DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

This appeal by the claimant succeeds. Permission to appeal having been granted by me on 9 July 2013, in accordance with the provisions of section 12(2) (a) and (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 I set aside the decision of the First-tier Tribunal sitting at Fox Court and made on 15 October 2012 under reference SC 946/12/04820. I re-decide the appeal as follows:

The appeal against the decision of the Secretary of State dated 19 November 2011 is successful. That decision is set aside.  I substitute a decision that from 19 November 2011 the appellant has Limited Capability for Work Related Activities.  She satisfies regulation 35 Employment and Support Allowance Regulations 2008 and enters the Support Group from that date. 

REASONS

Background

1. The appellant had been in receipt of Incapacity Benefit from 1999 and a decision was made to convert that award into one of Employment and Support Allowance on 19 November 2011.
2. The relevant version of the descriptors under the Employment and Support Allowance Regulations 2008 (ESA regulations) applicable in the appellant’s case is those which were in force between March 28 2011 and 28 January 2013.  All references in this decision to regulations are to the ESA regulations.  
3. The award was on the basis that the appellant had Limited Capability for Work, but not Limited Capability for Work Related Activities.  An appeal was made against that decision.   The issue in the appeal was as to whether she should have been placed in the Support Group, and that is the only live issue in the case.  The appeal was heard on 15 October 2012, by the FTT sitting at Fox Court.
4. The FTT confirmed the decision under appeal, finding that no activity in schedule 3 was applicable to the appellant, and that regulation 35 did not apply to her either. 
5. I granted permission to appeal and directed submissions. I held an oral hearing on 25 February 2014 at which Mr Cooper represented the Secretary of State and Ms. Reid the appellant.  I am grateful to both of them for their submissions to me.

The position of the parties

6. In the Secretary of State’s written submission, which was not made by Mr Cooper, it was accepted that there had been an error of law on behalf of the tribunal  upon the basis of a lack of explanation in the statement of reasons in relation to regulation 35 Employment and Support Allowance Regulations 2008 but the contention was that I should make a decision myself supporting the decision that the appellant should be in the Work-Related Activity Group (WRAG).  At the hearing Mr Cooper submitted that this was not a case in which I should make the decision myself; the expertise of a medical member of the FTT was required, and I should therefore remit the case for a further hearing. 
7. Ms Reid was strongly of the view that the matter should end with me. I heard evidence from the appellant so that I could, if I felt it appropriate, remake the decision rather than remit.  Ms Reid argued for entry into the support group via regulation 35(2).

My decision to remake rather than remit

8. I have power to remake a decision under section 12 (2) (b) (ii) Tribunals Courts and Enforcement Act 2007; it is a discretionary power and in the exercise of that discretion I have considered the Tribunal Procedure (Upper Tribunal) Rules 2008.    Rule 2 states that the overriding objective of the rules is to enable the case to be dealt with fairly and justly.  This includes ensuring full participation in the proceedings, so far as is practicable,  and avoiding delay so far as that is compatible with proper consideration of the issues.
9. This case is now very old. The decision was made as long ago as 19 November 2011. I do not need to deal with the reasons for that delay, but any further delay is undesirable.  Although I do not have actual listing information, it is likely that some months would elapse prior to a rehearing. That would perpetuate anxiety for this appellant, who, for reasons which I detail below, is particularly vulnerable. 
10. The issue of her representation has been raised by Ms Reid.  She was unrepresented before the FTT and it was clear to me when I dealt with the application for permission to appeal that misunderstandings had occurred. I attempted to explain some of those in my ruling on that matter. I accept that she has had difficulty in finding representation since, and that Ms Reid’s involvement is limited to the appeal to the Upper Tribunal only. The problem would reassert itself in relation to representation at a rehearing by the FTT.  The appellant’s participation in the proceedings is better provided for by concluding matters here today whilst she is represented than at an FTT hearing where she may not obtain representation, and prior to which striving for such representation would cause her further anxiety.
11. I have concerns as to the effect on the appellant of having to attend another  hearing and give her account once again, and in particular the emotional difficulties that is likely to cause her both in relation to the practicalities of the hearing, given her evidence that making arrangements to attend at places on time is difficult for her, and that she may take some days to recover after a hearing such as this, and also as to the difficulty of having to rehearse the difficulties in her relationship with her young son.
12. I am satisfied that these matters which militate towards my making a decision outweigh the one factor in favour of remission, which is the possibility that the decision might be a more informed one if made by a panel which included a medical member.    

The basis upon which I am able to make a decision

13. I am able to decide the case on the evidence of the appellant, together with the papers which I have. 
14.  I accept that there has been no material change in the functional problems which her medical conditions cause.  The evidence informs me as to her health and functional ability as it was at the date of the original decision under appeal, 19 November 2011.  The provision set out in section 12(8) (b) Social Security Act 1998 which prevents me from considering matters not obtaining at the date of that decision is intact.

Entry into the Support Group

15.  Entry into the support group occurs if any descriptor in schedule 3 is satisfied, or if regulation 35 (2) applies.  It has not been argued that any of the schedule 3 descriptors are applicable. I accept that concession.
16. I must consider whether or not regulation 35 (2) assists the appellant.

Regulation 35(2)

17. That regulation provides 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.

(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).

