THE UPPER TRIBUNAL	Appeal No.  CE 591 2013
ADMINISTRATIVE APPEALS CHAMBER

KE v Secretary of State for Work and Pensions (ESA)

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. With the consent of both parties, I replace the decision of the tribunal with the following decision:

	Appeal allowed. The appellant has limited capability for work as at 31 01 	2012 and is therefore not disentitled to employment and support 	allowance on that ground. But he does not have limited capability for 	work-related activity and is to be awarded the allowance accordingly. 

This decision is made under the authority of the Tribunals, Courts and Enforcement Act 2007 section 12(2)(b)(ii).  

REASONS FOR DECISION

1	The central question in this case is whether the appellant’s behaviour was such that he occasionally had uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace. My decision is that the First-tier Tribunal did not deal with that descriptor correctly and that on the facts his behaviour was such as to meet the descriptor.

2	The claimant and appellant is appealing against a decision of the First-tier Tribunal sitting at Blackburn on 9 10 2012 under reference SC 063 12 01464. I gave provisional reasons for allowing this appeal for the above reasons when granting permission to appeal. I also invited views of the parties on the decision set out above, which is in the appellant’s favour. The Secretary of State has agreed to that decision being made for the reasons set out below. 

3	This is a conversion case. The appellant had previously been awarded incapacity benefit by a First-tier Tribunal in 2011. This was awarded for two of the descriptors then relevant: 19b (coping with social situations) and 20f (propriety of behaviour with other people). This followed an examination by a registered medical examiner.  All the relevant documents are in the papers for this appeal, including evidence from the general practitioner and the local welfare rights service, though this tribunal has not mentioned them other than short references to points in the general practitioner letter. I draw attention to that because those documents contain evidence plainly relevant to this appeal. As noted below, the two main limits for which the appellant contended are very similar to the two reasons why he was previously awarded benefit.  

4	The appellant’s replies on the standard ESA50 form identified some mobility issues caused by pain and shortness of breath. They also identified problems with coping with change, coping with social situations and behaving appropriately with other people. He attended a medical examination and was examined by a registered nurse. The nurse identified some problems with social contact but no other problems.

5	The appellant attended the hearing of the appeal with a representative. The representative had prepared what was in effect a witness statement in the form of a letter from the appellant and this had been submitted some days before the hearing. There is a full record of proceedings. 

The tribunal decision
6	The tribunal found that the appellant was entitled to 6 points under the then current descriptors for being unable to engage in social contact with someone unfamiliar most of the time. It found no other factors relevant. It therefore dismissed the appeal.

7	The main grounds of appeal are that the tribunal, despite having said that it had considered all the evidence, did not do so and that it had dealt inadequately with the problem of anger. It had dealt inadequately also with the descriptors for coping with change and going out. 

8	Those grounds are plainly arguable. The claim form and, in particular, the letter to the tribunal put specific descriptors in issue. So, according to the record of proceedings, did the representative at the hearing. But the tribunal decision dealt in a formulaic way with a whole series of descriptors including several for which there is no evidence of any relevance to this case but without any additional discussion of some of the descriptors specifically in issue. 

Appropriate behaviour
9	I consider in particular the issue of appropriate behaviour. I do so for two reasons. The first is that a tribunal held only a few months before the current decision was made found this descriptor (or its then equivalent) to be satisfied. That tribunal had awarded six points for that descriptor. The second is that this is the appellant’s “major problem” according to his letter to this tribunal.  In the ESA50 the appellant states that he often has problems by behaving in a way that upsets people. The previous tribunal had evidence about it both from the general practitioner and the welfare rights service official, and clearly accepted that evidence.  The nurse conducting the recent ESA85 examination makes no directly relevant clinical findings or observations on the point despite finding that the appellant could not cope with social situations with unfamiliar people most of the time without significant distress. 

