Upper Tribunal (Administrative Appeals Chamber)

 

 

IN THE UPPER TRIBUNAL Appeal No.  CE/973/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge PA Gray

 

The decision of the Upper Tribunal is to allow the appeal.  The decision of the Manchester Tribunal made on 4 December 2012 under number SC 946/12/04968   was made in error of law.  under section 12 (2) (a) and (b) (ii) Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be referred by a fresh tribunal in accordance with the following directions.

 

Directions

 

1. The case will be relisted as an oral hearing before a freshly constituted First-Tier Tribunal. The submissions of the Secretary of State in this appeal should form part of the tribunal bundle together with this decision for the benefit of that tribunal.
2. The Secretary of State is to file evidence within 28 days of the issue of this decision as to what work related activity was in contemplation in respect of this appellant, and the level of expected engagement, at the date of the decision under appeal.
3. The appellant is to file any additional evidence within 28 days of the date of the issue of this decision; that is not to suggest further evidence is expected.  In order to be of relevance the evidence must shed light on how matters stood at the date of the original decision under appeal, 10/11/11.

 

 

In this decision I will initially identify the parties and explain the background to the appeal below, and to the Upper Tribunal.  I will outline the relevant statutory provisions and the arguments put forward on behalf of the appellant and the Secretary of State. I will deal with both the context and the importance of regulation 35 (2) (b) of the Employment and Support Allowance Regulations 2008 and the legal duty on the Secretary of State to provide some details as to what work related activities a given appellant might be called upon to engage in prior to a decision of the First-Tier Tribunal (FTT) on the applicability of that regulation.  I will deal with the practical difficulties of a FTT speculating upon such activities in the absence of evidence, and suggest approaches which an FTT may adopt to avoid the generally unsatisfactory path of adjourning the case once it is in front of the tribunal which is able to decide the issue.

 

 

REASONS FOR DECISION

 

 

 

1.               This matter concerned an award of Employment and Support Allowance to the appellant, following a decision made by the Secretary of State on 10/11/11 that, although she continued to be accepted as having Limited Capability for Work she did not have Limited Capability for Work Related Activities.  A medical examination was carried out on 4 November 2011.  This was curtailed, seemingly because sufficient points had been scored under the mental health descriptors to satisfy schedule 2.  The report indicated that it was thought that she did not satisfy any of the schedule 3 descriptors, and that there would not be a substantial risk to the mental or physical health of any person if she was found capable of work related activity. Following that advice the decision maker placed the appellant in the work related activity group on 11 November 2011. That decision was the subject of an appeal.  The First-Tier Tribunal heard the appeal on 4/12/12, and confirmed the decision of the Secretary of State. 

 

2.               The appellant has throughout been represented by Mr Pugh, a welfare rights officer from the Southway Housing Trust. Mr Pugh attended the tribunal hearing on 4/12/12 together with the appellant, and made submissions. He subsequently requested permission to appeal to the Upper Tribunal which I granted on 15/4/13.

 

3.               I do not need to go into detail about the appellant’s medical conditions. It is enough to explain that she suffered from mental health problems which led to her having difficulties getting around unaccompanied, and which, the FTT found as a fact, led her to behave "occasionally in an unreasonable manner when in the presence of other people". It was the nature of her mental health issues which put her into a potentially vulnerable position, making consideration of the non-functional descriptor essential.

 

4.               TheThe only issue before the FTT had been whether or not regulation 35 (2) of the Employment and Support Allowance Regulations applied; it was not contended that any of the Schedule 3 descriptors were satisfied. Regulation 35 reads as follows:

 

35 (2)  a claimant who does not have limited capability for work related activity as determined in accordance with regulation 34 (1) is to be treated as having Limited capability for work related activity if –

(a) the claimant suffers from some specific disease or bodily or mental disablement; and

(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person is the claimant were found not to have limited capability for work related activity.

 

5. Regulation 34 (1) relates to the satisfaction of one of the descriptors in schedule 3 of the ESA regulations, which demonstrates limited capability for work related activity, and confirms entry into the support group.

 

 

  6.

 

 

 

 

 

 

5.               The representative’s brief but cogent submission to the Upper Tribunal was that the appellant's behaviour should be considered in relation to work related activity in a similar way that it is considered in relation to work under regulation 29, the non-functional descriptor relevant in relation to limited capability for work.  

