IN THE UPPER TRIBUNAL Case No  CE/2801/2013

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Interlocutory Decision: 

This appeal is stayed until the three judge panel in CE/3453/2013 shall have given its decision, or further order.

I direct that, although an interlocutory decision, it is to be placed on the Upper Tribunal’s website (in the usual anonymised manner).

REASONS FOR DECISION

1. The appellant used to work as a finance manager until in 2000 she became unwell with mental health problems. Between 2004 and 2011 she was able to work for 10 hours a week in a school kitchen, by way of “permitted work”.  Unfortunately then her illness became worse again and she had to stop.  On 10 September 2012 the DWP decided that she did not have limited capability for work.  There are signs in the case papers that her Venlafaxine (an anti-depressant) needed to be increased, more than once, around the time of the DWP’s decision and also that Risperidone, an anti-psychotic medicine, required to be introduced.  Also around that time, the appellant began to receive weekly contact from a nurse with the Community Mental Health Team, was seeing a psychiatrist every two to three weeks as an outpatient and was receiving counselling.  The diagnosis as given by the CMHT in November 2012 was “Mixed anxiety and depression with probable pseudo hallucinations.”  The chronology is not wholly clear but it is reasonable to infer that the need for this provision existed at the date of decision, whether or not the referral process had yet resulted in that provision being made available.

2. The appellant appealed against that decision and on 21 March 2013 the First-tier Tribunal decided that she did have limited capability for work.  However, it also decided that she did not have and could not be treated as having limited capability for work related activity.  The result was that the appellant qualified for employment and support allowance, but, as has since become evident in these proceedings, it was contributory ESA which is time limited to (broadly) one year, except for people who are in the “support group” i.e. those who also have limited capability for work-related activity.

3. It is clear that the appellant would dearly love to be able to return to work on some basis, but feels that the medical professionals who are involved in her treatment need to be involved in that process.

4. She had been to the Jobcentre for three  “work-focussed interviews”, the last of which took place on 5 September 2012, an experience which she evidently found stressful due to the noise and bustle of the Jobcentre.  There is no suggestion that she received there any specialist help related to her mental health.

5. The First-tier Tribunal found that:

“As the appellant is not in the support group she will be required to attend work-focussed interviews at the job  centre. She may also be   expected to undertake certain work-related activity. The Tribunal is of the opinion that the staff at the jobcentre are fully qualified professionals and they will work with the specialist services that are already involved in order to carefully rehabilitate the appellant to the position whereby she can re-enter the employment market.  With this careful support there would not be a substantial risk to her or anybody else’s health if she were found not to have limited capability for work- related activity.”

6. I gave permission to appeal, as it seemed to me arguable that there was no evidence on which the tribunal could make the finding quoted above.  Of course, the teamwork between the Jobcentre staff and the medical professionals involved in her care, which the tribunal clearly regarded as essential, was what the appellant wanted, too.  But the question is whether the tribunal was entitled to assume that it would happen.

7. While this case has been running, the DWP published a paper “The disability and health employment strategy: the discussion so far” (DWP, December 2013 Cm 8763).  That sets out, more fully than I have ever seen in tribunal papers, the various forms of help that may be available to people with a disability or a health condition who have to engage with the Jobcentre.

8. Prompted by that, I asked a number of questions of the Secretary of State’s representative, Mr Walker, for whose constructive response I am grateful.  Dealing first with the bustling Jobcentre problem, he wrote that :

“For those with problems as in the present case, appointments can be arranged for times when the Jobcentre is known to be less busy, private interview rooms can be arranged, and the claimant can always choose to be accompanied by a family member, friend or support worker.”

9. As regards the various types of help mentioned in the paper cited above about which I asked, he told me that at the relevant Jobcentre at the relevant time:

“claimants can be referred to a Work Psychologist and Disability Employment Consultant (formerly known as a DEA) where appropriate.  This Jobcentre does not have a designated Mental Health and Wellbeing Partnership Manager but support is available via the Social Justice Partnership Manager, where appropriate.”

I do not know what a “Social Justice Partnership Manager” does: the role is not, so far as I can see, described in the part of the DWP paper being considered.  The role of the Mental Health and Wellbeing Partnership Manager (where there is one) is, according to the paper, to “work to build links between local health and wellbeing services and support advisers working with people with health conditions.”  On the face of it, this appears to correspond with what the appellant was hoping could be done to assist her.

10. Mr Walker points out that:

“the Government paper referred to is mainly focussed on future proposals, as opposed to current delivery.  However …some of this support is already available in certain Jobcentres, although at the moment, that position may not be replicated in Jobcentres nationally.

11. From the point of view of a tribunal having to decide whether, for the purposes of regulation 35, “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”, there are a number of problems:

(a) provision is not available across all Jobcentres, thus it may be very difficult, if not impossible, to make assumptions about the provision that would be available for any particular claimant;

(b) some aspects remain ill-defined, for instance how far a Social Justice Partnership Manager can do what the more specialist-sounding Mental Health and Wellbeing Partnership Manager could achieve in relation to liaising with mental health professionals;

(c) even where there is suitable provision, accessing it appears to be via a generalist Jobcentre adviser performing a “gatekeeper” role, which raises the question of whether a tribunal is entitled to assume   that the gatekeeper role will be performed so as to enable a claimant to access the provision he or she reasonably requires; and

(d) it is not clear on the material before me that claimants and those advising them are provided with the sort of information that would enable them to request to avail themselves of the provision that is on offer.  In the present case, for instance, the appellant says she was never offered either a private interview room or (another alternative in some cases) telephone based interviews.

12. These are quite significant issues concerning the structures for helping people back into work that are a key part of the stated intention of employment and support allowance.  They overlap with those understood to be at issue in the case CE/3453/2013 McK v SSWP, in which a three judge panel has held a hearing and in which further submissions are understood to be awaited.  A single judge generally has to defer to the authority of a three judge panel, which, moreover, has been and is in a position to receive more detailed argument than is available to me without an oral hearing (which the appellant does not want).  While I consider that the First-tier Tribunal in the present case was in error of law in proceeding, without evidence, to make the finding in [5] above, I am far from clear that it is necessary or appropriate to set its decision aside at this stage, which might well lead, among other things,  to requiring the appellant to go through a further First-tier Tribunal and to re-opening the question of whether she had limited capability for work (never mind limited capability for work-related activity).  It is preferable therefore to stay the present case until the three judge panel in CE/3453/2013 shall have given its decision, which may have the effect of indicating whether any useful purpose will be served by setting the tribunal’s decision aside in the present case.  I regret that that will mean waiting a little while longer for the present case to be resolved.

CG Ward

Judge of the Upper Tribunal

29 May 2014