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Summary

The First-tier Tribunal held that the claimant’s ability to mobilise could, for the purpose of the mobilising descriptors in the work capability assessment, be assessed taking into account his ability to use a powered wheelchair. The tribunal considered that although the wording of the mobilising activity itself referred only to a ‘walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be used’, a powered wheelchair could be considered as an ‘other aid’.

Judge Mitchell allowed the claimant’s further appeal. The tribunal had erred in holding that use of a powered wheelchair could be taken into account (paragraph 2). A manual wheelchair and a walking stick share a ‘common characteristic’: that is that ‘they both require an individual to supply all of the energy necessary to move without relying on any external source of power’. That was enough, held the judge, to establish a category (‘genus’) which, under the principle of ejusdem generis, meant that the other aids that could permissibly be taken into account should be of the same nature (paragraph 20).

Further, the judge did not agree with the tribunal’s suggestion that requiring any ‘other aid’ to be similar to a manual wheelchair or walking stick would make the mobility test impossible to apply. ‘If the mobility provisions are properly construed’, said the judge, ‘the range of “other aids” is limited to those whose use still requires the individual to move under his or her own steam (and which are normally used or could reasonably be used). I think it is quite straightforward to decide which aids qualify under that test and which do not’ (paragraph 23).

Summary

The claimant had a combination of physical and mental health problems. The First-tier Tribunal allowed her appeal to the extent that it found she scored sufficient points to have limited capability for work, but did not find that she had limited capability for work-related activity – ie, did not place her in the support group. At issue in the claimant’s further appeal was the possible applicability of the ‘substantial risk’ provision for limited capability for work-related activity, at regulation 35(2) of the Employment and Support Allowance Regulations 2008, SI 2008 No.794.

Judge Gray allowed the claimant’s appeal and remitted the case to a fresh tribunal. The tribunal had erred in giving inadequate reasons for not applying the substantial risk provision to the claimant so as to treat her as having limited capability for work. Firstly, in awarding her points for limited capability for work, the tribunal had agreed that a descriptor about ‘social engagement’ with someone unfamiliar not being possible for most of the time without significant distress applied to the claimant. But the tribunal had not explained how that was to be avoided for work-related activity, or if not whether it was to be considered a substantial risk to her health (paragraph 14).

Also, the tribunal (and the Secretary of State in submissions to the judge) had relied on the anticipated involvement of the appellant’s partner, in that it was anticipated he could be present during at least some work-related activity so negating any substantial risk. But the tribunal had not explained the extent of that, his availability and whether, in the circumstances, it was reasonable to rely on his presence. Neither did it deal with the potentially relevant issue of increased anxiety related to his availability. Overall, the tribunal’s reasons did not demonstrate the proper attention to the factual issues identified by Judge Ward in PD v SSWP (ESA) [2014] UKUT 148 (AAC), which required there to be ‘appropriate evidence’ that such help could in practice be taken into account (paragraph 15– 18, 21)

Judge Gray also drew attention to the decision of Judge Rowland in SS v SSWP (ESA) [2015] UKUT 101 (AAC) (paragraph 20), where he held that the risk of a claimant’s additional anxiety in worrying about whether s/he can or cannot be accompanied could be a feature of the risk assessment.

Summary

This decision of a three-judge panel of the Upper Tribunal further considers the approach taken to descriptors in Activity 1 of the PIP assessment regarding ability to ‘follow the route’ of a journey without another person, assistance dog or orientation aid, in particular regarding claimants without cognitive impairment, but with conditions such as anxiety and depression. The claimants in the present cases had, respectively, severe depression with anxiety and agoraphobia (Mr H), severe anxiety (Ms C), and depression with a related physical impairment (Mrs D). Only Mrs D had been allowed the mobility descriptor she contended for awarded by the First-tier Tribunal, namely, descriptor 1(f) for inability to ‘follow the route of a familiar journey’, in this case without help from her husband.

Judges Rowland, Rowley and Hemingway noted that there had been different views taken in the Upper Tribunal about the application of such descriptors. In DA v SSWP [2015] UKUT 344 (AAC) and the later HL v SSWP (PIP) [2015] UKUT 694 (AAC), Judges Jacobs and Ward had held that both held that inability to ‘follow the route’ of a journey (in descriptors 1(d) and 1(f)) referred to the ability to ‘navigate’, and did not encompass help required to deal with mental health problems such as anxiety. In HL, Judge Ward had accepted a concession from the Secretary of State that ‘overwhelming psychological distress’ could be relevant to descriptors 1(d) and 1(f), if the distress amounted to a loss of the ability to navigate. The judges considered that concession rightly accepted (paragraph 43–47).

