Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Case Nos.  CE/1972/2013 CE/3183/2013

 

Before Mr Justice Charles

Upper Tribunal Judge Warren

Upper Tribunal Judge Rowland

 

The claimant in the first case, CE/1972/2013, was represented by Ms Kema Salter of Stoke-on-Trent Citizens Advice Bureau.

The claimant in the second case, CE/3183/2013, was represented by Mr Tom Royston of counsel, instructed by Kirklees Law Centre.

The Secretary of State was represented by Ms Carine Patry of counsel, instructed by the Solicitor to the Department for Work and Pensions.

 

Decisions: 

 

In case CE/1972/2013 the decision of the First-tier Tribunal is set aside and the appeal is remitted to a differently-constituted panel who must re-decide it in accordance with the guidance given in this decision.

 

In case CE/3183/2013 the appeal is dismissed.

 

REASONS FOR DECISIONS

 

Introduction

1.            These appeals were heard together by a three judge panel.  The reason for this was that both appeals raise an issue on which there is some conflict between earlier decisions of the Upper Tribunal (AAC) namely KB v Secretary of State for Work and Pensions (ESA) [2013] UKUT 152 (AAC) a decision of Upper Tribunal Judge Parker and AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 446 (AAC) a decision of Upper Tribunal Judge Ward.  That conflict relates to the construction and application of the Activities in paragraph 16 of Part 2 of Schedule 2 and paragraph 13 of Schedule 3 to the Employment and Support Allowance Regulations 2008 (SI 2008/794) (the ESA Regulations) and their descriptors (the Activities and their Descriptors).

2.            The Activities and their Descriptors relate to the assessments of whether a claimant has limited capability for work or limited capability for work-related activity.  Those two concepts are defined by respectively sections 1(4) and 13(7) and (8) of the Welfare Reform Act 2007 (the 2007 Act) and sections 8 and 9 of the 2007 Act provide that whether a person’s capability for work or capability for work-related activity is limited by his physical or mental condition and, if it is, whether it is reasonable to require him to work or to undertake that activity shall be determined in accordance with regulations. 

3.            Those regulations are in the ESA Regulations.  Regulations 19 and 34 introduce the activities and descriptors set out in Schedules 2 and 3. 

4.            Part 2 of Schedule 2 is headed “Mental, Cognitive and Intellectual Function Assessment.  From 28 March 2011, when new versions of both Schedule 2 and Schedule 3 were substituted by regulation 4 of, and Schedules 1 and 2 to, the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011 (SI 2011/228) (the 2011 Regulations), Activity 16 and its descriptors were:

(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

 

And Activity 13 and its descriptor in Schedule 3 have been:

 

Activity	Descriptor
13. Coping with social engagement, due to cognitive impairment or mental disorder.	Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual.

 

The activities are in the same terms and the descriptor in paragraph 13 of Schedule 3 is the same as descriptor 16(a) in Schedule 2.  Subsequent amendments have improved the drafting without affecting the substance.

General points relating to the construction and application of the statutory test set by the Activities their Descriptors

5.            Introduction. These definitions contain ordinary words in common usage that do not have precise meanings.  Their meaning and application is determined as a matter of ordinary usage by reference to the context in which they are used and this includes the phrase, sentence, section or part of the legislation in which they are used as well as the underlying purposes of the legislation in which they are used.

6.            It was in our view correctly common ground that the statutory phrases “coping with social engagement” in the definition of the activity and “engagement in social contact” in the definition of the descriptor have the same meaning. 

7.            As Judge Ward pointed out in AR Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions [1969] 1 WLR 1163, at 1171 gives general guidance on the approach to their interpretation and application.  Lord Upjohn said:

“It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look at examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved, admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament”

8.            In our view the following passages also provide general guidance:

i)             Reg v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 at 29C where Lord Mustill said:

“The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision”

ii)            Woodling v Secretary of State for Social Services [1984] 1 WLR 348 at 352 E/F Lord Bridge said:

“The language of the section should, I think be considered as a whole and such consideration will, I submit, be more likely to reveal the intention than an attempt to analyse each word of the phrase separately”

iii)           The approval by the House of Lords in Woodling at 352G and in Mallinson v  Secretary of State for Social Security [1994] 1 WLR 630 per Lord Woolf at 636C to 637E of a passage from a judgment of Dunn LJ in Reg v National Insurance Commissioner, ex parte Secretary of State for Social Services [1981] 1 WLR 1017 where, at page 1023,  he says:

“I look first at the section without regard to authority. To my mind the word ‘functions’ in its physiological or bodily sense connotes the normal actions of any organs or set of organs of the body, and so the attention must be in connection with such normal actions. The word ‘attention’ itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very word suggests a service of a close and intimate nature. And the phrase ‘attention … in connection with … bodily functions’ involves some service involving personal contact carried out in the presence of the disabled person.”

9.            These citations show that it is important to look at the whole of a statutory definition that uses words in common usage and to apply them as a phrase or sentence having regard to the underlying legislative purposes of the primary or secondary legislation.  Adopting the opening paragraph of the decision of the Inner House on the appeal to it in the KB case, Secretary of State for Work and Pensions v Brade [2014] CSIH 39 (which had been given very recently before` the hearing before us), they demonstrate the correct approach to the difficult task of capturing the relevant Parliamentary intention in its categorisations of human beings into limited categories.  Although it deals with Activity 13 in Schedule 3 and its descriptor it was common ground that apart from being an example of the approach to be taken to the construction of legislation that decision of the Inner House has no direct impact on the issues before us.

10.         Application. The general approach to be taken to the interpretation of statutory language leads into the approach to be taken to the consideration of whether a statutory test or definition that involves a value judgment has been satisfied in a given case.  That is shown by for example:

i)             In South Yorkshire Transport Ltd  Lord Mustill says at 32G/H:

“Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far, no room for controversy. But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision makers, acting rationally, might reach differing conclusions when applying it to the facts of a given case.”

ii)            In Re H (Minors) [1996] AC 563 Lord Browne-Wilkinson (who was in the minority) said at 573B:

“So in the present case, the major issue was whether Dl had been sexually abused (the macro fact). In the course of the hearing before the judge a number of other facts (the micro facts) were established to the judge's satisfaction by the evidence”

And Lord Nicholls of Birkenhead said at 589C to 591G: 

“A conclusion based on facts

The starting point here is that courts act on evidence. They reach their decisions on the basis of the evidence before them. …

Evidence is the means whereby relevant facts are proved in court. What the evidence is required to establish depends upon the issue the court has to decide. …

 At trials, however, the court normally has to resolve disputed issues of relevant fact before it can reach its conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. … To decide whether a car was being driven negligently, the court will have to decide what was happening immediately before the accident and how the car was being driven and why. Its findings on these facts form the essential basis for its conclusion on the issue of whether the car was being driven with reasonable care. …

I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. … The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.”

