IN THE
UPPER TRIBUNAL Appeal No. CE/3100/2013
ADMINISTRATIVE
APPEALS CHAMBER
Before:
Upper Tribunal Judge PA Gray
The decision
of the Upper Tribunal is to allow the appeal. The decision of the
Sunderland Tribunal made on 2 May 2013 under number SC 236/12/03708 was made in
error of law. Under section 12 (2) (a) and (b) (ii) Tribunals, Courts and
Enforcement Act 2007 I set that decision aside and remit the case to be
referred by a fresh tribunal in accordance with the directions below.
REASONS FOR DECISION
- This matter
concerned entitlement to Employment and Support Allowance by the appellant,
who had previously been in receipt of that benefit under a decision taken
following a medical examination in 2011 which had detailed the problems
that she had from conditions of anxiety and depression and alcohol misuse.
Relying upon that medical report, dated 16 May 2011, a decision was made
that the appellant had Limited Capability for Work, but was capable of
Work Related Activities. That decision, however, was later revised on 10
August 2011, and it was decided that she had been wrongly placed in the
Work Related Activities Group, and she was placed in the Support Group.
Being a revision decision, that replaced the original decision that she
had been capable of work related activities. That decision carries with
it the implication that the medical report of 16 May 2011, whilst
acknowledging severe drug and alcohol difficulties, did not really reflect
the extent of the appellant's problems at that time. That matter becomes
of some importance in relation to the extent that an FTT finding facts
upon the basis of more current evidence including a medical report
provided about a year later needs to explain its conclusions.
- That
decision was superseded by the decision under appeal, made on 8 August
2012. It had been made following a further medical examination which had
taken place on 28 June 2012, in which the appellant’s stated condition was
depression only, although the ESA 50 which she had completed spoke of a
serious alcohol abuse as well as misuse of drugs, including heroin.
- The
First-Tier Tribunal (FTT) heard the appeal on 2 May 2013, and confirmed
the decision of the Secretary of State. I granted permission to appeal on
16 October 2013 on the basis that the full statement failed to deal
adequately with a considerable amount of medical evidence put before it by
the appellant. I required a submission from the Secretary of State. That
is now to hand.
- The
Secretary of State does not support the appeal. The submission argues that
the FTT was entitled to come to the factual conclusions that it did, and
that it adequately explained them. I disagree.
- Regrettably
the full statement of facts and reasons supplied by the Tribunal Judge
does not withstand scrutiny. I acknowledge the expertise of the FTT, and
where that expertise is present it is not always necessary to explain the
factual findings in detail, and, as I said at paragraph 37 of TB-v-SSWP
(ESA)[2013] 0408(AAC) a statement of reasons needs to
be adequate rather than perfect, but this statement makes specific factual
findings which go against the totality of the evidence upon which the
previous placement of the appellant in the Support Group had been based,
and which was being put forward as the current position by the appellant,
and as such a proper explanation as to those findings was required.
- Essentially
the conflict is between the facts as found by the FTT that the appellant did
not have a medical problem with respect to alcohol misuse, but was making
a lifestyle choice to drink to excess which she could choose to change. The
history was of diagnosed alcohol problems which were being treated by
specialists in conjunction with her mental health problems, and her
evidence in the ESA 50 and her account to the HCP (she failed to attend
the hearing without explanation) was that she spent her day in her room
drinking. In so far as it is possible to ascertain a reason for that
factual conclusion from the statement of reasons it is that she did not
appear to be under the influence of alcohol at the medical
examination-which took place at 9 AM-and that in the three weeks prior to
the most recent medical examination she had stopped taking drugs. The
latter point is not even an accepted base fact upon which the FTT could
build. There was also evidence that some two weeks prior to the medical
examination she had taken a drug overdose. That conflict required
resolution; until that was done the matter could not be used as a factual
building block.
- Fact-finding
requires an analysis of the evidence, which here included the evidence
that the appellant's problems in 2011 were so significant that she was
placed in the Support Group. In the face of that background some explanation
was required to rationalise the conclusion that this behaviour was simply
choice on the part of the appellant.
- The
appellant's representative argues additionally that the tribunal fell into
error in their consideration of descriptor 12 of the version of schedule 2
then applicable, concerning awareness of hazards , because they failed
to take into account her propensity to self harm. Although I did not have
the benefit of full argument on this issue, it seems to me that a
descriptor which talks in terms of reduced awareness of everyday hazards
due to cognitive impairment or mental disorder, leading to a significant
risk of injury to self or others, does not contemplate self harm, which
may be a deliberate act, albeit one which may result from mental health
difficulties. I therefore reject that particular point, however there
does seem to be an assumption implicit in the statement of reasons that
self harm problems which did not result in hospital attendance for
admission could simply be ignored for all purposes. These are highly
complex issues which defy such a simplistic approach.
- Of
considerable importance in this case, bearing in mind the diagnoses, is
the potential application of regulation 29. In this the tribunal’s
reasoning was wrong. At paragraph 19 of the statement of reasons it is
explained that FTT had regard to the type of employment which the
appellant may be capable of undertaking. There is then something of a
quantum leap from that comment into a generalised assertion that the
Equality Act 2010, including as it does provisions concerning
"disability discrimination" in the workplace, can be relied upon
to prevent the risk to health envisaged by regulation 29. With respect, if
that might be the position in relation to physical disablement, and I do
not decide that important point upon which I have not had argument, to
assume that because there is a duty on an employer to make reasonable
adjustments there cannot be a substantial risk to health due to stress related
matters for somebody with significant addiction or mental health problems,
is to misunderstand the provisions of both sets of legislation.
- Also stated
in the paragraph which dealt with relation 29, is the assertion that there
were a number of manual jobs which the appellant could do under
supervision, including a job at a call centre. From decisions I have seen
there appears to be a common misconception that working in a call centre
is a benign, stress-free occupation. On the contrary such work is
generally highly target driven, and whilst it may be suitable for those
with physical health problems for whom being settled in one place is an
advantage over more peripatetic occupations it cannot be seen as
invariably suitable for all those with disabilities.
- I
remit the appeal to the FTT accordingly. The fact that the appellant has
succeeded at this stage is no indication as to the final outcome.
DIRECTIONS
- I
give the following directions for the further conduct of this appeal;
however they may be added to or amended by a DT J reviewing the file prior
to listing.
- The
re-hearing will be an oral hearing before a freshly constituted panel.
- The
appellant is to file any additional evidence within 28 days of the date of
the issue of this decision; that is not to suggest further evidence is
expected. In order to be of relevance the evidence must shed light on how
matters stood at the date of the original decision under appeal, 8 August
2012.
- The
clerk to the first-tier tribunal must ensure that the appellant's
representative’s grounds of appeal, the submissions of the Secretary of
State and the response to that submission from the representative are
before the new FTT.
Upper Tribunal Judge PA Gray
Signed on the original on
13 December 2013
