Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/1652/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is dismissed.   

REASONS FOR DECISION

1.     This is an appeal with the permission of a District Tribunal Judge from a decision of the First-tier Tribunal dated 9 January 2013 allowing an appeal from a decision of a decision maker superseding an award of ESA following a medical examination.  The tribunal found that the claimant was entitled ESA with the work related component because, although he failed to score points under schedule 2 to the Employment and Support Allowance Regulations 2008 (the 2008 Regulations), regulation 29 of those Regulations applied.  The essence of this appeal is that the claimant contends that in addition, by virtue of regulation 35 of those Regulations, the tribunal should have found that he had limited capability for work-related activity.

2.     The claimant was born in October 1951.  At 25 April 2012, the date of the decision of the decision maker, he was therefore over 60 years old.  He suffered from bronchiectasis, a chronic lung condition which left him prone to chest infections which, according to his GP’s letter 8 May 2012, if they continued at the rate they had occurred over the previous 18 months would result in his overall lung function deteriorating and his condition becoming more symptomatic.  The GP’s advice was that he had benefited from being away from work, and if he returned to work his condition could deteriorate.

3.     The tribunal accepted that evidence and found that there would be a substantial risk to the claimant’s health if he were found capable of work and that he was therefore to be treated as having limited capability for work by virtue of regulation 29(2)(b) of the 2008 Regulations.  There is a similar provision in regulation 35(2) of those Regulations, which reads:

“(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 if the claimant were found not to have limited capability for work-related activity.”

4.     The tribunal considered this as follows:

“The Tribunal considered what work related activity the appellant might be expected to carry out.  There is an absence in the Regulations of a definition of a work related activity.  However, the Tribunal did not consider that there would be a substantial risk to the appellant’s health caused by work related activity because that is likely to be a matter of attending interviews to consider his situation and what work he might be able to do.  Furthermore if the appellant at a particular time were asked to attend for work related activity whilst suffering from a chest infection would be able to rearrange such activity [sic].  As a result the Tribunal did not consider that the appellant satisfied Regulation 35.”

5.     Permission to appeal was given because guidance was sought from the Upper Tribunal with regard to the interrelation of regulations 29 and 35 of the 2008 Regulations.

6.     Regulation 29 requires a person to be treated as having limited capability for work in certain specified circumstances.  One of them is in substantially the same terms as regulation 35(2) except that the issue to be addressed by the decision maker or tribunal is the risk arising if the claimant were found not to have limited capability for work.

7.     It is self-evident that the consequences of being found not to have limited capability for work are not the same as being found not to have limited capability for work-related activity.  A person who is found not to have limited capability for work is likely to need to obtain jobseeker’s allowance if he or she is in need of benefits and must then take the steps necessary to seek work.  This can of itself have adverse consequences on the health of a claimant, particularly those with mental health problems (see IJ v SSWP, [2010] UKUT 408 (AAC) and CF v SSWP [2012] UKUT 29 (AAC).  There are also the consequences to be considered if work is obtained, as discussed by the Court of Appeal in Charlton v SSWP, [2009] EWCA Civ 42. 

8.     It is plain that a person who is in poor health and unduly prone to infections may be at extra risk of infection in the workplace.  It was consideration of that risk which led the tribunal in the present case to conclude that the claimant should be treated as having limited capability for work.

9.     With regard to the risk to health of being found not to have limited capability for work-related activity, it is also necessary for the tribunal to consider the consequences of such a finding in the individual case.  The tribunal in the present case observed that this is not made easier by the absence of any definition of work-related activity.  In fact there is a very broad definition which in this case is of assistance as appears below. .

The legislation

10. In order to consider the consequences of not being found to have limited capability for work-related activity, it is necessary to consider the statutory and regulatory provisions for somebody in that position.

11. The statutory provisions are contained in sections 9 to 16A of the Welfare Reform Act 2007 (the 2007 Act), although section 16A, relating to hardship payments, only came into force on 26 November 2012.  So far as that section is concerned, it illustrates that previously there will have been cases of hardship where the reduced amount payable by way of ESA where a person was not treated as incapable of work-related activity, and any risk of that hardship affecting a claimant’s health had to be taken into account under regulation 35(2).  Such cases will be less frequent in the light of the amendment to the 2007 Act and to the 2008 Regulations but will, no doubt, still occur.

