IN THE UPPER TRIBUNAL	Case No.  CE/2490/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 2 April 2013 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided.

REASONS FOR DECISION

1.	This is an appeal, brought with my permission, against a decision of the First-tier Tribunal dated 2 April 2013, whereby it dismissed an appeal by the claimant against a decision of the Secretary of State dated 2 May 2012, superseding an award of employment and support allowance and deciding that the claimant did not have limited capability for work from 2 May 2012 and so ceased to be entitled to the allowance from that date.  Neither party has asked for an oral hearing.

2.	The claimant suffers from carcinoma of the urinary bladder, hypertension, lumbar spinal stenosis and hyperlipidaemia and has a history of renal colic.  He was represented by Mr Sanatkumar Davé before the First-tier Tribunal, as he is before me.  The First-tier Tribunal was invited to consider only paragraphs 1, 2, 4 and 9 of Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI 2008/794), as amended, and regulation 29.  By virtue of regulation 19, the Schedule provides for the scoring of points on an assessment and, if 15 points are scored, the claimant has limited capability for work.  I referred to paragraphs 1 and 9 when I granted permission to appeal.

3.	In relation to paragraph 1, the Secretary of State had not awarded any points but the First-tier Tribunal awarded 6.  It considered the various estimates in the documents as to the distance the claimant could walk or move himself in a manual wheelchair.  In particular, it noted and accepted, in paragraph 12 of its statement of reasons, the doctors’ evidence that “[the claimant’s] right shoulder could cause him problems with repeated use of a wheelchair after propelling himself over 100 yards”.  It also noted, in paragraph 13, the claimant’s oral evidence that he had walked from a railway station to the medical examination and had taken 40 minutes for a journey that the members of the First-tier Tribunal knew from local knowledge was “well over 300 yards and nearer to half a mile”.  (He had told the healthcare professional that it had taken 20 minutes.)  The First-tier Tribunal concluded in paragraph 14(a) –

“[The claimant] walked a significant distance to his examination.  He would probably have to stop a number of times due to discomfort.  He could propel himself in a wheelchair more than 100 yards before having to stop due to that discomfort.  6 points were awarded for this Descriptor.”

4.	At the material time, paragraph 1 of Schedule 2 provided for points to be awarded in the following terms –

“(1) Activity	(2) Descriptors	(3) Points	
1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.	1	(a)	Cannot either: 
(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; 
or 
(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion. 	  15	
		(b)	Cannot mount or descend two steps unaided by another person even with the support of a handrail.	  9	
		(c)	Cannot either: 
(i) mobilise more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; 
or 
(ii) repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion. 	  9	
		(d)	Cannot either: 
(i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; 
or 
(ii) repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion. 	  6	
		(e)	None of the above apply.	  0”	

(The wrong version of Schedule 2 was set out in the Secretary of State’s response to the claimant’s appeal but neither Mr Davé nor the First-tier Tribunal was misled by that.)

5.	The First-tier Tribunal clearly considered that descriptor 1(c)(i) was not satisfied because, even if the claimant could not walk as far as 100 metres, he could have propelled himself in a wheelchair for that distance.  However, before deciding to award points under descriptor 1(d), it was necessary for the First-tier Tribunal to decide whether descriptor 1(c)(ii) was satisfied.  The Secretary of State concedes as much.  However, I agree with Mr Davé that it was necessary to consider descriptor 1(a)(ii) as well.  It seems to me that “repeatedly” must mean more than two or three times, at least in the context of paragraph 1(a).  There will be a few people, of whom this claimant might possibly be one, who can manage over 100 metres in one go (and therefore implicitly in two or more goes) but who cannot reasonably be expected to manage a further distance of 50 metres within a reasonable timescale and who would therefore qualify for 15 points under descriptor 1(a)(ii) even if able repeatedly to mobilise a shorter distance.

