Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CE/3477/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Stockport on 21.06.12 under reference SC944/12/00227 involved an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to decide whether the appellant was entitled to employment and support allowance with the support component from and including 30.11.11. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

 

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

 

 

DIRECTIONS

 

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

 

(1)            The new hearing will be at an oral hearing.

 

(2)           The appellant is reminded that the tribunal can only deal with her situation as it was down to 10 November 2011 and not any changes after that date.

 

(3)           If the appellant has any further evidence that she wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Liverpool Appeals Service Centre within one month of the date this decision is issued.

 

(4)           By no later than one month of the date of issue of this decision the Secretary of State must have lodged with the First-tier Tribunal a further appeal response that sets out (a) the precise statutory basis of the 10.11.11 decision that the appellant be treated as having limited capability for work, and (b) the work-related activity the appellant was found to be capable of without substantial risk to her or another person’s health.

 

(5)           The First-tier Tribunal should have regard to the points made below.

 

 

 

REASONS FOR DECISION

 

 

 

1.                This is an appeal by the claimant from a decision of the Stockport First-tier Tribunal (SEC) dated 21.06.12. I will refer to this from now on as “the tribunal”. The tribunal dismissed the claimant’s appeal from the Secretary of State for Work and Pension’s decision of 10.11.11. The Secretary of State’s decision of that date had converted the appellant’s award of incapacity benefit to an award of employment and support allowance (“ESA”) with the work-related activity component with effect from 30.11.11.

 

2.               The appellant’s appeal against this decision, dated 6.12.11, ranged across many areas. For present purposes it is necessary to highlight only the following.  First, the appellant said she should be in the support group.  Second, she asked how she could have been transferred onto ESA “as the ESA has not yet been approved by Parliament”.  Third, she referred to recently having been an in-patient in hospital where she had had “‘open’ (not keyhole) surgery requiring approx 30 clips.  An open wound was left to heal from the inside outwards and I continue to have the dressings changed on a regular basis by a District Nurse”.  Fourth, she referred to having been in hospital from the 12 to the 21^st of October 2011 for the said operation and a hernia repair.  On this basis it would appear that the appellant had been out of hospital for just under three weeks at the date of the Secretary of State’s decision. Fifth, she took issue (in point (12) of her grounds of appeal) with the assertion that she did not fall within regulation 35(2)(b) of the ESA Regs.

 

 

 

 

3.               The tribunal dismissed the appellant’s appeal on 21 June 2012.  In its Decision Notice of that date it said “we are satisfied that the appellant does not satisfy any of the descriptors in Schedule 3 of the [ESA Regs].  The appellant was at the date of the decision entitled to receive [ESA] during a period of post operative recovery”.

   

4.               Permission to appeal to the Upper Tribunal was refused in the first instance by a District Tribunal Judge on 31.08.12, however on the renewed application to the Upper Tribunal I granted the appellant permission to appeal on 15 November 2012.  I gave permission to appeal on the basis that it was arguable the tribunal had erred in law in the following respects.

 

“[The appellant] had raised in her appeal (page 8) whether she ought to have been “converted” over from incapacity benefit to employment and support allowance.  This is not addressed by the tribunal in the decision notice or the statement of reasons.  As this was an issue raised on the appeal, ought not the tribunal to have addressed it and set out its reasoning and findings on this issue and why the condition precedent to [the appellant] being assessed under the ESA scheme (i.e. conversion) was here satisfied?

 

The basis of the 10.11.11 decision under appeal (which is not in the papers) was that (page 39), [the appellant] was recovering from in-patient treatment and should therefore be treated as having limited capability for work.  The operation seemingly occurred on 12.10.11, when [the appellant] had her gall bladder removed.  The lack of the 10.11.11 decision and the lack of detail on page 39 hampers identifying on what basis the Secretary of State treated [the appellant] as having limited capability for work.  On the face of it, however, the only deeming provision that could have applied is regulation 29(2) of the ESA Regs 2008.  But if that is correct, then is it not arguable that the First-tier Tribunal ought to have said more about why, as at 10.11.11, regulation 35(2) of the ESA Regs was not satisfied by the appellant, given her post-operative state? Would that not have required the tribunal to address more fully what work related activity [the appellant] was likely to have to engage in and then how she would have engaged in it without substantial risk to herself?  And is it relevant in this context that the evidence taken by the tribunal from [the appellant], as recorded in the record of proceedings, seemingly was about what she was doing and was able to do at the time of the appeal hearing and not what she was able to do on or about 10.11.11”.