11.         Those citations relate to very different areas of the law and many other examples to the same effect exist.  An example of the application of that general approach in this area of the law is R(DLA) 5/05 in which the Chief Commissioner concluded that a Commissioner cannot interfere with a tribunal's decision unless it failed to recognise the proper conceptual test line drawn by the law or, having recognised it, made a decision as to which side of the line the case fell that was "outside the bounds of reasonable judgment".  In his decision he addressed how that conceptual test line should be drawn and applied by reference to a number of earlier cases in this area of the law, including the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, R(DLA) 7/03.  Those references show that in identifying the conceptual test line the statutory language should not be re-written, that it should be construed and applied to the facts of the given case by reference to the ordinary meaning of the words and their statutory context and purpose (see Headnote and paragraphs 7 to 12).

12.         Pausing there.  The points made above show that:

i)             the proper construction of the Activities and their descriptors is the “criterion” referred to  by Lord Mustill in South Yorkshire Transport Ltd  and the “proper conceptual test line” referred to by the Chief Commissioner in R(DLA) 5/05,

ii)            once that criterion is established its application will be based on a broad approach to the evidence and the conclusions reached on it which involves fact finding followed by reasoning and analysis based on those findings,

iii)           there are dangers in rewriting or reformulating a criterion,

iv)           decision makers applying a criterion on that basis could lawfully reach different decisions on its application in a given case,

v)            the reasoning of the First-tier Tribunal should adequately demonstrate that they have understood the criterion and how they have applied it, and

vi)           the purposes of the legislation are relevant to the determination of the meaning and application of a criterion particularly when it contains issues of degree and value judgments.

13.         The statutory purposes.  In the case of social security regulations, part of the admissible history is the exchanges with the Social Security Advisory Committee (for reasons explained in, for example, R(G) 3/58 at paragraph 18 et seq and R(IB) 2/07 at paragraph 38 et seq).  The court or tribunal also looks at admissible Parliamentary material (see Pepper v Hart [1993] AC 593) but we were not shown any in these cases.  Further, a court or tribunal will take into account official statements issued by a department administering an Act as persuasive authority but will not allow such statements or guidance to turn what has been enacted into what the department wish they had enacted (see Halsbury’s Laws 5^th edition Vol. 96 para. 1129).

14.         The general approach of the 2007 Act and the ESA Regulations is that the primary legislation is directed to the individual claimant, defines limited capability for work and limited capability for work-related activity and then prescribes that the approach to be taken by the person deciding whether a particular claimant has such limited capability (as so defined) is to be determined in the way set out by the Secretary of State in regulations.

15.         So “limited capability for work” and “limited capability for work-related activity” do not have freestanding meanings.  But it is clear from such documents as the Explanatory Memorandum to the draft 2011 Regulations, that the work capability assessment is intended to be a functional assessment based on an approach that a health condition or disability should not automatically be regarded as a barrier to work and which seeks to determine the ability of a claimant to work by considering the impact of his or her health conditions and disabilities on his or her ability to carry out a range of activities which have been formulated having regard to developments in healthcare and the modern workplace.  Even if this is primarily or only directed to Schedule 2 and so capability for work it also informs the approach to be taken to Schedule 3 and so capability for work-related activity and, in any event, the identical definitions in the Activities and their Descriptors must have been intended by Parliament to have the same meanings.

16.         We therefore accept the submission of the Secretary of State that the Activities and their Descriptors are intended to assess whether a person is able to engage with others for the purpose of work.  We also agree with the following general comments made by Upper Tribunal Judge Wikeley in AS v Secretary of State for Work and Pensions (ESA) [2013] UKUT 587 (AAC):

“19. It follows that the activities and descriptors in Schedule 2 do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work. They have to be applied on their own terms, but understood against the backdrop of the modern workplace.”

 

The decisions of Upper Tribunal Judges Parker and Ward in KB and AR

17.         In KB, the First-tier Tribunal had had to consider Activity and Descriptor 13 in Schedule 3 to the ESA Regulations, which was in the same terms as Descriptor 16(a) in Schedule 2.  It said:

“In relation to activity 13, coping with social engagement due to cognitive impairment or mental disorder, the tribunal had to be satisfied that engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual. Clearly this can not apply. He was able to cope with the HCP, he was able to cope with attending at the hearing before the tribunal which lasted 15 minutes. He is able to attend his GP. It therefore cannot be said that engagement in social contact is always precluded.

 

…

 

The appellant is reclusive as confirmed by his father’s evidence and by the evidence from the GP but he is not that bad that he cannot cope with meeting strangers. He clearly did this at the hearing before the tribunal…”

 

On appeal to the Upper Tribunal, it was argued on behalf of the claimant that the First-tier Tribunal had taken too narrow an approach.  Judge Parker rejected that submission, saying:

 

“15. The representative argues that this concept does not include engaging with people in a formal, professional context, which has an element of compulsion, such as, for example, attending a medical examination, consulting a General Practitioner, attending a tribunal hearing. It is the representative’s submission that descriptor 13:

 

‘relates to a person’s ability to engage ‘socially’ with people voluntarily in a more informal context, among friends, relatives and strangers, in familiar or unfamiliar places’.

 

16. The submission on behalf of the Secretary of State disagrees:

‘Whilst contact of the type suggested by the claimant’s representative would fall within the scope of the descriptor it is my submission that contact of the type referred to by the tribunal would not be excluded. The ability to undertake social contact with doctors and lawyers in situations which are acknowledged to have the potential to be stressful is, in my submission properly to be taken into account when judging descriptor 13’.

