ON APPEAL FROM UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
(SIR CRISPIN AGNEW OF LOCHNAW QC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
SIR RICHARD BUXTON
| THE SECRETARY OF STATE FOR WORK AND PENSIONS
|- and -
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Mr Mathew Gullick and Miss Caroline Stone, acting pro bono, appeared on behalf of the Respondent.
Crown Copyright ©
Sir Richard Buxton:
"A person who does not satisfy the all work test shall be treated as incapable of work if in the opinion of a doctor approved by the Secretary of State —
(a) he suffers from a previously undiagnosed potentially life-threatening condition; or
(b) he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work"
There then follows two further subsections with which we need not be concerned.
"We accepted Ms Cattrell as an honest witness. She told us that advice from the Jobcentre had been to switch from Jobseekers Allowance to Incapacity Benefit as the Centre could see no prospect of her getting work that would be reliably safe for her. If such work be found then Ms Cattrell was (and still would be) willing to do it but the Centre took the view that in practice there was none. It has to be remembered that rubber and latex products are prevalent and that potentially an allergic attack could have the most serious of consequences.
6. Looked at in a practical way the tribunal considered that regulation 27(b) applied. There would be a substantial risk to Ms Cattrell's physical health if found capable of work. She would then have actively to seek work without being able to obtain assurances of the absence of rubber/latex at (or in reaching) prospective places of employment. Her anxiety already high (she had obtained assurances of safety at the medical centre and the tribunal suite) would increase to the serious detriment of her mental health."
And paragraph 7:
"The fact that Ms Cattrell has today not suffered seriously from her allergy is on account of the measures which, reasonably in our view, she has taken for her safety."
"The Secretary of State complained that the respondent lived a relatively normal life which was inconsistent with the lower tribunal's finding that going to work would put her in serious danger."
"6. Although Charlton was not decided until after the tribunal's decision, I considered that they have in effect applied the correct test. While in the normal course a tribunal is required to identify 'range or types of work' that a claim [that should be claimant] can undertake, in the present case the tribunal has accepted the claimant's evidence that the Job Centre 'could see no prospect of her getting work that would be reliably safe for her' and that in practice there was no suitable work. This is not a case of assessing whether a particular form of work might be a substantial risk, but is a case where it is environment at the place of work and getting to that place that is the risk factor. The tribunal has found 'that rubber and latex products are prevalent and that potentially an allergic attack could have the most serious of consequence. This finding is adequately supported by the material produced by the claimant on latex allergies, which include extensive lists of latex products in all area of life and work. The tribunal has effectively found that there are no places of work, including getting to that work that is safe for the claimant.
7. The tribunal has then gone on to assess the health risks of a claimant and held that there was a substantial risk to the claimant's physical health if found capable of work. I consider that is supported by the material on latex allergies, which refers to the risk of an anaphylactic reaction that can come on quickly, even in persons who have only had minor reactions in the past. The tribunal has also found that the claimant 'has to date not suffered seriously from her allergy …[because]… of the measures which, reasonably in our view, she takes for her safety', which is a finding that accepts that in the work environment she may not be able to take those precautions. I therefore consider that the tribunal was entitled to apply Regulation 27(b).
8. In so far as the Secretary of State refers to the tribunal's findings being contradictory by referring to the claimant's high anxiety and then that 'there was no question of mental' health descriptors, I agree that there is contradiction. However, this is not fatal to the decision, because the decision on physical health cannot be impugned for the reasons given above."
I need not read any further in that paragraph; it deals with a point that will not now arise in this court.
"The Secretary of State submits that the Deputy Judge erred in law in the following respects:
(1) In CIB/3519/2002, Judge Rowland held that 'a risk may be 'substantial' within reg. 27(b) if the harm would be serious, even though it was unlikely to occur and, conversely, may not be 'substantial' if the harm be insignificant, even though the likelihood of some such harm is great.' It would appear that this is the approach which was applied by the FTT and the Deputy Judge, since in the claimant's case anaphylactic shock, although potentially serious, was very unlikely to occur. That approach was erroneous: on the ordinary use of language, and having regard to the exceptional nature of reg. 27(b), there cannot be 'a substantial risk' of harm if the harm in question is unlikely to occur (and certainly it is very unlikely to occur).