6.	The scheme of this legislation is clear.  For each of descriptors 1(a), (c) and (d), two questions must be asked.  First, can the claimant mobilise more than the relevant distance without stopping.  If the answer is “no”, the descriptor is satisfied.  If the answer is “yes”, the second limb must be considered and it must be asked whether the claimant can repeatedly mobilise the relevant distance.  Again, if the answer is “no”, the descriptor is satisfied.  Only if the answer is “yes” to both questions is the descriptor not satisfied so that one must consider the next descriptor.

7.	If the implication of paragraph 12 of the statement of reasons was that the claimant could not repeatedly propel himself in a wheelchair for more than 100 metres, the question arose as to how far the claimant could walk at a time, given that the First-tier Tribunal appear to have considered that he could walk a short distance repeatedly in order to manage a total of “well over 300 yards and nearer to half a mile”.    The First-tier Tribunal did not make any specific finding on that question but it is odd that it found only that he could use a wheelchair for a distance of over 100 metres if it thought that the claimant could walk that far in one go as well.  If he could not walk more than that distance in one go, then he could not repeatedly walk that distance either, in which case at least 9 points should have been scored by virtue of descriptor 1(c)(ii).  That, I suspect, is what the First-tier Tribunal would have found had it asked itself the right question.  However, its finding that the claimant “would probably have to stop a number of times due to discomfort” while walking to the medical examination left open the possibility that the distance that the claimant could walk each time (at least after the first couple of times) before having to stop was less than 50 metres, in which case 15 points would have been scored under descriptor 1(a)(ii), notwithstanding the claimant’s ability to move over 100 metres in a wheelchair albeit without repetition.

8.	In relation to paragraph 9 of Schedule 2, the First-tier Tribunal noted in paragraph 9 of its statement of reasons that the claimant had not indicated any difficulties in the ESA 50 questionnaire he had completed and it accepted in paragraph 11 the healthcare professional’s conclusion, which it said were consistent with the information provided by the claimant and his medical condition, although it is not clear whether she really considered the issue because it had not been raised in the claimant’s questionnaire. In paragraph 13, it noted the claimant’s oral evidence that he had “only had a ‘couple of accidents’ with his bladder in the last two years” and, in paragraph 14(d), it concluded –

“[The claimant] “has had two accidents relating to his bladder in two years.  The most recent was 6 months prior to the hearing.  No points could be scored under this Descriptor.”

9.	At the material time, paragraph 9 of Schedule 2 provided for points to be awarded in the following terms –

“(1) Activity	(2) Descriptors	(3) Points	
9. Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the presence of any aids or adaptations normally used.	9	(a)	At least once a month experiences: 
(i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or 
(ii) substantial leakage of the contents of a collecting device sufficient to require cleaning and a change in clothing. 	15	
		(b)	At risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly.	6	
		(c)	None of the above apply.	0”	

10.	Clearly, the First-tier Tribunal’s findings rule out descriptor 9(a), but the question I asked when I granted permission to appeal was: “why is evidence of a couple of accidents in the last two years, the last being six months before the hearing, not evidence of a ‘risk of loss of control’ sufficient to score 6 points?”  The Secretary of State, in a submission that is considerably less helpful than usual, merely submits that further findings of fact are required, without suggesting why the findings made are insufficient save for referring me to NH v Secretary of State for Work and Pensions (ESA) [2011] UKUT 82 (AAC).

11.	In that case, Upper Tribunal Judge Lane was considering the original version of Schedule 2, descriptor 10(a)(vii) of which was expressed in the following terms –

“Risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach the toilet quickly.”

Judge Lane said –

“10.	…  It seems to me that the Secretary of State has focussed too much on whether the event (the full voiding of the bladder) actually occurred, rather than on the risk of the event occurring to the required extent.  The assessment of risk is a common task for doctors and lawyers, though not necessarily an easy one.  In drafting the descriptor as the Department did, it is plain that it is an assessment that tribunals were meant to make.  