 

17. On balance, I prefer the argument made on behalf of the Secretary of State. The representative’s suggested interpretation reads in words which are not included expressly or impliedly in the statutory language. ‘Social’ qualifies ‘engagement’ and ‘contact’; thus in its unadorned use, ‘social’ is a simple reference to relations with other human beings and does not carry any connotations of leisure, pleasure and mutuality. Therefore, the tribunal did not err in relying, as constituting such ‘social engagement’, on the kind of business visits to which it referred in its statement. The representative’s objection that adopting the argument on behalf of the Secretary of State means that, for example, ‘anyone who claims the descriptor and attends the tribunal cannot succeed’, is now undermined by my conclusion that ‘always’ does not mean ‘on every single occasion’; attending a tribunal hearing constitutes ‘social contact’, but if a claimant is otherwise reclusive, he may yet show that he is ‘always precluded’ from ‘engagement in social contact’. This is because ‘always’ does not mean ‘every time’ but only ‘repeatedly’ or ‘often’.

 

18. What conduct amounts to the necessary ‘contact’ or ‘engagement’ is also a matter of fact and degree, likewise eminently suitable for consideration by a tribunal as a matter of common sense having regard to all the circumstances. At one end of the scale, if a claimant sat silently throughout his tribunal hearing then, outwith exceptional circumstances, a reasonable tribunal could hold that this did not amount to the necessary ‘contact’ or ‘engagement’; similarly, monosyllabic responses in such a context is a borderline scenario. However, where, as here, the claimant communicated with the tribunal on an extensive basis, according to the record, then a conclusion that such did not amount to any ‘social engagement’ or ‘social contact’ would have been irrational. Thus the tribunal did not err in how it understood either ‘social’ or ‘contact’ or ‘engagement’; where it erred was in applying too strict a test in determining whether such was ‘always precluded’.”

The claimant’s appeal was allowed by Judge Parker because she considered that the First-tier Tribunal had erred in construing the word “always” in the descriptor too strictly.  An appeal against her decision on that issue has recently been allowed by the Court of Session (Secretary of State for Work and Pensions v Brade [2014] CSIH 39 to which we have already referred) but without consideration of her approach to the words “social”, “contact” “coping” and “engagement”.

18.         In AR, the First-tier Tribunal had had to consider a number of Activities in Schedule 2 to the 2008 Regulations and said in relation to Activity 16:

“Activity 16- the tribunal again accepted the appellant’s evidence that he is able to go to the shops alone where he can engage in social contact with people who are unfamiliar.”

On appeal, Judge Ward found the First-tier Tribunal to have erred in other grounds but, as he was remitting the case, he also considered its approach to Activity 16. 

19.         At paragraph 17, he referred to a guide published by the National Autism Society entitled Social Skills for Adolescents and Adults, in the introduction to which it was stated:

“People with an ASD often find social situations very difficult.  There are so many social rules that people without an ASD learn instinctively.  People with an ASD often have to work at learning these rules. It can often be confusing and cause anxiety as many social rules are unwritten and not spoken about.”

 

 

He continued:

 

“18. In my view, social contact in this sense is not the same as contact for business or professional purposes.  If one goes to a medical examination, or a tribunal hearing, the rules are firmly established by the process and/or the person conducting it, and are typically clearly defined, often in writing.  If the person being examined or whose case it is does not respond in a way that a person without disability might, the person conducting it may because of their professional responsibilities be expected within generous limits to accommodate the non-conforming response and certainly not, as it were, to take a poorer view of, or attempt to avoid further contact with, the person because of it.  That is precisely what is lacking in the social sphere, where people are free to interact on their own terms and to accept the behaviour of another or to reject it, and largely do so on the basis of the sort of unwritten rules to which the National Autism Society guidance makes reference, an inability to respect which could, in the words of the descriptor, be an indication of ‘difficulty relating to others’.”

20.         He then considered the context of the legislation and explained why the difficulties of those with Autistic Spectrum Disorder would have been in the legislator’s mind when the 2011 Regulations were made and said:

“23. I am not, of course, to be taken as suggesting that because people with ASD were in mind, every problem such a person might face must be taken to score points. Nor am I suggesting that activity 16 applies only to people with that condition, nor that the present claimant’s difficulties are attributable to that condition. The key point is that the difficulties faced by people with ASD serve to illustrate that there is a context in which ‘social’ contact or engagement need not be taken with the broader meaning favoured by Judge Parker of referring to ‘relations with other human beings’.  The Work Capability Assessment is concerned with assessing whether a person’s physical or mental condition limits their capability for work, a process which involves grading the severity of the impact of the condition through the award of points.  It is entirely in accord with the purpose of the Work Capability Assessment that it should assess difficulties which a significant number of people do, in varying degrees, actually have.

 

24. It respectfully seems to me that the view in KB of what is ‘social contact’ has the effect of rendering the words virtually otiose.  Descriptor 16(a) could simply have said ‘Engagement with others…’ and 16(b) and (c) ‘Engagement with someone unfamiliar to the claimant’.

 

25. I respectfully disagree with Judge Parker’s view that:

 

‘“Social” qualifies “engagement” and “contact”; thus in its unadorned use, “social” is a simple reference to relations with other human beings and does not carry any connotations of leisure, pleasure and mutuality.  Therefore, the tribunal did not err in relying, as constituting such “social engagement”, on the kind of business visits to which it referred in its statement.’

 

It does not in my view follow (‘thus’) from the premise that ‘social’ has the meaning described.  Nor, I consider, is it necessarily appropriate, without more, to look to the ‘unadorned’ use of the word, when the word has a wide range of meanings and the question is what meaning the word has in the statutory context in which it is used.

 

26. The claimant’s representative’s original submission drew attention to the range of definitions in the Concise Oxford Dictionary, one of which, on which he sought to rely, was ‘relating to or designed for activities in which people meet each other for pleasure.’  Given the nature of human interaction in the social sphere (when a distinction is drawn between that and the professional or business transaction) and the legislative context of the amendment, that in my view was much nearer the legislator’s intention.  With the aid of the full Oxford English Dictionary (online version as at 6 September 2013) one can get even closer, with its definition of

 

‘Marked or characterized by friendliness, geniality, or companionship with others; enjoyed, taken, carried out, etc., in the company of others.’

 

Tellingly for present purposes, where we are concerned with ‘contact’ and ‘engagement’ the list of illustrations of the usage then gives more than a dozen examples of it being used ‘Of communication, interaction, an activity, etc.’

