IN THE UPPER TRIBUNAL                      
ADMINISTRATIVE APPEALS CHAMBER	Appeal Nos: CE/366/2013
CE/705/2013   	

Before:	Upper Tribunal Judge Wright 

DECISIONS 

The Upper Tribunal allows the appeals of the Secretary of State against the decisions of the First-tier Tribunal sitting at Cheltenham on 24 October 2012 under reference SC186/12/04731 and at Torquay on 31 October 2012 under reference SC129/12/00365 and those decisions are set aside for error of law. 

I give the decisions the First-tier Tribunal ought to have given which is to set aside the decisions of the Secretary of State dated 28 November 2011 and 26 September 2011 on the basis that they were both invalid and thus of no legal effect.

These decisions are made under section 12(1), 12(2)(a),  12(2)(b)(ii) and 12(4) of the Tribunals, Courts and Enforcement Act 2007.

Representation:	Jacqueline Lean (hearing on 17 February 2014) and then Akhlaq Choudhury (hearing on 12 November 2014) for the SSWP 

Fiona Scolding and Marayo Fagborun Bennett (instructed by Bar Pro Bono Unit) for RD 

Zoe Leventhal (instructed by FRU) for RW

REASONS FOR DECISIONS 

Introduction

1.	The important issue with which these two appeals are concerned is what needs to be done (or perhaps shown) by the Secretary of State in order for him to have made a legally valid decision that a person has limited capability for work for the purposes of the employment and support allowance scheme under the Welfare Reform Act 2007.  The phrase “legally valid” is used here to denote a decision that is not void and has sufficient coherence and connection with the legal powers under which it was purported to be made to constitute a decision that a person has limited capability for work.

2.	This important issue of principle arises in the context of processes for determining limited capability for work that were in place before 4 December 2013 in what are termed “scrutiny cases”. This decision is therefore of historic interest. However, a number of cases have been stayed behind these two appeals and so the decision here will have a wider significance then just on these two appeals.

3.	The history of the two appeals, I am afraid, reveals a less than impressive response from the Secretary of State to proper, transparent and, in these two cases at least, lawful decision making.     

Decision in summary
 
4.	On the basis of the evidence and legal arguments put before me I have concluded that no legally valid decision purporting to find either claimant to have limited capability for work was made by the Secretary of State at the relevant time. In short, this is because I am not satisfied on the evidence that either the health care professionals or Secretary of State’s decision makers involved in fact “scored” either claimant against the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008 (“the ESA Regs”) so as to assess the extent of their limited capability of work. This “assessment” is fundamental to the proper operation of the statutory scheme and the failure to carry out such an assessment renders the decisions made legally invalid.

5.	Although the First-tier Tribunals in substance correctly concluded that “the respondent has not made an assessment in this matter pursuant to r.19 and therefore it has not made a valid decision”, I have set their decisions aside for material error of law because they both wrongly concluded that there could no appeal to the First-tier Tribunal from such a decision and, in consequence, failed to set aside the Secretary of State’s decisions under appeal.    

Relevant background - the facts

RD 
6.	The appellant in this case had been found incapable of work under the previous statutory scheme for those unable to work due to health reasons since the end of March 1998.  With the introduction of employment and support allowance (“ESA”), as is now well know, all people on incapacity credits or incapacity benefit are to be “converted” over to the ESA scheme.  This process began for RD on 26 October 2011.  He completed a form ESA50 in November 2011. On that form he said, inter alia, that he had arthritis and had been born with a club foot (congenital talipes varus), and he had a lot of pain in this foot and walked with crutches because of this pain. He said his ability to move 50 metres before he needed to stop varied but he could not move from one seat to another right next to it without help from someone else.
 
7.	RD was not called for a medical examination as part of the process to determine whether he had limited capability for work. Instead his limited capability for work was assessed on the papers alone, or what is termed “on scrutiny”.  As part of this process the papers were considered by a Health Care Professional (“HCP”), a registered nurse, on 18 November 2011 on medical report form ESA85A.  Her advice was that she was “able to advise that the claimed level of disability is consistent with the evidence before me”. The Justification of Advice contained the following:

“The client was found to have a significant level of disability due to arthritis at the previous examination, suggesting they had limited capability for work.  The ESA50 and previous report does not indicate that there has been a substantial improvement……...  

The available evidence does not suggest that the client has severely restricted musculo-skeletal or cardio-respiratory function, such that they would be unable to mobilise more than 50 metres, or transfer between two seats without assistance from another person…”  

The form was completed “in accordance with current guidance to ESA healthcare professionals as issued by the Department for Work and Pensions”.  

8.	(The previous examination and previous report were not included in the appeal papers filed with the appeal response by the Secretary of State’s representative. That was plainly a material omission and contrary to rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“the TPR”), as a document the HCP had relied on for her advice must have been relevant evidence: see ST –v- SSWP (ESA) [2012] UKUT 469 (AAC).  However this issue need not be addressed any further given the way in which I have decided this appeal.)

9.	A Secretary of State decision maker on 28 November 2011 made a decision finding that RD had limited capability for work and, on conversion, was to be placed in the “work related activity group”.  The decision notice said:

“Having considered the available evidence, I have determined that [RD] (has scored at least 15 points from the appropriate descriptors and is treated as having limited capability for work).

I have also determined that by reason of his (physical and/or mental) condition none of the descriptors set out in Schedule 3 to the ESA Regulations apply.  He does not have limited capability for work-related activity. He will be placed in the Work Related Activity Group.  

His existing award(s) will be converted to an award of [ESA] from and including 20/12/2011.”     

10.	This record and the ESA85A was the sum total of the evidence before the First-tier Tribunal showing the basis upon which RD had been assessed as scoring 15+ points.

11.	RD appealed against the decision that he did not have limited capability for work-related activity. A focus of the appeal was on his ability to mobilise. A GP’s letter accompanied the appeal in which the GP said that RD “suffers from severe pain on mobilization and is reliant on crutches to walk”. The Secretary of State’s appeal response took matters no further as to the basis on which RD had scored at least 15 points. In a further written submission on his appeal RD said, amongst other things, that he was unable to walk any distance without pain.

12.	The First-tier Tribunal decided RD’s appeal on 24 October 2012 (“the tribunal”).  Its decision was that the “respondent has not made a proper decision in this matter”.  In essence, it decided that regulation 19 of the ESA Regs required the Secretary of State to make an assessment, he had not made that assessment, and therefore had not made a valid decision.  Further, as there had been no decision there could be no appeal, and therefore there could be no statement of reasons provided for the tribunal’s decision.  As the Secretary of State’s decision of 28 November 2011 was not a proper supersession decision, the decision immediately preceding it stood and with it RD’s award of incapacity credits/incapacity benefit, which therefore continued.

13.	The Secretary of State then sought permission to appeal the tribunal’s decision to the Upper Tribunal. District Tribunal Judge Street gave him permission to appeal on 19 December 2012.  She pointed out the serious difficulties for First-tier Tribunals conducting a fair hearing in respect of Schedule 3 to the ESA Reg not knowing the points which the Secretary of State had found satisfied under Schedule 2 of the ESA Regs.  I address below the way in which the submissions have developed and changed on the appeal to the Upper Tribunal the net effect of which is that these particular concerns may no longer be of central relevance.

RW
14.	RW had been awarded ESA from and including 1 July 2010 on the basis of his having suffered a stroke.  His case therefore does not involve conversion from incapacity benefit to ESA.  After his initial claim for ESA effective from the beginning of July 2010, he had seen a HCP, a registered medical practitioner, for a face to face assessment on 20 August 2010. In her ESA85 report the HCP had advised that RW ought to score 9 points for walking (cannot walk more than 100m metres on level ground without stopping or severe discomfort); 6 points for bending and kneeling; 9 points for manual dexterity (cannot do up or undo small buttons); and 15 points for vision (had 50% or greater reduction of visual fields).  It will be important for the analysis later to note that these points and this assessment were made under the version of Schedule 2 to the ESA Regs that was in place before 28 March 2011.

15.	RW was therefore found to have limited capability for work, but not limited capability for work related activity, in or about early October 2010 (i.e. 13 weeks after his claim, once the assessment phase had expired).  He was then sent another ESA50 form, which he completed in September 2011.  The purpose of this exercise was to see if anything had changed and whether RW continued to be entitled to ESA with the work-related activity component. In this ESA50 form RW said, inter alia, that he had been left with a permanent loss of feeling on the whole of his left side that made it very difficult for him to walk and that he could not move at last 50 metres before he needed to stop. 

16.	Like RD, RW was not called for a face-to-face medical assessment and instead was assessed “on scrutiny” by a registered nurse as the HCP on a form ESA85A dated 19 September 2011. Save for the cause of his limitation (stroke as opposed to arthritis), the Advice and Justification of Advice given in the ESA85A was the same in material particulars to that in RD’s case.   Thus it was advised that “the claimed level of disability is consistent with the evidence before me”, and this was justified on the basis that:

“The client was found to have a significant level of disability due to stroke at the previous examination, suggesting they had limited capability for work.  The Med3 and previous report does not indicate that there has been a substantial improvement……...  

The available evidence does not suggest that the client has severely restricted musculo-skeletal or cardio-respiratory function, such that they would be unable to mobilise more than 50 metres, or transfer between two seats without assistance from another person…”  
 
17.	(Unlike RD however, as has been noted above the previous report (the ESA85 of 20 August 2010) was then included in the papers before the First-tier Tribunal.)

18.	The terms of the Secretary of State’s decision of 26 September 2011 differed slightly from those in RD’s case.  The has/treated as having limited capability for work duality did not appear and the decision-maker was specific in RW scoring (only) 15 points. Relevantly, the decision notice said the following:

“Having considered the available evidence, I have determined that [RW] has scored 15 points from the appropriate descriptors and has limited capability for work).

