Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal is allowed.

The decision of the tribunal given at Greenock on 14 November 2013 is set aside.

I re-make the tribunal’s decision by substituting for it my own decision that the claimant was entitled to be placed in the ESA support group under regulation 35(2) of the ESA regulations 2011 with effect from 27 February 2013.

REASONS FOR DECISION

1.          This is an appeal against a decision of the First-tier Tribunal upholding a decision made on 27 February 2013 not to place the claimant in the ‘support group’ of claimants entitled to Employment and Support Allowance (“ESA”) under the Employment and Support Allowance Regulations 2008.  Regulation 35(2) of the Regulations provides:

“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 reason 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.”

2.           The claimant is a woman now aged 56 with a long history of psychiatric illness.  She claimed ESA in October 2011 and was examined by a healthcare professional who was a registered medical practitioner on 29 February 2012.  He noted that the claimant had been attending a day hospital for the previous two months and had self-harmed six weeks and one week previously.  He summarised the claimant’s condition as follows:

“She has had a long history of significant mental health problems, with medication and mental health team input.  Her condition seemed to stabilise for a few years, but she returned to work against medical advice and became ill again, with a significant deterioration in her health in the last year.  She has been put on antipsychotic medication, and is now attending the psychiatric day hospital 5 days per week.  She has become very withdrawn, reclusive and prone to self-neglect.   She has little contact with others.  She attended today with an advocacy worker.  Rapport was poor, and she demonstrated features of significant depression and anxiety.  She talked of self-harm, but has no specific plans at present.  From the typical day details, formal assessment, observed behaviour and medical knowledge of her condtion, significant problems would be expected in her ability to deal with personal action, travelling to an unfamiliar location alone, and in dealing socially with people she does not know.”

On the basis of that report, the claimant was placed in the work-related activity group and awarded ESA from 18 October 2011.

3.         On 15 January 2013 the claimant’s sister completed a Form ESA 50 on her behalf, claiming difficulties with awareness of hazard and danger, initiating actions, coping with change, going out, coping with social situations, and behaving appropriately with other people.  The claimant’s GP supplied a list of the claimant’s medication and on 19 February 2013 a healthcare professional advised that there were indications of problems in all areas of mental health and severe functional restrictions regarding personal action, but that the level of input by the claimant made inclusion in the support group unlikely.  On 27 February 2013 the claimant was placed in the work-related activity group ‘on scrutiny’, although there is no indication that either the healthcare professional or the decision maker gave any consideration to regulation 35.

4.           On 15 July 2013 the claimant appealed against the decision not to place her in the support group.  Because the claimant had been engaging in work-related activity, her representative was able to request a copy of her action plan, which revealed that the claimant’s adviser had told her to consider bringing an appeal against her inclusion in the work-related activity group and had recorded as an action item that the claimant should attend the hospital where she was already receiving treatment.  The action plan included the following note (punctuation added):

“[the claimant] shouldn’t feel under pressure.  Last seen [the claimant’s doctor]  Sept 12.  Sleep is very disturbed.  [the claimant] contacted as she had been asked by psychologist she advised that due to other issues and pressure of attending WFIS she had built up issues and tried to commit suicide again.  She requested appeal form.  I explained what she should do sent the appeal form [sic.]  I explained I was not looking her to do anything she couldn’t.  I agreed  all contact will be by telephone.  I have postponed next interview.  I have written explaining further to try to offer reassurance.”

5.         At the hearing of the appeal the claimant’s representative did not suggest that the claimant fitted any of the Schedule 3 descriptors, but submitted that she should be treated as having limited capability for work-related activity under regulation 35(2) on the basis of the evidence of the action plan records.  However, the tribunal rejected that submission for the following reasons:

“The test in respect of regulation 35, insofar as applying to this appeal is whether or not 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.  The direct evidence of the appellant, which was not in any way in dispute and which was accepted by the tribunal, was that for the majority of 2012 she engaged with the psychiatric day hospital on a daily basis for a period of 9 months.  She attended on her own, was involved with other persons there, was encouraged through Occupational Therapy to improve her communication skills and boost her confidence.  She was engaging with other people and gave very clear evidence that she had been perfectly happy within the work related activity group.

The appellant also gave clear and undisputed evidence that she had attended on her own five or six work related activity interviews or meetings and attended at all times when she was required to do so.

The appellant herself did not refer to any risk or deterioration in her mental health as a result of attending the work related interviews or the psychiatric day hospital and gave very clear evidence that she was very happy in the support group.

It was the professional opinion of the very experienced medical member of the tribunal that there would be very little risk to any person as a result of the appellant not being placed in the support group, and in fact he considered  that the attendances described by the appellant had been therapeutic to her and that there was a much greater risk to her health in her sitting about the house.

The tribunal considered the fact that the appellant’s personal adviser had suggested an appeal was simply an adminicle of evidence to be considered along with the rest of the evidence in the appeal.”

6.           The claimant’s representative applied for permission to appeal on the grounds that the tribunal had erred in law in treating work-focused interviews as if they were work-related activity and in using the claimant’s hospital treatment as the basis of their finding that engaging in work-related activity would not place the claimant at substantial risk.  Permission to appeal was given by a district judge on 23 December 2013, but the appeal has been opposed by the Secretary of State in a submission dated 20 February 2014.