(2) The Deputy Judge failed to recognise that the FTT had no evidence before it to support the proposition that the claimant herself was at significant risk of an anaphylactic reaction. An anaphylactic reaction was a theoretical possibility but the claimant had never suffered any reaction and had never been prescribed and did not carry an adrenaline syringe for self-administration in an emergency. If the claimant herself did not consider an anaphylactic reaction to be a serious possibility in her day to day life, it should not have been accepted that she was unable to go to work because of that possibility.
(3) The Deputy Judge should have held that the reasons of the FTT were wholly inadequate to support the findings which it made. In particular, the FTT failed to explain why it was that the claimant was able to take sensible precautions in her day to day life, and so live relatively normally, but was unable to take such precautions in the work places and on the way to work. Given in particular the duty of employers under the Disability Discrimination Act to make reasonable adjustments to accommodate the medical needs of their employees, there was a pressing need for the FTT to explain why it believed that the claimant was exposed to substantial risks in the work places which she was unaffected by in her day to day life.
(4) The FTT's decision appears to have been based on hearsay evidence from the claimant that she had been told by a member of staff at Jobcentre Plus that there was no prospect of her getting work which would be reliably safe for her. The FTT appears to have accepted, without analysis, that that alleged statement was sufficient to found entitlement to benefit under Regulation 27(b). The Deputy Judge relied on that finding of the FTT. The FTT should have investigated for itself the issue of whether there was work which the claimant could safely do and given appropriate reasons for its finding that there was no such work. The FTT thereby failed to comply with the approach stipulated by the Court of Appeal in Charlton, a decision which was issued after that of the FTT. The Deputy Judge erred in law in upholding the FTT's approach in this regard.
(5) The finding of the deputy judge to the claimant 'may not be able to take those precautions' was insufficient to give to entitlement under reg. 27(b). The issue was whether, on the balance of probabilities, she would be able to take precautions such as to avoid a substantial risk to her physical health (including, if necessary, the precaution of carrying an adrenaline syringe)."
I interpose to say that those are also the grounds, in the same terms exactly, that are relied on before this court. The application to the Upper Tribunal went on in paragraph 6:
"Given the significant implications of the Deputy Judge's decision of entitlement to incapacity benefit of the many thousands of people suffering from allergies the Secretary of State submits that this case raises an important issue of principle or practice within Article 2A of the appeals from the Upper Tribunal to the Court of Appeal Order 2008 and that an appeal would have a real prospect of success."
That was considered on paper by the judge of the Upper Tribunal, who simply wrote as follows:
"The Upper Tribunal has considered whether the proposed appeal would raise some important point of principle or practice Permission to appeal is granted."
"To reinstate the importance of the test in Charlton which the Secretary of State argued was not followed by the Upper Tribunal."
The actual dispute in Charlton was within a very narrow compass. Fairly obviously, before regulation 27 can bite there has to be shown a causal connection between the claimant's work and the risk of injury that it is claimed will follow from the claimant doing that work. The Commissioner in that case held that no link had been demonstrated. The claimant in that case had never worked, but the Commissioner held that he could if required to do so undertake some very basic manual work. That, the Commissioner found, would not cause a substantial risk to his health. The claimant appealed on the basis that the Commissioner should have been more specific as to the nature of the work involved. The Court of Appeal said that the Commissioner had done enough; his reasoning had been sufficient, and it was in that context that the Court of Appeal quoted with approval the approach of Deputy Commissioner Paines QC in an earlier case set out in paragraph 39 of the judgment of Moses LJ, in which the Commissioner said that regulation 27(b) requires one to start by identifying the disease or disablement. The next stage is to consider the nature of any health risks posed by that disease or disablement in the context of the places that that claimant might find himself in, with a view to asking whether any such risk is substantial.
" While in the normal course a tribunal is required to identify 'range or types of work' that a claim [that should be claimant] can undertake, in the present case the tribunal has accepted the claimant's evidence that the Job Centre 'could see no prospect of her getting work that would be reliably safe for her' and that in practice there was no suitable work."
Lord Justice Patten:
Lord Justice Hughes:
Order: Appeal dismissed