 

 

5.               The Secretary of State argues that the above constituted errors of law in the tribunal’s decision, in a submission on the appeal dated 31.01.13, and he asks for it to be remitted to the First-tier Tribunal to be re-decided.  That submission very usefully points out an error in my view that the only deeming provision was regulation 29(2)(b) of the ESA Regs and points out that the more likely deeming provision applied by the Secretary of State in his decision (and thus upheld by the tribunal) was instead regulation 25 of the ESA Regs. That regulation deals with hospital in-patients and, in effect, deems a person as having limited capability for work on a day of recovery from medical or other treatment in a hospital or similar institution.

 

6.               I am grateful to the Secretary of State’s representative for pointing this out, and apologise for my omission.  Given the language used on the ESA85A form I agree that it is most likely that the decision of 10.11.11 was made under regulation 25 of the ESA Regs and not regulation 29(2)(b).

 

7.               I add, if I may, that it is unsatisfactory that the precise legislative basis of the decision under appeal was not made clear in the appeal bundle, and that even now the Secretary of State’s representative is having to speculate as to the basis of the decision. The record of the decision is not in the appeal bundle. That should have referred to regulation 25 of the ESA Regs (if that was the regulation the decision was based on).  But as the decision was not present in the appeal bundle the Secretary of State ought to have made the basis of the decision clear in his appeal response to the First-tier Tribunal. I say this because rule 24(4)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “TPR”) imposes an obligation on the Secretary of State’s decision maker to provide with the response “a copy of any written record of the decision under challenge, and any statement of reasons for that decision, if they were not sent with the notice of appeal”.  There is no evidence that the closing words of this provision applied here, but rule 24(4)(b) of the TPR would seem to require these documents to be provided with appeal in any event. In circumstances where the actual record of decision is missing, and any reasons for it, it seems in my judgment that the requirements under the overriding objective in rule 2(4) of the TPR to help the tribunal to further the overriding objective and co-operate with the tribunal generally should have led the response writer to fill the hole left by the absence of the decision (and the reasons for it) under rule 24(4)(a) of the TPR by explaining in the response the basis of the 10.11.11 decision (including which regulation(s) it had been made under).

 

8.               The appellant in her observations in reply of 7.03.13 makes extensive reference to facts of her case, concedes that she is not fully conversant with the finer points of law, and ask for an oral hearing of her appeal to the Upper Tribunal “in case there are any questions that need answering”.

 

Oral hearing

 

9.               It may be that the appellant remains under a misapprehension (which I sought to correct when I gave permission to appeal) as to the function of the Upper Tribunal when deciding an appeal. Its function is not to rehear and re-decide the appeal on the facts.  The Upper Tribunal’s function is to decide whether the tribunal below erred in law.  In these circumstances, and given that there are no questions that the Upper Tribunal needs answering, I refuse the appellant’s request for an oral hearing of this appeal to the Upper Tribunal. Her appeal will, however, be the subject of fresh hearing before the First-tier Tribunal where the appellant will be able to attend and where all facts relevant to her ability to engage in work related activity (without substantial risk to her health) as at 10 November 2011 will have to be considered.  The evidence the appellant sets out on pages 122-133 may well be relevant at that stage.

 

 

Conversion

 

10.            I agree with the Secretary of State that although the tribunal erred in law in not addressing in its reason why the appellant was eligible to be converted from incapacity benefit to ESA, that error in reasoning alone would not have been sufficient to merit the tribunal’s decision being set aside.  This is because I could address in this decision the concerns the appellant raises about the conversion process.  For example, her concern about ESA not having been approved by Parliament by December 2011 (page 8) is misplaced and simply wrong.  ESA was introduced as a benefit under the Welfare Reform Act 2007 and in the 2008 ESA Regs.