 

6.               On consideration of the papers, and in particular the statement of reasons of the FTT, I granted permission to appeal, and directed the Secretary of State to address the question of whether the FTT had sufficient evidence before it to justify its finding that

 

"If the appellant were to be found not to have limited capability for work related activity, she may be required to attend for occasional interviews and comply with any reasonable requirement made of her in that context. Any requirements would be tailored to her individual needs with a view to helping her move closer to work, and the demands, which would be made on her, would neither be frequent nor onerous". 

 

7.               I noted that Upper Tribunal Judge Jacobs in AH v Secretary of State for Work and Pensions [2013] UKUT 118 (AAC) decided that the Secretary of State must provide sufficient information about work-related activity for the claimant to present a case and the tribunal to make an informed decision. In this case there was no information as to what work related activity was in general, or might be for this appellant.

 

8.               The Secretary of State supports the view of the tribunal. He says that what the tribunal did was refer indirectly to the terms of regulation 55 of the ESA regulations, which set out the purpose of the work focused interview, and regulation 3 of the ESA (Work-Related Activity) Regulations, which specifies that work-related activity must be reasonable with regard to the claimant circumstances.  Further, that the tribunal was entitled to have regard to what the claimant had in fact been required to do when considering whether regulation 35 (2) applied.

 

9.               As to the principal ground of appeal put forward by the appellant's representative, the Secretary of State refutes the contention that similar arguments may be advanced in relation to regulation 35 as those within the regulation 29 parameters, pointing out that the consideration must concern not difficulties at work or on the journey to and from work, but with work related activities. The problem is that in this case, and it is not atypical, it is very hard for the FTT to know what work related activities may be expected of this appellant.

 

10.           I find support for the contention of the appellant's representative that the regulation 29 and 35 issues overlap, or at least that the considerations in respect of each are not mutually exclusive, in the decision of Upper Tribunal Judge Jacobs in AH –v- SSWP which I refer to above, in which he discusses the applicability of the test of the Court of Appeal in the case of Charlton v Secretary of State for Work and Pensions reported as R(IB) 2/09 in relation to regulation 35.  He said at paragraphs 25 and 26

 

 

"In other words, the paragraph applied not only to the immediate effect of the decision that the claimant was no longer entitled to incapacity benefit, but also to consequence of having to seek and then undertake work, including travel to work. That conclusion is equally applicable to both regulation 29(2) and regulation 35(2)."

 

26.       The Court then explained how to identify the type of work that had to be taken into account:

45. … The decision-maker must assess the range or type of work which a claimant is capable of performing sufficiently to assess the risk to health either to himself or to others.

Obviously, that is not directly applicable to regulation 35(2), which does not envisage the claimant working. However, the Court’s reasoning can be applied by analogy to the work-related activity. Translating the language of the judgment into terms of work-related activity comes to this:

The decision-maker must assess the range or type of work-related activity which a claimant is capable of performing and might be expected to undertake sufficiently to assess the risk to health either to himself or to others".

 

11.           I accept the submission of the appellant's representative on this issue. An assessment by the FTT of the range or type of work-related activity as set out by Judge Jacobs must be conducted on the basis of evidence.

 

12.           The view of this FTT is set out in the paragraph that I have quoted above from the statement of reasons. Rather than rely on evidence, the tribunal made certain assumptions as to what was to be expected of the appellant.  That statement went on "as previously stated, if the appellant were to be found not to have limited capability for work related activity she might be required to attend for occasional interviews and comply with any reasonable requirement is made of her in that context. Demands would therefore be neither frequent nor onerous. It seems to us, that there would be nothing to prevent her taking another adult with her when required to attend interviews if necessary".   The conclusion was that although she might find such activity stressful, that did not necessarily imply that it would represent a substantial risk to her health and regulation 35 (2) was found not to apply.  I will return briefly to the issue of another person accompanying the appellant below.

 

13.           The essence of the submission of the Secretary of State was that there was nothing in the regulations that specified what work-related activity a claimant may be required to undertake, and that lack of specificity allowed a flexible approach to be taken when considering what work-related activity claimant might be capable of undertaking.

 

14.           Whilst acknowledging the practicality of that view going forward, because people's conditions and abilities may change, I am less sympathetic to the argument that the work-related activities the appellant might have been expected to engage in at the time of the decision under appeal cannot be stated.   An integral part of the decision under appeal is that the appellant does not come within the provisions of regulation 35 (2), not having limited capability for work-related activity. Put another way they are able to engage in work-related activity. In order to exercise his judgement and make that decision the Secretary of State must have had some work related activity in contemplation. Upper Tribunal Judge Wright in  MN v Secretary of State for Work and Pensions [2013] UKUT 262 (AAC) considered the position of the Secretary of State in that regard at paragraph 20, saying

 

 "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."

