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

For descriptors concerning social engagement, a specific mental illness or disablement need only be an effective cause of the claimant’s functional difficulty. It need not be the sole, root or primary cause. A tribunal must address relevant evidence of anxiety and, if it proposes to reject the existence of that condition, must act fairly by giving notice.

A finding that a claimant uses an iPad does not, without adequate reasoning, establish an ability to use a suitable keyboard or mouse. Under descriptors 4(a) and 4(b) of Schedule 2 to the Employment and Support Allowance Regulations 2008, a carton full of liquid is closed. The activity tests picking up and moving by use of the upper body and arms, rather than the ability to avoid spilling from an open container.

The appellant appealed against a decision of the First-tier Tribunal sitting at York on 21 April 2015 concerning entitlement to employment and support allowance. He had hyperkinetic syndrome, involving involuntary movements, and evidence also identified anxiety.

Permission was granted on three grounds. The first concerned the tribunal’s treatment of social engagement and anxiety. The second concerned its conclusion that use of an iPad meant that the appellant did not satisfy the manual-dexterity descriptor relating to a keyboard or mouse. The third raised a question of statutory construction: whether a half-litre or one-litre carton full of liquid in activity 4 of Schedule 2 to the Employment and Support Allowance Regulations 2008 was open or closed.

1. Appeal allowed. The First-tier Tribunal made material errors of law on social engagement and manual dexterity. Its decision was set aside and the appeal was remitted for a fresh oral hearing before a differently constituted First-tier Tribunal.

2. On activity 16, the tribunal had treated the appellant’s social-engagement difficulties as arising solely from his physical condition. It failed to address the separately identified condition of anxiety. Under regulation 19(5)(b) of the Employment and Support Allowance Regulations 2008, anxiety need only be an effective cause of the relevant functional problem. It need not be its sole or primary cause. The tribunal had to consider the interaction between anxiety and hyperkinetic syndrome. If instead it had found that anxiety was not a specific mental illness or disablement, fairness required that the appellant be given notice of that issue.

3. On descriptor 5(d), the tribunal gave no adequate explanation for rejecting the claimed inability to use a suitable keyboard or mouse. Use of an iPad did not, without more, demonstrate an ability to use either device. The tribunal also failed to identify the other evidence on which it relied, to address evidence suggesting difficulty with small buttons, and to explore why the appellant had sold his laptop.

4. The tribunal did not err in law in disregarding spilling for descriptors 4(a) and 4(b). Construed in their statutory context, a carton full of liquid is a closed carton. The descriptors assess the ability to pick up and move or transfer an object by use of the upper body and arms. They do not assess the manner of performing the movement, such as steadiness or avoiding spillage from an open container. A different question may arise where involuntary movements cause the object to be dropped or randomly thrown so that the activity cannot reasonably be performed at all.

5. The fresh tribunal must decide the facts as at 18 November 2014 and consider all relevant evidence. Success on the error-of-law appeal did not determine the merits of the appellant’s underlying entitlement.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for material errors of law, and remitted the case for a fresh hearing.
• First-tier Tribunal, York: on 21 April 2015 rejected the appellant’s appeal concerning employment and support allowance.