Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 6 March 2013 at Margate under reference SC170/12/01861) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

DIRECTIONS:

A.        The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

B.        In particular, the tribunal must investigate and decide the claimant’s capability for work on and from 24 December 2011.

C.        In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

Reasons for Decision

A.        Introduction

1.         This is an appeal brought with the permission of the First-tier Tribunal. The parties have agreed that the tribunal made the errors of law I identified in my case management directions.

B.        History

2.         The claimant was awarded credits and income support with effect from 23 February 2004. This was based on a finding that he was incapable of work under the tests applied for the purposes of incapacity benefit. In 2011, the Secretary of State began the process of considering whether his entitlement could be converted to employment and support allowance. The claimant completed a questionnaire and was interviewed and examined by a health care professional. In his questionnaire, the claimant identified problems that arose from his legs and knees, and mentioned that he could not read. The health care professional did not identify any disabilities relevant to employment and support allowance. Having received this evidence, the decision-maker decided that the claimant did not satisfy the conditions for an award of employment and support allowance and terminated his entitlement to credits and income support with effect from 24 December 2011.

C.        The appeal to the First-tier Tribunal

3.         The claimant exercised his right of appeal with help from his local CAB. The CAB’s written submission relied exclusively on regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 (SI No 794):

It is submitted that there is a substantial risk to Mr H…’s physical health as the type of work that he would be expected to do would be manual work, and the tribunal are asked to find that Mr H… should be treated as having limited capability for work.

The CAB also obtained evidence from the claimant’s GP, which concluded that he was unable to work in any capacity that involved walking or the use of stairs.

4.         The tribunal dismissed the claimant’s appeal. It explained why he did not qualify for points in respect of the activities he had mentioned in his questionnaire - mobilising, standing and sitting, or communication. The tribunal then dealt with regulation 29:

16. Also, Regulation 29 does not apply as the Tribunal was not satisfied that there was a substantial risk to the appellant or to others if he were not found to have limited capability for work. The Tribunal was obliged to consider whether going to work would amount to a substantial risk.

17. In assessing whether there was a substantial risk the Tribunal noted that his wife had died in 2001 due to cancer. The Tribunal found that he was living alone, had little contact with people but was able to use public transport to travel from Margate to Nottingham to see his daughter and granddaughter about 2-3 times a year. He appeared to be socially isolated and going out to a regular form of work where he could meet others would be good for his mood and it was not unreasonable to expect that.

D.       Regulation 29

5.         This provides:

29 Exceptional circumstances

…

(2) This paragraph applies if—

…

(b) the claimant suffers from some specific disease or bodily or mental disablement and, 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.

E.        The errors of law

6.         The tribunal made a number of errors of law in the course of its short reasons on regulation 29.

7.         First, the tribunal failed to deal with the case put by the CAB. That case was based on the risk to the claimant’s physical health and the supporting medical evidence related to his physical condition. The tribunal should have given reasons to show how it dealt with the case put to it and the evidence on which it relied.

8.         Second, the tribunal had no evidence on the claimant’s mental state. The CAB had not argued that there was a risk to his mental health. Despite this, the tribunal made a finding on the value of work to the claimant. It did so without the benefit of any evidence on the therapeutic value of work and after only a brief acquaintance in a judicial setting. It was not appropriate in those circumstances for the tribunal to take upon itself the task of assessing what was ultimately a medical judgment on treatment for a condition that the claimant’s own GP had not identified.

9.         Third and most fundamentally, the tribunal failed to understand the nature of regulation 29(2)(b) and the timescale within which it had to be applied.

10.      As to the nature of the provision, it is concerned with risk, not benefit. The tribunal should have investigated and considered what risk, if any, would be involved in finding the claimant to be fit for work. Any benefit, assuming that it could properly be proved, might be relevant as evidence on risk or the lack of it, but that is all. The issue is risk. If a substantial risk is established, the provision applies. And it applies even if it is accompanied by some chance of improvement in the claimant’s condition. It is not permissible to ignore that risk or to decide that it is a price worth paying for that eventual benefit.

11.      As to the timescale, regulation 29(2)(b) refers to the claimant being found not to have limited capability for work. That occurs at the time of the Secretary of State’s decision. That decision has to look to the future in the sense that it is concerned with the effect of the finding and the decision of the Court of Appeal in Charlton v Secretary of State for Work and Pensions (reported as R(IB) 2/09) widened the scope of the enquiry to take account of how the claimant would function in work, which requires the tribunal to decide on the risk that would accompany a return to work.

12.      Although the decision looks to the future, it has to made as at the time of the Secretary of State’s decision. This is the effect of section 8(2) of the Social Security Act 1998, which provides that the claim does not subsist beyond the time when it is decided.* This is reinforced by section 12(8)(a) of that Act, which provides that a tribunal may not take account of circumstances not obtaining at the time of the decision.

* The claimant had not made a claim in this case, but regulation 16(3) of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No 2) Regulations 2010 (SI No 1907) provides that, for the purposes of section 8, ‘the conversion decision is to be treated as if it were a decision as to a person’s entitlement to an employment and support allowance which had been made on a claim.’

13.      The fact that regulation 29(2)(b) has to be applied as at the time of the Secretary of State’s decision imposes a practical limit on the scope of the factors that a tribunal may properly take into account. I am not going to try to define precisely what that scope is. It will depend on the evidence available and the circumstances of the case. But whatever the scope, the ultimate or longer-term benefit that a claimant might derive from work is beyond it. Leaving aside the evidentiary difficulties of proving what benefits might accrue in the longer term, the tribunal should not take account of such remote matters. It should concern itself with the more immediate effects of finding that the claimant was capable of work.

F.        Conclusion

14.      For those reasons, individually and cumulatively, the decision involved errors of law. I set it aside and remit the case to the First-tier Tribunal for reconsideration.