 

11.             In any event, the wider legal arguments on the validity of the conversion notices (in this case it is asserted that such a notice was provided to the appellant on 20.08.11), have recently been addressed and rejected by a Three Judge Panel of the Upper Tribunal in JM-v- SSWP (ESA) [2013] UKUT 234 (AAC). As the appeal has to go back to another First-tier Tribunal in any event, it seems to me that the sensible course to take is to leave it to the appellant to raise with (if she still wishes) that tribunal any arguments about the conversion process in the light of my comments above and the decision in JM.

 

Regulation 35(2)(b) ESA Regs

 

12.            The critical error of law in the tribunal’s decision is the failure of the tribunal to give adequate reasons as to why it found that some four weeks after her operation there was no substantial risk to the appellant’s (or another’s) health in her engaging in work-related activity. I am satisfied from consideration of the record of proceedings that – as the Secretary of State agrees – the tribunal failed in its questioning of the appellant to focus on how she was in or around November 2011, or at least it failed to explain adequately how and why the evidence it took from the appellant was relevant to her situation in November 2011.

 

13.            There is, however, a related but equally important error and that concerns the failure of the tribunal to identify, to use the words of Upper Tribunal Jacobs in paragraph [26] of AH –v- SSWP [2013] UKUT 118 (AAC) “the range or type of work-related activity which [the appellant] was capable of performing and might be expected to undertake sufficiently to assess the risk to health either to h[er]self or to others”, applying Charlton –v- SSWP (R(IB)2/09) to regulation 35(2) of the ESA Regs .  I respectfully adopt and agree with all that Judge Jacobs says in AH.  That error was fundamental  because without establishing that range of work-related activity there was nothing against which to assess the regulation 35(2) risk.

 

14.            However, the tribunal was not aided in this task by the failure of the  Secretary of State to provide it with any useful  information as to what work-related activity was for the appellant in November 2011 which she was capable of engaging in, or undertaking, without substantial risk to herself or others.  All the Secretary of State told the tribunal about the application of regulation 35(2) of the ESA Regs to the appellant’s case is contained in paragraphs 5 and 6 of Section 5: The response of his appeal response.  Neither paragraph, however, explains what work-related activity in fact is, either generally or for this particular appellant. Consideration of the evidence before the tribunal did not explain what work-related activity was either: the form ESA85A merely repeats the key words of regulation 35(2) of the ESA Regs. And, as I have said earlier, the actual decision is nowhere to be seen.

 

15.            The Secretary of State’s omission of this highly relevant information from the information he put before the tribunal was a mistake and a serious breach of his duties to that tribunal.  As Judge Jacobs pointed out in paragraph [28] of AH, the evidence on work-related activity can only come from the Secretary of State.  I also agree, subject to one slight caveat, with what Judge Jacobs said at paragraph [15] of ML –v- SSWP [2013] UKUT 174 (AAC):

 

“Despite having dealt with numerous cases involving the support group, I still have no idea of what work-related activities involves beyond the general, formulaic statements such as those I have quoted from the Secretary of State’s argument. I accept that it is not possible to say in advance what precisely would be expected of any particular claimant. However, it must be possible to give a sufficient indication of what is involved in order to allow a claimant to provide evidence and argument, and to allow a tribunal to make a decision. The decision whether or not a claimant satisfies the conditions for the support group carries the right of appeal to the First-tier Tribunal under section 12 of the Social Security Act 1998. It is not one of those decisions that are excluded from the right of appeal. The existence of a statutory right of appeal requires that it must be effective. It cannot be effective without the necessary information for claimants to participate in the appeal and for the tribunal to make a decision”.

 

16.            My caveat is based on two considerations. First, it may well be that in most cases a general indication of what is involved in work-related activity may suffice to meet the Charlton/AH test of “the range or type of work-related activity which [the appellant] is capable of performing and might be expected to undertake” so as to allow the First-tier Tribunal to assess (a) whether the appellant is capable of performing those activities, and (b) if he is, any risks associated with his so doing. However, in particular cases more specific information may be required.  For example, what might be thought of as a standard work-related activity of attending an interview at a Jobcentre might not be an activity that a severely agoraphobic and anxious person who has scored 15 points under descriptors 15(b) and 16(c) of Schedule 2 to the ESA Regs is capable of undertaking, and more tailored work-related activity may be needed.

