Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/3732/2012

ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Attendances:

For the Appellant: Mr Huw James, Solicitor, DWP Solicitors’ Department

For the Respondent Mr John McKendrick, Welfare Rights Advisor, NORCAS

Decision:  This appeal by the Secretary of State succeeds.  My decision is that the decision of the First-tier tribunal involved the making of an error on a point of law.  I set aside the tribunal’s decision and re-make the decision under appeal by substituting for it my decision that the claimant was entitled to employment and support allowance at the rate payable during the assessment phase for the period from 13 December 2011 to 7 February 2012.

REASONS FOR DECISION

1. The initial period of an award of employment and support allowance (“ESA”) is called the ‘assessment phase’, during which a claimant receives an amount of benefit which is usually referred to as the ‘basic allowance’.  At the end of the assessment phase a claimant who satisfies the conditions of entitlement to ESA will become entitled in addition to either the support component or the work-related component. Regulation 4(1) of the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”) provides for the assessment phase to end 13 weeks after it begins, but that is subject to exceptions contained in regulation 4(2) of the 2008 Regulations.  The question in this case is how those exceptions apply in a case where no limited capability for work determination has been made before the end of the thirteen week period.

2. The claimant has anxiety, and on 26 September 2011 she was awarded ESA with effect from 14 September 2011.  No limited capability for work assessment was carried out either before the end of thirteen weeks from 14 September 2011, or indeed before the claim terminated altogether on 7 February 2012.  The tribunal held that the claimant’s assessment phase had ended on 13 December 2011 and that she therefore became entitled to the work-related component of ESA from 13 December 2011 until her claim ended.  The Secretary of State now appeals against that decision, with the permission of a district tribunal judge.

3. Regulation 30 of the 2008 Regulations provides for a person who supplies a doctor’s certificate in accordance with the Medical Evidence Regulations to be treated as having limited capability for work until the claimant’s actual capability has been determined, or it has been determined that the claimant is to be treated as having limited capability for work.  Under section 24(2)(a) of the Welfare Reform Act 2007, the assessment phase begins on the first day of entitlement to ESA.  Section 24(2)(b) provides that the assessment phase is to end on ‘such day as may be prescribed’, and regulation 4 of the 2008 Regulations provides:

“(1)  Subject to paragraph (2) and regulation 5 [which is not relevant in this case], the assessment phase in relation to a claimant ends on the last day of a period of 13 weeks beginning on the first day of the assessment phase as determined under section 24(2)(a) of the Act.

(2)  If at the end of the period of 13 weeks referred to in paragraph (1), it has not yet been determined whether the claimant has limited capability for work-

(a)  the claimant having been assessed in accordance with a limited capability for work assessment; or

(b)  as a result of the claimant being treated as having limited capability for work in accordance with regulation 20, 25, 26, 29 or regulation 33(2) (persons to be treated as having limited capability for work),

the assessment phase will end when the limited capability for work determination is made.”

4. The “limited capability for work assessment” is defined in regulation 2(1) as “the assessment of whether a person has limited capability for work as set out in regulation 19(2) and in Schedule 2”.  Under Regulation 20, claimants who are terminally ill, receiving chemotherapy or in certain other medical categories are treated as having limited capability for work, and therefore exempt from the limited capability for work assessment.  Regulations 25 and 26 provide for hospital in-patients and claimants receiving certain forms of medical treatment also to be treated as having limited capability for work.  Regulation 29 sets out the exceptional circumstances in which a person who does not have limited capability for work is to be treated as doing so and regulation 33(2) provides for certain disabled students to be treated as having limited capability for work for the purposes of determining their entitlement to income-related ESA.

5. Mr James submitted that on the proper construction of regulation 4 of the 2008 Regulations, the ‘assessment phase’ lasts for thirteen weeks if a limited capability for work determination has been made before the end of the thirteen week period or, if it has not been made before the end of that period, until the date when the determination is made.  He submitted that without a limited capability for work assessment having been carried out it would not be possible to decide whether the claimant should be awarded the support or the work-related component of ESA when the assessment phase came to an end.

6. Mr McKendrick originally argued that the effect of the failure to carry out a limited capability for work assessment before the end of the thirteen week period was that the claimant became entitled to the work-related activity component from the outset of her claim.  However, he later amended the grounds of appeal to the First-tier Tribunal  to argue that the claimant became entitled to the work-related activity component from 13 December 2011, when the thirteen week period ended, until her claim came to an end on 13 February 2012.

7. Mr McKendrick submitted that the effect of regulation 30 is to deem a claimant to have limited capability for work from the date of the claim.  Under regulation 4(1) of the 2008 Regulations, the assessment phase must come to an end after 13 weeks unless either sub-paragraph (2)(a) or (b) of regulation 4 applies.  Paragraph (2)(b) did not apply to the claimant because she was not eligible to be treated as having limited capability for work, and sub-paragraph 2(a) did not apply because the claimant had not been given a limited capability for work assessment before the end of the thirteen week period.  Mr McKendrick submitted that a construction of regulation 4 which had the effect of extending the assessment period beyond the thirteen week period to the date when a limited capability for work determination was made would allow the Secretary of State to profit from delay in arranging and carrying out medical examinations.

8 Although regulation 4 is poorly worded and is apparently in the process of being re-drafted, I am unable to accept Mr McKendrick’s submission.  If his argument is correct, all claimants would receive the work-related activity component at the end of the three month period, with the exception of those who have been given a limited capability for work assessment during the three month period, but without a limited capability for work determination having been made; or those claimants within paragraph 4(2)(b) who are treated as having limited capability for work without the need for an assessment.  I can see no reason why special provision should have been made penalising the small number of claimants who have been medically examined before the end of the three month period, but whose entitlement has not yet been determined. I see still less reason why claimants who are treated as having limited capability for work without the need for assessment, such as the terminally ill, should be in a worse position than other claimants in a similar position if for some reason no limited capability for work determination has been made before the end of the three month period.

9.  Although regulation 4(2)(a) refers to a claimant “having been assessed in accordance with a limited capability for work assessment”, in my judgement that condition must be read as obtaining at the time when the limited capability for work determination is made, referred to in the fall-out words of Regulation 4(2), rather than at the time when the three month period comes to an end.  Regulation 4(1) has the effect of making the assessment period last for the full three months if  a limited capability for work determination has been made before the end of the period, so that  all claimants who have been determined as having limited capability for work during the three month period are placed on an equal footing.  For all other claimants, the assessment period lasts until a limited capability for work determination has been made, either because they come within regulation 4(2)(a) by virtue of a limited capability for work assessment having taken place as the basis of the determination, or because they come within one of the provisions specified in regulation 4(2)(b) and are therefore exempt from assessment.  In other words, subject to exceptions in cases involving appeals, the assessment phase lasts until the end of the three month period, or until the determination that a claimant has (or is to be treated as having) limited capability for work, whichever is the later.

10. Mr McKendrick also submitted that, in addition to the original appeal, the tribunal were dealing with a refusal to supersede resulting from the Secretary of State’s refusal to accept his amended grounds of appeal.  However, since I have not accepted the contentions set out in the amended grounds, it is not necessary to consider that contention further.

11. For those reasons, I consider that the tribunal erred in law in holding the claimant to be entitled to the work-related component of ESA from 13 December 2011 until 7 February 2012, on the basis that the assessment phase ended on 13 December 2011.  I therefore give the substituted decision set out above. 

E A L BANO

24 September 2013