12. With regard to the provisions in force at the time of the decision under appeal to the tribunal, section 9(1) of the 2007 Act provides that “whether a person’s capability for work-related activity is limited by his physical or mental condition, and if it is, whether the limitation is such that it is not reasonable to require him to undertake such activity shall be determined in accordance with regulations.”  The remaining provisions of section 9 set out the provisions which can be included in the regulations.  Section 11 provides for regulations in respect of work-related health-focused assessments by approved health care professionals of persons entitled to ESA but who are not in the support group.  The support group is defined in section 24(4) as those who have, or are treated as having, limited capability for work-related activity.  Regulations had been made for such assessments but the assessments were suspended in July 2010 and the regulations themselves were later repealed with effect from 1 June 2011.

13. Section 12(1) provides for regulations concerning work-focused interviews, defined in section 12(7) as interviews by the Secretary of State conducted for such purposes connected with getting the person interviewed into work, or keeping him in work, as may be prescribed.

14. It is only when one comes to section 13 that one arrives at work-related activity.  Section 13(1) provides as follows:

“Regulations may make provision for or in connection with imposing on a person who is subject to a requirement imposed under section 12(1) a requirement to undertake work-related activity in accordance with regulations as a condition of continuing to be entitled to the full amount payable to him in respect of an employment and support allowance apart from the regulations.” 

15. Work-related activity is defined in section 13(7) in relation to any person as “activity which makes it more likely that the person will obtain or remain in work or be able to do so”.  At the date of the decision under appeal there was no further definition, but section 13(8) expressly includes as an activity work experience or a work placement.  I observe that even with this express inclusion, the activity must be one which makes it more likely that the person will obtain or remain in work or be able to do so, so that if a person is patently not going to be able to obtain work at any stage, it is difficult to see how they could be required to carry out work-related activities.  So too, where somebody is already in a suitable apprenticeship or other unpaid work with a view to gaining work experience, the Secretary of State may sometimes find it difficult to show that requiring them to give up that work and undertake other work makes it more likely that they will obtain work or be able to do so.

16. What is also plain is that the initial work-focused interview cannot be a work-related activity, as work-related activities can only be required after that initial interview has occurred or been required.  The work-focused health assessment would also appear to be separate from the work-related activities both because it is dealt with separately and because it is an assessment and would not appear of itself to make it more likely that a claimant will obtain or remain in work or make that more likely.

17. Section 14 imposes a duty on the Secretary of State in prescribed circumstances to provide a person who is required to take part in a work-focused interview under section 12(1) with an action plan.  Section 14(3) includes provision for action plans for persons who are required to take part in work-related activity to contain particulars of the necessary activities.  The requirement for an action plan does not therefore mean that a person with an action plan necessarily has to take part in work-related activities, any more than a person who undergoes a work-focused interview has to take part in work-related activity afterwards.

18. Section 15 of the 2007 Act empowers the Secretary of State in prescribed circumstances to give directions as to what is and what is not to be regarded as a work-related activity.  Any such direction must be reasonable, must be included in a written action plan and may be varied or revoked subsequently.  Finally, section 16 provides for the Secretary of State to contract out the conduct of interviews, the provision of action plans and the giving of directions under sections 12, 14 and 15 of the Act.

19. Provisions as to work-focused interviews are contained in regulations 54 to 62 of the 2008 Regulations.  Not everybody can be required to take part in a work-focused interview.  I note that regulation 59 provides for the deferral of such an interview if it would not, at the time it was due to take place, have been of assistance to the claimant or if it was not appropriate in the circumstances. What is clear is that the tribunal was in error in treating such interviews as work-related activity.

20. Work-related activities are now dealt with by the Employment and Support Allowance Regulations 2011 (the 2011 Regulations).  Under regulation 3, the Secretary of State may require certain persons to undertake work-related activity as a condition of continuing to be entitled to the full amount of ESA payable to him.  In order for it to apply to the claimant in this case he must have been required to take part in, or have taken part in, one or more work-focused interviews pursuant to regulation 54 of the 2008 Regulations.  Regulation 3(4) provides that the requirement must be reasonable having regard to the claimant’s circumstances and must not require him to apply for a job or undertake work or undergo medical treatment.  It must also, in my judgment, be, in the words of section 13 of the 2007 Act an “activity which makes it more likely that the person will obtain or remain in work or be able to do so”. 

21. There are therefore two preconditions before any work-related activity can be called for.  First there must have been a requirement for the claimant to attend a work-focused interview.  The Secretary of State has a discretion as to whether to impose such a requirement.  Secondly, following such a requirement being imposed the Secretary of State has a further discretion as to whether to require the claimant to undertake such activity.

