CE/4405/2013

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the claimant, brought with my permission given on 3^rd February 2014, succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting in Luton and made on 29^th May 2013 under reference SC914/12/01182. I refer the matter to a completely differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below.

Directions

2. The claimant should consider requesting the tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written medical or other evidence. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course. The new tribunal will have to consider afresh all of the evidence and make its own findings of fact.

The Relevant Law

3. Employment and support allowance (“ESA”) was introduced by section 1(1) of the Welfare Reform Act 2007. Subject to the satisfaction of other conditions which are not relevant for the purposes of my decision, section 1(2)(a) of the Act provides that a claimant is entitled to ESA if he satisfies the “basic conditions”. The basic condition that is disputed in this case is defined in section 1(3)(a) as being that the claimant “has limited capability for work”.

4. Section 1(4) provides that:

            1(4) … a person has limited capability for work if –

(a)    his capability for work is limited by his physical or mental condition, and

(b)   the limitation is such that it is not reasonable to require him to work.

5. Section 8 of the Act provides that whether a person’s capability for work 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 work shall be determined in accordance with regulations which provide for an assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or incapable of performing such activities as may be prescribed.

6. The relevant regulations are the Employment and Support Allowance Regulations 2008. Regulation 19 and Schedule 2 provide for the assessment. Regulation 19(2) describes the assessment as an assessment of the extent to which a claimant “who has some specific disease or bodily or mental disablement is capable or incapable of performing the prescribed activities”. Regulation 19(3) provides that a claimant has limited capability for work if he obtains a score of at least 15 points in respect of descriptors listed in Schedule 2. Regulations 20 and 29 set out certain circumstances in which a claimant is to be treated as having limited capability for work regardless of the assessment score.

Background and Procedure

7. The claimant is a man who was born on 30^th May 1962. The papers are inconsistent as to his occupational and benefit history. The Secretary of State’s submission to the First-tier Tribunal stated that he had been entitled to incapacity benefit (the predecessor benefit to ESA).since 2^nd May 2002. The medical examiner recorded in 2007 that he worked as some kind of manager until he stopped work in 2005. On 7^th February 2012 the claimant completed form ESA 50. This is a 20 page questionnaire about limited capability for work and is reproduced in the Upper Tribunal file. The main difficulties to which he referred in his answers were caused by the effects of an old fracture in his right hip resulting in a shorter leg, damage to his neck ad shoulder affecting the grip in his right hand, trouble sleeping causing loss of concentration and memory, and borderline depression. His GP had also referred to chronic back pain.

8. On 18^th March 2012 the claimant was examined on behalf of the Secretary of State by Dr Dibor. On the basis of Dr Dibor’s report the Secretary of State decided on 4^th May 2012 that no more than 6 points could be allocated (in relation to mobilising) and that as from 25^th May 2012 the claimant no longer had limited capability for work and was not entitled to ESA. After representations from the claimant and a further report from his GP (dated 4^th May 2012) the Secretary of State decided on 2^nd October 2012 that a further 6 points could be allocated in respect of limitations on his ability to stand or sit at a work station. This made a total of 12 points, but this was still below the 15 point threshold and the outcome decision on entitlement was not changed.

9. Meanwhile, on 6^th June 2012 the claimant had appealed to the First-tier Tribunal against the decision of the Secretary of State. The First-tier Tribunal considered the matter on 29^th May 2013. The claimant attended with his wife but was not represented. The tribunal confirmed the decision of the Secretary of State, agreeing that it was appropriate to allocate 12 points. It made no comment on regulation 29 except to say that “No exceptional circumstances applied in terms of Regulation 29(2)(b)” (paragraph 9 of the statement of reasons). On 17^th October 2013 a judge of the First-tier Tribunal refused the claimant permission to appeal against the decision of that tribunal. The claimant now appeals by my permission given on 3^rd February 2014. The Secretary of State opposes the appeal and supports the decision of the First-tier Tribunal.

The Issues

10. The representatives now acting for the claimant have raised a number of grounds of appeal, but in view of my decision to allow the appeal it is only necessary to address two of them.

11. The first issue relates to the identification of the date of the decision of the Secretary of State that was under appeal to the First-tier Tribunal. Section 12(8) of the Social Security Act 1998 provides:

            12(8) In deciding an appeal … the First-tier Tribunal –

                        (a) need not consider any issue that is not raised by the appeal; and

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.