[RW] continues to be accepted as having Limited Capability for Work and is still entitled to [ESA].
   
The Decision Maker has also considered limited capability for work-related activity.  Having considered the available evidence the Decision Maker has decided that by reason of his (physical) condition none of the descriptors set out in schedule 3 of the ESA Regs apply to [RW]. 

[RW]…….does not have limited capability for work-related activity. He continues to be entitled to ESA and will be placed in the Work Related Activity Group.”     

19.	The appeal by RW was complicated by the fact that it was made late, on 12 June 2012. This is explained by the fact that RW was in receipt of contribution-based ESA only and the reforms enacted with effect from 1 May 2012 to the Welfare Reform Act 2007 meant that his contribution-based ESA ended on or shortly after 1 May 2012 because he did not have, nor could he be treated as having, limited capability for work related activity (i.e. he did not come within regulation 35(2) or Schedule 3 to the ESA Regs).  It was when he was informed of this in May 2012 that RW appealed. His appeal was treated as being an appeal against the decision of 26 September 2011 and admitted although late.  (It could also have been treated as an appeal against the May 2012 decision stopping his contribution-based ESA, though nothing turns on this: see MC –v- SSWP (ESA) [2014] UKUT 125 (AAC); [2014] AACR 35 and RS –v- SSWP (ESA) [2014] UKUT 203 (AAC).)

20.	The appeal was decided by the First-tier Tribunal on 31 October 2012 (“the tribunal”).  The tribunal’s decision was identical in material respects to the tribunal in RD’s appeal.  No proper decision had been made by the Secretary of State on 26 September 2011, it was therefore  a decision of no legal effect, and therefore the tribunal had no jurisdiction to entertain an appeal against it. Permission to appeal was granted to the Secretary of State by a District Tribunal Judge of the First-tier Tribunal on 23 November 2012.    

Relevant background - the statutory scheme
 
21.	The conditions of entitlement to ESA are set out in section 1 of the Welfare Reform Act 2007 (“the WRA”).  One of the basic conditions there set out, and the only key one for the purposes of this decision, is that the claimant “has limited capability for work”: per section 1(3)(a) WRA.
  
22.	It is a noteworthy feature of the WRA that having, or not having, limited capability for work-related activity is not a condition of entitlement to what is commonly referred to as the “support group” of ESA. Rather, whether a person has limited capability for work-related activity is relevant to the amount of ESA payable, whether contributory or income related (see sections 2(1)(b) and 4(2)(b) of the WRA), once the basic condition of entitlement of the claimant having limited capability for work has been established. ESA therefore does not constitute two benefits, nor does it call for two entitlement decisions to be made: one on whether the person has limited capability for work and so is entitled to go into the “work-related activity group”; the other on whether the claimant has limited capability for work-related activity and so can go into the “support group”.     See to similar effect NS –v- SSWP (ESA) [2014] UKUT 149 at paragraphs [11] to [13],  LH –v- SSWP [2015] UKUT 154 (AAC) and AE –v- SSWP [2014] UKUT 005 (AAC); [2014] AACR 23. (Nor are contributory ESA and income-related ESA different benefits: LH –v- SSWP (ESA) [2014] UKUT 480 (AAC); [2015] AACR 14.)

23.	Further the effect of sections 1, 2 and 4 of the WRA, as I explained in MN –v- SSWP (ESA) [2013] UKUT 262 (AAC); [2014] AACR 6 (at paragraph [20]) and DH -v-SSWP [2013] UKUT 573 (AAC), is that a decision that a person has limited capability for work is also an affirmative decision that he or she does not have limited capability for work related activity. This follows from the wording in sections 2(3)(b) and 4(5)(b) in the WRA which confer entitlement to the (amount of the) work-related activity component, respectively for the contributory and income-related allowances, if “the claimant does not have limited capability for work-related activity” (my underlining).   

24.	None of the above, I should emphasise, was disputed by any of the parties before me.  That includes the Secretary of State. 

25.	Section 8 of the WRA falls under a sub-heading  Assessments relating to entitlement and provides so far as is relevant as follows:
 
“Limited capability for work
8(1) For the purposes of this Part, whether a person’s capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in
accordance with regulations.
(2) Regulations under subsection (1) shall—
(a) provide for determination on the basis of an assessment of the person
concerned;
(b) define the assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or
incapable of performing such activities as may be prescribed;
(c) make provision as to the manner of carrying out the assessment.
(3) Regulations under subsection (1) may, in particular, make provision—
(a) as to the information or evidence required for the purpose of
determining the matters mentioned in that subsection;
(b) as to the manner in which that information or evidence is to be
provided;
(c) for a person in relation to whom it falls to be determined whether he
has limited capability for work to be called to attend for such medical
examination as the regulations may require.”

26.	Regulation 19 of the ESA Regs is made under section 8. It, and regulation 19(2) in particular, lies at the heart of these appeals. Regulation 19 provided at the relevant time as follows:

“Determination of limited capability for work
19.—(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.
(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.
(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—
(a) 15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;
(b) 15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or
(c) 15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.
(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.
(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—
(a) a specific bodily disease or disablement;
(b) a specific mental illness or disablement; or
(c) as a direct result of treatment provided by a registered medical practitioner, for such a disease, illness or disablement.
(6) Where more than one descriptor specified for an activity apply to a claimant, only the descriptor with the highest score in respect of each activity which applies is to be counted.
(7) Where a claimant— 
(a) has been determined to have limited capability for work; or
(b) is to be treated as having limited capability for work under regulations 20, 25, 26, 29 or 33(2),
the Secretary of State may, if paragraph (8) applies, determine afresh whether the claimant has or is to be treated as having limited capability for work.
(8) This paragraph applies where—
(a) the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition;
(b) the Secretary of State wishes to determine whether the previous determination of limited capability for work or that the claimant is to be treated as having limited capability for work, was made in ignorance of , or was based on a mistake as to, some material fact; or
(c) at least 3 months have passed since the date on which the claimant was determined to have limited capability for work or to be treated as having limited capability for work.”

27.	I set out in the appendix to this decision, as they relate to physical activities: (i) the terms of Schedule 2 to the ESA Regs as it was when the first decision was made in RW’s case in or about 20 August 2010, (ii) the form Schedule 2 was in when the “scrutiny decisions” were made in RD’s and RW’s cases (on 28 November 2011 and 26 September 2011 respectively), and (iii) the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 (the “IFW Regs”) under which RD’s incapacity for work had been assessed before the conversion decision of 28 November 2011. I do so as it will be necessary to draw later on those different Schedules to show the very different ways in which the same relevant activities under those Schedules stood to be assessed at the different times relevant to these cases.
   
28.	For present purposes, however, it suffices to highlight that the key words in regulation 19 of the ESA Regs are those in regulation 19(2). These define the limited capability for work assessment as “an assessment of the extent to which a claimant…. is capable [or incapable] of performing the activities prescribed in Schedule 2” (my underlining).  The underlined words are perhaps those which most particularly call for attention.  However the words in regulation 19(3) are also important as they show that “the assessment of the extent to which” is to be calibrated by adding together the points for the applicable descriptors in Schedule 2.

29.	Other parts of the ESA Regs are also important in understanding how a claimant may come to be found to have limited capability for work.  The “assessment phase” is a crucial component of the ESA scheme. In effect this provides that all claimants receive a basic allowance of ESA not including either the work-related activity component or the support group component until they have been assessed.  Regulation 4 of the ESA Regs deals with this and provides:

“The end of the assessment phase
4.—(1) Subject to paragraph (2) and regulations 5 and 6, the assessment phase in relation to a claimant ends on the last day of a period of 13 weeks beginning on the first day of the assessment phase as determined under section 24(2)(a) of the Act.
(2) If at the end of the period of 13 weeks referred to in paragraph (1), it has not yet been determined whether the claimant has limited capability for work—
(a) the claimant having been assessed in accordance with a limited capability for work assessment; or
(b) as a result of the claimant being treated as having limited capability for work in accordance with regulation 20, 25, 26, 29 or regulation 33(2) (persons to be treated as having limited capability for work),
the assessment phase will end when the limited capability for work determination is made.”

30.	Regulations 21 and 23 of the of the ESA Regs then deal with obtaining evidence to assist with determining whether a claimant has limited capability for work.  They provide as follows.

“Information required for determining capability for work
21.—(1) Subject to paragraphs (2) and (3), the information or evidence required to determine whether a claimant 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 the purposes of 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 20 (certain claimants to be treated as having limited capability for work), 25 (hospital in-patients), 26 (claimants receiving certain regular treatment) and 33(2) (additional circumstances in which a claimant is to be treated as having limited capability for work).

Claimant may be called for a medical examination to determine whether the claimant has limited capability for work
23.—(1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination.
(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination listed in paragraph (1), the claimant is to be treated as not having limited capability for work.
(3) Paragraph (2) does not apply unless written notice of the time and place for the examination was sent to the claimant at least 7 days in advance, or unless that claimant agreed to accept a shorter period of notice whether given in writing or otherwise.”

These last two regulations are made pursuant to sections 8(3) and (4) of the WRA.

31.	I should perhaps add that I am not making reference to the statutory scheme as it relates to determining limited capability for work-related activity as that did not really feature before me in terms of the shape the arguments finally took.  Of course in one sense the issue before the two tribunals was whether either RD or RW had limited capability for work-related activity, they purportedly having been found to have, or continue to have, limited capability for work.  However the logically prior issue of whether any legally valid decision had been made that either of them met the key basic condition of entitlement of having limited capability for work must underpin the limited capability for work-related activity determination (there only being one decision made).