In the present cases, the Upper Tribunal held that the phrase ‘follow the route’ clearly included an ability to navigate, but was not limited to that. It was also possible that the phrase referred to the ability to ‘making one’s way along a route’ or to ‘go along a route’. Therefore, DA and s tended to focus too closely on a person’s ability to ‘find’ her/his way, ‘whereas a need to be supervised in order to make one’s way along a route safely is as important’ (paragraphs 36–37). However, that did not mean that DA and HL were wrongly decided. Even in the slightly wider approach, it was still the case that ‘only if a claimant is suffering from overwhelming psychological distress will anxiety be a cause of the claimant being unable to follow the route of a journey… the fact that a claimant suffers psychological distress that is less than overwhelming does not mean that the claimant is not following the route safely and to an acceptable standard’ (paragraph 48). If a claimant was simply unable even to undertake a journey because it would cause overwhelming psychological distress, then descriptor 1(e) applied instead (paragraph 41). But the mere fact that prompting was required to avoid such distress to be able to undertake the journey did not mean that only descriptor 1(b) could apply; 1(d) or 1(f) could apply instead if such distress amounted to inability to then follow the route of a journey (paragraphs 43–46).

Comment from CPAG

This decision is really a refinement of the approach established by DA and HL, so as to include reference to ability to progress along a route, as well as merely navigate in considering ability to ‘follow the route’ of a journey. However, that widening still does not admit mental health problems such as anxiety or depression, except in the context of ‘overwhelming psychological distress’.

Summary

The claimant had been awarded the enhanced rate of the daily living component for the period 2 October 2013 to 29 June 2016. A year before the end date, he was contacted about ‘looking at your personal independence payment again’ (a ‘planned review’), and was sent a new questionnaire, which he returned. After a further medical, a decision maker decided on 9 September 2015 that he now scored no points, and removed his PIP award from that date. Following a mandatory reconsideration, the claimant appealed but the First-tier Tribunal dismissed the appeal.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred by failing to identify the ground on which the original award was superseded (ie, so as to change it) and in failing to identify the proper ‘effective’ date on which that supersession was to take effect (paragraph 15). Available grounds for supersession were for a ‘change of circumstance’ under regulation 23(1)(a) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381, or for receipt of an official medical report, under regulation 26(1)(a) of the same regulations. Although the latter did not require a change of circumstance and so might always apply, it did not preclude supersession for change of circumstance, which was important as that could result in an increase in the award from an earlier date. The judge agreed that a regulation 26-supersession only fell to be considered where there is no identifiable change of circumstance, and that regulation 26 was in effect a ground of last resort (paragraph 16).

On the facts of this case, the tribunal had also erred in failing to explain the difference between the original award and the later decision – ie, which removed all entitlement. He agreed that the reasoning in R(M) 1/96, which held that it must either be obvious from the tribunal’s finding why they are not renewing an award or some brief explanation must be given, applied in a case like this (paragraphs 17–19). That was especially so given that in this case the claimant’s original award had not been permitted to run its full term, but had been terminated ahead of that as a result of the planned review. In a case such as this, where there was a stark contrast between the two decisions, the tribunal could not ‘simply pretend that the award the previous year was simply a matter of ancient history and of no current potential relevance’. It was incumbent at least to express a view as to why the award should now be so different (paragraphs 21-22).

Comment from CPAG

This decision has been substantially followed, in a case with similar facts, by Judge Mesher in DS v SSWP [2016] UKUT 538 (AAC) (2 December 2016) (file number CPIP/1123/2016). Judge Mesher departed from SF v SSWP (PIP) only in that he did not consider that regulation 26 was to be treated as a supersession ground of last resort. Contemporaneously, Judge Mesher pointed out in another case with similar facts, KB v SSWP (PIP) [2016] UKUT 537 (AAC) (2 December 2016) (file number CPIP/1623/2016) that the power under regulation 11 of the Social Security (Personal Independence Payment) Regulations 2013 for the Secretary of State to ‘determine afresh’ a claimant’s entitlement to PIP is not an independent ground of supersession.

Summary

In these joined cases, the claimants had conditions which meant that, although they were able to cut up food and convey that and drink to their mouth without help, they sometimes had a nutritiously poor diet (eg, relying on cereal or soup), and needed encouragement to have a better diet. In both cases, the First-tier Tribunal refused to score them points under Activity 2 ‘taking nutrition’.

