Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/811/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  1. The appeal is dismissed.   

REASONS FOR DECISION

1.     This is an appeal with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 17 October 2012 upholding a decision of a decision maker that the claimant’s existing award did not qualify for conversion into an award of ESA.   

2.     The claimant suffers from epilepsy, asthma, generalised arthritis, vertigo and depression.  He also stated that he was recovering from a stroke.  However, he was found by the decision maker to score no points in relation to the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008 (the 2008 Regulations), and that finding was upheld by the tribunal on appeal.

3.     The tribunal then considered whether the claimant could be treated as having limited capability for work under regulation 29 of the 2008 Regulations because by reason of the problems from which he suffered there would be a substantial risk to his mental or physical health if he were found not to have limited capability for work.  It found that despite his disabilities he would be able to manage the demands of basic unskilled non-manual work, such as basic administration work in an office or shop.  This might be work involving the use of a till and could be for 16 hours a week or more, and he would be able to manage the journey to and from such work.  He was able to use public transport.

4.     There is no direct challenge to any of the above findings, but the tribunal then went on as follows:

“The tribunal noted that any employer would be bound by the terms of the Equality Act to make reasonable adjustments to accommodate the impact of [the claimant’s] difficulties.  This could be, for example, adapted seating or more frequent breaks.  The tribunal did not consider that in this context the risks to his physical or mental health would be substantial should he be found fit for work.”

5.     I note that although the claimant was represented at the hearing, there is nothing in the record of the proceedings or the previous documentation to indicate that any reliance was being placed on regulation 29 by the claimant.  Nevertheless, it seeking, and obtaining, permission to appeal the only errors of law alleged on behalf of the claimant are said to have arisen from those final sentences in the reasons for the decision.

6.     It is first said that it was factually incorrect to say that any employer would be so bound because the claimant’s level of disability as determined by the tribunal would not allow him to meet the criteria of the Equality Act 2010 (the 2010 Act), so as to place such an obligation on an employer.

7.     No explanation is offered as to why A’s disabilities, as found by the tribunal, are not such as to impose on an employer an obligation imposed by the 2010 Act in relation to disabled persons.  A person has a disability for the purposes of the 2010 Act if he has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on that person’s abilities to carry out normal day-to-day activities (see s.6(1) of the 2010 Act).  The effect of an impairment is long-term under paragraph 2(1) of the First Schedule to the 2010 Act if it has lasted for at least 12 months and is likely to last either for a further 12 months or for the remainder of a person’s life.  As far as I am able to judge, all the claimant’s problems, with the possible exception of his recovery from a stroke, fall into that category.

8.     Under paragraph 5(1) of Schedule 1, an impairment is to be treated as having a substantial adverse effect on the ability of a person to carry out normal day-to-day activities if measures were being taken to treat or correct it and but for that it would be likely to have that effect.  Under paragraph 5(2), “measures” includes medical treatment and the use of a prosthesis or other aid.

9.     The medication identified by the approved disability analyst included medication for epilepsy at high dosage, medication for dizziness, medication for asthma and  mild and moderate painkillers, which would seem to be for the arthritis. 

10. The claimant had been in receipt of incapacity benefit since 1996 and there was evidence that his epilepsy and asthma were lifelong.  His depression was over 20 years old and he had in the past overdosed.  There was no evidence as to how long he had had the generalised arthritis or the vertigo.

11. The tribunal accepted that the claimant had problems walking but could repeatedly and regularly mobilise for 200 metres, taking his time and stopping after about that distance.  An inability because of physical impairment to walk more than 200 metres at a time, whether because of arthritis or asthma or a combination of both, does appear to me to be a substantial and long-term adverse effect of those conditions or one of them, although it may not be one that required any special provision by an employer in connection with the sort of job which the tribunal found the claimant could do.

12. The references by the tribunal to adaptive seating or more frequent breaks do appear to suggest that the tribunal had in mind problems sitting and standing at work despite its findings that the claimant could remain at a work station for over an hour without having to move away.  It is right that there is no clear finding that the claimant had any impairment which involved any substantial and long-term effect on his ability to sit and stand at a work station.  However, if there was no such problem, then he would be able to do the work identified by the tribunal without having to invoke the provisions of the 2010 Act.  It appears to me that the tribunal was saying no more than that any long-term problems the claimant might have had in doing the work because of his physical condition could be overcome by reasonable adjustments in this respect.

13. I am unable to see any merit in this ground of appeal.  Even now, the claimant has failed to explain what it would be that might pose a serious risk to his health because of the supposed absence of any duty to make reasonable adjustments, and I am unable to see any evidence of any such possibility that the tribunal should have investigated.

14. It is then said that if the tribunal had found that the claimant fell within section 6 and Schedule 1 of the 2010 Act, this was totally inconsistent with the award of no points under Schedule 2 to the 2008 Regulations.  I disagree.  In my judgment it is plain that a person can have physical and mental impairments which have a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities without any of them being so serious that he scored points under the Schedule 2 descriptors.  This is illustrated by the fact that the descriptors have now become so tight that many people with long term disabilities which easily qualified them for incapacity benefit do not qualify them for ESA.

15. In relation to a further point made on behalf of the claimant in reply to the submissions of the Secretary of State, it appears to me that the tribunal is bound, if relevant to an issue before it, to make a determination as to whether a person would be owed a duty by a potential or actual employer under the 2010 Act.  In particular, if the existence of such a duty is a prerequisite for there being no substantial risk to a claimant’s mental or physical health for the purposes of regulation 29, then plainly a finding must be made as to that duty.

16. In the present case, it appears to me that the tribunal may more accurately have found that there was no evidence of any such risk if the claimant was found not to have limited capability for work, but that if there was any long-term disability so serious as otherwise to pose such a risk, then the employer would be under a duty to make reasonable adjustments under section 20 of the 2010 Act.  However, it does not appear to me that, on the basis of the unchallenged findings of fact by the tribunal, it could have come to any decision other than to dismiss the appeal and it does not appear to me that there was any relevant error of law in its reasons.

(signed) Michael Mark

Judge of the Upper Tribunal

17 October 2013