Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CIB/736/2009

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of an appeal tribunal sitting at Warrington on 1 October 2008. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal.

2. The background to this appeal is set out in my written determination dated 3 August 2009 giving permission to appeal, and I therefore do not repeat it here.

3. The ground on which I gave permission to appeal was that I considered it arguable that the Tribunal should in its Statement of Reasons specifically have considered and dealt with the question whether the Claimant should have been treated as incapable of work under “old” regulation 27(b) of the Social Security (Incapacity for Work)(General) Regulations 1995, which requires a person to be treated as incapable of work where he or she suffers from some bodily or mental disablement and by reason thereof “there would be a substantial risk to the mental or physical health of any person if he were found capable of work.”

4. The Secretary of State does not support the appeal, submitting that the Tribunal was entitled to accept the opinion of the examining doctor (p.43) that none of the exceptions in reg. 27 applied. However, the reasoning of the Tribunal does not in my judgment indicate that it applied its mind specifically to old reg 27(b). In my judgment it should have done, given the evidence of the Claimant, which I referred to in para. 5 of my determination of 3 August 2009, as to the effect on her of working, in one case for 20.25 hours in a week, and in another for 1.5 days consecutively. The Tribunal’s reasons do not make clear whether it specifically considered whether there would be a substantial risk to the Claimant’s mental or physical health if she were found capable of work.

5. The new tribunal will not necessarily have to assume that, if found capable of work, the Claimant would in practice have been compelled to be available for (and therefore accept, if offered) full-time work. Under reg. 13(3) of the Jobseeker’s Allowance Regulations 1996 a person may restrict his availability in any way provided the restrictions are reasonable in the light of his physical or mental condition. Thus, if the Tribunal were to conclude, for example, that, looking at the matter broadly, the Claimant could down to May 2008 (the date of the decision under appeal to the Tribunal), without substantial risk to her physical or mental health, have undertaken part-time employment for at least a reasonable number of hours per week, it will not find that reg. 27(b) applies, even if it were satisfied that she could not have undertaken full-time work without such a risk. What is a reasonable number of hours per week is a matter for the judgment of the tribunal. The primary factor must presumably be the existence of a real possibility of obtaining employment for that reduced working pattern. The tribunal will not, it seems to me, necessarily be required to assume that only full-time work is available.

6. In the present case the Claimant’s contention was in effect that at the relevant time she could not, without substantial risk to her health, have worked either for as much as 20 hours per week, or for two or more full days consecutively per week. If the new tribunal were to accept that, I imagine (although this must be a matter for it) that it would accept that there was no realistic prospect of the Claimant finding even regular part-time employment which would not be damaging to her health. If, on the other hand, it finds that the Claimant could consistently have worked for a substantial number of hours per week, albeit perhaps less than full-time, it would be open to it to find that there was work which was realistically available to the Claimant without substantial risk to her health. If the new tribunal finds that the Claimant would have been able to cope with full-time work without substantial risk to her health, that is of course the end of the matter.

7. The new tribunal will of course be entitled to have regard to the fact (p.89) that in March 2009 the Claimant obtained employment for 5 days a week, for 4 hours per day, in so far as the new tribunal considers that it throws light on her capability down to May 2008. It may wish to hear from the Claimant as to any adverse effects on her health.

Charles Turnbull

Judge of the Upper Tribunal

4 January 2010