Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Case Nos.  CE/327/2013 CE/509/2013

 

 

Before:          Mr Justice Charles

His Honour Judge Martin

Upper Tribunal Judge Rowland

 

 

Decision:      The claimants’ appeals are allowed.  The decisions of the First-tier Tribunal are set aside and the cases are remitted to the First-tier Tribunal to be re-decided.  In each case, the Secretary of State must make a further submission supported by appropriate evidence setting out why he asserts that, applying the “in all the circumstances” approach in the manner set out below, it is reasonable for that claimant to be assessed under Activity 1 on the basis that she uses a manual wheelchair, and, in particular, how that claimant might have acquired such a wheelchair at the time of the Secretary of State’s decisions. It will then be for the claimants to consider whether they wish to continue with their appeals.

 

 

REASONS FOR DECISION

 

Introduction

 

1.            These appeals are concerned with the factors and circumstances to be taken into account when deciding in the context of Activity 1 (mobilising) of the work capability assessment for employment and support allowance (“ESA”) whether a manual wheelchair could reasonably be used by a claimant who does not actually have one.  In particular, is only the claimant’s physical and mental condition relevant or are other matters, such as the claimant’s home environment and ability to acquire a wheelchair, relevant?  Several Upper Tribunal judges and a Social Security Commissioner in Northern Ireland have considered the issue and have given different answers.

 

2.         Our conclusion is that, in principle, all circumstances of the individual claimant are to be taken into account but that, in practice, the underlying purpose of the work capability assessment, the circumstances that should exist in the modern workplace and the availability of manual wheelchairs will mean that in most cases the home environment of a claimant is unlikely to be important and it would be possible for the Secretary of State to ensure that the availability of manual wheelchairs is also not a live issue.

 

The legislation

 

3.         ESA was introduced by Part I of the Welfare Reform Act 2007 (“the 2007 Act”) which began to come into force in 2008.  It replaces incapacity benefit.  By section 1(3)(a) of the 2007 Act, it is one of the “basic conditions” of entitlement to ESA that the claimant “has limited capability for work”.  Section 1(3)(f) provides that another of those “basic conditions” is that the claimant “is not entitled to a jobseeker's allowance (and is not a member of a couple who are entitled to a joint-claim jobseeker's allowance)”.  

 

4.         Section 1(4) of the 2007 Act provides:

 

“(4) For the purposes of this Part, 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 makes further provision in respect of limited capability for work, subsections (1) and (2) providing:

 

  “(1) For the purposes of this Part, 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.

  (2)  Regulations under subsection (1) shall—

    (a)    provide for determination on the basis of an assessment of the person concerned;

    (b)    define the 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;

    (c)    make provision as to the manner of carrying out the assessment.”

 

6.         Those regulation-making powers are exercised in the Employment and Support Allowance Regulations 2008 (SI 2008/794) (“the ESA Regulations”), which have been materially amended on two occasions: first on 28 March 2011 and secondly on 28 January 2013.  The present cases arose under the legislation in force between those dates, when regulation 19 (which was not amended in 2011) provided:

 

“19. –(1)  For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

  (2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

  (3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—

    (a)    15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;

    (b)    15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or

    (c)    15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.

  (4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

  (5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—

    (a)    a specific bodily disease or disablement;

    (b)    a specific mental illness or disablement; or

    (c)    as a direct result of treatment provided by a registered medical practitioner, for such a disease, illness or disablement.

 

  (6) Where more than one descriptor specified for an activity apply to a claimant, only the descriptor with the highest score in respect of each activity which applies is to be counted.

  (7) …

  (8) …”

 

7.         Schedule 2 to the ESA Regulations is divided into three columns.  The first column lists the activities mentioned in regulation 19(2).  The second and third columns list, in respect of each such activity, respectively the descriptors mentioned in regulation 19(3) and the points scored in respect of each such descriptor. 

 

8.         As it was in force at the dates material to these cases, Activity 1 and its descriptors were expressed as follows:

 

“(1) Activity	(2) Descriptors			(3) Points
1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.	1	(a)	Cannot either: (i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or (ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.	15
		(b)	Cannot mount or descend two steps unaided by another person even with the support of a handrail.	9
		(c)	Cannot either: (i) mobilise more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or (ii) repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion.	9
		(d)	Cannot either: (i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or (ii) repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion.	6
		(e)	None of the above apply.	0”

 

9.         Thus, at the material time for these cases, the word “normally” was used in regulation 19(4), which provided that a claimant was to be assessed as if “wearing or using any aid or appliance which is normally worn or used”, whereas the word “reasonably” was used in Activity 1 in Schedule 2, referring to “a walking stick, manual wheelchair or other aid if such aid can reasonably be used” for the purpose of mobilising unaided by another person.

 

10.       In the original version of Schedule 2, the word “reasonably” had not been used at all in any relevant provision of the Regulations.  The word used in relation to aids and appliances in Activities 1, 8 and 9 of Schedule 2, as well as in regulation 19(4), was “normally”.  Moreover, there was no reference in Activity 1 to mobilising otherwise than through walking.

 

Activity 1. “Walking with a walking stick or other aid if such aid is normally used.”

 

Activity 8. “Hearing with a hearing aid or other aid if normally used.”

 

Activity 9. “Vision including visual acuity and visual fields, in normal daylight or bright electric light, with glasses or other aid to vision if such aid is normally worn.”