18. I am in a better position than the FTT, because the submission of the Secretary of State provides some indication of what may constitute Work-Related Activities. They were not before the FTT. 
19. I do appreciate that these activities will inevitably differ from person to person. As an example in this case a possible activity set out in the submission was the improvement of English skills, but that would not be of assistance to this appellant, a native English speaker who is educated to degree level.
20. The generalised nature of work-related activities, although understandable in the practical context of employment advisers trying to assist in the honing of workplace skills, causes difficulties because prior to the involvement of the employment adviser a decision has to be made ( by the Secretary of State, in the person of his ‘decision maker’) as to whether or not there would be a substantial risk to the mental or physical health of a person through a finding that a person did not have limited capability for work related activities. 
21. In order to make that decision it is generally necessary to have an idea of the range of activities in contemplation for an appellant, however in this case I am able to say that however minimal the activities required the appellant would find compliance exceedingly stressful, and the result of that stress would, at the material time, have been to place her own health and that of her young child at substantial risk.    I make that finding on the basis of a number of pieces of evidence.

My findings upon the evidence

22. I am in no doubt that the appellant’s physical pain and discomfort have been exacerbated by the depression for which she was receiving treatment to the extent that her ability to tolerate certain behaviour in others is very much reduced.  That lack of tolerance has resulted in erratic and aggressive behaviour towards her son, who was aged about 2 at the material time.
23. I am able to take the behaviour of the appellant towards her son into account in relation to answering the question whether there was likely to be a substantial risk to the physical or mental health of any person if the appellant were found not to have limited capability for work related activities.
24. At this time the appellant was living in circumstances which were difficult, living together with her son with her own mother, and sharing one bedroom.  There was some advantage to the arrangement in that her mother could assist with childcare during the part of the day when she was not at work, but the situation was not an easy one and it is likely to have exacerbated the appellant’s feelings of intolerance.
25. The appellant has fallen out with various medical professionals treating herself and her son. 
26. A powerful statement to me, which I accept as true, was in relation to her losing contact with her son’s father following what she described as horrific arguments due to what she saw as his unreliability. She told me “I cannot confront people in a reasonable manner.”
27.  These matters lead me to find that the lack of tolerance is not something confined to her relationship with her son, but was replicated in other relationships. 
28. Such problems would, at the time that I am considering, have had an impact in the context of work-related activities, which would have probably involved other people in some capacity.
29. Problems in these other relationships would be likely to have resulted in further aggression towards her son.  This would have had a potentially damaging effect upon her son’s health, but would also have had a deleterious effect upon her own.  She was tearful in recounting aspects of her behaviour to me, and I have no doubt that she reproaches herself, and such negative thoughts are likely to inhibit the improvement of a depressive condition, or make matters worse.
30. I accept her evidence that she would have had problems in relation to work-related activities about reliably being somewhere. She found it a burden to make arrangements or comply with such arrangements as were made, and to leave the house. After having to do so she might take a considerable time to recover. I accept that following this hearing she may need to spend two days in bed to recoup her energy.  At the material time her exhaustion led to lack of tolerance which in its turn led to aggression, most usually towards her son.
31. I accept that the work-related activities which the appellant had to carry out following the decision placing her in the WRAG, namely a number of meetings with an adviser at which further potential options were discussed, caused very significant difficulties for her (although not perhaps apparent at the meeting) both before and after the event. 
32. Whilst those matters occurred after the decision under appeal, because I have found that there has been no change in her condition or functional ability since that time evidence of her difficulties in this regard shed light upon what is likely to have been the position at the time that I must consider.

Why I find that there is substantial risk under regulation 35 (2)

33. The appellant’s evidence as to her difficulties and in particular in relation to her son has been highly consistent. I find it unlikely that such evidence, which is self-critical of her as a mother, would be made up.
34. The appellant’s difficulties relate not only to her problems with her son, but to her problems with others. Her intolerance of what she perceives to be the failings of others is a feature.  This would impact adversely on others if she was called to engage in work related activities where she came into contact with other people, which is likely.
35. There is likely to be an impact upon her son, because stress and anxiety affects her ability to tolerate the normal difficulties that a young child presents, and her reaction is both erratic and aggressive. In order to thrive young children need stability in approach. Whilst occasional instability is unlikely to result in substantial risk, more sustained behaviour of that type is.  There was a substantial risk at the material time that if required to engage in work-related activities her stresses would increase, her tolerance decrease, and that her son’s health would suffer.
36. It was overwhelmingly likely that her own recovery from the anxiety and depression with which she is beset would be impeded or actively harmed by the work-related activity requirement, however apparently benign.
37. I do not accept that because of the legislation provides that work-related activity be reasonable, that it can not therefore cause substantial risk to the health of a person.   To accept that premise is to render both regulation 35 (2) and the sanction regime which deals with failure to engage in work-related activities without good cause nugatory.  Whilst it is not, of course, the case that the Secretary of State will consciously impose requirements which are unlawful, there it may be disagreement between an appellant and a work adviser resulting in a sanction decision; that may be resolved by the appeal process in favour of the appellant on the basis that the work-related activity directed was not, in the circumstances, reasonable.  The possibility of that outcome militates against the argument that the Secretary of State is unable to impose a work-related activity requirement which is unreasonable.

Conclusion

38. I now set the FTT decision aside under section 12(2) (a) Tribunals, Courts and Enforcement Act 2007; there was a material error of law in that the reasoning of the FTT regarding the regulation 35 issue was inadequate. I remake the decision under 12(2)(b)(ii) of that Act as set out at the beginning of this decision.   

PA Gray

Judge of the Upper Tribunal      

Signed on the original on 6 March 2014