IN THE UPPER TRIBUNAL Case No  CE/691/2012

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:

I extend time so as to admit to consideration the application for permission to appeal received on 22 February 2012, a matter which I had previously reserved.

The appeal is allowed.  The decision of the First-tier Tribunal sitting at Shrewsbury on 26 September 2011 under reference SC002/11/01493 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 9 of the Reasons.

REASONS FOR DECISION

1. The application to the Upper Tribunal was made about two months late.  It appears that the claimant, mistakenly, was waiting for documents from the First-tier Tribunal before lodging his application with the Upper Tribunal.  Once he had got what he mistakenly thought he needed, he did move promptly.  The Secretary of State does not take any point based on delay and it is hard to see how there can be any prejudice to him if the application were to be admitted.  For the reasons set out below, the substance of the claimant’s appeal is strong.

2. The Secretary of State’s representative has expressed the view that the decision of the tribunal involved the making of an error on a point of law and has agreed to a rehearing.  The claimant, by making this appeal, has done the same.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

3. I have set the tribunal’s decision aside, because the tribunal failed to apply correctly regulation 29 of the Employment and Support Allowance Regulations 2008.  Under that regulation, so far as relevant:

“29.— Exceptional circumstances

(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) This paragraph applies if—

(a) …; or

(b) the claimant 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 the claimant were found not to have limited capability for work.”

4. The claimant, at the young age (for such a procedure) of 50, was awaiting operations for knee replacement to one or possibly both knees.  He had previously worked as a landscape gardener.  The case was dealt with on the papers.  The tribunal upheld the decision of the Secretary of State, taken under the more recent descriptors, to award 0 points. As regards exceptional circumstances, it merely observed that :

“Finally, the Tribunal concluded that there was no evidence to suggest that any of the exceptional circumstances applied such as to justify an award on circumstances where the points based requirement was not met. “

5. The decision of the Court of Appeal in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42; R(IB)2/09 identifies the correct approach (though the references are to the predecessor legislation to employment and support allowance, the principle is the same):

“39. The correct approach has been identified by Deputy Commissioner Paines in CIB/360/2007:

“17. The degree of detail in which [the consequences of a   finding that the claimant is capable of work] will need to be thought through will depend on the circumstances of the case. A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to   form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).

18. Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial.”

The “substantial risk” thus had to be assessed in the context of the range or type of work a claimant might be expected to do, but did not require the consideration of hypothetical jobseeker’s agreements or specific job descriptions.

6. As the Secretary of State accepts, there is no indication in the statement of reasons that the First-tier Tribunal gave any consideration to the range of work the claimant might be expected to do. Given his work background and his impaired knees, the answer was not self-evident.

7. It is an obvious point but nonetheless worth making that the more onerous the points-based regime becomes, the more cases are likely to require attention to be given to the terms of regulation 29, to which correct application by decision makers and tribunals of Charlton will be vital.

8. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

9. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (6 June 2011) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

10. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)

C.G.Ward

Judge of the Upper Tribunal

30 October 2012