 

15.           As to whether the tribunal could examine what the appellant had in fact been required to do by way of work-related activities, the tribunal, as a matter of law, must look at the position as it was at the date of the decision under appeal. Section 12 (8) (b) Social Security Act 1998  provides that the tribunal "shall not take into account any circumstances not obtaining at the time when the decision appeals against was made."  It is possible that what the appellant has been required to do pending appeal may shed light on the sort of activities that were in the contemplation of the Secretary of State at the date of the decision under appeal, however the practice seems to vary from case to case, perhaps from area to area, and in some cases no engagement is required pending appeal . Presumably that circumstance would not be reflective of the position at the date of decision.  In order for the appellant's experience since the date of the decision to be of use to the FTT there would need to be to be a statement in the response of the Secretary of State as to whether the approach to work-related activities taken pending appeal in this particular case reflected what would have been the activities in contemplation by the Secretary of State at the date of decision. This may go some way towards providing the evidence required for the tribunal, but it would not be sufficient in every case. For example the appellant may have no wish to attend at an oral hearing to give evidence as to what had been expected of them pending appeal.

 

16.           The submission finally invited me to await the outcome of another case in which a similar point was under consideration. That case has now been decided. It is numbered CE/3916/2012. This was a case in which the FTT took a similar, some might say pragmatic approach, assuming that work-related activity might involve "interviews, retraining or therapy". In that case the Deputy Upper Tribunal Judge was of the view that it was not inappropriate for the FTT to indicate some typical examples of work-related activity that were within their knowledge, and if they found that an appellant could safely undertake those activities then they would not fall within the provisions of regulation 35 (2).

 

17.           I am not convinced that is the appropriate approach. It seems to me to be looking at matters from the wrong end of the telescope. Even if there are aspects of work-related activity at the lower end of the scale, for example a telephone interview, that an appellant would be likely to be able to engage in without there being any substantial risk to their health (or that of others) that is insufficient to conclude that regulation 35 (2) (b) is not satisfied because the actual work-related activities which an appellant will be required to engage in may be of a very different order. In the Secretary of State's submission in CE/3916/2012 which was quoted from in that decision the following was put forward:

 

I would highlight the point that there are no specific descriptors in regulations that describe what WRA  a claimant may be required to undertake. This allows a flexible approach to be taken when considering what WRA claimant might be capable of undertaking. When drawing up the action plan with the claimant, the adviser takes into account the claimant circumstances including physical or mental health and any learning or cognitive issues, to ensure requirements reasonable and appropriate to that individual and help overcome the specific barrier to moving closer to employment -- work-related activities could include:

CV writing

confidence building course

Basic skills

participate in the basic literacy or numeracy courses

participating in English-language training

work experience

mandatory work placements for community benefit

 

This list is not exhaustive; there are other activities claimants may be required to undertake which would be discussed with the adviser to ensure it is flexible and tailored to an individual's circumstances.

 

18.           I observe initially the inclusion of work experience as part of this list. Departmental guidance as set out in the DMG Memo 41/12 at paragraph 4, was that claimants would not be required to undertake work experience as part of the work-related activity action plan, although they could participate on a voluntary basis. From 3 December 2012 work experience and work placements form part of work-related activities under section 13 (8) of the Welfare Reform Act 2007 inserted by section 55 of the Welfare Reform Act 2012. That would not have been the position for the appellant in CE/3916/2012 as the decision was made prior to that date.

 

19.           Even without that change the extensive list of what in fact does comprise work related activities, subject only to what a work adviser considers to be reasonable, reinforces my concerns as to the approach taken in the case of CE/3916/2012, and I will return to that below.

 

20.           The approach set out in the submission quoted in that case also seems to indicate that the recommendations or decisions as to these activities are made after the Secretary of State's decision on entitlement, and whilst I appreciate that there needs to be flexibility moving forward, as of the date of the decision these issues should have crystallised and been adjudicated upon.

 

Why is there no evidence of what work related activities may be suitable in a given case?

 

21.           Initially within the Work Capability Assessment framework it was intended that at the time of the medical examination by the healthcare professional a work-focused health-related assessment would also be carried out. Regulations 47 to 53 of the Employment and Support Allowance Regulations 2008 governed the process, which was to assess how any difficulties the claimant might have at work could be managed or alleviated. A copy of the work-focused health-related assessment (the WFHRA) was to be sent to the claimant and was to be used at any work-focused interviews. That process was suspended for a period of two years from July 19 2010.  In the letter of June 24 2010 notifying that suspension it was said that ongoing external evaluation had shown mixed results of the assessment. The two-year suspension was to afford an opportunity for the department to reconsider the assessment’s purpose and delivery, and to free up resources for the migration of those on incapacity benefit to ESA.