 

27. I am conscious of the words of Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163, at 1171:

[cited earlier in this decision]

 

28. I do not seek to define “social “in activity 16 by reference to the dictionary definition above.  But for the reasons in particular in [17]–[22] I consider that the mischief at which the statutory instrument was directed was such that unless there is an element of the social such as is referred to in the definition above or in some way which a tribunal may properly consider to be analogous, a tribunal will be liable to being overturned on further appeal on the basis either that it has not given any effect to the word ‘social’ or that its conclusion cannot be supported.

 

29. The focus of the legislation is however on the nature of the contact, not the context in which it occurs, albeit it is far more likely that such contact will take place in some contexts than others.  The point is well put by the representative in his original submission. 

 

‘That is not to say that [contact with others to conduct a commercial transaction such as buying groceries, buying a bus ticket or a medical consultation] could never involve social contact: a person may have a chat with a shopkeeper during the course of the transaction about the weather, the news or a recent sporting event. In these circumstances the contact would involve an element of social contact and therefore fall within the ambit of activity 16. However where a person simply places his shopping on the counter and hands over the money I submit the contact would not amount to social contact and would not therefore fall within the ambit of activity 16.’

 

Similarly, if one knows that one’s GP has just got back from holiday one might ask about it and that might constitute social contact, although the time for doing so may prove to be slight compared to the time devoted to the medical reason for the visit.  It would follow that, if I had needed to decide the point, I would have concluded that the tribunal failed to find sufficient facts in relation to activity 16.”

21.         The decisions in KB and AR focus on the meaning of the words “social contact” in the definition of the descriptors.  Correctly, the arguments before us were advanced by reference to all of the statutory language but nonetheless (and understandably) the way in which they were presented reflected the conflict between those two cases.  A summary of the rival arguments is that:

i)             in reliance on Judge Ward’s analysis and reasoning in AR the appellants argued that “social contact” means or requires interaction in, or equivalent to that which takes place in, the social sphere as distinct from a professional or business context and so interaction involving some element of pleasure, friendliness or companionship or something equivalent to it, and thus an element of choice, whereas

ii)            the Secretary of State argued that Judge Ward’s analysis and conclusion, and thus his expressed disagreement with Judge Parker’s reasoning and conclusion in AB, was wrong and Judge Parker had been right to conclude that “social” is simply a reference to relations with other human beings and does not carry with it any connotation of leisure or pleasure or choice.

22.         In our view, when one adds in Judge Parker’s comments at paragraph 18 of her decision that what conduct amounts to the necessary “contact” or “engagement” is a matter of fact and degree that is eminently suitable for consideration by a tribunal having regard to all the circumstances (a) the gap between her approach and that of Judge Ward narrows, and (b) her exclusion of the concept of mutuality from the meaning of “social” has to read with those comments.  The gap narrows further when Judge Ward’s comments in paragraph 23 of his decision are taken into account.  There he recognises that the work capability assessment is concerned with assessing whether a person’s physical or mental condition limits their capability for work, a process that involves grading the severity of the impact of the condition through the award of points.

23.         Nonetheless difficulty has arisen because of Judge Ward’s express disagreement with Judge Parker’s statement that “in its unadorned use, ‘social’ is a simple reference to relations with other human beings and does not carry any connotations of leisure, pleasure and mutuality”.  This explicit disagreement and what he says thereafter have been used to found the argument that the nature and extent of the contact defined in the Activities and their Descriptors must be marked or characterized by friendliness, geniality, or companionship with others and thus an element of choice (and so the aspects of leisure and pleasure excluded by Judge Parker), or that by something outside or in addition to a commercial or professional relationship which sets a structure or rules for the communications that take place within it.

Our reasoning and conclusion on the meaning of the statutory test set by the Activities and their Descriptors

24.         It is common ground that in isolation the word “social” has a range of meanings that covers the rival arguments before us.  The search for its meaning within the statutory test must therefore be carried out applying the general approach set out above.

25.         Like Judge Ward, we do not agree with Judge Parker that because the word “social” qualifies “engagement” (in the activities) and “contact” (in the descriptors) it follows that it has the meaning she finds, namely “relations with other human beings and does not carry connotations of leisure and pleasure”.  But, while we accept that Parliament must have had the difficulties of those with Autistic Spectrum Disorder in mind, we do not accept that its intention was directed only at the difficulties in communication they suffer or similar difficulties.

26.         Indeed the causes referred to in the  Activities and their Descriptors, namely:

i)              “due to cognitive impairment or mental disorder” which link to sections 1(4)(a), 8 and 9 of the 2007 Act and regulations 19(5) and 34(3A), and which need to have a sufficient causative link to

ii)            “difficulty relating to others or significant distress experienced by the individual”

show that the intention was not so confined but was directed to the possible impact of a wide range of impairments or disorders which caused one of the results for one of the reasons set out in the descriptors.  Further, in our view those results for those reasons might be affected by a variety of circumstances relating to the context in which they might arise, including a factor expressly addressed in the descriptors namely the distinction between social contact with someone who is familiar and all social contact.

27.         In our view, the most important factors that determine the nature and quality of the behaviour and communication covered by the Activities and their Descriptors are the words of the definitions taken as a whole and the underlying statutory purposes.  The application of those factors involves a consideration of:

i)              the range of meanings in common usage of the individual words that are used and so of “coping”, “engagement”, “social” and “contact” in the context of their combined effect,

ii)            the causes referred to in the  Activities for the problems with coping with and engaging in social contact,

iii)           the causes referred to in the Descriptors and their link with the relevant cognitive impairment or mental disorder, and

iv)           the underlying purposes of the legislation and so of the assessments.

28.         Having regard to the underlying purposes of the assessments that we have set out earlier (see paragraphs 15 and 16 above), a limitation of the nature and quality of the contact or engagement in the Activities and their Descriptors to contact for pleasure or leisure or characterised by friendliness, geniality or companionship and so the choices that that involves would be surprising because that limitation (a) would exclude aspects of communication in the workplace, and (b) would not take proper account of the distinction in the descriptors between communication with people with whom the claimant is familiar and all communication.  Indeed, it seems to us that points (a) and (b) dictate that the tests in the Activities and their Descriptors extend to contact for the purposes of work and so to contact with other characteristics and purposes that involve different degrees of choice or no choice because they relate to a structured situation or professional relationship (e.g. doctor and patient, lawyer and client).

