WSOR that fails to include any details of testimony given by support worker in Tribunal

Hello all

We’ve just received a WSOR for a ESA case that was dealt with by oral hearing - appellant, rep and support worker for appellant all present. Support worker gave eloquent testimony to the fact that appellant could not self-propell wheelchair for 50 metres outside on level ground (hence social care package, three calls a day by carers etc etc)

No surprise to find in WSOR no mention whatsoever of the factual information provided by the support worker so the Tribunal concluded appellant could mobilise 50 metres so only 9 points awarded for inability to use steps.

Client has severe mobility issues hence need for wheelchair, I was astounded at Tribunal decision not to award 15 points but would welcome any and all suggestions to assist in challenging this WSOR from this particular Judge.

All common sense appears to have escaped me, plus its Friday…......

The issue you raise, of course, will be, has the tribunal made sufficient findings of fact on material issues.  Have you got the record of proceedings to prove that the support worker’s testimony was given?  If so then it should be straight forward to show where the tribunal has erred.  If you haven’t then you need to get it.  You can argue the point, and succeed, without the ROP but it will be much easier if you have it.

Further update and advice appreciated….......

Case now with UT following FTT accepting we made ‘an arguable point’ regarding the level ground test in descriptor 1(a)(ii) and the Tribunal’s interpretation of level “terrain” in WSOR.

The UT acknowledges there is no reference to level ground in respect of repeatedly mobilising and raised the query of does that mean any kind of obstacle can be taken into account? UT also queried if limits exist to the conditions envisaged by the test including mention of what are the limits and how can they be derived by principles of interpretation?

And now we have SoS respsone to the question raised…....

Their response appears to indicate that whilst having regard to the ‘significance of the omission’ of the words ‘on level ground’ it should be remembered that the point of the descriptor is to consider the ability of the appellant to ‘mobilise in a workplace which meets current requirements for access’..........

Apparently said omission was ‘not intended’ to infer that activity 1(a)(ii) ‘envisaged consideration of mobilisation, for instance, on hills or a steep gradient’ and further it was not ‘intended’ for any such difference between activities 1(a)(i) and 1(a)(ii)

The above is not the only bone of contention with this case as we have a RoP comprising around 190 words which was transformed into a WSOR in excess of 20 paragraphs…...

Your thoughts, input and advice very much welcomed!

I was due to have an oral UT hearing last month on exactly that issue but the client withdrew.

The whole point of “repeatedly” is recognition of the principle of reasonable regularity which applied to IB.  That principle ensured the assessment of incapacity included real world conditions.  It would be odd, therefore, if the artificial condition of “level ground” were then re-introduced into 1(a)(ii) etc.  Its omission from 1(a)(ii), especially when 1(a)(i) etc includes it, is surely intended for the above reasons.

The CA in Charlton held that the test for substantial risk must be considered in, amongst other things, the context of the journey to and from work.  I think the same must be true of the descriptors themselves unless the wording of a descriptor excludes that.

The variation in the approach of different Tribunal Judges is astounding and I assume we are not alone in seeing that?

Tom H - 14 May 2014 12:58 PM

I was due to have an oral UT hearing last month on exactly that issue but the client withdrew.

The whole point of “repeatedly” is recognition of the principle of reasonable regularity which applied to IB.  That principle ensured the assessment of incapacity included real world conditions.  It would be odd, therefore, if the artificial condition of “level ground” were then re-introduced into 1(a)(ii) etc.  Its omission from 1(a)(ii), especially when 1(a)(i) etc includes it, is surely intended for the above reasons.

The CA in Charlton held that the test for substantial risk must be considered in, amongst other things, the context of the journey to and from work.  I think the same must be true of the descriptors themselves unless the wording of a descriptor excludes that.

 

CIB/360/2007) indicates that a indicates that the Tribunal should firstly assess what type of work the claimant might be able to do and then assess whether doing such work would present a ‘substantial’ risk and although this is applied to Reg 29 might it also apply to the decision about the state of the ground the claimant is wheeling around on while they are at work. It is probably fairly ok to get in and out of most modern buildings in a wheelchair but its of no practical value if the user is neither qualified or able to work in an office with a nice flat floor and a lift to get them up the stairs

The Tribunal also declined to take into account the care package in place for the client…..not many prospective employers would be overly keen on taking on an individual with such substantive care needs.