22. If and when those preconditions are satisfied, regulation 5 of the 2011 Regulations provides that the Secretary of State must notify the claimant of the requirement to undertake work-related activity by including the requirement in a written action plan given to the claimant.  This must specify the work-related activity which he has to undertake.  The requirement can be disapplied by regulation 6 if it would be unreasonable to require it at a particular time, and regulation 7 provides for a claimant to seek reconsideration of the action plan.

The case law

23. There are a number of recent decisions of the Upper Tribunal requiring the Secretary of State to provide sufficient information about work-related activity for the claimant to present a case and for the tribunal to make an informed decision.  In many cases, without establishing the range of work-related activity there is nothing against which to assess the regulation 35(2) risk (see AH v SSWP, [2013] UKUT 118 (AAC) (Judge Jacobs); CE/3477/2012 (Judge Wright);  MT v SSWP, [2013] 545 (AAC) (Judge Gray); and my own decision in AP v SSWP, [2013] 553 (AAC)).  There are considerable difficulties in many of those cases in obtaining adequate information from the Secretary of State in that (1) it is often the case on an otherwise successful appeal that the Secretary of State is relying on an assessment of the claimant’s problems very different from those found by the tribunal; (2) work-focused interviews may not take place until after the appeal process has completed; and (3) until such an interview is required or has occurred, the Secretary of State cannot require the claimant to undertake any work-related activity – he is under no obligation to prepare an action plan and it may be premature to prepare such a plan, although this should not prevent him from providing the tribunal, as part of the appeal process, with the best evidence he can where regulation 35 is likely to be in issue as to the sort of work-related activity he, or his contractor, has in mind for the claimant. 

24. Where the decision maker has decided that the claimant is entitled to ESA, the decision maker has been under a duty to consider regulation 35 and can be expected to provide reasons for the decision and the evidence on which it was based, although even in those cases the decision maker may have taken a different view of the claimant’s health problems from those found by the tribunal.  Where, as here, the decision under appeal is that a claimant is not entitled to ESA at all, there will have been no need for the decision maker to consider regulation 35, and there can have been no work-focused interview.

25. In AP v SSWP, I drew attention to the duty of the Secretary of State under regulation 2(4) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 to assist the tribunal in furthering the overriding objective and to assist the tribunal generally and under rule 24 of those rules to provide copies of all relevant documents in the possession of the decision maker.  However, with the contracting out of interviews and decisions on action plans, the relevant documents may not be with the decision maker and it may be necessary for the tribunal to give directions to the Secretary of State to produce documents, or provide evidence relevant to regulation 35 issues either before the hearing or when their relevance becomes apparent during it.  In appropriate cases a tribunal can determine that the claimant is entitled to ESA and give brief reasons for that decision and adjourn the question whether regulation 35(2) applies with directions for further evidence.

26. As pointed out by Judge Jacobs in AH v SSWP, [2013] UKUT 118 (AAC), at paragraph 31, however, there are cases where it is apparent that regulation 35(2) cannot apply.

Conclusion

27. In my judgment this is a case where it is apparent that regulation 35(2) cannot assist the claimant.  On the basis of the tribunal’s finding as to his health problems, there would seem to be no real possibility of his resuming work and it is difficult to see how any interview could come within the definition of work-focused interview in section 12(7) of the 2007 Act since, due to his ill health, there would seem to be no prospect of his getting into work.  For the same reason, there would not seem to be any work-related activity that the claimant could be required to do, in that, because of his health problems, there would be no activity which would make it even arguably more likely that he would be able to obtain work.

28. It follows that, on the basis of the tribunal’s findings of fact, there are no work-focused interviews or work-related activities that the Secretary of State could lawfully require the claimant to attend or undertake and that, in the absence of any other issue, there is no risk to his health as a result of not being found to have limited capability for work-related activity.  Accordingly he does not fall within regulation 35(2).

29. I also note that the effect of regulation 54(2) and (3) is that the claimant could only have been required to take part in a work-focused interview so long as he had not reached the age at which a woman of the same age would attain pensionable age.  The claimant reached that age on 6 March 2013.  I do not know whether he has been asked to attend a work-focused interview since the date of the tribunal’s decision, or, if so, when that was.  Nor do I know the practice as to work-focused interviews or the time scale within which they normally take place with a claimant of his age.  In the present case, of course, he could not have been required to attend any such interview before his successful appeal to the tribunal on 9 January 2013 and could not be required to undertake work-related activities, even if there were such activities that applied to him, after 6 March 2013.  While that may not affect the legal position, which must be looked at as at the date of the decision of the Secretary of State, for practical purposes such issues are now academic.

(signed) Michael Mark

Judge of the Upper Tribunal

17 December 2013