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

Decision: � The appeal is allowed.� I set aside the decision of the tribunal and remit the matter to be reheard by a new tribunal in accordance with the directions below.

This is an appeal with the permission of a Judge of the Upper Tribunal from a decision of the First-tier Tribunal dated 14 August 2012.� That decision dismissed the claimant�s appeal from a decision of the Secretary of State dated 27 February 2012 which superseded from and including 1 March 2012 an earlier decision awarding ESA.�

As, however, the tribunal awarded him no other points, and found no other basis on which he could be treated as having limited capacity for work, it dismissed his appeal.

The claimant has appealed from that decision on the grounds that the tribunal misdirected itself as to the continence descriptor, and as to the application of descriptor 17, relating to the claimant�s behaviour, and failed to make sufficient findings of fact or give adequate reasons for finding that there would not be a substantial risk to the claimant�s mental or physical health if he were found not to have limited capability for work or work-related activity.

The new descriptor thus requires not full evacuation or voiding but only extensive evacuation or voiding and that has to be sufficient to require cleaning and a change of clothes.� That must happen despite the presence of any aids or adaptations normally used.� In addition regulation 19(4) of the 2008 Regulations provides that in assessing the claimant�s capability to perform any activity listed in Part 1 of Schedule 2, he is to be assessed as if wearing any prosthesis with which he is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.