Judge Wright disallowed the further appeals of both claimants. The tribunals had not erred in law, as what was in consideration in Activity 2 did not extend to ‘dietary choices’ or ‘eating well or nutritiously’. Rather, it was limited to the ‘act of eating (or drinking) and not with the nutritious quality of what is being eaten (or drunk)’ (paragraph 1). The judge made this finding because of his analysis of the meaning of the statutory definition of ‘take nutrition’, namely Part 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013, No.377. That provides a meaning involving only cutting food into pieces, conveying food and drink to the mouth and chewing and swallowing, or using a therapeutic source. For Judge Wright, that clearly excluded reference to the nutritious quality of that which was being eaten or drunk, and put the plain focus on the ‘act’ of eating and drinking. Given that, the word ‘nutrition’ in this context ceased to have ‘any special quality beyond its being a term to cover both eating and drinking’ (paragraphs 24–25).

In so holding, the judge expressly disagreed with comments by Judge Mark in SA v SSWP [2015] UKUT 512 (AAC) (paragraph 34). There, regarding a claimant who without encouragement limited herself to soup and coffee, the judge said that such a diet cannot be seen as taking nutrition to an acceptable standard and that the claimant was correctly awarded points under Activity 2. However, Judge Wright speculated that it was possible in that case that in fact the claimant needed encouragement with the act of eating, or with cutting food into pieces (paragraphs 36–37). In the present cases, however, the problem with claimants had was with the content of what they were eating rather than with the act of eating, and so were properly refused points under Activity 2.

Summary

The claimant was entitled to an award of tax credits for the year 2011/12. On 12 April 2012 (after the end of the tax year), the claimant was sent a ‘decision’ apparently informing him that he was not to be awarded child tax credit for his daughter from 9 November 2011, following the child’s mother making a claim on the basis of having ‘main responsibility’ for her from that date. The father appealed against that ‘decision’. Following a further change in the HMRC position, the First-tier Tribunal held that the father had main responsibility until 23 January 2012, and the tribunal decided the case on that basis.

Judge Wright allowed the father’s further appeal, but only in that in fact the tribunal had no jurisdiction at all to consider an appeal against the ‘decision’ of 12 April 2012. That is because that ‘decision’ was in fact not a statutory decision at all and did not carry a right of appeal. In fact, it was what HMRC call a ‘SLAN’ – a ‘Statement Like an Award Notice’ – issued about changes in payments while a proper finalisation of the award (under section 18 of the Tax Credits Act 2002) is being considered (paragraphs 18–19). On the facts of this case, which only emerged after extensive researches by the HMRC representative to the Upper Tribunal in this case, it was indeed a SLAN that was issued in April 2012, and a final section 18 decision was not in fact made until February 2013. Judge Wright held that the SLAN notice was wrongly treated by all as a decision that could be appealed as, in fact, there was no appealable decision and the tribunal had no jurisdiction to make a decision (paragraph 30).

Indicating considerable displeasure, the judge said it was ‘frankly disgraceful’ that it took until the present proceedings before the Upper Tribunal before it was revealed that the ‘decision’ at issue was in fact a SLAN. This ‘unedifying process’ was contributed to by ‘HMRC’s continuing (and in my view wholly unjustifiable) inability even to produce a copy of the decision said to be under appeal. A combination of Kafka and Captain Mainwaring might be thought unlikely to come up with such a sorry state of affairs’ (paragraphs 1–2). On the facts of the case (which involved subsequent ex gratia payments and writing off of overpayments), neither the claimant nor the child’s mother had lost out. But, warned the judge, ‘other claimants might not be so fortunate’ – if a claimant thought with very good reason s/he had already appealed, then s/he might not appeal against the later decision, which is in fact the appealable one, or not do so until it is too late (paragraph 4).

Comment from CPAG

Just two days later, Upper Tribunal Judge Wikeley made his own decision in a case involving an appeal against a SLAN, in TM v HMRC (TC) [2016] UKUT 512 (AAC). However, on the facts of this case, Judge Wikeley’s approach to resolving the mess involved treating the SLAN as a decision under section 18 of the Tax Credits Act 2002, so as to ensure a right of appeal and therefore that the claimant did not lose out on fundamental appeal rights.

Summary

On transfer from disability living allowance (DLA), the claimant was awarded the daily living component, but not the mobility component. She was represented at the First-tier Tribunal hearing. Prior to the hearing, the tribunal had invited the representative to make it clear to the claimant that the tribunal would be considering the whole of the PIP decision – ie, including the award of the daily living component. At the outset of the hearing, the representative confirmed that the claimant fully understood that the whole of the award was to be considered, and the tribunal pointed out to the claimant that its powers included an ability to reduce the award. The tribunal not only refused the claim for the mobility component, but removed the award of the daily living component.

