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Neutral Citation Number:	2011 UKUT 216 AAC
Reported Number:
File Number:	CE 1222 2010
Appellant:	KP
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	01/06/2011
Date Added:	29/06/2011
Main Category:	Employment and support allowance
Main Subcategory:	WCA: general
Secondary Category:	Employment and support allowance
Secondary Subcategory:	Pre 28.3.11. WCA activity 10: continence
Notes:	Reported as [2012] AACR 5. Employment and support allowance – work capability assessment – continence – inability to control full evacuation of the bowel Employment and support allowance – work capability assessment – mental cognitive and intellectual function assessment – whether restricted to incapability arising from mental illness or disablement The claimant suffered from irritable bowel syndrome and impaired concentration. In April 2009 the Secretary of State made a supersession decision that he was not entitled to employment and support allowance, following his completion of a questionnaire and an examination by an approved health care professional. He had stated on his questionnaire that he often had to go to the toilet 12 times a day and needed to be able to get to toilet facilities quickly, but that he could usually get to toilet without soiling. The only points-scoring descriptor identified in the health care professional’s report was “Risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel … if not able to reach a toilet quickly”, scoring six points: Employment and Support Allowance Regulations 2008 Schedule 2, unamended, paragraph 10(a)(vii). The claimant appealed and gave further evidence to the First-tier Tribunal. The tribunal confirmed the Secretary of State’s decision, re-affirming that descriptor 10(a)(vii) was appropriate and declining to consider any descriptor under paragraph 14 of Part 2 of Schedule 2 for loss of concentration, on the basis that his concentration was impaired because of physical difficulties and not through any mental disorder or mental illness. On his appeal to the Upper Tribunal he argued that there was evidence before the First-tier Tribunal indicating actual loss of control of the bowels and that the tribunal should have considered higher scoring descriptors for incontinence and also should have considered his concentration problems. The Secretary of State submitted that the higher continence descriptors required immediate, involuntary full evacuation of the bowel and there was no need for further explanation or investigation by the tribunal. The Secretary of State also supported the approach of the tribunal to the mental health descriptors on the basis that the descriptors under Part 2 referred to limitations on activities that stemmed from mental health problems. Held, allowing the appeal, that: 1. the evidence before the tribunal raised potential qualification for descriptor 10(a)(iii) or (v) and in failing to ask questions about how often the claimant was actually unable to control the full evacuation of his bowel the tribunal had erred in law (paragraph 9 to 13); 2. the focus must be on whether and how often the claimant actually is unable, as a result of his bodily disease or disablement, to control the full evacuation of the bowel and the relevant condition can be satisfied even though the claimant is able to exercise control for a certain amount of time (paragraph 14); 3. whereas the heading “Physical disablement” pointed to the underlying cause of the effect on physical function tested in the descriptors in Part 1 of Schedule 2, the heading “Mental, cognitive and intellectual function assessment” in Part 2 pointed to the nature of the function that is affected, regardless of the underlying cause, suggesting that if one of those functions is affected in a way that meets the terms of a descriptor there is no need to attempt to separate out mental and physical origins (paragraph 20); 4. regulation 19(5) of the Regulations merely provides that there is qualification for points under the whole of Schedule 2 only if the incapability to perform the activity in question arises from some specific bodily disease or disablement or some specific mental illness or disablement, and the interpretation contended for by the Secretary of State involved adding words to the Regulations, which could be justified only in cases of manifest absurdity or mistake or where there was a clear intention in the context of the Regulations as a whole that there should be an interpretation to that effect. The circumstances fell a long way short of that, and accordingly, the tribunal had failed to give an adequate reason for not looking further at the conditions of paragraph 14 of Schedule 2 (paragraph 20). The judge remitted the case to a differently constituted tribunal within the Social Entitlement Chamber of the First-tier Tribunal for reconsideration.
Decision(s) to Download:	[2012] AACR 5ws.doc