IN THE UPPER TRIBUNAL	Case No.CE/4292/2012
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is dismissed. 

REASONS FOR DECISION

1.	 In this case the claimant suffered from an injury to his right wrist.  He was awarded ESA from and including 21 January 2011.  On 27 January 2011 he had an operation on his wrist as an in-patient at a hospital, where he stayed for one night.  He was sent form ESA50 to complete and return, and he completed and returned it on 18 March 2011.  The form he was sent had been revised so as to seek information relating to the amended Schedule 2 to the Employment and Support Regulations 2008 which was only substituted with effect from 28 March 2011.  That Schedule significantly different from that which applied previously.

2.	The claimant was examined by an approved disability analyst on 3 May 2011.  In her report she concluded that the claimant scored no points on the amended Schedule 2 descriptors.  The decision maker accepted that advice and on 4 May 2011 decided to supersede the decision awarding benefit and determined that the claimant was not entitled to ESA because he did not have limited capability for work from that date.

3.	The claimant appealed on the ground that he was unable to raise or use his right arm and was therefore unable to carry things.  He put in evidence before the tribunal outpatient hospital appointments to see an occupational therapist and his consultant, or a member of his team, on 14 March 2011, a physiotherapist on 24 and 30 March and 14 and 18 April 2011, and his consultant or a member of his team on 9 May and 1 August 2011.

4.	The claimant was represented at the appeal and gave evidence.  His representative contended, in addition to other points which are not raised on this appeal, that the claimant had been sent the wrong questionnaire, in that he should have been sent the questionnaire which related to the form of Schedule 2 then in operation, and then assessed by reference to that form of that Schedule, and that he ought to have been treated as having limited capability for work under regulation 25 of the 2008 Regulations on the ground that the date of the decision was a day of recovery from his hospital operation as an in-patient.

5.	The tribunal found that the claimant had suffered a gun shot injury to his right dominant wrist some five years previously.  This had left him with residual problems which had been operated upon on a number of occasions.  The tribunal applied the descriptors in the new form of Schedule 2, having concluded that was the correct version to apply, and awarded the claimant 6 points for picking up and moving on the grounds that he could not transfer a light but bulky object such as an empty cardboard box.  It also found that by the date of the decision the claimant’s wrist had scarred over and there was restricted movement back in the joint, and he was able to carry papers in the right hand.  It found that his recurrent medical appointments in May 2011 should rather be regarded as pertaining to the underlying medical problem with the wrist rather than specific recovery from the operation itself.  He was therefore not in recovery from his time as an in-patient.  It also found that even if he had still been recovering, he should not properly be treated as having limited capability for work on that date, and the tribunal would not have exercised the discretion available under regulation 25(2) given the limited restrictions on his functionality as a result of his wrist problem.  The tribunal also considered regulation 29 and explained why that did not assist the claimant.

6.	The first ground of appeal from the tribunal decision is that the ESA50 should have been in the old form, when the work capability assessment would have been that in Schedule 2 until 28 March 2011, enabling the claimant to score, or at least claim, an additional 9 points for being unable physically to use a pen or pencil.  I am not clear why he should have scored any additional points as the tribunal found that he had no restriction of movement in his left hand and could sign his name with his left hand.  However, it is unnecessary for me to consider that question as I am satisfied that the Secretary of State was not obliged to issue the old form ESA50 prior to 28 March 2011.  Regulation 2(1) of the amending regulations specifically applied the new Schedule 2 to persons who made a claim before 28 March 2011 in respect of whom a determination is made on or after that date as to whether they have or are to be treated as having limited capability for work or limited capability for work related activity.  The only exceptions to this are set out in regulation 2(2) and 2(3) and are where before that date a questionnaire relating to the previous version of Schedule 2 or Schedule 3 has been issued to the person in accordance with regulation 21(1)(b) of the 2008 Regulations.

7.	Regulation 21(1) provides as follows:

(1)	Subject to paragraphs (2) and (3), the information or evidence required to determine whether a person has limited capability for work is –
(a)	evidence of limited capability for work in accordance with the Medical Evidence Regulations (which prescribe the form of doctor’s statement or other evidence required in each case);
(b)	any information relating to a claimant’s capability to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire; and
(c)	any such additional information as may be requested.
(2)	Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited capability for work without the information specified in paragraph (1)(b), that information will not be required for making the determination.
(3)	Paragraph (1) does not apply in relation to a determination whether a claimant is to be treated as having limited capability for work under any of regulations … 25 (hospital in-patients)…

8.	It is plain that the information in fact sought in this case related not to Schedule 2 as in force when the information was sought but to the new Schedule 2.  It may be therefore that this information was not within regulation 21(1)(b), so that a failure to provide it might arguably not attract the sanction for failure to provide such information provided by regulation 22.  However, regulation 21(1)(b) refers to any information as may be requested.  It does not impose an obligation on the Secretary of State to request any particular information.  Nor do the amending regulations pre-suppose that in every case before 28 March 2011 the old form of ESA50 will have been used.  In addition, the medical examination carried out under regulation 23 of the 2008 Regulations do not depend upon a form ESA50 having previously been sent out.

9.	It seems to me that the Secretary of State was entitled to conclude that, for the purposes of a determination to be made after 28 March 2011 he did not require information as sought in the old ESA50 relating to the version of Schedule 2 that was about to be substituted.  The new Schedule 2 was substituted to achieve a better assessment of a person’s capability for work.  By using the old ESA50 the Secretary of State would have compelled himself to use the old Schedule 2 in circumstances which could lead to his having to re-assess claimants almost immediately in the light of the new Schedule.  Such a re-assessment could in some cases lead to a failed claimant becoming entitled on a new claim and to a successful claimant having his claim superseded under the new rules.  It appears to me that the Secretary of State was right to seek to avoid this so far as possible by seeking information appropriate to the new Schedule where the decision was going to be arrived at after 28 March 2011.

10.	With regard to the application of Regulation 25, the questions before the tribunal were first whether at the date of the decision the claimant was still “recovering from treatment as an in-patient in a hospital” and secondly, if that was the case, whether it was satisfied that the claimant should be treated as having limited capacity for work.  I am not satisfied that the tribunal did properly consider the question whether the claimant was still recovering from the treatment.  It does not follow just because the wound had scarred over and he had restricted movement back in his joint that he was fully recovered.  The remaining limitations could in part still be due to the fact that he had not fully recovered.  There does not appear to have been any investigation of the extent of his limitation previously or the nature of the operation or of his prognosis or the reasons for his continuing therapies and consultations or of the expected period within which recovery from the operation was to be expected.

11.	However, it is equally clear that there had been a substantial degree of recovery over the 3 months that had passed between the operation and the date of the decision.  It appears to me that given, as the tribunal found, the limited restrictions on his functionality as a result of the wrist problem, the tribunal was fully entitled to conclude that there was no good ground for treating him as having limited capability for work.  Indeed, in the absence of any evidence that work would impact on the healing process, I find it difficult to see what other conclusion it could sensibly have come to. 

(signed)		Michael Mark
			Judge of the Upper Tribunal
			11 September 2013