 

17.            The second consideration arises from the fact that on this appeal the appellant had expressly raised as a ground of appeal whether she came within regulation 35(2) of the ESA Regs (see point (12) in her letter of appeal on page 10), and the Secretary of State had accepted this was an issue raised by the appeal (as he had addressed regulation 35(2), however inadequately, in his appeal response). In these circumstances rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 (the “TPR”) placed the Secretary of State under a mandatory obligation to say whether he opposed the appellant’s case on regulation 35(2) and, as he did, state “any grounds for such opposition which are not set out in documents which are before the Tribunal”.

 

18.            As I have noted already, none of the documents before the tribunal addressed work-related activity either in a general sense contemplated by Judge Jacobs in ML above or in the more specific sense of the work-related activity the Secretary of State contended the appellant was capable of performing and might be expected to undertake.  Nor do the documents state the grounds why the Secretary of State considered the appellant’s (or another’s) health would not be at substantial risk if she undertook such activity (an omission which follows as a matter of logic from the fact that no work-related activity had been identified to measure the health risk against).

 

19.            In these circumstances rule 24(2)(e) of the TPR in my judgment obliged the Secretary of State to set out, in the written appeal response, his case on why the appellant did not come within regulation 35(2) of the ESA Regs, and his failure to do so in any meaningful way was a serious breach of his obligations under the TPR.  By “set out his case” I mean state his grounds for opposing the appellant coming within regulation 35(2), and that must, as far as I can see, per Charlton, AH and ML, have required him to:

 

(a) set out the range or type of work-related activity which the appellant was capable of performing and might have been expected to undertake, and

 

(b) explain why, on the evidence of the appellant’s situation some three weeks after her gall bladder had been removed, there would be no substantial risk to the appellant’s (or another’s) health if she were found not to have limited capability for work-related activity.

 

To this extent the information ought to relate to the specific appellant, and it ought to be information provided in advance (contra to paragraph 15 of ML), in the sense of being contained in the Secretary of State’s written response on the appeal.

 

20.           I fail to see why this amounts to an unusual or onerous burden given that the Secretary of State had already made a decision to the effect that the appellant did not come within regulation 35(2) and so must have addressed these matters already. This, it seems to me, must be the consequence of sections 2(3)(b) and 4(5)(b) of the Welfare Reform Act 2007 in this context (i.e. where the limited capability for work decision has in fact been made – SSWP-v-PT (ESA) UKUT 317 (AAC); [2012] AACR 17 addressing a differing context), which give as a condition of entitlement to the work-related activity component of ESA “that the claimant does not have limited capability for work-related activity”, and that condition in this context can only in my judgment be satisfied by an affirmative decision to that effect.

 

21.            Of course none of this discussion on rule 24 of the TPR concerns, directly, whether the appeal tribunal erred in law. However, I have addressed it in some detail because: (a) from the Upper Tribunal’s perspective from cases which come before it, it (and regulation 35(2) of the ESA Regs and “work-related activity” more generally) is an issue of general importance; (b) this decision may provide helpful guidance for the content of the Secretary of State’s appeal responses in future cases; (c) it is necessary to explain direction (4) above; and (d) it provides a further perspective on where the tribunal went wrong in law.

 

22.           Turning back to the tribunal, I have some considerable sympathy with the predicament it found itself in at the hearing given the absence of any useful information from the Secretary of State on work-related activity under regulation 35(2) of the ESA Regs.  But it was not obliged to decide the case there and then on 21.06.12.  Given what I have said above, it may have been that the most sensible course was to have adjourned the hearing so as to be provided with a supplementary response from the Secretary of State that properly addressed work-related activity and why there would be no substantial risk to the appellant from her engaging in such activity as at 10 November 2011.  Having chosen not to do that, however, and chosen to decide the appeal, it was incumbent on the tribunal to consider properly and determine all of the relevant regulation 35(2) issues, and the tribunal (through its reasoning) failed to do that here.

23.           It is for all these reasons that the tribunal’s decision dated 21.06.12 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law as set out above and once it has properly considered all the relevant evidence.

 

 

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 22^nd May 2013