32.	Pausing at this point, even without consideration of decision making function set out in the Social Security Act 1998, to which I turn next, it is apparent from the ESA statutory scheme that determining whether a person has limited capability for work is a legal function which vests in the Secretary of State through his decision makers. This is made apparent from the terms of regulation 19(8) of the ESA Regs and its reference to the Secretary of State wishing to determine.  It is a point  perhaps best made by section 16 of the WRA, which deals with “Contracting out” certain functions of the Secretary of State relating to the “Conditionality” part of the WRA (e.g. requiring certain claimants to attend work-focused interviews under section 12 of the Act). Section 16(2) and (3) allow for regulations to be made contracting out certain decision making functions of the Secretary of State, but even there only certain decisions relating to the conditionality aspects of the ESA scheme. However that such decision making functions need “contracting out” itself shows that the starting point absent section 16 is that all decisions are made by the Secretary of State (albeit through his decision makers), and therefore the decision as to whether a claimant has limited capability for work remains with, and is constitutionally the responsibility of, the Secretary of State.

33.	However, it is the Social Security Act 1998 (“SSA”) that provides the express basis for decision making and who is to make such decisions. Section 8 of the SSA provides, so far as is material as follows:- 

“Decisions by Secretary of State

8(1)Subject to the provisions of this Chapter, it shall be for the Secretary of State—
(a)to decide any claim for a relevant benefit;…

(c)subject to subsection (5) below, to make any decision that falls to be made under or by virtue of a relevant enactment.

(2)Where at any time a claim for a relevant benefit is decided by the Secretary of State—
(a)the claim shall not be regarded as subsisting after that time; and

(b)accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.

(3)In this Chapter “relevant benefit” means any of the following, namely….
 
(ba) an employment and support allowance…

 (4) In this section “relevant enactment” means any enactment contained in…,.Part 1 of the Welfare Reform Act 2007….”

34.	Sections 8 and 9 of the same Act then provide for revision and supersession of decisions and section 12 the deals with appeals. Section 12 provides, so far as is relevant, that:

“12.-(1)This section applies to any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above) which—
(a)is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2 to this Act;
(b)is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act. 

(2)In the case of a decision to which this section applies, the claimant and such other person as may be prescribed shall have a right to appeal to a First-tier Tribunal….

(6)A person with a right of appeal under this section shall be given such notice of a decision to which this section applies and of that right as may be prescribed…..

(8)In deciding an appeal under this section, an appeal tribunal—
(a)need not consider any issue that is not raised by the appeal; and
(b)shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

35.	There is no express duty, either in section 8 of the SSA or elsewhere,  requiring the Secretary of State to give reasons for his decisions at the time they are made. However, pursuant to section 12(6) of the SSA, regulation 28 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the DMA Regs”) provides:

“Notice of decision against which appeal lies

28.—(1) A person with a right of appeal under the Act or these Regulations against any decision of the Secretary of State…. shall—

(a)be given written notice of the decision against which the appeal lies;

(b)be informed that, in a case where that written notice does not include a statement of the reasons for that decision, he may, within one month of the date of notification of that decision, request that the Secretary of State…. provide him with a written statement of the reasons for that decision; and

(c)be given written notice of his right of appeal against that decision.

(2) Where a written statement of the reasons for the decision is not included in the written notice of the decision and is requested under paragraph (1)(b), the Secretary of State….. shall provide that statement within 14 days of receipt of the request or as soon as practicable afterwards.”

Further, once an appeal has been made against a decision the Secretary of State’s decision maker is required under rule 24 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“the TPR”), to send or deliver a response (to the appeal) to the First-tier Tribunal, and must provide with that response:

“24.-(4)(a) a copy of any written record of the decision under challenge, and any statement of reasons for that decision, if they were not sent with the notice of appeal [and]

(b) copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise…”    

36.	The last statutory provision to which I need to refer is one which concerns the status of a conversion decision. It was common ground before me, and correct in any event, that a conversion decision, as applied in RD’s case, takes effect as a decision on a claim for ESA under section 8 of the SSA. This is because of the terms of regulation 16(2) and (3) of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No.2) Regulations 2010. The tribunal in RD’s case therefore erred in holding that the decision under appeal to it was not a proper superseding decision. However this error was not material to the substantive decision it came to as if the 28 November 2011 decision under appeal to it was legally invalid it would be so whether made on a claim or an application for supersession.

The changing shape of the arguments
   
37.	In directions which I gave initially on these appeals in April 2013 I raised, inter alia, the following issues. (I set out below the directions in the appeal concerning RD. The directions in RW were virtually identical.)  

“Turning back to the limited capability for work basic condition, a combination of sections 1(3)(a), 1(4) and 8(1) and (2) of the Act seem, arguably at least, to require that whether the claimant has limited capability for work has to be decided on the “basis of an assessment of the person concerned” and that assessment shall be defined “by reference to the extent to which a person….is capable or incapable of performing such activities as may be prescribed”.   Is the legal effect of this that a decision whether a person has limited capability for work must assess the extent to which the person is incapable of performing the activities prescribed under Schedule 2 to the Employment and Support Allowance Regulations 2008 (“the ESA Regs”)? And does this mean that any such decision must consciously grapple with, and score, the person under Schedule 2 (in order to assess the extent to which the person is incapable of performing the Schedule 2 activities)? 

The terms of regulation 19 of the ESA Regs may arguably support this analysis.  Regulation 19(1) of the ESA Regs provides that whether a claimant has limited capability for work is to be determined on the basis of a limited capability for work assessment. Regulation 19(2) then says that that assessment is an assessment of the extent to which a claimant is capable or incapable of performing the activities prescribed in Schedule 2 to the ESA Regs.  And the arguable effect of regulation 19(3) and 19(6) of the ESA Regs is that this “extent” is to be measured in terms of adding the points scored under the descriptors that apply to the claimant.  Does this mean that for a decision to be made that a person has limited capability for work the decision-maker (i) must measure the extent to which a person is capable or incapable of performing the   activities in Sch. 2, and (ii) must do this by identifying the descriptors in Sch.2 that apply to the person and adding the scores for those descriptors together?

[R]everting to limited capability for work, is the Secretary of State’s case (i) that he is required under the law to assess the extent to which the person is incapable of performing the Schedule 2 activities such that in coming to his decision he has to allocate points under Schedule 2, but is not required to record or provide this information (i.e. the points scored), or (ii) simply that the law does not impose on him a requirement to allocate points under Schedule 2?  Paragraphs 5, 6 and 7 in the Secretary of State’s grounds of appeal in this case (page 59) would seem to indicate it is the former.  However:

(i)	if it is the latter but that view of the requirements imposed by the Act and the ESA Regs is wrong in law, does the decision fail the test under paragraph 72 of R(IB)2/04 as applied to decisions on a claim by paragraph 32 of R(IS)2/08? If a conversion decision is to be treated as a decision on a claim under section 8(1)(a) of the Social Security Act 1998, and if the essential part of that decision is whether [RD] has limited capability for work, would the failure to allocate points under Schedule 2 mean that the decision was so unconnected with the relevant law such that it was not a decision on a claim at all?       

(ii)	if, as the Secretary of State seems to be asserting, it is the former:

(a)	what points were in fact allocated (but not recorded) to [RD] under Schedule 2?;

(b)	on the basis of the evidence on pages 24-26, how can the tribunal on appeal construct what points the Secretary of State did in fact score for [RD] (and thus be satisfied that the decision was properly arrived at)?; and 

(c)	if the points under Schedule 2 were allocated but not recorded at the time of the decision on 28 November 2011, how then can the Secretary of State properly meet his duty under rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber Rules) Rules (the “TPR”) when, as here, an appeal is made against what I will term the combined Sch2/Sch3 decision which calls into question the Sch 2 assessment?  To take the most obvious example, the 50 metres descriptor qualifies a person for 15 points under Schedule 2 to the ESA Regs and brings the person within Schedule 3.  The assumption has to be that [RD] was not assessed as scoring his 15 points under Schedule 2 for mobilising otherwise he would have met Schedule 3 as well. By the time of his appeal to the First-tier Tribunal, however, one of [RD’s] “REASON FOR APPEAL” (page 28) was that he could not mobilise more than 50 metres. (It may even be arguable that his original letter of appeal and GP letter (pages 2 and 3) raised mobilising as a key issue on the appeal). Reading rule 24(2)(e) of the TPR together with the overriding objective in rule 2 of the TPR (and with particular emphasis on the need for the parties to “participate fully in the proceedings” and help and co-operate with the First-tier Tribunal), and given the general role the Secretary of State has on such an appeal (see paragraphs [22] to [26] of ST –v- SSWP (ESA) [2012] UKUT 469 (AAC)), ought [RD’s] claims on page 28 not at least have called for a supplemental response from the decision-make under explaining why he “opposes the appellant’s case and, if so, any grounds for such opposition which are not set out in any documents which are before the Tribunal”, and would the grounds of opposition not have required the decision-maker to explain what points had been awarded to [RD] under paragraph 1 of Schedule 2?                                                                         

[R]elated to the points made …..above, if the medical advice was that “the claimed level of disability is consistent with the evidence” before the advice giver (page 24), why was [RD] not awarded 15 points under descriptor 2(a) in Schedule 2 to the ESA Regs and found to have met paragraph 2 in Schedule 3 to the  ESA Regs?  [RD] claimed on his ESA50 form that he could not move from one seat to another seat right next to it without help from someone else (page 10).  On the face of the evidence put before the tribunal that was the only evidence on this issue.  Given this and given the view of the health care professional (“HCP”) that this claimed level of disability was consistent with the evidence, is it not arguable that the only decision open to the decision maker and tribunal on the papers and on the balance of probabilities was that [RD] came within activity/descriptor 2 in Schedule 3 to the ESA Regs?

