Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/1278/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 3 December 2012 is set aside and the case is remitted to the First-tier Tribunal to be re-decided by a differently-constituted panel.

 

 

REASONS FOR DECISION

 

1. This is an appeal, brought by the claimant with the permission of the First-tier Tribunal, against a decision of the First-tier Tribunal dated 3 December 2012 whereby it dismissed the claimant’s appeal against a decision of the Secretary of State to the effect that she was not entitled to employment and support allowance from 7 August 2012 because she was no longer assessed as having limited capability for work.  However, the First-tier Tribunal did award 6 points, in respect of descriptor 9(b).  The claimant needed 15 points if her appeal was to succeed.

 

2. The First-tier Tribunal granted permission to appeal on the ground that it was arguable that it had not given adequate reasons for rejecting the claimant’s submissions in relation to “social engagement”.  The Secretary of State accepts that the First-tier Tribunal did err in that regard.  The relevant descriptors are those in paragraph 16 of Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI 2008/794) as amended –

 

(1) Activity	(2) Descriptors	(3) Points
16. Coping with social engagement due to cognitive impairment or mental disorder.	16(a) Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual.	15
	(b) Engagement in social contact with someone unfamiliar to the claimant is always precluded due to difficulty relating to others or significant distress experienced by the individual.	9
	(c) Engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual.	6
	(d) None of the above apply.	0

 

 

3. The First-tier Tribunal said –

 

“With regard to social engagement, she has friends to visit and visits them; she walks the dog in the village and occasionally stops to chat with a friend; she goes swimming [with a friend at a hospital] on referral from her GP.  Although she says that she gets vey stressed and anxious when she has to meet people she does not know, and can find it difficult to sustain a conversation with them, we are not satisfied that social contact with someone unfamiliar to her is not possible for the majority of the time due to difficulty relating to others or significant distress or that any of the other descriptors in Activity 16 apply.”

 

4. Neither the judge who granted permission to appeal nor the Secretary of State has indicated why they have doubts about the adequacy of those reasons.  However, I am prepared to accept that the First-tier Tribunal did err in law in this regard.  The first sentence of that passage refers to social contact with people who were familiar to the claimant and was therefore of relevance only to excluding descriptor 1(a).  The second sentence raises two unanswered questions.  The first is whether the claimant being “stressed and anxious” amounted to her suffering “significant distress”, since it seems fairly clear that the legislation envisages that social contact that is not “precluded due to”, or is “possible” only with, significant distress is to be excluded from consideration.  The answer to that question would have been relevant both to descriptors 16(b) and 16(c).  The second is why the First-tier Tribunal concluded that social contact with an unfamiliar person was possible “for the majority of the time” so as to exclude descriptor 16(c).  The facts found are not sufficient to support the conclusion and there is no other reasoning.

 

5. This makes it unnecessary to deal with the other grounds of appeal but I ought to comment on the first ground of appeal in which it is said that the First-tier Tribunal acted unreasonably and makes criticisms of the judge upon which the judge has commented.  It is always difficult for the Upper Tribunal to resolve these kinds of disputes to the satisfaction of both the critic and the criticised because so much depends on their respective perceptions of events.  However, in this case I am quite satisfied that the criticisms do not reveal any error of law in the First-tier Tribunal’s decisions, even if in retrospect a particular question might have been asked in a different way.  In this case, the claimant clearly has some difficulty with social engagement even if the First-tier Tribunal’s assessment was correct (despite the lack of reasoning) and that is likely to have affected her perception and the way she reacted to what she was being asked and the way in which it was asked.  Of course, the First-tier Tribunal has to make an allowance for that, but it may be difficult to judge how much allowance should be made when the First-tier Tribunal and the claimant are unfamiliar with each other.  In any event, the First-tier Tribunal still has to ask questions if the hearing is to have any value, so that the relevant evidence is elicited and tested.  Moreover, in testing the evidence, it may need to ask questions that appear to the witness to go further than necessary.  Incontinence is always an embarrassing issue but it was relevant in this case and the evidence elicited by the First-tier Tribunal enabled it to attribute points in respect of a relevant descriptor.  I accept that it is possible that the questioning might have been conducted slightly differently, but none of the criticisms made suggests that the judge was biased or that there was any unfairness such as to render the decision wrong in law.  I also do not consider that any error of law arises from a judge’s note being illegible as long as a legible transcript is provided.  It has not been suggested that the transcript is not a broadly accurate record of the evidence given, although it obviously was not a verbatim record.  

 

6. However, the inadequate reasoning is such as to render the First-tier Tribunal’s decision wrong in law in a material respect.  Accordingly, the case must be reheard.  Although I have not considered it necessary to address the other grounds of appeal, or another criticism of the reasoning made by the Secretary of State, the relevant documents should be before the panel of the First-tier Tribunal rehearing the case, which should take them into account insofar as they are relevant to the issues arising on the appeal.

 

 

 

 

Mark Rowland

17 January 2014