 

22.           The Employment and Support Allowance (Work-Related Activities) Regulations 2011, SI 1379/ came into force on 1 June 2011 and seemingly consolidated matters regarding the WFRHRA.  Regulation 3 is referred to in the submission of the Secretary of State in this case.  Regulation 8 of those regulations defines a failure determination  .  Regulation 11 revoked those regulations governing the WFHRA, Regulation 17 amending regulation 63 Employment and Support Allowance Regulations 2008 (a sanction provision) to substitute references to work-related activity for the previous requirement to attend a WFHRA. 

 

23.           The WFHRA would have gone a long way towards identifying what work-related activities may be suitable for the particular appellant under consideration.  Such a document would have been critical and often determinative evidence in the regulation 35 considerations of a FTT, being personal, concerned with the appellant’s health position at about the relevant time, and having been available to the decision maker at the time the entitlement decision was made.  It is hard to know, and I have not been given any assistance in this matter by the Secretary of State, upon what limitations and expectations the decision in this case was based. The WFRHA may have been a more germane part of the work capability assessment than was appreciated.

 

The importance of regulation 35

 

24.           Any claimant may, if they wish, engage in work related activities. In most cases it will be to the benefit of a claimant to discuss ways to improve their chances of ultimately obtaining employment and often participation in activities which reflect expectations at work will be helpful to establish the extent to which a person can cope with those expectations or where their limitations lie. These issues may then be addressed.   Difficulties may arise, however, where there is disagreement between the claimant and the adviser as to what activities they may safely be able to engage in, and at that stage there is no dispute resolution mechanism. The disagreement could end with a claimant being sanctioned. Only at that stage would there be the prospect of an appeal to establish whether there had been reasonable cause for any refusal to engage in work-related activities. From 3 December 2012 the sanction is 100% of the personal allowance, currently £71.70 a week, leaving the claimant only with the work-related component of £28.45 a week.  The sanction continues for each week that there is non-compliance with the requirement, and there is an additional fixed term of between one and four weeks depending upon whether there has been a previous sanction.  If the claimant chose to pursue a work-related activity about which they felt uncomfortable to avoid the threat of sanction, there may be a risk to health.

 

25.           Regulation 35 provides protection to an unusually vulnerable claimant against those circumstances occurring.  Within that protective cloak a claimant can agree to engage in certain activities but cannot be compelled to do so; conditionality does not apply. I would emphasise that this issue relates to a very small group of vulnerable people, essentially comprising those with significant mental health problems or learning difficulties. They are those who are the least likely to be able to challenge any sanctions.

 

What if, as in this case, the information is not before the FTT?

 

26.           Was this FTT able to make an assumption as to what work-related activities would be required of this appellant? 

 

27.           My answer to that question, and therefore the crux of my decision in this appeal, is no.  The identification of certain limited activities in which the appellant may be able to engage and the use of those findings to found a decision that regulation 35 (2) is not satisfied creates a situation whereby because the appellant is judged to be capable of carrying out some work related activities they are put into a position where there may be an assumption by an adviser that they could carry out any work related activity that was directed, with the consequent sanction risk.  That seems to me to perpetuate the mischief that regulation 35 is there to alleviate.  The requirement within the regulations that the work-related activity be "reasonable" does not cure the defect, because the issue of reasonableness is for the adviser, and there is no direct challenge to that judgement.

 

28.           In this case and in general, what is to be done if the FTT is faced with the problem of either no information or generalised information such as that set out in the Secretary of State's submission in CE/3916/2012?  The FTT may yet be able to fairly and justly deal with the appeal without adjourning for case specific information, an approach that would if replicated in sufficient numbers prolong the process to the detriment of appellants and cause logistical difficulties both for the DWP and HMCTS.

 

 

Is there a solution for the FTT?

