Upper Tribunal (Administrative Appeals Chamber)

JK v Secretary of State (Employment and support allowance : Regulation 29) [2014] UKUT 140 (AAC) (11 February 2014)

THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

The appeal against the decision of the First-tier Tribunal given as Glasgow  on 31 July 2013 is refused.  It is dismissed.

 

 

REASONS  FOR  DECISION

 

 

1.         The claimant has appealed against the decision of the tribunal which confirmed the decision of the Secretary of State dated 9 October 2012.  That decision which is recorded at pages 66 and 67 determined that the claimant did not satisfy any points scoring descriptors.  The decision also determined that it was unlikely that finding him not to have limited capability for work would pose a risk to anyone’s health.  The grounds of appeal are in the following terms:

 

 

            “I refer to the tribunal decision of 31/07/2013.  Please treat this letter as application for leave to appeal on the grounds that the tribunal have erred on law by failing to specify in terms of Reg 29 what type of work would be possible given the limitations.  There is no finding by the tribunal upon which it would be possible to take consideration of what employment would be possible on a full or part-time basis and especially so where no type of employment as specified.”

 

 

2.         The Secretary of State  has supported the appeal.  In his submission he said:

 

 

            “3.        I submit that further findings of fact are necessary in order to determine this case correctly.  The facts to be found are in relation to the consideration and application of Regulation 29.  It is my submission that the FtT has failed the test of Charlton,  insofar as it has failed to explore the type of work which the claimant could reasonably be expected to do using evidence of the claimant’s background, qualifications and health condition.”

 

 

3.         I am not satisfied that either the grounds of appeal or the support for them have demonstrated any error in law on the part of the tribunal.

 

 

 

4.         The only issue in the appeal to the Upper Tribunal was the tribunal’s application of regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008.  What the tribunal determined in that regard was as follows:

 

 

“4.          Mr Dowsland made a submission in general terms that exceptional circumstances may apply in this case.  The Health Care Professional who examined  [the claimant]  had identified nothing to indicate that the appellant has a condition that means that there would be a substantial risk to the mental or physical health of any person if the appellant were found to be capable or work or indeed work-related.  Similarly, there was nothing in his medication regime that would give rise to any concern about the appellant being in a work situation.  The question was considered in normal manner and the tribunal concluded that the consequences of the appellant’s difficulties are not such as would allow a conclusion that there would be a substantial risk to health if the claimant were not found to have limited capability for work or indeed work-related activity.”

 

 

5.         The tribunal recorded the submission made by the claimant’s representative to them which they indicated, to use their words, was in “general terms”.  The submission put it no higher than that the exceptional circumstances “may” apply in this case.    The tribunal reached the conclusion that the exceptional circumstances did not apply for the reasons set out in paragraph 4.  That conclusion must be read in the context of not only paragraph 4 but the tribunal’s statement as a whole.  In paragraph 5 they recorded that the claimant worked as an assessor until the summer of 2011 which he stopped because of his mental health.  His employment is also recorded in the HCP report.   In paragraphs 6 and 7 the tribunal said:

 

           

            “6.        The tribunal had regard to the terms of the examination report.  The appellant is prescribed standard medication in respect of his diagnoses.  Mental state examination was stated as unremarkable with no exhibition of any signs that would indicate severe anxiety or mood disorder.  On his own evidence at the examination and hearing, [the claimant] will on a daily basis wash and dress, prepare some food items, interact with others in person and by telephone, attend to housework, attend appointments with his doctor and go out.  Physical examination of the appellant was unremarkable, with [the claimant] being noted to sit with no more than slight difficulty for just short of thirty minutes and to undertake the physical aspects of the examination in similar manner.  There was no evidence of breathlessness or muscle-wasting and a reasonable degree of limb function.  Despite his diagnoses, on his own evidence at both examination and hearing the appellant manages activities  of daily living independently, at a reasonable pace, with no significant limitation of function.

 

           

 

 

 

           

 

            7.         [The claimant] confirmed at the hearing that all matters of relevance had been discussed at the hearing and at examination, although clearly he did not agree with the conclusions reached by the HCP.  Those conclusions were, we concluded, based on the available evidence and were reasoned.  Rapport, understanding and communication were found to be satisfactory at examination, a similar view being reached by the tribunal, based on their observations  of the appellant at the hearing.”

 

 

6.         The grounds of appeal refer to R(IB) 2/09 (Charlton v SSWP).   In paragraph 45 the Court  of Appeal approved what was said by Deputy Commissioner Paines QC in CIB/36/2007 as to the correct approach where regulation 27(b) of the Incapacity for Work Regulations is raised.   In paragraph 18 of his decision Deputy Commissioner Paines QC said:

 

 

                        “18.      Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial.”

