RC v Secretary of State for Work and Pensions

I direct that the case be referred to a salaried judge of the FtT for listing directions and any other directions which may be expedient in connection with the rehearing to be given.

I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh. The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

The representatives of both parties have expressed the view that the decision of the First-tier Tribunal (“FtT”) involved the making of an error on a point of law and have agreed to a rehearing. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. I need only deal with the reason why I am setting aside the FtT’s decision.

Simplifying somewhat, the Appellant had been awarded Employment and Support Allowance (“ESA”) from 5 April 2023. Because he had previously submitted a claim for Universal Credit (“UC”) , he had been asked to complete Form UC50, the self-assessment medical questionnaire for that benefit. His claim for UC failed and in due course his entitlement to ESA was considered on the basis of the completed UC50 questionnaire. On 15 September 2023 a Decision Maker decided that the Appellant did not have and could not be treated as having Limited Capability for Work for the purposes of his ESA claim. That was the decision under appeal to the FtT. The FtT awarded 0 points and concluded that the Appellant could not be treated as having Limited Capability for Work under reg.25 of the Employment and Support Allowance Regulations 2013.

In Form UC 50, the Appellant explained that he had sustained a work-related injury to his right arm in about 2012. He further explained that he was experiencing excruciating pain in his left hand and was on the waiting list for surgery. As regards hearing, he stated he was struggling to hear properly “due to his hearing going” and that he was waiting to see an ear specialist due to internal damage/scar tissue within his ears.

When it came to the boxes addressing activities, he ticked the box for “It varies” for activity 5 (manual dexterity) and activity 7 (understanding communication). In relation to activity 4 (Picking up and moving or transferring by the use of the upper body and arms), he ticked each of the boxes for “Yes” in response to the questions asking about the ability to pick up and move a 0.5 litre carton full of liquid or a 1 litre carton full of liquid or to transfer a light but bulky object such as a cardboard box.

I note that the rubric on each page of the form where activities are being addressed states:

“Only answer Yes to the following questions, if you can do the activity safely, to an acceptable standard, as often as you need to and in an acceptable length of time.”

However, in the free text box where claimants are invited to provide further information if they have answered “No” or “It varies”, the Appellant had written “I have limited movement in my [Right] arm due to my work related injury and my “Good” arm is the arm I’m waiting to see a specialist for.”

In his letter of appeal which, unlike his claim form, had been complied with the assistance of Citizens Advice, the Appellant gave details of limitations affecting his hands and arms, including

“I cannot carry items safely, so to refer to carrying full bottle of milk like most people do is not correct. I hold things toward me using my arm and cannot carry anything for any period of time. Due to my conditions, I have smashed many an item by dropping it as I have no control, and this poses a risk to me daily.”

The FtT mentioned, in slightly odd phrasing given that ESA is primarily a points-based benefit, that the UC50 “referred to upper limb limitations with manual dexterity (Q5) and a hearing problem (Q7) as preventing him from working.” In a section of its Reasons devoted to “Upper Limb Issues” it made findings sufficient to negate any award of points under activity 5 and no complaint is made as to that.

Much evidence is recited concerning shoulder, arm and grip but without there being anything which could amount to findings in relation to activity 4. It appears that the FtT did not regard activity 4 as being in issue, as may be inferred from its reference (only) to activities 5 and 7 quoted above. One may have some sympathy with a doubtless busy FtT for, after all, the Appellant had ticked the boxes to show he could accomplish all the activity 4 descriptors and had done so in the face of the rubric quoted at [5] above. However, his completion of the free text box and, in particular, the specific information given in his letter fo appeal about how he transported items, how often he had dropped them and of the risk to his safety ought to have indicated to the FtT that the Appellant was pursuing a claim for points under activity 4 or, at very least, that there was sufficient ambiguity about whether he was that it should have explored the issue.

Mr Kay agrees that there was an error of law for essentially this reason. He submits that on what was said in the letter of appeal, it was possible that the Appellant could not, to the requisite standard, pick up and move a 0.5 litre carton full of liquid, which of itself would generate the 15 points necessary to establish LCW, thus the error was material.

However, he also submits that the FtT also erred in relation to hearing. The FtT’s consideration of this issue consisted of the following paragraph:

“Regarding hearing, the assessor on 8/6/2023 records,

“It affects both sides, reports hearing loss and constant tinnitus. Is managed by GP, was told he has a lot of scars in ears and need[s] a check with specialist. No specialist input – is on waiting list. Does not use hearing aids. No problem with vision or speech.”

The GPFR of 29/1/2024 referred only to the upper limb issues. The PIP HCP report of 2/2/2024 notes that he was wearing bilateral hearing aids. He did not appear to have hearing or communication difficulties at the Tribunal hearing. This issue was not affecting his capability for work.”

The issue, at any rate in the first instance, was not about whether the hearing difficulties affected the Appellant’s capability for work but about whether they were sufficient to score points under the particular descriptors of activity 7. In this context, the issue would be whether, nonetheless, the Appellant had “some difficulty understanding a simple message from a stranger due to sensory impairment” (Descriptor 7(c)).That issue had to be considered on the basis of the circumstances obtaining down to the date of decision. There is no finding as to this, nor associated reasoning. Activity 7 requires consideration of “any aid that is normally or could reasonably be used”. As the Appellant was not using a hearing aid only about 3 months prior to the date of decision, this required to be considered. So also did the effect of using hearing aids, including as to the impact, if any, on the tinnitus. The FtT does not relate to the circumstances down to the date of decision the evidence on which it relies of the Appellant wearing hearing aids at a later date and of the Appellant’s apparent hearing abilities at the FtT hearing (by then some 14 months after the date of decision).

Mr Kay also supports the appeal essentially on these grounds.

I do not need to deal with any other errors on a point of law that the FtT may have made. Any that were made will be subsumed by the rehearing.

The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.