29.         Accordingly, we have concluded that Judge Parker and the Secretary of State are right in concluding and arguing that if it is isolated the word “social” in those definitions is a reference to “with other human beings”.

30.         However, that conclusion does not define the types of “engagement” or “contact” between people and thus the “engagement” or “contact” with other human beings that is to be taken into account.  Accordingly, our conclusion on the meaning to be given to “social” leaves open the nature and quality of the “engagement” or “contact” that is precluded or not possible for the given reasons and thus the assessment of what  “engagement or contact with other people” the claimant can cope with due to his cognitive impairment or mental disorder.

31.         What is the nature and extent of that engagement or contact and how is it to be assessed?

32.         In our view, “coping” and “engagement” and the underlying statutory purposes introduce elements of reciprocity, give and take, initiation and response.  Such qualities exist in contact that is marked or characterised by friendliness, geniality or companionship but, in our view, they can arise and can be demonstrated without those elements (and the choices they involve) being present and this is often the case in the workplace and elsewhere albeit that a number of relationships there will include (or at least not exclude) them.

33.         A number of examples were addressed in the course of the hearing including those mentioned in paragraph 29 of Judge Ward’s decision (e.g. buying a ticket or groceries), contact with a medical examiner or other professional or a First-tier Tribunal and conversation with a stranger on a park bench.  In our view, all of these examples could demonstrate the necessary degree of reciprocity, give and take, initiation and response.

34.         As Judge Parker pointed out there is a range of possibilities from no response and then on through monosyllabic or unresponsive answers and, in our view, it is open to a decision maker to base his decision on an example or examples chosen from a wide range of situations.  Whether the evidence and findings relating to the claimant’s communications with others and behaviour in the chosen example or examples have the necessary degree of reciprocity, give and take, initiation and response raises issues of fact and degree and of judgment having regard to all the circumstances relating to them.  As with other such issues, the authorities show that it is not practical or appropriate to identify the statutory criterion by reference to abstract examples or by reference to a general classification or description other than the statutory test. 

35.         Rather, these are the type of issues that the authorities show are eminently suitable for consideration by a tribunal charged with considering the evidence whose approach to determining the application of the Activities and their Descriptors in each individual case should be to consider and determine how:

The nature and quality of the examples of communications and behaviour they take into account (and thus the reciprocity, give and take, initiation and response shown thereby) would, for the reasons given in the Activities and their Descriptors, be likely to be an effective barrier to the claimant working.

36.         The decision making process.  Thus far we have focused on the criterion or conceptual test to be applied.  Our answer leads to the second stage of the general approach we have described earlier in which there is room for different decision makers applying the right approach in the right way to reach different answers.

37.         It is important that the First-tier Tribunal applies the correct criterion or conceptual test in the right way.  This involves reaching conclusions on the evidence, and then explaining why the undisputed facts and those it has found lead to the decision reached on the application of the Activities and their Descriptors.  This avoids rewriting the test and shows how it has been understood and applied. 

38.         The fact finding exercise can be, and in our view generally should be, carried out separately from, although with an eye to, the value judgements that have to be applied to those findings.  It identifies and particularises, by reference to primary facts, the situations and events that will be taken into account and so the bedrock of the decision on the application of the Activities and their Descriptors.  In reaching that decision the tribunal will have to address and decide whether those findings show that:

i)             the claimant has cognitive impairment or mental disorder,

ii)            a causative link between that impairment or disorder and his difficulty relating to others or significant distress, and

iii)           a causative link between that difficulty and distress and a preclusion for all of the time or an impossibility for a majority of the time of contact with all other people, or those who are unfamiliar to the claimant, that has the necessary degree of reciprocity, give and take, initiation and response.

39.         In addressing whether the contact with other people has the necessary nature and quality the tribunal should consider in each individual case how the nature and quality of the communications and behaviour would impact on the ability of the individual to work and so whether or not it would be an effective barrier to him working.

CE/1972/2013

40.         In the first case before us, the claimant had been entitled to incapacity benefit but attended a work capability assessment for the purpose of determining whether his award should be converted into an award of ESA.  The Secretary of State decided that it should not because he did not score any points on the assessment under Schedule 2 and was not otherwise to be regarded as having limited capability for work.  He appealed and, upon reconsideration, he was awarded 9 points in respect of paragraph 15 of Schedule 2 to the ESA Regulations but that was insufficient for the conversion of his award and so his appeal came before the First-tier Tribunal. The First-tier Tribunal added 6 points under paragraph 1 of Schedule 2 to the 9 points that the Secretary of State had awarded and so found the claimant to have limited capability for work.  It went on to consider whether the claimant also had limited capability for work-related activity but decided that he did not.  In relation to Activity 16 of Schedule 2 and Activity 13 of Schedule 3, the First-tier Tribunal said:

“48. The Appellant claimed difficulties with social situations and his representative had invited the Tribunal to consider this. We understand the argument put forward. Although we heard the Appellant's argument, he nevertheless does meet a number of people, including unfamiliar people. He has some mental health problems but is not receiving significant input regarding this, taking Citalopram and attending counselling. He sees support workers, he goes to MIND, he attends group work. He is able to go out and drive. He will come across other people at appointments and goes to the GP at a surgery where he will meet people who are unfamiliar to himself. He was able to come to the Tribunal to give oral evidence competently. He was able to attend the medical assessment and described the typical day to the unfamiliar HCP. Although we appreciate that he feels that he is unable to make social contact, we do not regard this as a reasonable claim. We consider that he should be able to meet with unfamiliar people. The mental health assessment carried out had revealed no significant problems. It is noted that he had attended appointments where he will see other people. Taking an overall view, although we acknowledge some problems, we do not conclude that these are so significant that coping socially is always precluded or that it is reasonable to conclude that the Appellant's mental health problems are so significant that the Appellant is never able to make contact with unfamiliar people. We concluded that overall, Descriptor 16 (social situations) does not apply to the Appellant.