[O]ught the Secretary of State not have made available to the tribunal the “previous examination” referred to and relied on as evidence by the HCP on page 24 and thus presumably relied on by the decision-maker: per rule 24(4)(b) of the TPR and ST –v- SSWP?

[I]n general terms, what is the correct approach to be taken by a First-tier Tribunal when faced with a “Schedule 3 appeal” where the ESA85A and the decision under appeal does not set out what points were allocated by the decision maker under Schedule 2, and does this differ if it the appeal is decided (a) without a hearing, or (b) at a hearing? For example, if it is correct that in all cases a combined Sch. 2 and Sch. 3 decision must be made, does Sch 2 automatically arise on the appeal: per s.12(8)(a) Social Security Act 1998?  If not automatic, how in the context of the lack of information given about the Sch 2 score can the tribunal avoid it being an issue on the appeal?  And, where the Sch 2 assessment/score becomes an issue on the appeal, how    ought the tribunal proceed in terms of acting fairly and protecting the interests of the parties (see, for example, paragraph 94 of R(IB)2/04), and does the approach differ if the appeal is decided without a hearing or at a hearing?  Moreover, what practical steps should the tribunal take if the deficit in the ESA85A and the part of the Secretary of State’s decision dealing with Sch.2 is material to the tribunal’s decision?  For example, should it call for the Secretary of State to provide a further appeal response setting out what points were in fact allocated under Sch. 2? Or should it refer the matter back to the Secretary of State for a “proper”, face-to-face assessment to be made?”

38.	The Secretary of State then lodged a detailed submission in reply. I now need only highlight the parts of the submission relevant to the issue I have to decide. (For example, certain issues I did then raise (which are not set out above) have been answered in the ways described in paragraph 22 and 23 above.) 
 
39.	First, the Secretary of State accepted that in order to determine whether a claimant has limited capability for work under the WRA the decision maker was required by law to assess the extent to which the claimant is capable or performing the activities in Schedule 2 to the ESA Regs, score the claimant against the relevant descriptors, and reach a decision as to whether the claimant has limited capability for work on the basis of the total of those points.  However there was no obligation for the breakdown of the points awarded to be set out in the decision. He relied on regulation 28 of the DMA Regs in this respect and paragraph [13] of AC –v- SSWP (ESA) [2013] UKUT 229 (AAC). where Upper Tribunal Judge Warren, in considering the same issue,  held:

“That duty [under section 8 SSA] is to give an “outcome decision” which, broadly speaking, is one which decides whether the claimant is entitled to benefit and, if so, how much and for what period.  There is no obligation under Section 8 to explain the reasoning behind the decision.”    

40.	Second, although it was accepted that a positive assessment had to be made by the Secretary of State in every case as to whether a Schedule 3 ESA Regs descriptor was satisfied where the Schedule 2 descriptors had been met, the basis on which the claimant scored 15 or more points under Schedule 2 did not need to be set out in the ESA85A form as that had been determined in the claimant’s favour and was unlikely to be disputed.

41.	In practice, so the submissions asserted, the determinations would be reached following an assessment of the material evidence by a health care professional who would simply advise whether the claimant had scored at least 15 points under Schedule 2 to the ESA Regs and a determination subsequently made by the decision maker as to whether the claimant met the points score for limited capability for work.  

42.	Third, there was in fact no record of the points scored under Schedule 2 of the ESA Regs for either RW or RD, but this did not require the First-tier Tribunal generally or the tribunals here to seek to reconstruct how the Schedule 2 points had been allocated. On appeals such as those of RD and RW, where what was being sought by the claimants was to be placed into the “support group”, it would not usually be needed to re-open the Schedule 2 assessment.  

43.	Fourth, AC was correctly decided in holding at paragraph [13], in the context of whether the decision under appeal was a nullity because of the lack a record of the Schedule 2 points scored, that:

“…the decision dated 15 December 2011 has obvious imperfections; but then many decisions do.  It does not follow that the decision is void.  On the contrary it was a valid authority for the payment of benefit and sufficient to give a right of appeal on the merits to the First Tier Tribunal.  This, in my judgement, follows from R(IB)2/04, a decision of a Tribunal of Social Security Commissioners.  Sometimes, very rarely, there may be something purporting to be a decision made by the Secretary of State which has so little coherence or connection to the case or to his legal powers that it does not amount to a decision at all.  In such a case, it may be right for the Tribunal to simply set aside the purported decision.  Otherwise, the duty of the Tribunal is to go ahead and to make what it considers to be the correct decision.  That is the approach which the First Tier Tribunal should take to decisions such as that which is under appeal here”.

44.	Fifth, and last, the Secretary of State argued on the facts that it did not follow from the terms of each ESA85A,  and in particular the wording “the claimed level of disability is consistent with the evidence before me”, that RD and RW met any one of the descriptors under Schedule 3 to the ESA Regs. (Given the basis upon which I am deciding these appeals, I do not intend to address this issue any further, save to say that the then standardised wording of the ESA85A was not a model of clarity, it contradicted itself on its face, and the above quoted wording did give rise to the strong impression that what a claimant has said in the ESA50 form is accepted as being accurate in terms of their level of functioning.)             

45.	There was then a delay before representation was obtained for RD and RW. A hearing took place before me on 17 February 2014. The main focus of that hearing, at least in terms of the validity of the decisions, was on the failure of the decision makers to record (or now be able to reconstruct such a record) the points that they had in fact scored RD and RW as satisfying under Schedule 2 of the ESA Regs. This was unsurprising given what had been said in the Secretary of State’s submission summarised above. Prior to the hearing I had raised the following in the listing directions:

“An issue the Upper Tribunal may need to address is the rationality/ transparency of the Schedule 2 ESA decision-making structure where seemingly it is contended that the decision-maker is obliged to award points to a claimant against the Schedule 2 descriptors but, it would seem, never make any record of that scoring. How then is, say, another decision maker able to recite the points scored when the decision was in fact made if requested to provide this information pursuant to regulation 28(2) of the Decision and Appeals Regulations 1999 if there is no record of those points?   Further, is it the case that such a scoring exercise was carried out on these two appeals when the limited capability for work decision was made but not recorded or that the record has since been lost: see paragraph 41 of the Secretary of State’s submissions? Paragraph 49 of those submissions seems to indicate that no such record is ever kept initially and that any Schedule 2 descriptor scoring is only (ever) done when such a request is made by the First-tier Tribunal. Is that the case? And it that is the case what is the evidential basis for such a scoring exercise having been conducted by the decision maker (and the precise score made by him/her) when the limited capability for work decision was made?”     
       
46.	At the end of the hearing I asked the then counsel for the Secretary of State if it would be possible for the Secretary of State to provide the Upper Tribunal with evidence as to what had actually been done by the individual decision makers when making the relevant decisions that RD and RW had then appealed. I had in mind that there might be a log of the Schedule 2 score on each claimant’s file or on a database.  I also asked for any guidance or training materials showing what the general practice was in respect of such decision making. I made this request as I struggled to understand how a decision maker could reconstruct the basis for the decision he or she may have given many months earlier without any record.

47.	The requests seemed to cause some consternation amongst the Secretary of State’s officials.  Just before the deadline for providing the above evidence was about to close his (new, more senior) counsel asked for an extension of time because “inquiries as to the practice of [decision makers] has produced material which suggests that some of the submissions made on instruction at the previous hearing as to what was done by [decision makers] may have been inaccurate in certain respects”, and that had led to further lines of inquiry being conducted.  

48.	The extension sought was given and then not met. All that was said was that the Secretary of State would revert to the Tribunal as soon as possible to clarify the position. This was wholly inadequate and this was communicated to the Secretary of State. The Secretary of State then asked to withdraw his appeals to the Upper Tribunal as on consideration of the materials he had unearthed since the hearing on 17 February 2014 (which had not by then been disclosed) “the appropriate course at this time would be to withdraw our appeals in these cases”.   As these were appeals, however, the Upper Tribunal needed to consent to withdrawal: see rule 17(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008.  Submissions were therefore sought on whether such consent should be given. The claimants did not consider consent ought to be given. The Secretary of State argued it should.                                            

49.	I refused to consent to the appeals being withdrawn on 6 June 2014.  In so doing amongst other things I said this:

“…….Memo ADM 8/14, dated April 2014,….seems relevant to the issues arising on these appeals…..    

In terms, what that Memo indicates is that from the end of 2013 HCPs were required on the ESA85A form to record the likely Schedule 2 scoring descriptors. The Memo says “This change enables the DM to record the points scored on form UC/ESA56 when determining that the claimant has LCW, where the HCP’s advice is accepted”.  

The plain implication from this statement, in my judgment, is that prior to the “change” decision makers were not able to record the points scored when determining that claimants had limited capability for work.  In other words: 

(a)	[RD’s and RW’]s cases are examples of what was normally occurring when decisions were made in “scrutiny cases” and so they remain properly representative as lead cases (at least for the position prior to December 2013); 

(b)	the lack of any Schedule 2 descriptor scoring in their cases is contrary to what the Secretary of State said initially was the case; and 

(c)	accordingly, the focus of the argument now has to shift significantly to examine a position which the Secretary of State has previously argued was not the law, namely whether a lawful decision on limited capability for work can be made pursuant to sections 1 and 8 of the Welfare Reform Act 2007 and regulation 19(2) of the Employment and Support Allowance Regulations 2008 without any scoring exercise having been conducted against the descriptors in Schedule 2.            
                
It of course remains open to the Secretary of State to furnish evidence showing, despite the above Memo, that these cases are either factually unique or at least fall into an exceptional group, and that the vast majority of limited capability for work decisions made on scrutiny before December 2013 or April 2014 did in fact involve decision makers consciously carrying out the Schedule 2 descriptor scoring exercise (and then recording the same).  However, as I hinted at in my 24 April 2014 directions and as the above Memo would seem to establish, that would appear not to be the case, and I shall proceed at present on the basis that the ‘norm’ was for no scoring against Schedule 2 descriptors to be conducted by decision makers when making a decision that a claimant had limited capability for work before either December 2013 or April 2014.