7.           The Secretary of State’s representative has sought to uphold the tribunal’s reasoning on the following basis:

“ … Although it is acknowledged that the claimant was “assisted” by occupational therapists whilst carrying out her tasks, it should be remembered that WRA is tailored to suit each claimant, and in view of this, the activities mentioned could still be accepted as WRA which suited the needs of the appellant.  I therefore submit that the tribunal did not err in law by using the attendance at the Psychiatric Unit as evidence of the claimant’s ability to cope with WRA and did not misinterpret the meaning of WRA.”

9.           Although ESA work-related activity and a course of therapeutic occupational therapy in a psychiatric hospital might be said to share the aim of enabling people to undertake or resume paid employment, in my view in most cases any similarities between those two forms of intervention end there.  Treatment in a psychiatric hospital is designed to overcome the often devastating effects of mental illness. Its purpose is therapeutic and it is carried out by qualified mental health professionals in a way which is designed to improve and not to harm the health of the patient.  Work-related activity, on the other hand, is designed to overcome obstacles to gaining employment for people who may have no relevant health problems, and employment advisers are not required to have mental health qualifications or experience.  I therefore reject the argument that the tribunal was entitled to find that work-related activity posed no substantial risk of harm to the claimant on the basis that she was already receiving occupational therapy in hospital.

10.         A crucial consideration in this context is the regime of sanctions underpinning work-related activity, as explained by Judge Gray in MTv Secretary of State for Work and Pensions (ESA) [2013] UKUT 0545 (AAC)-see paragraph 23.  In assessing the risks to the mental health of a claimant from a finding that a claimant does not have limited capability for work-related activity, a tribunal may therefore have to consider the possible effects on a claimant of stress resulting from the element of compulsion which the ‘conditionality’ of work-related activity entails.  Under regulation 3(4) of the Employment and Support Allowance Regulations 2011, a requirement of work-related activity must be reasonable, but as Judge Gray pointed out, there may be no opportunity for a claimant to challenge such a requirement until after a sanction has been imposed.  For the reasons given by Judge Jacobs in relation to regulation 29 of the ESA regulations in CH v Secretary of State for Work and Pensions (ESA) [2014] UKUT 0011 (AAC), any possible benefit to a claimant from engaging in work-related activity is irrelevant.

11.         I accept the Secretary of State’s submission that the employment adviser’s opinion that the claimant should appeal against the decision not to place her in the support group was not conclusive, but I nevertheless consider that the records of the claimant’s action plan, together with the report of the healthcare professional who examined the claimant on 29 February 2012, required far more detailed consideration than they received from the tribunal.  While it may be true that at one time the claimant had been content to be in the work-related activity group, it is clear from the terms of her letter of appeal that she had come to regard the requirements of such activity as harmful, and  the employment adviser’s notes suggest that the pressure on the claimant of attending work focused interviews had contributed to another suicide attempt.

12.         By 23 May 2012 the employment adviser had clearly abandoned any meaningful form of work-related activity out of concern for the claimant’s health, and at some later date the employment adviser recorded as an action item that the claimant should continue to attend the hospital where she was receiving treatment.  As the claimant’s representative has pointed out, that was technically an unlawful requirement since regulation 3(4) of the 2011 ESA Regulations prohibits a requirement for a claimant to undergo medical treatment, but it does indicate that the employment adviser considered that the best course of action for the claimant was to continue with her occupational therapy in hospital.  If regulation 35(2) is to have any real meaning, it is not open to a tribunal to find that work-related activity does not present a risk of harm to a claimant on the basis that the claimant will not actually be required to undertake any meaningful activity if it turns out to be harmful.  I therefore consider that the action of the employment adviser of effectively bringing the claimant’s action plan to an end out of concern for her health was evidence which the tribunal should have taken into account when evaluating the risk of harm to the claimant if she were not found to have limited capability for work-related activity.

13.       For those reasons, I consider that the tribunal’s reasons for rejecting the application of regulation 35(2) of the 2008 ESA regulations were manifestly inadequate and accordingly I set aside the tribunal’s decision.  The claimant’s representative has asked me to substitute my own decision for that of the tribunal and I am taking that somewhat unusual course not because this appeal was brought on the advice of the employment adviser, but because I am persuaded by the evidence that there would be a substantial risk to the claimant’s mental health if she were found not to have limited capability for work-related activity.  I note in particular from the report of the healthcare professional who examined the claimant in February 2012 that the claimant’s return to work against medical advice preceded a significant deterioration in her health.  If that was the case, it seems to me that any activity designed to facilitate the claimant’s return to work in the short-term is likely to be harmful.  I also note the evidence in the employment adviser’s notes of a possible link between the claimant’s requirement to attend work-focused interviews and her suicide attempts.

14.         I therefore give my own decision that the claimant was entitled to be placed in the

support group with effect from the date of the decision under appeal..

                                                                              (Signed)

                                                                              E A L BANO

                                                                              Judge of the Upper Tribunal

                                                                              Date: 21 March 2014