…

51. We were asked to consider paragraph 13 of Schedule 3 and also Regulation 35. The descriptor in Schedule 3 relates to engagement in social contact always being precluded with either people who are familiar or unfamiliar. Clearly, that descriptor does not apply as the Appellant is able to make regular contact with familiar people such as his family, medical people and professional people. He was able to attend the medical assessment and recount a typical day to the HCP. He was able to attend the Tribunal and attends medical appointments and sees his family and visits his family. The Representative had argued that visiting these people does not amount to ‘social contact’. However, given the limited input regarding his mental health, we do not consider that his difficulties are so significant that he could not engage in some social contact with familiar people, even if accompanied and helped in this respect. Although we have sympathy with his difficulties, we do not conclude that they are so great that he should be considered as qualifying for entry to the support group. It is envisaged that entry to the support group is based on the Appellant demonstrating that he has a severe level of functional limitation. Based on the evidence before us, we do not conclude that this is the case and that therefore paragraph 13 of Schedule 3 does not apply.”

41.         The claimant now appeals, with permission granted by Upper Tribunal Judge Jacobs, on the ground that the First-tier Tribunal erred in its approach to “social engagement” and so erred in not finding the claimant to satisfy the descriptor for paragraph 13 of Schedule 3 and therefore not finding him to have limited capability for work-related activity.  The Secretary of State resists the appeal.

42.         The arguments advanced by the parties on the meaning of the Activities and their Descriptors and thus the statutory test or criterion are set out above.  It follows from our conclusions on them that the claimant has failed to show that the First-tier Tribunal erred in law by not following the approach to the statutory test he argued for (summarised in paragraph 21(i) above). 

43.         However, the issue remains whether the First-tier Tribunal has demonstrated that it applied the statutory test or criterion correctly.

44.         Its reasons have to be read generously and it needs to be remembered that it did not have the benefit of hearing arguments such as those advanced before us or of considering our analysis of the test to be applied and the approach to be taken.  However, and with some sympathy for the First-tier Tribunal, we have concluded that its reasons do not demonstrate with sufficient clarity that it applied the right test or if it did the reasons why it reached the conclusions on it that it did.

45.         We acknowledge that the reasoning in paragraph 48 relating to Activity 16 and its Descriptors should be read in the context of descriptor (a), and so also to paragraph 13 of Schedule 3 but we are of the view that the First-tier Tribunal erred in law:

i)             by not sufficiently addressing the quality of contact in the examples it refers to particularly as their reference in paragraph 51 to them not being satisfied “that he could not engage in some social contact with familiar people, even if accompanied and helped in this respect” (our emphasis) indicates that it had or my have had some concerns about this, and because

ii)            that emphasised phrase indicates that it may not have understood or applied the statutory test correctly.

As to (ii), we do not consider that a person can be regarded as able to engage in social contact if he or she can do so only if accompanied by someone, at least without some further explanation as how it is envisaged that that might be realistic in the workplace. 

46.         For these reasons, we set aside the decision of the First-tier Tribunal and refer the case to a differently-constituted panel who must re-decide the case in accordance with the guidance given in this decision.

CE/3183/201

47.         The claimant in the second case was awarded ESA from 11 August 2012 but, following a work capability assessment, the award was superseded because the claimant failed to score any points under Schedule 2 and was not to be regarded as having limited capability for work on any other ground.  The claimant appealed.  The First-tier Tribunal awarded 9 points under paragraph 17 of Schedule 2 (and so found that he occasionally had uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in the workplace) but that was insufficient and the appeal was dismissed.  Insofar as is relevant, its statement of reasons says:

“Going Out.

 

41. Although the appellant's representative says he has difficulty in this area, the claim pack states that he has no difficulty.

 

42. He told the FICP that he does not go out alone as he feels scared, especially at night. He says, if he goes to an unfamiliar place, he needs to take his partner.

 

43. The oral evidence does not support this claim. The appellant gave oral evidence that he can travel to, and around, Leeds, alone, with no difficulty, but thought that, were he to go to Manchester he could get lost. He had, the day before the hearing, at a time when he described his condition as worse, caught the bus to Dewsbury. He confirmed that he will go to unfamiliar places and that he sometimes gets lost. He is reluctant to ask for directions as he feels people may laugh at him or involve the police. This does not preclude him from going to unfamiliar places, and doing so, using public transport, without being accompanied by another person.

 

44. The Tribunal finds that the appellant is going out alone. He was able to travel to Manchester, Dewsbury, Rushton alone. He was able to communicate with the people he had to deal with in order to achieve the objective of the various journeys.

 

45. The Tribunal finds that he was, and is, able to get to a specified place with which he is familiar or unfamiliar, without being accompanied by another person.

 

Coping With Social Situations.

 

46. The appellant says, in his claim pack, that his ability to meet with people he knows, and does not know, varies.

 

47. The appellant gave oral evidence that he does not socialise because of his bad temper. He says he doesn't want to talk to people. When this was explored further with him he stated that he was in a lot of debt and had lost his friends because they were tired of him asking for favours. Thus, the Tribunal finds that the reason he is not socialising is not because of difficulty relating to others or significant distress, but is attributable to other factors.

 

48. He confirmed that he has friends who will come to clean his house for him, to see him for a visit or the collect him in their car and take him to their houses or to the shops. They will also take him to a restaurant he likes, or to a café. He confirmed that the people in the restaurant or café are not always known to him but that he is able to go in to eat, just the same as other people do.

 

49. The Tribunal finds that he interacts with those he comes across at the shops, on public transport, at cafes and restaurants, his representative and the members of the Tribunal. Such interaction is not precluded for the majority of the time, or at all, due to difficulty relating to others or significant distress.

 

50. The Tribunal finds that engagement in social contact with someone unfamiliar is not precluded for the majority of the time, due to difficulty relating to others or significant distress experienced by the appellant.

 

Inappropriate behaviour.

 

51. In his claim pack the appellant says he often behaves in a way which upsets people. He says he gets frustrated very easily. He says his GP notes record anger management issues. He was referred to an anger management course, which he attended on one occasion but was unwilling to continue as he was required to pay for the sessions.

 

52. His GP records do make reference to anger and loss of temper. There was an incident involving the police around 24.03.11 and an incident in prison around 08.07.11.

 

53. He has had a psychiatrist in the past but does not currently have one.

 

54. The appellant confirmed that there had been a couple of incidents involving his doctor and counsellor. He described his reactions as quick. but confirmed that there had been no physical aggression ‘since ages’.