Even if this was not the ‘norm’, the Memo indicates that what occurred in [these] cases was not unique and was likely to have occurred in a significant  number of cases at least.

In these circumstances I refuse to consent to these appeals being withdrawn. They give rise to an important (and now new) point of law which is likely to be of importance in a number of other cases and which if not resolved in these cases would need to be addressed in one or other of the other stayed cases the Upper Tribunal has; it is a point which is of importance to the proper administration of the ESA scheme; and it is a point which needs to be properly resolved in order to determine whether the First-tier Tribunals erred in law in the decisions to which they came in these two appeals…..

Given what I understand will now be the Secretary of State’s changed position (bluntly put, that it doesn’t mater in terms of validity of his LCW decision that no Schedule 2 descriptor scoring was done), it seems to me inevitable that further submissions will have to be made. 

One issue that will need to be addressed, it seems to me, is what the statutory scheme requires for a lawful decision to be made.  That will need to consider in what respect not scoring against the Schedule 2 descriptors amounts to “an assessment of the extent to which [the claimant] is capable of performing the activities prescribed in Schedule 2 or is incapable of performing those activities”: per regulation 19(2). 

A further issue that may arise is what the consequence is in public law terms of regulation 19(2) not being complied with.  Does that, for example, render the decision void and of no legal effect?  Reference to caselaw beyond R(IB)2/04 and beyond social security may help to illuminate this issue.”                                                        

50.	That then led the parties to file further submissions on the appeals, and there was then a further hearing of the appeals.
  
51.	Together with his submissions, the Secretary of State very properly filed witness statements. I need to address these in some detail.

Ms McGuckin 
52.	Claire McGuckin, Head of Benefit Centres at the Department for Work and Pensions (“DWP”), Frances House, Northampton, is the senior official responsible for the DWP’s decision making in relation to benefit assessment.  Her witness statement was in two parts: the first dealing with the background to ESA and the handling of scrutiny cases; the second updating the Upper Tribunal on the practice of making and explaining decisions based on scrutiny.

53.	The first part of Ms McGuckin’s statement helpfully explained that it was the DWP’s policy that no-one could be found fit for work without having the opportunity to attend a face-to-face assessment.  The relevant cases where that did not occur – the “scrutiny” cases – arose where there was either: (a) a re-referral scrutiny – where claimants had previously had a face-to face assessment (i.e. where a previous ESA85 was available to consider); or (b) an IB re-assessment scrutiny – where claimants had previously been assessed under the IFW Regs (i.e. where and IB85 was available).
 
54.	What is termed ESA Re-referral scrutiny applies in RW’s case.  Ms McGuckin stated that under this process an appropriately trained HCP (then from ATOS) would review the ESA85 from the previous referral and the current ESA50 and any supporting evidence.  The HCP would then decide if there was adequate evidence to support ongoing functional incapacity to meet the 15 point threshold.  Ms McGuckin’s statement then addresses where there was evidence of likely functional improvement or deterioration since the previous face-to-face assessment. The former might lead to a further face-to face assessment; the latter might lead to advice about whether the support group criteria were met. Ms McGuckin continued:

“Until December 2013, the practice was that although the HCP would assess the claimant against the individual descriptors in order to determine whether the threshold of 15 points was met…., he or she was not required to specify or set out the particular activities and descriptors which applied to re-referral claimants.” 

The change from December 2013 (see Memo ADM 8/14 in paragraph 49 above) Ms McGuckin stressed was just a change in recording and was not a change to the actual process of scrutiny. It continued to be the case that if no support group criteria applied then the HCP would consider the previous ESA85 and then whether there was evidence of whether the claimant’s condition or functioning had improved, deteriorated or appeared static. She continued:- 

“In cases where the….medical fact is consistent, and this is consistent with the descriptors chosen at the last assessment, the HCP would reasonably conclude that the claimant’s condition and functional capacity were unchanged and an over-threshold would be likely if they were re-examined.” 

55.	Pausing at this point, it is important and instructive in my judgment to note that the witness statement fails to grapple with one other crucial factor, namely changes to the descriptors, despite that applying directly in RW’s case.

56.	Similar views are then expressed by Ms McGuckin in terms of IB Re-assessment, which applies in RD’s case. Again, however, it is noticeable that the focus is on changes in the claimant’s functionality. The witness statement fails singularly to grapple with the very significant (and, at least for physical activities, deliberately more restrictive) changes introduced to activities and scoring descriptors with the introduction of the ESA Regs, despite again that being the scenario directly in issue in RD’s case.

57.	Prior to the second part of Ms McGuckin’s statement, she dealt with Decision Making. In this she very candidly, but wholly properly, drew attention to paragraphs 42180 and 42181 of the Decision Makers Guide.  This is non-statutory but provides individual Secretary of State decision makers with guidance and instruction on how to approach cases in language which seeks to be less legal and plainer than the regulations or statute.  Paragraphs 42180 and 42181 deal with calculating and recording scores both for new claims and re-referrals.  Paragraph 42180 says, inter alia: “The DM [decision maker] should decide which descriptors applies to each activity”, and paragraph 42181 says “The DM must record the final scores for each descriptor and the reasons for the decision”.  

58.	The second part of Ms McGuckin’s statement addresses the General Practice of Making Decisions on Scrutiny. It includes what in fact happened in RD’s and RW’s cases. Ms McGuckin had done some random sampling through managers and decision makers of varying seniority, all of whom had experience of decision making in scrutiny cases.  This had revealed that the general practice was contrary to what had been put forward by the Secretary of State at the first hearing before me and was likewise contrary to the paragraphs in the Decision Makers Guide set out above. In short “[c]ommon practice in the case of decisions made on scrutiny has rarely included consideration of individual descriptors and the recording of any points”.  In RD’s and RW’s cases the decision makers had considered the advice from ATOS that they were both at or over the 15 point threshold and decided to accept that advice but had not themselves gone through the specific descriptors (or record any scoring).  

59.	All of this is perhaps reflective of what Professor Harrington noted in his year one Independent Review of the Work Capability Assessment in 2010 (an evidence based report required pursuant to section 10 of the WRA), that in the context of ESA decision making generally and not just scrutiny decisions: 

“many Decision Maker lack the confidence to make a decision that deviates from the Atos advice….It is clear that a culture has developed amongst Decision Makers that sees the advice from Atos as forming the decision, and that they are there simply to ratify that decision” (paragraphs 7 and 8 on pages 49 and 50 of the report). 

Professor Harrington went on in that report: 

“Conversely, Atos HCPs see their reports from the WCA as forming solely advice….Atos correctly see their role as offering advice, and providing information that should be considered as part of the final decision.

These two viewpoints mean that effectively, both parties expect that the other has responsibility for making the decisions.  There is what can be termed a decision gap, which can leave no-one actually claiming responsibility for the benefit decision.” (page 50, paragraphs 9 and 10)

Professor Harrington therefore recommended that Decision Makers “are put back at the heart of the system and empowered to make an independent and considered decision”.  He returned to this issue in his Year 3 Review report of November 2012 and said that progress had been made, with a Quality Assurance Framework having been introduced. Further work was still needed however, for example on the reasoning of decision makers. Professor Harrington said:

“To retain transparency it is important the Decision Maker Reasoning is a work of their own making.  Simply cutting and pasting the free text from the Atos personalised summary statement is to be discouraged as this will not give a true reflection of the decision making process, and could suggest a slip backwards towards ‘rubber stamping’ of recommendations from Atos.  (paragraph 69 on page 27 of An Independent Review of the Work Capability Assessment – year three)                  

60.	Turning back to Ms McGuckin’s witness statement, she went on to opine that:

“Whilst the practice described is not in accordance with the  guidance, it is clear that the DM’s did reach determinations based on material provided by appropriately qualified HCP’s who had, as described above, gone through the descriptors for the purpose of producing the ESA85A form.” 

61.	In the light of this evidence Ms McGuckin’s statement then sought to correct the legal submissions the Secretary of State had made previously. The previous submission had said that the Secretary of State’s decision maker should: (i) score the claimant against the relevant descriptors; and (ii) reach a decision as to whether the claimant has limited capability for work on the basis of the total of those points. That reflected what was set out in the guidance (and, I would add, the law, as the Secretary of State had accepted in those submissions) but practice up to December 2013 did not usually meet that guidance. The revised submission accordingly was that:

“whilst the Decision Maker did not usually actively score the claimant against each descriptor, he or she reached a decision based on a consideration of the advice supplied by the Atos HCP who will themselves have gone through the descriptors and the point scoring exercise.”   

This general revised submission applied likewise to whether the Secretary of State was obliged to record the Schedule 2 scoring, though (and these are my words) it provided a further reason why they could not do so.

Individual decision makers        
62.	There were then witness statements from the decision makers who had made the decisions in RD’s and RW’s cases.  The Secretary of State decision maker in RD’s case said that in making that decision she would have looked at the ESA85A report to see if she agreed that RD had limited capability for work.  If there was anything in the report that suggested RD had limited capability for work-related activity she would have referred the case to a more senior decision maker.  The decision maker in RD’s case then referred to the fact that Atos did not provide a score sheet on scrutiny cases, and in practice she would not have scored against each activity or recorded the number of points scored. It is noteworthy, in my judgment that the decision maker does not indicate the basis upon which she may have been in a position to disagree with the HCP’s advice.

