ESA-Use of Aids & Appliances (NEW)

New Case Law on use of Aids and Appliances

Any general queries post in the forum.

Please see below, an Upper Tier Ruling from June 2012, on whether it is Reasonable to expect a claimant to use a manual wheelchair unaided, with respect to Activity 1. (Mobilising) of the ESA WCA.

UT Ruling CSE/151/2012

bro58

Thanks Bro for posting this Upper Tribunal Decision.

It is good news for ESA appellants since the decision to appeal to the UT was agreed by a
Regional Tribunal Judge and supported by the Sec of State for Work & Pensions.

The following paragraphs from the full decision explains the UT's decision clearly :

8. The claimant’s grounds of appeal stated on document 81 are to the effect that the tribunal erred in law “by making insufficient findings of fact” in relation to the application of activity 1. Her representative elaborates that general submission in considerable detail on document 82 as follows:

“We consider the tribunal have erred in law by not finding facts in relation to the following pertinent questions –

1. Whether it has been suggested to the appellant by medical personnel that it would have been suitable/reasonable for her to use a wheelchair given her condition/rehabilitation needs at that point in time (i.e. whether it was medically suitable for her to use a wheelchair with respect to her ongoing recovery). The use of crutches may have been a necessary part of the appellant’s rehabilitation programme and undermined by wheelchair use. No questions appear to have been asked of the appellant about whether it had been suggested she could use a wheelchair instead of crutches by medical personnel and whether this was medically suitable.

2. Whether the appellant would, in reality, have access to a wheelchair given the nature of her condition and availability of wheelchairs by local providers. That is, would a wheelchair, in reality, be available to her?

3. The appellant lives in an upstairs tenement flat. No questions were asked as to whether a wheelchair would be practical/suitable for her from the point of view of her living arrangements.”

The Secretary of State’s submission writer in paragraph 1 of his submission on document 108 states:

“I agree entirely with the grounds of appeal”.

9. I hold that the claimant’s grounds of appeal are well founded. The proper approach of a tribunal applying the statutory text of activity 1 (reproduced in paragraph 6 above) is to treat the matter of reasonableness as one requiring a broad exercise of their independent judgement to all the factors which are relevant in each individual case. Those factors should not be restricted to a consideration of a claimant’s physical ability to use a manual wheelchair. I consider that paragraph 4 of the tribunal’s statement of reasons, reproduced in paragraph 7 above indicates that the tribunal thus restricted their consideration of the issue and accordingly erred in law. They should have explicitly considered at least the three issues expressly raised by the claimant’s representative in his grounds of appeal quoted in paragraph 8 above as well as the physical ability of the claimant. All of those three matters were, in my judgement, highly relevant to the application of activity 1 in the claimant’s situation. Indeed, in almost every case where the question of whether it is reasonable for a claimant to use a manual wheelchair arises those issues (or similar ones) should be considered. However, I must stress that the application of the text of the activity must always be on an individual basis.

10. I exercise my discretion in the claimant’s favour and set the tribunal’s decision aside on the basis of the error of law identified in paragraph 9 above. It is inappropriate for me to remake it because that requires a fresh factfinding exercise much better carried out by a tribunal with medical as well as purely legal expertise. I thus remit the case for redetermination by such tribunal in accordance with the directions contained in paragraph 11 below.

bro58 wrote: Please see below, an Upper Tier Ruling from June 2012, on whether it is Reasonable to expect a claimant to use a manual wheelchair unaided, with respect to Activity 1. (Mobilising) of the ESA WCA.

UT Ruling CSE/151/2012

bro58

Another ruling on this issue, from Northern Ireland :

MG-v-Department for Social Development (ESA) [2013] NICom 359.

bro58

Two recent UT Rulings on Activity 1. (Mobilising) :

2013 UKUT 408 AAC. (22/08/13)

&

2013 UKUT 417 AAC. (28/08/13)

Plus an associated thread from : Rightsnet

bro58