 

55. The appellant gave oral evidence that the last time he was in any trouble was in 2011. He is now keen to stay out of trouble and would rather walk away.

 

56. His representative drew to the Tribunal's attention an incident at the CAB in September or October 12 when he had lost his temper. He again confirmed that he did not want trouble or police involvement and tries to avoid such situations.

 

57. He describes verbal aggression but no physical aggression towards people. His representative asks the Tribunal to consider descriptors (b) or (c). The Tribunal awarded descriptor (c).

 

58. The Tribunal finds that the appellant is aware of his temper issues. He is clearly at pains to avoid confrontation as he does not want any more police involvement. He takes care to avoid situations or to walk away from them. However, it was apparent at the Tribunal that this is a struggle for him. His representative drew the Tribunal's attention to a more recent incident at the CAB. The Tribunal finds that the incidents happen rarely now (there has been one incident in the last 2 years) but finds that, when they do occur they would be unacceptable in a workplace.

 

59. The Tribunal found that he has occasional episodes of disinhibited behaviour which would be unreasonable in a workplace and warded him 9 points under descriptor 17(c).

 

Regulation 29

 

60. The Tribunal also considered Regulation 29 of the Employment and Support Allowance Regulations 2008. The Tribunal finds that the appellant does not suffer from a specific bodily or mental disablement by reason of which there would be a substantial risk to his mental or physical health if he were not found to have limited capability for work.

 

61. The Tribunal has considered the case of Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42. It has made the decision that the appellant suffers from a mental condition which does not, of itself, cause such functional limitation as to justify a total score warranting a finding of limited capability for work. It has further decided that because of the disablement there would not be a substantial risk to the mental or physical health of any person if the appellant were found capable of work having regard to the nature of the relevant work and workplace for the appellant.

 

62. The appellant states that he would like to go to college and improve his life. The appellant confirmed his desire to get a job and felt it was his left hand which impeded him. He did recently get a job, about 10 or 11 months ago. He worked in customer services. He had not revealed the problem with his left hand. He confirmed that, had the duties been different, for example, had he been on a till, he would have been able to do it. He maintained a positive and admirable attitude to returning to work, but felt limited by his poor English and his lack of qualifications.

 

63. The Tribunal finds that there is a variety of jobs which he could undertake with minimal training. It finds that there is no substantial risk caused as a result of its decision.”

48.         The claimant now appeals, with permission given by Upper Tribunal Judge Wikeley, on the ground that the First-tier Tribunal erred in its approach to Activities 4, 15 and 16 of Schedule 2 and to regulation 29.

49.         In relation to Activity 4 (Picking up and moving or transferring by the use of the upper body and arms), the only descriptor in issue was 4(c) and therefore whether the claimant “Cannot transfer a light but bulky object such as an empty cardboard box”.  The claimant’s case was that he suffered very severe pain in his left hand if anything came into contact with the area of a scar.  The First-tier Tribunal did not accept that the level of pain was so great as would preclude him using both hands to move a box but that, in any event, he could do so using his forearms if necessary.  The claimant argues that the reasons for finding that the claimant would be able to use his left hand are flawed and that the First-tier Tribunal was wrong to consider that the claimant could use his left forearm when the definition of the activity refers to “arms” in the plural. 

50.         Firstly, we are of the view that the First-tier Tribunal had evidence upon which it could reach those findings of fact.  Secondly, and in any event:

i)             the short answer to the second point is that the First-tier Tribunal did in fact refer to the claimant using both forearms, although there does not seem to have been any reason why the claimant could not have used his right hand in conjunction with his left forearm.  As the Secretary of State submits, it is obvious that the descriptor does not require the use of both hands now, because it did previously and the words “requiring the use of both hands together” were deliberately omitted when the Schedule was substituted in 2011, and

ii)             it is therefore unnecessary to consider the claimant’s first point.

51.         In relation to Activity 15 (Getting about), which the First-tier Tribunal addressed under the heading “Going out”, the descriptor in issue was 15(c) so that the question was whether the claimant was “unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person”.  It is submitted that there was no evidence that the claimant could travel to Manchester or Rushton unaccompanied and the First-tier Tribunal had made no finding as to whether Dewsbury was an area unfamiliar to him which, it is submitted, it should have done as the claimant lived in Leeds.  However, we agree with the Secretary of State that, in the light of the First-tier Tribunal judge’s note of evidence, it was quite reasonable for the First-tier Tribunal to have understood that the claimant had been to all three places unaccompanied and that, since the claimant’s oral evidence was that he had got lost in Dewsbury, the inference to be drawn was that that was an unfamiliar area for him.  The real point behind the claimant’s argument in respect of this activity seems to have been that, in view of his volatile temper, which had led to the award of 9 points under descriptor 17(c) (occasionally has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace) he was afraid that he would get into an “incident” if he were unaccompanied, because he was afraid people would laugh at him and he would need to interact with them to ask for directions in an unfamiliar area.  However, even implying a reasonableness test into descriptor 15(c), if the episodes of aggressive behaviour were only occasional as the First-tier Tribunal had found, we do not consider that the First-tier Tribunal erred in finding that the risk was not such that the claimant could not reasonably get to unfamiliar places unaccompanied.  Had the First-tier Tribunal accepted his evidence in his claim pack that he often behaves in a way which upset people and on that basis (or by reference to other evidence) that the episodes of aggressive behaviour were frequent, rather than occasional, the claimant would have scored 15 points under descriptor 17(b) and so would not have needed to seek to score points under Activity 15.

52.         In relation to Activity 16, the arguments advanced by the parties on the meaning of the Activities and their Descriptors and thus the statutory test or criterion are set out above.  It follows from our conclusions on them that the claimant has failed to show that the First-tier Tribunal erred in law by not following the approach to the statutory test he argued for (summarised in paragraph 21(i) above).

53.         However, the issue remains whether the First-tier Tribunal has demonstrated that it applied the statutory test or criterion correctly. 