The claimants’ grounds for further appeal to the Upper Tribunal included that the tribunal erred in not adjourning before removing the daily living component. Reference was made to the decision in BTC v SSWP [2015] UKUT 155 (AAC). In the present decision, Judge Hemingway held that the tribunal had not erred in not offering an adjournment. He did not disagree at all with what was said in BTC, where a warning had been issued about the dangers of tribunals raising issues not previously raised and from failing to make it clear new concerns in order to allow a claimant to respond properly. But that did not mean that a tribunal was always obliged to adjourn. In the present case, the claimant had a competent representative who could have asked for a more detailed explanation from the tribunal, or applied for an adjournment. Had the claimant not been represented then the situation may have been different (paragraph 14).

More widely, the judge said: ‘A tribunal is, in my judgement, perfectly entitled, in general terms, to have confidence in a competent representative and to assume, where appropriate, that if an application which could have been made is not made, then an informed view has been taken not to do so. Much will turn on the particular circumstances but here the claimant was aware of the risk she was taking, she had competent representation, she was give a chance to consult with her representative, no further clarification as to the tribunal’s concern was sought and no adjournment request was made’ (paragraph 14).

Summary

The claimant appealed against a refusal to award her PIP on transfer from DLA. The representative requested copies of the claimants’ medical notes from her GP’s surgery. After a postponement, the representative sent to the tribunal a submission and a bundle of some 350 pages of medical records. There were no references in the submission to any of the contents of the accompanying medical records. The First-tier Tribunal refused the appeal.

Judge Wikeley held that the tribunal had erred in making inadequate findings of fact about the continence descriptors and remitted the case to a fresh tribunal. More substantively, however, he drew attention to an important procedural issue. The bundle of the claimant’s entire medical records sent to the tribunal included highly confidential child protection evidence which should not have found its way into the proceedings. The judge said that ‘this case should be a salutary warning for all representatives’ (paragraph 2). It later transpired that the representative had no idea that the submitted records contained this material, as she had not read all of it.

The disclosed medical notes included minutes of a child protection conference held in 1996. These minutes included highly sensitive information, and carried a prominent warning that they were ‘strictly confidential’ and ‘must not be copied or show, or their contents discussed, without the permission of the child protection co-ordination unit or the court’. Judge Wikeley noted that the representative was working under difficult constraints, including a dire funding situation in the advice sector and heavy workloads. However, the obvious point was that ‘a representative should never send in evidence which has not been read, if only to ensure that the evidence is relevant to the issues to be determined’ (paragraph 27). In the circumstances, a request simply to send a copy of the claimant’s medical notes, going back many years, would not have been a proportionate request, as such an unfocussed request simply increased the risk that other irrelevant and highly confidential information might be disclosed’ (paragraphs 31–33). Tribunals also needed to heed this warning. Careful consideration needs to be given to why medical records are being sought and the issues to which they are relevant, so that requests can be framed accordingly (paragraph 34).

Comment from CPAG

Many representatives will point to the increasing practice of GPs charging for focussed medical evidence as a driving factor behind a resort to medical records. However, the dangers of unfocussed requests for medical records and not reading evidence before submission are starkly represented in this case.

Decision in brief

Problems mental in nature resulting from an operation may score points under the mental health descriptors – the reference to ‘mental illness or disablement’ in regulation 19(5) of the Employment and Support Allowance Regulations 2008 ‘encompasses not merely mental ill-health in the form of conditions such as depression or schizophrenia but mental disablement of all kinds, for example learning difficulties and cognitive deficiency whether that be by reason of age or acquired brain injury’ (paragraph 13)

Decision in brief

'Temporary interruption’ of studies – relevant rule (regulation 5(3) Social Security (Carer’s Allowance) Regulations 1976) is intended to draw a distinction between different types of interruption – where the interruption ‘means a person can no longer fairly be considered in fact to be actively pursuing a full-time course of study’ they are not prevented from being entitled to carer’s allowance – this applied to a carer who had started full time education, but by agreement with the educational establishment was on a ‘one year deferment’ to care for her disabled son – different from ‘other interruptions the nature of which means the person can fairly be said still to pursue a full time course of study’

Decision in brief

In such cases it is good practice for the decision notice to state that, given that the points awarded result in the maximum possible award, it was not necessary to consider whether further points are merited

Decision in brief

Includes half-brothers and half-sisters – R(SB) 22/87, though strictly obiter on this point, was correctly decided