10	The record of proceedings records: “GP indicated improvement (36) – still depressed but not angry and frustrated any more”.  There are notes reflecting discussion about the anger. Later in the record it is noted “would use car as a weapon so do not drive … have been asked to leave Jobcentre … accused people of being scumbags.” There is then a note at the end stating “anger – found no evidence [?] be inappropriate in workplace.”  The tribunal commented on this issue specifically in the statement of reasons as follows: 

	16	GP – depression suicidal and angry (36) depression has improved.
 	21	Confirmed that there had been improvement as indicated by GP still 			depressed but not angry or frustrated any more.
	23	Problem arose with neighbours, they were smack heads, police attendance 		made matters worse.
	30	Sometimes causes concern at Jobcentre, accusing service users of being 		scumbags.
	39	Having heard the evidence the Tribunal was unable to accept that the 			appellants abilities were so limited that … his behaviour was unacceptable 		when in social situations.
	40	The appellant’s anger is focussed on particular individuals and there is no 		evidence that the appellant’s behaviour would be unacceptable in a 			workplace.

11	As the grounds of appeal rightly comment, there was express evidence recorded that the appellant’s behaviour was unacceptable at least on occasions. Why else was he asked to leave the Jobcentre? There are also a series of examples in the letter/statement of evidence submitted to the tribunal, also identified in the grounds of appeal. I can see no comment on any of the other points raised in that letter in the record of proceedings or the statement of reasons.		

12	Why did the tribunal reject that evidence? The tribunal make no express comment on this. At [35] the tribunal states that it was unable to rely on certain aspects of the appellant’s evidence, giving an example about shopping. But it plainly relied on other aspects of the appellant’s evidence, so that does not deal with matters not expressly mentioned.

13	More generally the tribunal at [36] states that it “preferred the evidence of the medical examiner where it conflicts with the information provided by the appellant.” I do not understand why the tribunal refers to the examiner’s information (or opinion) as evidence and the appellant’s evidence as information. Do those different terms mean something?  As noted above, there is no direct evidence from the medical examiner on the issue of anger and appropriate behaviour. There is an opinion from the examiner, but no specific evidence:  no specific clinical findings or observations or history recorded to support that opinion. 

14	I conclude that the tribunal failed to deal with this descriptor adequately. As it was expressly in issue and it was the deciding factor before the previous tribunal, that error alone is material to the outcome of the appeal, and the tribunal decision must be set aside.

Other issues
15	I do not therefore need to consider the other mental health factors in the same detail, although they were also subjects of the grounds of appeal. However, I find no error of law in the tribunal’s treatment of the physical descriptors, and none were put in issue in the grounds of appeal. So the appeal is focussed entirely on the specific mental health issues.

My conclusions
16	I doubt any new evidence could be produced that would assist a new First-tier Tribunal determine the appeal. The original decision was made over a year ago, on 31 01 2012. The evidence before the previous tribunal is available, as is the evidence at this tribunal. The key question is whether the level of behavioural problems found by the previous tribunal had or had not continued.

17	The previous tribunal found that the appellant frequently demonstrated a moderately disproportionate reaction to minor events. That test no longer applies. The lowest level of test (17(c) or IB(c)) now is: 

	“Occasionally has uncontrollable episodes of disinhibited behaviour that would be 	unreasonable in any workplace.”  

The incidence is at a lower level of occurrence but at a higher level of intensity that the previous test, although the underlying issue manifested by these forms of conduct is the same. However, the new test “scores” 9 points, not 6.

18	The appellant is entitled to those 9 points on this evidence. What other explanation is there for him being required to leave a Jobcentre? That action occurred because of what the appellant said, rather than did. But that is a classic form of disinhibited behaviour. Does a Jobcentre apply a lower test than an employer would be expected to apply? Nor, on the available evidence, was that an isolated occurrence. And, as I have emphasised above, there is no evidence from the medical examiner to contradict this.  

19	Had I not reached that conclusion, I would also have had to look at the other descriptors expressly put in issue. However, as this “scores” 9 points and 6 points were awarded by the medical examiner and the tribunal on other grounds. I need take matters no further. In my view the decision of the tribunal should be replaced with a decision allowing the appeal on the above grounds. The Secretary of State accepts this, and I have decided accordingly.	

20	However, I must then also consider whether the appellant should be found to have limited capacity for work-related activity. This was, of course, not relevant to the First-tier Tribunal decision. That was decided under the Schedule 2 set of descriptors. The capacity for work-related activity is assessed under the Schedule 3 rules. In my view, none of the Schedule 3 descriptors are engaged by the evidence of this appeal sufficiently to warrant further detailed consideration. The appellant has not suggested that they are. The appellant should therefore be placed in that group.

David Williams
Upper Tribunal Judge
31 07 2013

[Signed on the original on the date stated]