54.         The First-tier Tribunal addressed Activity 16 under the heading “Coping with Social Situations”.  The claimant’s original evidence and argument was to the effect that his awareness of his aggressive outbursts had made him withdrawn. The First-tier Tribunal was entitled to find that this had been undermined by the claimant’s oral evidence, in which he also focused on other factors that the First-tier Tribunal was entitled to conclude meant that his not socialising was to some extent “not due to difficulty relating to others or significant distress”.  However, the issue in relation to descriptor 16(c) was not how much the claimant did socialise with friends but whether engagement in social contact with someone unfamiliar to him was not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual.

55.          There is force in the claimant’s submission that the First-tier Tribunal’s finding that the claimant interacts with those he comes across at the shops, on public transport and at cafés and restaurants is not by itself relevant because, while there was evidence that he had contact with such people, there was no finding or reasoning as to the quality of any interaction and, indeed, in relation to other customers in cafés and restaurants, arguably no evidence or finding of interaction at all.  The claimant’s representative might perhaps be said to have become familiar to him but, in any event, it is not clear how the First-tier Tribunal could have known about the quality of interaction between the claimant and his representative before the hearing. 

56.         However, the members of the panel hearing the case were undoubtedly unfamiliar to the claimant and on the approach set out above the First-tier Tribunal can have regard to the way in which a claimant interacts with them, provided of course that they bear in mind that the issue before them is the extent of the claimant’s ability to cope with social engagement at the date of the Secretary of State’s decision and not at the date of the hearing before the First-tier Tribunal.  Here, the judge’s note of evidence shows a quite extensive degree of engagement by the claimant, and thus on our approach of reciprocity, give and take, initiation and response with the members of the First-tier Tribunal, albeit mostly in the structured context of answering questions, and the claimant had said that his condition was worse then than it had been at the date of the Secretary of State’s decision.

57.         Moreover, although it may be understandable that a fear of having an  uncontrollable episode of aggressive behaviour should lead a person to avoid having social contact, it does not follow that engagement in social contact is not possible for the majority of the time because as the First-tier Tribunal found the claimant “occasionally” has such episodes and, as with Activity 15, it would be unnecessary for the claimant to score points under Activity 16 if such episodes were frequent or on a daily basis.

58.         Although we acknowledge that the First-tier Tribunal would or should have expressed themselves in different terms if they had had this decision before them, we are satisfied that a fair reading of their reasons demonstrates that they applied the correct approach to Activity 16 and were entitled to reach the conclusion they did by reference to their assessment of the claimant’s evidence to them and the manner in which he gave it.

59.         In relation to regulation 29, it is submitted that in considering whether “there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work” for the purposes of paragraph (2)(b) the First-tier Tribunal failed to take into account or properly into account the evidence of the claimant’s record of violence, or in any event its finding thereon in respect of Activity 17(c) and that, if they had done so, they would or should have found that engaging in employment before his anger management issues had been resolved would give rise to a substantial risk of injury to others or, indeed, to himself. The First-tier Tribunal has not really addressed this issue in paragraph 60 to 63 of their decision.  However, we consider that the First-tier Tribunal was entitled to make the finding it did in this respect of the claimant’s record of violence and from that base the claimant’s claim under regulation 29 was unarguable.  This is because the risk has to be sufficiently substantial to justify the claimant not being required to seek employment and the finding was that incidents of aggressive behaviour were occasional.  Further, the evidence was that, insofar as he became violent, the violence was mainly directed against inanimate objects.  That simply does not found the application of regulation 29(2)(b), particularly as the underlying statutory purposes envisage that employers would take steps to avoid the claimant becoming involved in the sort of confrontation that might trigger any such risk.  As, indeed, might the claimant in line with his evidence that he would like to go to college and his expressed attitude to returning to work recorded in paragraph 62 of the First-tier Tribunal’s decision.

60.         For all these reasons, we are not satisfied that the First-tier Tribunal’s decision is erroneous in point of law and we therefore dismiss the claimant’s appeal.

Legal Aid

61.         We were told by Mr Royston that he and his instructing solicitors were acting pro bono because funding had been refused by the Legal Aid Agency.  We are grateful to them for doing so and record that we were greatly assisted by their presentation of their client’s case. 

62.         At our request communications with the Legal Aid Agency was provided to us after the hearing.  This includes the refusal letter which is signed by the Head of Complex & High Cost Cases.  We have not heard any argument on the content of this letter from the Legal Aid Agency or those representing the claimant.  However, as at the hearing we express our disappointment that he was not granted legal aid and record that if he had not been represented pro bono he could not have adequately advanced the legal argument put on his behalf by counsel.

63.         More generally we take this opportunity to invite the Legal Aid Agency in other cases where a three judge panel of the Upper Tribunal (AAC) has been convened to hear an appeal to take account of  the following:

i)                 Paragraph 3(a) of the Senior President’s Practice Direction relating to the composition of that tribunal and thus the reasons why the Senior President or the Chamber President can direct a three judge panel.  They are that: “… the matter involves a question of law of special difficulty or an important point of principle or practice, or that it is otherwise appropriate …” for there to be a three judge panel.

ii)                These directions are not made lightly.  When they are the legal issues involved will be of that nature, the appeals will involve individuals and the Secretary of State and decision making will be greatly assisted by written and oral argument.

iii)               The role of the Upper Tribunal (AAC) in setting precedent and thus consistency of decision making by First-tier Tribunals in respect of claims for benefits, and thus the wide impact of its decisions on cases heard by First-tier Tribunals.

iv)               The great advantage of resolving differences between decisions of single Upper Tribunal judges by a decision of a three judge panel.  This is based on the long standing practice that three judge panel decisions will be followed by both the Upper Tribunal and the First-tier Tribunal.  That practice avoids the need for such differences between single judges to be determined by the Court of Appeal and so greatly reduces the number of appeals to that court.

v)                The fact that the above points indicate that the grant of legal aid in cases to be heard by a three judge panel is likely to be of great assistance to the Upper Tribunal in resolving difficult and important issues of law that, subject to further appeal to the Court of Appeal, will create precedent and thereby assist in the correct determination of a large number of other cases by the Department and First-tier Tribunals.

 

 

 

MR JUSTICE CHARLES

Chamber President of the Administrative

Appeals Chamber of the Upper Tribunal

 

 

 

 

NICHOLAS WARREN

Chamber President of the General Regulatory

Chamber of the First-tier Tribunal

 

 

 

 

MARK ROWLAND

Judge of the Upper Tribunal

 

 

30 July 2014