63.	The decision maker who made the decision in RW’s case understandably did not recall the specific case.  He said that he would have made the decision using the ESA85A report and any other information provided by Atos. (I assume by this, as this was and was said by him to be have been a re-referral case, he meant the earlier ESA85.) For his witness statement he had gone back to RW’s case files again. He noted from those that RW had scored 39 points under the previous, face-to-face, assessment, and went on:

“The ESA85A and the Med3 form completed by [RW’s] GP did not indicate that there had been a substantial improvement, so there was nothing to suggest that his score would have dropped below the 15 point threshold for ESA.”  (my underlining added for emphasis).  

This leaves wholly out of account the change in the descriptors which had occurred in March 2011.   He went on:

“There was also nothing to suggest the claimant’s condition had significantly worsened. [RW] previously scored 15 points for vision, but even had his vision deteriorated further, there is no corresponding Schedule 3 descriptor for vision….”

He therefore agreed with the findings on the Atos report. He would not have scored against each descriptor nor would he have recorded the points scored.   
                  
64.	It is I consider important to note that neither decision maker said they were aware that the Atos HCP’s would have scored against the Schedule 2 descriptors in coming to their 15 points (+) advice.

65.	There was a further witness statement from the decision maker who had reviewed the above decision in RW’s case. This was from the appeals officer on the appeal RW had made against that decision.  This decision maker does refer to how Atos HCP’s would have addressed scrutiny cases.  His wording and knowledge is subtly but importantly different from what is said elsewhere in the evidence about the HCP process. He said in paragraph 7 of his statement:

“When the [scrutiny] method is applied, the [HCP] will, as per Filework Guidance, go through the individual descriptors to determine whether the threshold is reached but does not score against individual descriptor activities. They are required only to assess if the client has [limited capability for work] or [limited capability for work-related activity] and then complete the ESA85A with their findings.” (underlining again added by me for emphasis)              
Dr McDermott – Atos 
66.	I was also helpfully provided with a witness statement from Dr Edward McDermott, MBChB, the national Clinical Manager-Solutions for Atos Healthcare. I intend Dr McDermott no disservice by saying that a lot of it trod the same ground as Ms McGuckin’s statement.  He made the statement as the senior official responsible for Atos Healthcare’s clinical performance and quality.  Dr McDermott was keen to stress that Atos Healthcare did not make the final decisions on a claimant’s entitlement to ESA, including in scrutiny cases. He said “[Atos] provide[d] a recommendation to a DWP Decision Maker based on all the available evidence…..who then make the final decision. Decision makers then weigh up all of the evidence available to them and make an independent decision on benefit entitlement”.
 
67.	Dr McDermott went on to point out that the “I am able to advise that the claimed level of disability is consistent with the evidence before me” wording on the ESA85A had been replaced on 11 May 2011 by “I advise that the person meets the criteria for having limited capability for work”. This change was intended to make it clear to the Secretary of State’s decision maker the HCP’s view that the claimant scored 15 or more points against the Schedule 2 descriptors. On scrutiny the HCP’s first consideration was always whether any of the “support group” criteria applied (i.e. Schedule 3 or regulation 35 of the ESA Regs). Dr McDermott emphasised that the December 2013 change was just to do with recording and it had always been the case that HCP’s were required to consider “which descriptors were likely to apply” and whether they would result in a cumulative total of 15 or more points.  

68.	As for the processes for HCP’s assessments on ESA Re-referral scrutiny and IB re-assessment scrutiny, Dr McDermott’s evidence was on all fours with that of Ms McGuckin. I am struck by the fact that Dr McDermott, in filing a witness statement on these appeals which together involve both type of re-referrals, makes no reference at all to the crucial consideration of the points scoring descriptors having changed.  Thus he refers on ESA Re-referral scrutiny cases to the HCP considering whether there is any evidence to suggest functional capability is likely to have improved, deteriorated or remained static, and that if the “verifiable medical fact” was consistent and consistent with previous findings “then the [HCP] would reasonably conclude that the functional impact of the condition had not changed and a [limited capability for work] recommendation would be likely if another face-to-face assessment took place”.  And in IB re-assessment scrutiny cases he said the scrutiny process would be “slightly different” (because the previous scoring was under the IFW Regs).

69.	Dr McDermott also helpfully summarised the detail of an HCP’s training for scrutiny decision making. (The actual detail was provided in two lever arch files.)  This has been addressed before in ST and GF –v- SSWP (ESA) [2014] UKUT 0547 (AAC), albeit in a different context. I accept that the scrutiny training evidenced before me includes, for example a pre-course exercise in incapacity for work descriptor awareness, and that in general that training was designed to ensure that HCP’s have the knowledge and skills required to carry out all aspects of ESA Re-referral scrutiny and IB re-assessment scrutiny cases. 

70.	I accept also that in the ESA Re-referral Filework Guidelines dated from 24 May 2013, HCP’s are advised (paragraph 6.1.1 on page 27) to carefully review any ESA85 completed under previous versions of the Schedule 2 descriptors that have since changed “and to consider whether the claimant would continue to be considered [as having limited capability for work under the changed descriptors]”. Similar points are made about what is termed in this decision ESA Re-referral scrutiny elsewhere in those Guidelines (e.g. paragraph 6.2.5 on page 30 and example 2 at the top of page 32), as well as for IB re-assessment scrutiny (e.g. paragraphs 7.3.3. and 7.3.4 on page 36.  

71.	However, there is a significant problem with this evidence. The problem is that on its face it dates only from, and so only shows the Guidelines given to HCP’s, from 24 May 2013, whereas the HCP’s ESA85A reports in issue before me are from November and September 2011. Moreover, I can find nothing in Dr McDermott’s witness evidence which clearly asserts that the May 2013 Guidelines reflect the advice, training or guidance given to HCP’s in 2011. The rest of his evidence, as I read it, equally has the failing of it not being directed to how HCP’s were expected to carry out their functions in 2011.  Indeed in paragraph 6 of his statement he emphasises that any changes to the scrutiny process, including the Filework Guidelines and training of HCP’s, must have been agreed between Atos and the Secretary of State.   

72.	In fact scrutinising the evidence jointly exhibited to Dr McDermott’s and Ms McGuckin’s witness statements show that all of it is in versions of documents dating from May 2013. Thus, given what Dr McDermott has said about changes immediately above, all those documents must amount to changes to the versions that went before and, it follows in my judgment, changes to the documents that may have been in place at the time of the HCP’s ESA85A reports concerning RD and RW in the Autumn of 2011. 

73.	I therefore do not consider that that exhibited evidence provides me with any proper factual basis for determining what in fact the HCP’s were likely to have done (in terms of scoring and/or recording) in 2011. Both Ms McGuckin’s and Dr McDermott’s witness statement are substantially written in the present tense and are based in large part on the exhibits. (For example, Ms McGuckin in saying it has “always been the case” that HCP’s were required to consider which descriptors were likely to apply rests this evidentially on a document in a changed format dating from 24 May 2013.)   They both therefore have the same failing as the exhibited evidence.

74.	I do not consider this to be an insubstantial or pedantic point. These appeal proceedings have been progressing in the Upper Tribunal since early 2013.  In the course of that time changes have been made to what HCP’s are required to do (e.g. the December 2013 “recording scores” changes). It was and is plain that the concern on these two appeals was with what had happened in 2011 and not with what Secretary of State decision makers or HCP’s are able to do after May or December 2013. In those circumstances, it was incumbent on the Secretary of State to file evidence relevant to 2011 (which he has at least done in terms of the individual decision makers’ witness statements), and he has had ample opportunity to do so.    

Secretary of State’ submissions and comments thereon  
75.	I intend no disrespect to the helpful submissions provided by counsel on behalf of RD and RW that I only address the submissions made by the Secretary of State. However my primary focus is on his submissions as I am rejecting them.

76.	The Secretary of State’s submissions understandably had to take account of the changed position since the first hearing, namely the evidence that his decision makers did not in fact score either RD or RW against the Schedule 2 descriptors. He argued that this did not matter and the decisions made were still lawful because they were assessments carried out by the decision makers based on HCP’s who had carried out the necessary scoring exercise. Moreover, the absence of a record of the scores against individual descriptors did not render the decision legally invalid. Lastly, even if the assessments were not compliant with regulation 19(2) of the ESA Regs, the decisions made were not void.

77.	Unpicking the first part of these submissions a little further, a central feature of it was the argument that the HCP’s in 2011 had followed the processes set out in the evidence of, and exhibited to, the witness statements of Ms McGuckin and Dr McDermott. For the reasons I have given above, I do not accept their evidence shows this to be the case.

78.	It was then argued, as I understood it in relation to both the first and second parts of the submissions, that regulation 19 of ESA Regs did not require that the particular score under any descriptor must be recorded in order to achieve the total of “at least” 15 points. This argument seemed to be trying to make two points.  First, the person applying the descriptors could reasonably go through them mentally, scoring as he goes along. I address this below under the duty on the Secretary of State to give reasons for his decision and what that entails in this statutory context. Second, that the statutory scheme allows the decision maker to stop going through the Schedule 2 descriptors when he first reaches the 15 point threshold, and therefore nothing in regulation 19 required him to set out each and every descriptor met. I do not accept this argument. In my judgment it is contrary to prior authority and the wording of the statutory scheme. The prior authority is CIB/5361/1997 where Mr Commissioner Howell QC (as he then was) rejected a similar argument and held that all applicable points had to be scored.  The words “at least” appeared equally in regulation 25 of the IFW Regs, which was the provision in play in CIB/5361/1997. Moreover, those words (in regulation 19(3) of the ESA Regs) are only in my judgment laying down the minimum points needed.  To read them as a cut-off beyond which the decision maker need not travel would be contrary to the terms of regulation 19(6) of the ESA Regs (and the words “only the descriptor with the highest score in respect of each activity which applies is to be counted”), and the need under regulation 19(2) of the ESA Regs to assess the extent to which a claimant is capable of performing the Schedule 2 activities.   

