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

Factual and Procedural Background

This opinion concerns an appeal by the Appellant against a decision of a First-tier Tribunal made on 10 February 2010 at Kettering. The First-tier Tribunal had dismissed the Appellant's appeal against a decision dated 12 August 2009, which superseded and removed the Appellant's award of employment and support allowance on the basis that the Appellant did not have limited capability for work according to the work capability assessment. The Appellant suffers from fibromyalgia, back pain, and carpal tunnel syndrome. The First-tier Tribunal upheld the Secretary of State's decision, which relied on medical advice that the Appellant scored no points on the physical activities assessed. The Appellant gave oral evidence and was represented by a welfare rights representative who also submitted written evidence.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law by wrongly assessing the credibility of the Appellant's evidence, particularly regarding her ability to bend down.
2. Whether the First-tier Tribunal should have considered evidence relating to the Appellant's prior award of the higher rate of the mobility component of disability living allowance.
3. Whether the First-tier Tribunal failed to address the applicability of regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 to the Appellant's case.
4. Whether the First-tier Tribunal incorrectly interpreted the relevance of the absence of a ‘sometimes’ descriptor in the current work capability assessment in relation to the Appellant's ability to repeatedly perform activities such as bending or kneeling.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that she could bend from the waist but could not squat or kneel due to pain and fatigue, and that her ability to perform these activities repeatedly was limited.
• The Appellant relied on her prior award of the higher rate of the mobility component of disability living allowance as evidence relevant to the work capability assessment.
• The Appellant's representative submitted that regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 applied to her case.
• The Appellant emphasized the importance of considering the ability to repeatedly and reliably undertake certain physical activities, including bending and kneeling, in the assessment.

Secretary of State's Arguments

• The Secretary of State's representative argued that the First-tier Tribunal was entitled to find the Appellant's evidence not credible based on identified inconsistencies.
• The Secretary of State submitted that the First-tier Tribunal could not have found the Appellant fell within regulation 29(2)(b) on the evidence before it.
• It was argued that the absence of a ‘sometimes’ descriptor in the current scheme meant repeated inability to perform activities like bending was excluded from scoring points.
• The Secretary of State contended that any error regarding the consideration of repetition of activities would have made no difference to the outcome, as the Appellant did not satisfy the relevant descriptors.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Judge of the Upper Tribunal found that the First-tier Tribunal erred in law for several reasons. Firstly, one of the two examples of inconsistency relied upon by the First-tier Tribunal to discredit the Appellant's evidence was misconceived, relating to an alleged claim that the Appellant could not bend down at all, which was not made. Secondly, the Tribunal should have obtained and considered the evidence supporting the Appellant's previous award of the higher rate of the mobility component of disability living allowance, as this was relevant to the work capability assessment. Thirdly, the Tribunal failed to expressly address the submission concerning regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008, despite the Appellant being entitled to a decision on that point. Finally, the Tribunal incorrectly interpreted the absence of a ‘sometimes’ descriptor in the current scheme as excluding the need to consider whether the Appellant could repeatedly perform activities such as bending or kneeling. The Judge explained that while there is no descriptor for sometimes being unable to perform an activity, the decision-maker must still consider the claimant’s ability to perform the activity with some degree of repetition, especially where fatigue might cause disabling effects. The error could have affected the outcome given the Appellant’s reported fatigue and its impact on her ability to repeat activities.

Holding and Implications

The appeal is ALLOWED. The decision of the First-tier Tribunal is set aside and the matter is remitted for redetermination by a differently constituted First-tier Tribunal. The Secretary of State is ordered to provide, within one month, the evidence on which the Appellant's award of the higher rate of the mobility component of disability living allowance was based, to be added to the case papers. The new Tribunal will reconsider the appeal afresh, including the issues of credibility, relevant evidence, regulatory provisions, and the assessment of the Appellant’s ability to perform physical activities with repetition. No new precedent was established; the decision primarily rectifies procedural and legal errors in the prior Tribunal’s handling of the case.