12. On the face of it the decision under appeal was made on 4^th May 2012. There was some indication that the claimant’s condition had worsened between then and the date of the First-tier Tribunal hearing, but if 4^th May 2012 was the date of the decision under appeal, the effect of section 12(8)(b) is that such deterioration could not be taken into account by the tribunal.

13. However, the claimant relies on the provisions of regulation 30 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. There is a general rule in section 9(6) of the 1998 Act that an appeal against a decision of the Secretary of State lapses when the decision is revised under section 9 before the appeal is determined. Exceptions to this rule may be created by regulations. Regulation 30(1) of the 1999 regulations provides that such an appeal shall not lapse where the revised decision “is not more advantageous to the appellant than the decision before it was revised”. The effect of this exception is that in such cases the claimant does not have to submit a fresh appeal against the revised decision.

14. Regulation 30(2) lists “Decisions which are more advantageous” for these purposes as including decisions where more benefit is paid or benefit is paid for a longer period, or a financial gain will accrue to the appellant, or the amount of any recoverable overpayment of benefit is reduced or the benefit is decided not to be recoverable, or a disqualification or restriction or suspension is removed, and certain other eventualities.

15. The claimant argues that the list in regulation 30(2) is not exhaustive (which must be correct), that the decision of 2^nd October 2012 increasing the number of points from 6 to 12 was “more advantageous” for these purposes and that the First-tier Tribunal could therefore take account of deterioration in the claimant’s condition down to 2^nd October 2012.

16. I do not accept this line of reasoning. The increase in the number of points from 6 to 12 might affect the type of work that the claimant could be expected to do, but he continued not to have limited capability for work within the meaning of the ESA scheme, and he obtained no financial benefit from the increase in the number of points. The list in regulation 30(2) might not be exhaustive but every eventuality listed has financial consequences within the social security system (indirectly in the case of a decision to reverse an earlier decision that there has not been an industrial accident). On the basis that all cases that can come within a list must have something in common with the essential features of the list, my opinion is that a revised decision that has no financial consequences, such as a decision increasing the number of points but giving a total that is still below the threshold, cannot be included in the meaning of “more advantageous” for these purposes.

17. I also point out that if the claimant’s argument were correct, the effect would not be to enable the First-tier Tribunal to take account of the deterioration. It would be to lapse the appeal to the First-tier Tribunal, requiring the claimant to make a fresh appeal (which would now, of course, be well out of time).

The Regulation 29 Issue

18. In so far as is relevant regulation 29 of the Employment and Support Allowance Regulations 2008 provides:

29(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) This paragraph applies if

            (a) …

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

It should be noted that “any person” in 29(2)(b) includes the claimant himself.

19. The claimant argues that the First-tier Tribunal was in error of law by simply stating a conclusion on the applicability of regulation 29 without considering how that conclusion was reached in light of the claimant’s difficulties and the kind of work that he might be expected to do. The Secretary of State argues that regulation 29 was not raised in the appeal to the First-tier Tribunal and that it is not compulsory for that tribunal to consider regulation 29 in the detail now suggested by the claimant.

20. Virtually every appeal to the First-tier Tribunal against a decision by the Secretary of State that a claimant does not have limited capability for work raises the issue of whether regulation 29 applies. It is inherent in the decision and should at the very least be given some thought by the tribunal (except in obvious cases or where a competent representative of the claimant concedes that there is no dispute about it). In this case, of course, the First-tier Tribunal did give regulation 29 some thought, but not in any detail. A number of Upper Tribunal decisions have been cited to me on the amount of detail that is required. I do not propose to review them. I agree with the comments of Judge White in NS v Secretary of State [2014] UKUT 0115 (AAC), CE 2298 2013 that whether regulation 29(2)(b) requires to be considered depends on all the circumstances of the case (paragraph 41), that the more narrowly focussed the descriptors become the more likely it is that the “safety net provision” of regulation 29(2)(b) will be in issue (paragraph 50), and that if it is in issue then some reason must be given for any conclusion (paragraphs 52 and 53).

21. The amount of detail that needs to be given must depend on all of the circumstances. If the tribunal finds that a claimant has no difficulties at all in any of the relevant areas of activity, then that might be all that need be said. However, in the present case both the Secretary of State and the First-tier Tribunal found that 12 points should be allocated. This was serious stuff. Only one more point-scoring descriptor needed to be identified to take the claimant over the threshold. In such a case an unreasoned conclusion on regulation 29 amounts to a failure by the First-tier Tribunal to give proper reasons and is an error of law.

22. For the above reasons this appeal by the claimant succeeds.

H. Levenson

Judge of the Upper Tribunal

8^th May 2014