work capability assessment. That applies if the claimant ‘cannot repeatedly mobilise 50 metres with a reasonable timescale because of significant discomfort or exhaustion’. The judge said, ‘it seems to me that “repeatedly” must mean more than two or three times, at least in the context of paragraph 1(a). There will be a few people, of whom this claimant might possibly be one, who can manage over 100 metres in one go (and therefore implicitly in two or more goes) but cannot reasonably be expected to manage a further distance of 50 metres within a reasonable timescale…’ (paragraph 5).

Also, if it was the case that the claimant could not repeatedly propel himself in a wheelchair for more than 100 metres, the question arose as to how far the claimant could walk at a time, given that the tribunal appeared to have considered that he could walk a short distance repeatedly. If he could not walk more than 100 metres in one go, then he could not repeatedly walk that distance either, in which case he should have scored at least 9 points under descriptor 1(c)(ii) (paragraph 7).

Regarding the continence descriptors, the judge endorsed the finding about being ‘at risk’ of loss of control made by Judge Lane in NH v SSWP (ESA) [2011] UKUT 82 (AAC), that a risk may exist notwithstanding that there are few, or no, occasions when it materialises (paragraph 12).

Thanks to Sanatkumar Dave of Tameside Metropolitan Borough Council, the claimant’s representative, for sending us this decision.

Summary

The claimant suffered from fibromyalgia, lower back and hip problems and anxiety and depression. Having originally been awarded ESA, she was reassessed which included her completing a new ESA50 questionnaire and attending a medical examination, which was carried out by a registered nurse. The claimant was considered to have failed the work capability assessment, a decision that was upheld by the First-tier Tribunal.

Judge Williams allowed the claimant’s further appeal and substituted a decision to the effect that the claimant remained entitled to ESA as she passed the work capability assessment. The tribunal had erred in making no finding about the claimant’s depression and other mental health problems, and dealing only cursorily with some of the relevant physical health descriptors, and relying on the official ESA85 medical report which provided ‘no relevant evidence of any weight’ while ignoring other independent expert evidence (paragraphs 13-16).

The official ESA85 medical report was so flawed as to be of no evidential value. Firstly, the nurse appeared ‘to have failed to conduct any clinical examination of evidential value’, failing to note the anxiety and depression as medical conditions, and with no sign elsewhere in the report ‘of any positive input by the nurse’ to the clinical examination part of the report. The computer program had carried forward into that phrase from the ‘description of a typical day’, apparently without correction or editorial consideration. Regarding physical descriptors, the nurse had recorded that the claimant was in pain and discomfort and so was not subject to the usual physical examination; but the nurse had nevertheless assessed the claimant as having no limitations. ‘Why’, asked Judge Williams, ‘did the nurse assess what she said she was not assessing?’ (paragraphs 5–8). Overall, for the judge, ‘this report not only calls into question whether the nurse actually conducted a mental health examination as reported or even read the report she submitted before doing so but also more generally the evidential value of a report conducted or purportedly conducted by a nurse when there is no indication that the nurse had any specific qualifications to conduct that aspect of the examination… it also calls into question the validity of a report produced by a computer programme that allows the operator to delete the whole of the relevant parts of the report which should record results of a clinical physical examination so that there is no “supporting medical evidence” whilst still generating unqualified opinions about unexamined physical functions for which there is no such evidence’ (paragraph 10).

Summary

The claimant appealed against the decision of the First-tier Tribunal about whether she satisfied the work capability assessment. She was assisted at the tribunal and in her further appeal by a representative. In applying for permission for further appeal, the representative said that he had wished to give evidence at the tribunal on behalf of the claimant about the matters with which his organisation had felt it necessary to assist her, but had been told by the judge that he could only ask his client questions or make a submission.

Allowing the claimant's further appeal and remitting the case to a new tribunal, Judge Gray commented on that, although she decided the case on another matter and did not have the benefit of argument on it (paragraph 3). The judge said that the tribunal would have been entitled to hear the representative's evidence as 'there is nothing to prevent a representative from giving factual evidence of matters within their knowledge'. It was of course a matter for the tribunal to assess the weight of such evidence, in the way that it weighs any evidence (paragraph 6).

In so commenting, the judge endorsed the decision of Commissioner (as he then was) Jacobs in CDLA/2462/2003.

Decision in brief

Where put in issue by claimant – ML v SSWP [2013] UKUT 174 (AAC); [2013] AACR 33 right to say that mere fact of the DLA award does not necessarily mean a mobilising descriptor applies – but ML v SSWP is not authority for simply disregarding the DLA award – the evidence behind the award matters and may be relevant for the mobilising descriptors (paragraph 5) – in this case the evidence behind the DLA award was potentially relevant and the DWP ought to have produced it (or been directed to do so) under rule 24 of the tribunal procedure rules (paragraph 7)

Decision in brief

Earnings payable in arrears falls to be attributed forward from the date of receipt rather than backwards over the period in respect of which it was earned (paragraph 15) - local authority approach to the contrary is wrong

Note from CPAG

Guidance in Housing Benefit General Information Bulletin HB G8/2014 (13 August 2014) says the decision must be followed but that ‘ministers have decided that the best approach would be to clarify the situation by an amendment to regulations to state that earnings should be attributed over the period they are earned. We aid to do this as soon as possible in the autumn.’

Decision in brief

Question of whether claimant is in support group can be considered at time termination for time-limiting is to be made – therefore appeal can be made against termination for time-limiting on basis that claimant should be in support group – but if claimant has not raised issue on revision or supersession or in grounds of appeal, it may well be appropriate to strike out an appeal against termination for time-limiting (paragraphs 20–38)

Decision in brief

Rules in the Pension Schemes Act 1993 provide for GMP to be paid on ‘pensionable age’ which in 1993 meant aged 60 for a woman – that has, by an admitted oversight by the DWP, not been amended to reflect progressive equalisation of pension ages for men and women – but the law as it stands must be applied – effect in this case was that a woman claimant had her additional pension reduced at age 60, which meant that the additional retirement pension she inherited from her husband when he died was reduced over a year before she became entitled to state retirement pension

Decision in brief

Whether it needs to be considered by a tribunal depends on all the circumstances of the case – PC v SSWP (ESA) [2014] UKUT 1 (AAC), SP v SSWP (ESA) [2014] UKUT 10 (AAC) and others approved – where it does need to be considered, tribunal deciding that it does not apply should explain why, not just say it was not satisfied that it did apply

Decision in brief

Fact that previous certificates had been issued showing nil recoverable benefit did not prevent another one being issued showing recoverable benefit after the previous ones had expired – certificates of recoverable benefits are time limited and cease to have any legal force on the date stated in them for their expiry