 

29.           The options seem to me to be twofold. Each will result in subtly different legal outcomes.

 

30.           The FTT could make a decision that in the absence of specific evidence of what would be required of this particular appellant by way of engagement in work related activity the Secretary of State has not shown that, at the date of the decision and appeal, they did not have limited capability for work-related activities.  The provisions of regulation 35 (2) (b) then apply.  The Secretary of State could supersede that decision under regulation 6 (2) of the Social Security and Child Support Decisions and Appeals Regulations 1999, the grounds being either a change of circumstances under 6 (2) (a) (i) or error of material fact, 6 (2) (c) (i), or, after a three-month period under regulation 35 (5) of the Employment and Support Allowance Regulations. Either decision would provoke an appeal, in which an issue will again be as to what work-related activities can be accomplished without substantial risk.  Under rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 the Secretary of State must in that appeal set out his opposition to the appellant's case, stating the grounds. (MN v Secretary of State for Work and Pensions [2013] UKUT 262 (AAC)

 

31.           There are advantages in this approach for appellants over that of adjourning.  The current legal proceedings are concluded, generally of itself a relief. If the Secretary of State decides to supersede there is the protection of the appeals process, but he may not choose to supersede the tribunal decision; the way through to engagement in work related activities may be negotiated with the skills and good sense of an adviser without the element of compulsion that can cause considerable stress, particularly to those who must have significant functional impairment having been already found to have limited capability for work. In the words of Lords Neuberger and Toulson delivering the judgement of the court in R on the application of Reilly and another -v- Secretary Of State for Work and Pensions 2013 UKSC 68 at paragraph 64, (in the context of those without any limitations as to their capacity to work)  "For the individual, the discontinuance or threat of discontinuance of jobseeker’s allowance may self-evidently cause significant misery and suffering"  

 

32.           The alternative is really the obverse of that, and deals with what I see as the problem which may arise from the approach set out in CE/3916/2012.  The tribunal could make a decision stating in terms what work-related activities would not result in a substantial risk to the health of the appellant, also stating that more onerous commitments would be likely to result in substantial risk to the health of the appellant, or where relevant, of any other person. That differs from the decision of the FTT in this case, where the basis of their finding was that the appellant would only be asked to perform non-onerous activities, and that she could do. Would that decision, with such ‘conditional’ findings, bind the Secretary of State? It would be tribunal decision that contained specific findings of fact which the Secretary of State would need to make a fresh decision to overcome. This would be a supersession decision as above, and would carry rights of appeal; once again there would be an onus on the Secretary of State to provide information as set out previously.   For practical purposes following the appeal I would envisage a tribunal decision framed in those terms as carrying weight in the same way that, I understand, occurs where on appeal to a FTT the decision is that there is not limited capability for work, but some points are scored.  The findings of the FTT in relation to specific descriptors being applicable are taken into account by the job centre in the drafting of the job seeker's agreement and in relation to the expectation to apply for specific jobs.  It would seem reasonable for the findings of a tribunal as to which work-related activities or types of work-related activity an appellant could be expected to engage in without a substantial risk to their health or the health of others to be similarly acknowledged.

 

33.           I am not suggesting, of course, any sort of formulaic decision making.   The approach in every case will be dictated by its own particular facts and circumstances; however I adumbrate these options as possible approaches each of which may avoid either adjourning for further information or making a decision on assumptions in the absence of evidence which resulted in withholding the element of protection envisaged for the very vulnerable under regulation 35.

 

Other issues for the freshly constituted FTT

 

34.           The Secretary of State’s submission deals with some technical issues as to the history of the claim. They amount to the possibility of a previous award which included entry into the support group being erroneously based on somebody else's medical problems and not those of the appellant. These observations may be of some assistance to the tribunal which next hears the case, but I do not need to deal with those aspects in this decision.

 

35.           I do need to deal however with the observation of the FTT in its statement of reasons that the appellant could take another person with her to any work-related activities. It may be that the Secretary of State would be facilitative in any matter which helped a claimant engage so as to improve their ultimate prospects of retaining work.  I do not know.  Whether or not that is so, is not relevant.  As a matter of law any work-related activity which could only be accomplished because of the presence of another person must be looked upon as not being an activity that the claimant can carry out.  The issue under regulation 35 (2) (b) as to whether 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-related activity cannot be assessed as if the claimant under consideration had somebody else by their side. There will be claimants who have a need for the personal reassurance of another person, but who do not have anybody available to perform that role. Even if they did, it would not be reasonable for such an assessment to be made on the basis of reliance on another’s goodwill. Legal tests cannot depend upon that.  Where an appellant who is found to have limited capability for work-related activities wishes to engage voluntarily, it may be that they choose to do so with the help of another person, and it may (or may not, I do not know) be possible for them to do so, but the capacity to engage only with that assistance cannot be part of the test of capability. 

 

36.           I remit the appeal to the FTT accordingly.  The fact that the appellant has succeeded at this stage is no indication as to the final outcome.

 

 

 

 

 

 

(Signed on the original) PA Gray

 

Judge of the Upper Tribunal

 

5 November 2013