Upper Tribunal’s Decision and Reasoning  
  
79.	In my judgment the arguments of the Secretary of State fail for a number of inter-locking reasons.

80.	First, constitutionally responsibility for decision-making vests with the Secretary of State (through his decision makers) and no-one else: see section 8 SSA.  The function of deciding within the terms of the statutory scheme whether a person has limited capability for work is a decision the Secretary of State must make, that function being incapable of being contracted out under section 16 of the WRA.  He may seek evidence from others under regulations 21 and 23 of the ESA Regs so as to arrive at that decision, but the decision then made is his and his alone: paragraph [10] of MM and DM –v- SSWP [2013] UKUT 0259 (AAC). This principle and section 16 of the WRA speak against this decision-making function being delegated either formally or informally to an HCP. 

81.	Second, for the reasons given above in respect of the structure of the statutory scheme, in all cases where capability for work is in issue (as opposed to, for example, whether the claimant is in Great Britain (per section 1(3)(d) WRA), or has too much capital (per section 1(2)(b) and paragraph 6(1)(b) of Schedule 1 to the WRA)), a “basic condition” that has to be satisfied is whether the claimant has, or continues to have, “limited capability for work”.   The Secretary of State’s decision maker therefore must be satisfied that this test is met in each such case, and that critical entitlement test can only be addressed and answered by the decision maker “assessing the extent to which” a claimant is, or continues to be, “capable [or incapable] of performing the activities prescribed in Schedule 2” under regulation 19(2) of the ESA Regs.   However, it is quite clear on the evidence before me that in at least these two cases this essential entitlement test was not carried out by either of the Secretary of State decision-makers.          

82.	Nor am I satisfied on all that has been placed before me that the decision makers had the ability to scrutinise effectively the HCP’s advice so as to make the required assessment under regulation 19(2) of the ESA Regs. To start with, the either non-existent or close to non-existent evidence of decision-makers ‘overturning’ HCP’s advice (referred to above in footnote 3, paragraph 58) is not persuasive evidence of decision makers exercising such an ability (for the reasons given in footnote 3). Secondly, the language used in Memo ADM 8/14 of April 2014 (paragraph 49 above) also in my judgment speaks against such a conclusion.  If decision makers had the ability themselves to carry out the required regulation 19(2) scoring exercise then I can see no need for the change needed to “enable the DM to record points scored” (my underling).               

83.	Another way of addressing this issue is to consider that the exercise of the decision making function requires the Secretary of States’ decision makers to be able to, and in fact, make findings of fact on issues central to entitlement. As Upper Tribunal Judge Jacobs put it in paragraph [20] of SSWP –v- RM (ESA) [2014] UKUT 0042 (ESA):

“Against this background of the decision-making process, it is possible to see how regulation 19(2) fits in. An assessment is, to summarise, an assessment of the extent to which a claimant’s physical and mental condition restricts or prevents performance of the activities in Schedule 2. That is something that requires findings of fact and they can only be made by the decision-maker. This leads to the conclusion that the assessment is undertaken, or at least completed, by the decision-maker, not the health care professional. It therefore follows that the determination on the basis of a limited capability for work assessment, to which regulation 19(1) refers, does not involve two separate stages.”

The Secretary of State agrees that the assessment of the “extent to which” under regulation 19(2) requires, as the matter of law, the claimant to be scored against the Schedule 2 descriptors (but all scoring descriptors, for the reasons given in paragraph 78 above), and the cumulative total ascertained.  I agree. These are therefore the critical findings of fact on a limited capability for work decision. However, I consider it telling that notwithstanding the passage of time and the provision of witness statements from the actual decision makers who made the ‘regulation 19 decisions’, no one has been able to put before me how RD or RW were in fact scored. (Nor, given the Secretary of State’s revised case, have the individual HCP’s being able to say how RD or RW were scored by them, even though it is the Secretary of State’s case that they were so scored.) 
         
84.	Moreover, it seems from all the evidence put before me relevant to decision making in 2011 that the approach taken to what regulation 19(2) of the ESA Regs requires was fundamentally flawed in that what was left out of account (and is noticeable in its omission from that evidence) was the very significant change in activities and descriptors that affected both RD’s and RW’s cases. Thus Mr Choudhury for the Secretary of State in his skeleton argument argued on RD’s case that “there had not been any substantial improvement so as to take him below the threshold score” as if the legal basis for the threshold score had remained the same and all that was relevant was changes in RD’s medical condition. On RW’s case the same flaw is apparent as it is stated in the Secretary of State’s argument “[a]s there was no substantial improvement in his condition, there was nothing to suggest that his score would have dropped below the 15 point threshold for ESA”: nothing except that all four of the previous scoring descriptors had either changed or disappeared altogether.
                              
85.	I can understand administratively the attractions in scrutiny cases of considering first whether the person meets the “support group” criteria (i.e. whether they have, or can be treated as having, limited capability for work-related activity), and then, if not, whether they continue to have limited capability for work. However, as I have already said, the central entitlement question under section 1(3)(a) of the WRA is whether the person has (or continues to have) limited capability for work. That, and the “extent to which” test under regulation 19(2) of the ESA Regs, must be addressed in all cases. The practice of focusing on the “support group” seems to me to have led, at least in the past, to a lack of focus on this crucial entitlement test.

86.	The duty to give reasons under regulation 28 of the DMA Regs is also highly relevant here.  I accept that the decision notice itself does not need to provide any reasons and so to that extent a decision maker may not need to record the basis for their decision at that stage.  However, the terms of regulation 28 plainly contemplate that reasons can and must be given if asked for. I fully accept that hard pressed decision makers exercising more of an administrative then judicial function will not be expected to provide a fully worked out set of reasons that one might expect to obtain in a statement of reasons from a First-tier Tribunal.  However, the statutory scheme requires that the Secretary of State’s decision makers are capable of giving some reasons – “a written statement of the reasons for the decision” - and it cannot in my judgment be correct in this context that that duty is somehow absolved simply because of the right of appeal to the First-tier Tribunal where more detailed reasons may be given: that would be to render the regulation 28 duty nugatory. 

87.	The key is for the reasons to be adequate in the context within which they are provided.  A number of features concerning the need for reasons and their adequacy are stressed in the caselaw.  Thus Mr Justice Sedley’s (as he then was) remarks in R-v- Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 W.L.R. 242, about the duty (or, here, possibility of needing) to give reasons “[concentrating] the decision-maker’s mind on the right questions; demonstrate to the recipient that this is so; show that the issues have been conscientiously addressed and how the result has been reached” are echoed in the House of Lords in Cullen –v- Chief Constable of the Royal Ulster Constabulary (Northern Ireland) [2003] UKHL 39; [2003] 1 WLR 1763 at paragraph [7] and The Independent Assessor –v- O’Brien and Hickey [2004] EWCA Civ 1035 at paragraph [77].  Albeit in different administrative decision making contexts and where there was no de novo right of appeal, it seems to me that the common, central feature where a duty to give reasons exists (as here) is for the reasons to show the decision-maker has conscientiously addressed the key question(s). 

88.	In my judgment, in the context of RD’s and RW’s cases that must mean at the reasons giving stage explaining why the person continues to have limited capability for work and that must entail the decision maker being able to explain the Schedule 2 scoring (i.e. the extent to which the decision maker has found the person to meet the Schedule 2 activities). At the stage of giving reasons under regulation 28 of the DMA Regs the decision maker is unlikely to know the claimant intends to appeal, nor indeed may the claimant have this intent at this stage (or at all), and there is no express linkage between the giving of reasons and the exercise of appeal rights.  At that stage, therefore, the reasons are not just explaining the issues the claimant may have “lost” on and a claimant can seek reasons even if they have no intention of challenging the decision. In that statutory context the regulation 28 duty must, in my judgment, encompass explaining adequately, albeit briefly, the regulation 19(2) scoring under Schedule 2.   Neither decision maker, however, has here been able to show themselves as capable of doing this, and that fundamental failing in my judgment renders the purported decision legally invalid because the decision makers are simply  unable to show how the central statutory test was met.

89.	The Secretary of State sought to make much of the fact that where such decisions are challenged on appeal the concern of most appellants will only be with establishing whether they come within the support group. I accept this is true. However, as noted immediately above, the statutory duty to give reasons in regulation 28 is not tied to the exercise of a right of appeal. It may inform whether the decision is worth challenging on appeal, but it is not so limited.  Further, as the decision of Judge Jacobs in AE –v- SSWP (ESA) [2014] UKUT 0005 (AAC), my decision in KW –v- SSWP (ESA) [2015] UKUT 131 (AAC) and the three judge panel’s decision in IM –v- SSWP (ESA) [2014] UKUT 412 (AAC) show, there may be a positive need on an appeal for the extent to which the appellant scores points under Schedule 2 to be considered in order to properly address whether they come within the support group, especially in the context of regulation 35(2) of the ESA Regs (see, for example, paragraph 113 of IM). At that stage, whether by regulation 28 of the DMA Regs or rule 24(4) of the TPR, this again would require the decision maker to explain how the central regulation 19(2) entitlement test was met, but the decision makers in these cases have shown themselves incapable of so doing.                                 

90.	This conclusion, in my judgment, also addresses the validity test under R(IB) 2/04. The Tribunal of Commissioners there stated, at paragraph 72 that:

“there may be some decisions made by the Secretary of State which have so little coherence or connection to legal powers that they do not amount to decisions …….at all”.