No mention whatsoever in WSOR of how support worker could be on hand to facilitate a journey to and from work either…..

Yes Pete, of course, but the dept is contending here that the only environment that’s relevant to the test is the one in and around the workplace.  Whereas Charlton said yes the workplace is obviously important as is the range of work a person may reasonably be expected to do, but don’t overlook the journey.  Are the dept suggesting people can just materialise at the workplace? 

I was suggesting that reasonable regularity was developed by judges to ensure that the test was not divorced from reality. 

The Dept’s contention that the test doesn’t include big hills etc (they said exactly the same in my client’s case) was something I hadn’t intended disputing.  Instead, I felt what was said many years ago in relation to Mobility Allowance was still capable of informing the ESA test, whilst acknowledging that there are obviously some differences between the statutory wording governing each test, not the least of which is the fact that mobilising, as we know, is not restricted to walking.  R(M)1/91 put it this way at paras 8 & 9:

“8. It is clear from the wording of regulation 3(1)(b) that a claimant’s “ability to walk” is to be assessed by reference to “his ability to walk out of doors”. The significance of this is that the test should not proceed on the basis that his ability should be adjudged by reference to a surface as level as a billiard table. It is well known that surfaces indoors tend to be smoother and more even than those out of doors. Hence the specific statutory requirement that the ability to walk be tested by reference to the natural irregularities that have to be negotiated by anyone walking out of doors. However, in applying that test only reasonable conditions should be in contemplation. The test should obviously not be as to whether the claimant could walk on unploughed land or over unmade up roads or over pavements under repair by the Council. Many people who would on no basis regard themselves as being incapable of walking would be unable to negotiate those particular conditions. The test should be to select or envisage the kind of pavement or road which one would normally expect to find in the course of walking out of doors. The criterion is the type of surface which anyone walking out of doors would normally expect to encounter, any unusual hazards being disregarded. And the authority for determining what the test should be will be the medical appeal tribunal. They will determine whether the claimant is able to walk in the conditions envisaged. It will be for them to decide whether to test him over a specific track out of doors, or to judge his capacity in dealing with such a track from his walking indoors. It will be a matter for the medical expertise of the tribunal.

9. As regards the question of a claimant’s ability to negotiate “inclines”, it cannot be over stressed that the criterion is whether or not the claimant is unable or virtually unable to walk; the question is not whether he is unable or virtually unable to climb. The ability or otherwise to surmount hills or mountains has no relevance, in my judgement, to the question of whether or not a claimant is unable or virtually unable to walk. Of course, no pavement or road is absolutely flat. Some degree of “incline”, or for that matter “decline” must be contemplated. But once again the tribunal must envisage a reasonable outdoor track which will not be entirely level.”

I also want to make reference to CE/3642/2013 due to the fact very little of what the representative or support worker stated in support of the client’s case was actually recorded in the RoP or WSOR.

How I wish we could have hearings recorded….......

Is it worth including a reference to CI/2324/2008 regarding our argument that the reasons for the decision were inadequate as well as the mobilising repeatedly argument?

The tribunal is under no duty to deal with every point raised or deal with a point in fine detail.  It’s trite law that a short paragraph or even, depending on the issue, a sentence or two will suffice.  The important thing in giving reasons is that those reasons must give the appellant a clear understanding of why his case has failed and how the material evidence was treated.  Rop’s and Sor’s are not verbatim records of the evidence and findings but are summaries.  It’s always difficult to comment on individual cases, apart from glaring errors, without seeing the actual statement and appeal papers.

Appreciate your point.

We are rarely astounded by a RoP but in this case the lack of record was appalling given that three individuals gave evidence. The summation (if one can call it that) is non-existent. It is impossible to determine how some of the conclusions stated in the WSOR were reached from the RoP.

Then I would say go for it and give them all you’ve got.  What have you got to lose?