 

 

In paragraph 45 of the Court of Appeal decision it was put this way:  

 

 

            “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.”

 

 

It is to be noted that in that paragraph that the Court of Appeal were disapproving other Commissioners’ decisions which, in the application of regulation 27(b) of the Incapacity for Work Regulations, involved speculation as to the type of job which would have been set out in a hypothetical job seekers application.

 

7.         It is apparent from paragraph 26 of the Court of Appeal decision that the Commissioner concluded that there was no substantial risk to Mr Charlton’s health if he worked in the kind of work to which a person of no physical limitations with no qualifications, no skills and no experience, was directed to do. In assessing whether there was a substantial risk to others the Commissioner found that the work Mr Charlton would be likely to find himself in was straight forward structured unskilled work.   The Court of Appeal concluded in paragraph 49:

 

           

 

 

 

            “These findings are challenged by the claimant because they do not specify with any particularity the type of work which the Commissioner had in mind.  In my view, for the reasons I have given, the Commissioner was under no obligation to go any further than he did.  This claimant had never worked, had no qualifications and no skills, but did not have any physical limitations.  Provided the work was supervised and structured, the Commissioner found as a fact that the claimant could undertake that work without substantial risk to himself or to others.  That factual assessment cannot  be challenged in this appeal.  Since the claimant has never worked and has no training it is an understandable and reasoned conclusion.  Indeed, I suggest it would have been difficult, if not impossible, for the Commissioner to make any more detailed a finding.  The essential conclusion is that he could do some work without risk to himself or to others.  Such a conclusion is consistent with the obligation imposed by the Regulation to assess risk to the safety of the claimant and to others arising from work.  For those reasons I would dismiss this appeal.”

 

 

8.         It is accepted that Regulation 29(2)(b) uses the same statutory language as regulation 27(b) and thus Charlton  is pertinent to this appeal.

 

9.         In this case the tribunal do not make any specific findings as to the range or type of work the claimant could do.  There is nothing in the tribunal’s statement or the grounds of appeal to demonstrate that the claimant’s representative addressed the matter of the workplaces the claimant may find himself in or any exclusions from type or range of work that the claimant could do that he regarded as necessary for the tribunal’s consideration.  The tribunal did have evidence, which they recorded, as to the claimant’s last employment.  There was little else other than some limited restrictions set out in the evidence of the General Practitioner.  When paragraphs 5, 6 and 7 of the tribunal’s statement are read it is apparent that the effects of the disablements accepted by the tribunal were limited. The tribunal do not record any submission or evidence placed before them of any substantial risk to his health or others if he were to be found capable of work.  The grounds of appeal do not do so either.  The Health Care Professional’s opinion does not accept risk to health in the context of a record of the claimant’s last employment.  The General Practitioner offers no opinion on  the risk of being found capable of work.   It is difficult in these circumstances to see how the claimant could on any view have satisfied regulation 29.  On  the tribunal’s findings it is obvious that a wide range of work would be open to him and there is no evidence of risk advanced in respect of any particular range of employment.  In Charlton  the Commissioner made the findings in fact referred to in paragraph 45 of the Court of Appeal’s decision and found that this factual assessment could not be challenged on appeal.  The range of work was very widely and unspecifically stated.   The tribunal was hampered in this case because in respect of work they had little other  than a finding as to his previous work to go on which is not surprising given the vague way in which the claimant’s representative presented his submission that regulation 29 “may” apply.  In paragraph 4 of their statement the tribunal, to use the Court of Appeal’s words in respect of the Commissioner’s decision in Charlton,  reached as a matter of fact, “The essential conclusion that he could do some work without risk to himself or others”.  That is not a conclusion with which I can interfere on appeal.  In my view the grounds of appeal and support for them seek to advance the proposition that Charlton laid down a prescriptive formula and that, without specific findings as to the range and type of work the claimant could do, the tribunal erred in law.  However in my view the Court of Appeal did not lay down as a matter of legal principle the findings in fact that required to be made.  In that case in paragraph 49 they accepted the very limited findings that were made satisfied the statutory obligation imposed by the regulation.  Using the same  process, for the reasons I have explained, I reach the same conclusion that the tribunal did so here.   On that basis what they said was sufficient. 

 

 

 

 

 

 

 

                                                                                    (Signed)

                                                                       D J MAY QC

                                                                       Judge of the Upper Tribunal

                                                                       Date: 11 February 2014