It was agreed before me that this was the correct test for me to adopt in respect of the two Secretary of State decisions in issue in these appeals. Another way of expressing the same test was described by the Tribunal of Commissioners in R(IB)7/04 as whether a decision is “so fundamentally flawed as to be inconsistent with any proper exercise of a legal power” (para. [18]). It seems to me that Lord Steyn in R –v- Soneji [2005] UKHL 49; [2006] 1 AC 340 was expressing a similar test when he spoke (at paragraph [23]) in terms of the test of statutory construction being whether the consequence of non-compliance ought, in terms of legislative intent, to lead to total invalidity.  

91.	In my judgment, applying any one of these three tests here comes to the same conclusion. The assessment of the “extent to which a claimant…is capable [or incapable] of performing the activities in Schedule 2” under regulation 19(2) is fundamental to properly deciding under section 1(3) of the WRA whether they have limited capability for work. It is evident that the decision makers in RD’s and RW’s cases did not carry out that assessment in fact nor were they capable of so doing (for the reasons I have given). In these circumstances the decisions in my judgment have so little connection to the central legal provision as not to amount to valid decisions at all. Put another way, the decision are so fundamentally flawed as to be inconsistent with any proper exercise of the Secretary of State’s decision making powers.  Or, to take the Soneji test, it seems to me that the legislation intends decision makers to make the regulation 19(2) assessment and a failure of the decision maker so to do renders the decision not a (valid) decision on limited capability for work at all.

92.	I should, however, refer to one concern of the Secretary of State’s which it seems to me was here misplaced. This was his view, and concern, that if the appeals were to be decided in the manner above then holding the decision made to be invalid or void would rob the First-tier Tribunal of any jurisdiction to entertain appeals against such decisions.  I do not accept this. It has long been accepted in the social security jurisdiction that where a purportedly valid decision has been made the First-tier Tribunal has sufficient jurisdiction to rule on whether that is so and therefore whether it has full jurisdiction on the appeal: see R(I) 7/94.  Therefore, the tribunals in these two appeals had jurisdiction to determine whether the decisions under appeal to them were valid of were so flawed as to need setting aside and remitted to the Secretary of State to be properly decided, and they erred in law in failing to properly exercise this jurisdiction. What the tribunals ought to have done was rule that the Secretary of State’s decisions of 28 November 2011 (RD) and 26 September 2011 (RW) were invalid and of no legal effect and set the two decisions aside, leaving it then to the Secretary of State to consider making fresh, proper decisions.                                          
              
93.	I should add and make clear that I consider the above conclusion holds good even if it was true that the individual HCP’s in RD’s and RW’s cases did in fact score them against the Schedule 2 descriptors but did not record that information. This is because, as is evident on these two cases, the decision makers were still unable to make any relevant findings of fact as to the extent of that score or explain the regulation 19(2) score adequately, and therefore, for the reasons I have endeavoured to explain above, both decision makers have failed to show that they properly carried out their section 8 or section 10 SSA decision making functions.  

94.	However, I am not in fact persuaded on the evidence that the individual HCP’s did in fact conduct the scoring exercise.  I say this for a number of reasons.

95.	First, for the reasons given above the evidence put before me as to training and file work Guidelines does not assist with the situation in 2011.

96.	Second, the only direct evidence from a decision maker on the ground about the practices of the HCP’s in 2011 (paragraph 65 above) was at best equivocal as to whether HCP’s carried out the necessary scoring exercise. It is firstly unclear whether his reference to the “Filework Guidance” was to its May 2013 version. More importantly, this more senior decision maker says the HCP’s did not in fact score against the individual Schedule 2 descriptors.  He does, I acknowledge, say that the HCP’s would go through the individual descriptors to determine whether the threshold was reached, but I find it difficult to see what that would amount to if no scoring is done, save perhaps to suggest only a general consideration of the activities.                  

97.	Third, despite the passage of time in these proceedings and the                                    time during which the Secretary of State was aware of his revised position, no attempt has been made to put before me the Schedule 2 scores the HCP’s in fact arrived at, notwithstanding that it is now the Secretary of State’s position (though not that of the appeals decision maker immediately above) that such a scoring exercise would in fact have been conducted (though not recorded).

98.	Fourth, as noted above, the detailed evidence of Ms McGuckin and Dr McDermott completely failed to refer to a crucial aspect of the “reassessment” scrutiny exercises for RD and RW, namely the very significant changes in the scoring descriptors. Their evidence does not satisfy me that in these two cases the HCP’s in fact went through the difficult scoring exercises required.  I need to unpack this a little further to show the importance of the changes in the descriptors.

99.	On RD’s case he had previously been assessed under the Schedule to the IFW Regs. The physical activities part of this Schedule is set out in the schedule to this decision. A comparison between it and the physical activities in the version of Schedule 2 to the ESA Regs in place from 28 March 2011 shows very significant changes.  I still do not know what the IB85 report for RD set out, nor do I even know when it was dated. Working back from his ESA50 form however, and focusing only on physical activities, RD said his walking ability over both 50 metres and 200 metres varied due to his pain. Assuming for the moment the test was now walking, and assuming no change in his functioning since the last IB85, that might have translated to him having been scored 15, 7 or 3 points under descriptors 1(c), 1(d) or 1(e) under the Schedule to the IFW Regs.  However, by November 2010 the test was not about walking but the ability to mobilise, which might involve the use of a manual wheelchair.  So points which may have been scored under activity 1 in the Schedule to the IFW Regs would not simply translate in November 2011 to activity 1 in Schedule 2 to the ESA Regs, even if there had been no change in function. Some care and scrutiny would therefore have been required of the ability to mobilise, which is wholly missing from the ESA85A.

100.	Take as another physical activity example for RD his claim in the ESA 50 form that he could not move from one seat to another on his own.  If true that would have awarded him 15 points under descriptor 2(a) in Schedule 2 to the ESA Regs in November 2011 and descriptor 2 in Schedule 3 (though that was not accepted by the HCP as he was not put into the “support group”).  That activity, however, had no equivalent in the Schedule to the IFW Regs, and so there can have been no read across there. (Similar considerations as to lack of read across between the Schedule to the IFW Regs and Schedule 2 to the ESA Regs apply to other physical descriptors put in issue by RD (e.g. “standing and sitting”, run together in the ESA Regs but were separately point scoring activities in the IFW Regs), and the mental health descriptors.)

101.	RW’s case may on the face of it have seemed easier to read across as the changes were within the ESA scheme. However a quick consideration of his case shows that the changes removed three of the four descriptors he had previously scored under and changed the other one (from walking to mobilising).  He had previously scored points under the pre-28 March 2011 version of Schedule 2 for: descriptor 1(d) (walking); descriptor 3(c) (bending or kneeling); descriptor 6(f) (manual dexterity - do up/undo small button); and descriptor 9(c) (vision – 50% or greater reduction of visual fields). However, by the time of the scrutiny decision: activity 3 had gone altogether from Schedule 2; the manual dexterity descriptor for buttons had also gone; the vision activity had become an activity concerned with navigation; and walking had become a test of mobilising. Even assuming no change in RW’s condition or “medical fact” (as used by Dr McDermott), and assuming that the 100 metre walking descriptor could read across to the new descriptor 1(c) to keep RW with 9 points, on the face of it the other 30 points he had accrued under the old Schedule 2 did not read across and had fallen away.                            

102.	The Secretary of State was unable to explain to me at the hearing when I put the discontinuities in the assessments to him how they had or would in fact have been resolved.  Manifestly the very significant changes of the bases of assessments for RD and RW would have called for very careful consideration. This is wholly lacking from the ESA85A’s and indeed the perspectives of Ms McGuckin and Dr McDermott.        

103.	There is also a stand back perspective to take to the case as now put by the Secretary of State that the HCP’s did in fact carry out the scoring exercise as required by regulation 19(2) of the ESA Regs in 2011 but made no record of it. The perspective is that in an era of audits, compliance requirements and transparency in processes, let alone if one adds in the focus of having to give reasons for decisions, I find the notion that HCP (or decision makers) scored “in their heads” in tens if not hundreds of thousand of cases but made no record of the score frankly astonishing, unsustainable and, I am afraid to say, not worthy of rational belief. It seems to me far more likely that the lack of any record is indicative of the fact that in 2011, at least in these two cases but perhaps others, no regulation 19(2) scoring exercise was in fact conducted by the HCP’s.

104.	It is for all these reasons that I have concluded that the fundamental regulation 19(2) ESA Regs “extent to which” scoring exercise was not conducted under either of the decisions purportedly made by the Secretary of State and those decisions were therefore invalid and of no legal effect.  Insofar as AC –v- SSWP (ESA) [2013] UKUT 0229 (AAC), arrived at a different conclusion on the same factual basis, I decline to follow it. However I rather think that the evidence (and argument) put before me is more extensive than Upper Tribunal Judge Warren had before him in AC.

105.	Finally, I should address, albeit briefly, the issues of fairness that concerned DTJ Street in RD’s case and Judge Warren in AC.  This was about the issue of First-tier Tribunals entering into consideration of a claimant’s score under the Schedule 2 descriptors on an appeal where the appellant is trying to get into the “support group” under either Schedule 3 to the ESA Regs or regulation 35(2) of those regulations. The decisions in AE and KW cited in paragraph 89 show that in certain circumstances it may be necessary for the proper disposal of the appeal for the First-tier Tribunal to enter into such enquiries about the points scored under Schedule 2. Further, the changes introduced since April 2014 under Memo ADM 8/14 ought to mean that on “support group” appeals the First-tier Tribunal will be aware of the points the Secretary of State’s decision maker has scored the appellant as meeting under Schedule 2. Accordingly, absent cases like AE and KW, the need for the First-tier Tribunal to enquire into the Schedule 2 points ought not to arise in most cases, and I would endorse in this respect what Judge Warren said in paragraph 14 of AC.                                                        

 
Signed (on the original) Stewart Wright
Judge of the Upper Tribunal
                                                                                                          
Dated 12th May 2015