11. 	The three factors in the analysis here are:

the risk of losing control
so that the claimant cannot control full voiding of the bladder
if not able to reach a toilet quickly.

12. 	A risk is a chance.  It may exist without it ever actually occurring.  The risk must be of losing control over those muscles involved in preventing the outflow of urine from the bladder.  The loss of control is likely to arise from a physical disease or disablement, or perhaps as a result (which must be direct) of some medication or treatment which affects such control (regulation 19(5)), but this decision does not need to explore the outer limits of incontinence under the LCWA.  Unless, however, the condition plays a material part in a claimant’s inability to control himself from fully voiding his bladder, it is not relevant:  The facility which a claimant must be able to reach must be a toilet, not a roadside verge or other such makeshift.  

13. 	A tribunal will probably need ask itself a series of questions in deciding whether an appellant satisfies this descriptor.  The starting point is whether he suffers from a condition (or conditions) which, in the tribunal’s medical experience, may lead to a loss of bladder control.  If so, a risk of losing control clearly exists.  

14. 	Next, is the loss of control likely to be such that the appellant cannot control the full voiding of the bladder?  This seems to be asking no more than, if the appellant starts to urinate, will he be able to stop before his bladder is completely empty.  The tribunal is most likely to be able to arrive at a reasoned conclusion on this by applying its expert knowledge to the surrounding evidence including the ESA50, GP and medical reports provided by the appellant or obtained by the tribunal, ESA85 (particularly the typical day) and lifestyle.  While it is impossible to dictate what questions should be asked, the following may be of help:

a.	What did the appellant say about the problem in the ESA50?
b.	How does the appellant describe the extent of his problem?  The tribunal may well need to ask fairly intimate questions about the appellant’s bladder control.
c.	Is there evidence from the GP to support the appellant’s claim?  If a person is unable to stop himself from completely emptying his bladder, his GP is likely to know about it, to have prescribed appropriate medication and probably incontinence pads (which are otherwise expensive). 
d.	Does the appellant go out and about without any obvious restrictions and precautions?  
e.	Does the evidence of his typical day as recorded by the AHCP or given in oral evidence reflect concerns about the risks of incontinence?

15. 	Although the descriptor is about risk and not the materialisation of the risk, it will generally be relevant to find out whether the claimant has ever unexpectedly emptied his bladder fully.  If he has not, it may be because he never goes far from a toilet.  On the other hand, if he has a normal lifestyle and still has never lost full control of his bladder, it may be that there is no real risk of it happening.  If he has lost control fully but infrequently, it may be that the appellant has learned techniques to minimise the risk to the point where it is too trivial to be legally significant, or that the instances of loss of control did not materially involve the condition of which he complains.”

12.	Plainly that now has to be read in the light of the terms of the new descriptor, which do not require there to be a risk of “full” voiding of the bladder but only “extensive … voiding of the bladder, sufficient to require cleaning and a change in clothing”, but the principle is the same.  (I should add that the whole of descriptor 9(b) has, since 28 January 2013, been qualified so as to make it clear that the risk must exist for “the majority of the time”.)  The most important point made by Judge Lane is that a risk may exist notwithstanding that there are few, or no, occasions when it materialises.  The First-tier Tribunal has not addressed that issue and I presume that the Secretary of State’s submission is to the effect that it cannot necessarily be inferred from the findings that the First-tier Tribunal did make that there was a risk within the scope of descriptor 9(b).  Further findings are required along the lines suggested by Judge Lane, but with the amended legislation in mind.  I accept that that is so.

13.	Since the First-tier Tribunal has erred in law in material respects in relation to both paragraph 1 and paragraph 9 of Schedule 2, I must set aside its decision.  Both parties submit that the case should be remitted to the First-tier Tribunal.  I have considered whether to substitute my own decision on the basis of the written evidence before me but am persuaded that the live issues in the case would be better determined following an oral hearing before a tribunal with a doctor among its members.  Accordingly, I give the decision set out above.

Mark Rowland
19 March 2014