 

In Activity 10(b), although the word “normally” was not used, there was a reference to “a urinary collecting device, worn for the majority of the time”.

 

11.       When Schedule 2 was substituted with effect from 28 March 2011 by regulation 4(1) of, and Schedule 1 to, the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011 (SI 2011/228), “normally” remained the word used in Regulation 19(4) and was also used in Activities 6, 8 and 9, but “reasonably” or “reasonable” was used in Activities 1 and 7.

 

Activity 1. “Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.”

 

Activity 6. “Making self understood through speaking, writing, typing, or other means normally used, unaided by another person.”

 

Activity 7. “Understanding communication by both verbal means (such as hearing or lip reading) and non-verbal means (such as reading 16 point print) using any aid it is reasonable to expect them to use, unaided by another person.”

 

Activity 8. “Navigation and maintaining safety, using a guide dog or other aid if normally used.”

 

Activity 9. “Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the presence of any aids or adaptations normally used.”

 

12.       Since 28 January 2013, when the 2008 Regulations were amended by the Employment and Support Allowance (Amendment) Regulations 2012 (SI 2012/3096), both terms have appeared wherever there is a reference to aids (other than a prosthesis) in Regulation 19(4) and in each of Activities 1, 6, 7, 8 and 9.

 

13.       Thus, Regulation 19(4) now provides:

 

“(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if—

    (a)    fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be,

    (b)    wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.”

 

There is no mention of reasonableness in subparagraph (a).

 

14.       Activities 1, 6, 7, 8 and 9 are now:

 

Activity 1. “Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be, worn or used.”

 

Activity 6. “Making self understood through speaking, writing, typing, or other means which are normally, or could reasonably be, used, unaided by another person.”

 

Activity 7. Understanding communication by

    (i)     verbal means (such as hearing or lip reading) alone,

    (ii)   non-verbal means (such as reading 16 point print or Braille) alone, or

    (iii)  a combination of (i) and (ii),

using any aid that is normally, or could reasonably be, used, unaided by another person.”

 

Activity 8. “Navigation and maintaining safety, using a guide dog or other aid if either or both are normally, or could reasonably be, used.”

 

Activity 9. “Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the wearing or use  of any aids or adaptations which are normally, or could reasonably be, worn or used.”

 

15        For completeness, it should be recorded that ESA is payable during the “assessment phase”, before the first work capability assessment carried out in accordance with regulation 19 and Schedule 2, albeit at a lower rate, and that thereafter, even if a person does not score the 15 points required on a work capability assessment, he or she may still be treated under regulation 29 as having limited capability for work.

 

16.       So far as is relevant to these appeals, regulation 29(2)(b) provided:

 

“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)    …; or

    (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.”

 

From 28 January 2013, regulation 29(2) has been made subject to a new paragraph (3), which provides –

 

 “(3) Paragraph 2(b) does not apply where the risks could be reduced by a significant amount by –

    (a)    reasonable adjustments being made in the claimant’s workplace,

    (b)    …” 

 

The case law

 

17.       We were referred by the parties to several of the conflicting decisions on the question whether the claimant could reasonably use a wheelchair under the 2011 version of Activity 1. 

 

18.       However, we were first referred to the decision of Upper Tribunal Judge Levenson in RP v Secretary of State for Work and Pensions (ESA) [2011] UKUT 449 (AAC), which was not decided under Activity 1.  It was decided under Activity 2 (standing and sitting) of the original version of the legislation, although the decision was given after the 2011 amendments.  The issue was whether the claimant should be assessed as though using a walking stick.  Regulation 19(4) required that to be done if a walking stick was “normally … used”.   Judge Levenson said:

 

“13. Both parties have referred to my decision (sitting as a Social Security Commissioner) in CIB/14499/1996. That was a case under the incapacity benefit scheme (a forerunner of ESA) about a claimant undergoing PUVA treatment who had difficulty seeing after a session of treatment and had been told that she had to wear dark or coated glasses on those days on which she received treatment. The vision descriptor applied in relation to “vision in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn”.  I said (in paragraph 8):

 

‘8. A literal interpretation of this would mean that a person who would be able to see perfectly well if prescribed glasses but who refused to wear glasses might thereby bring themselves within an appropriate descriptor … I cannot accept that that is right. The phrase “if such aid is normally worn” must be understood to refer to whether the aid is normally worn by people in that situation acting reasonably in all the circumstances. The parties might wish to produce evidence and argument on this point …’.

 

14. The Secretary of State supported using the same approach to the meaning of regulation 19(4) and argued (paragraph 9 of the submission of 3^rd August 2011):

 

‘Why would such a person not use a stick? It would be likely to help in so many ways. I submit that the ways in which it could help do not need to be set out by the Tribunal in the statement of reasons: they are obvious, in the same way that it is obvious why a person with diminished visual ability would benefit from prescribed glasses.’

 

15. I agree that regulation 19(4) requires a similar approach but I also take the view that the Secretary of State’s approach conflates different questions. Further, my point in CIB/14499/1996 was predicated on the supposition that glasses had been prescribed. In the present case, notwithstanding a long history of medical consultations, there is no evidence that the use of a stick was ever suggested (in fact the evidence is to the contrary). In my experience it is often the case that people who use a walking stick without advice on whether and how to use one are a menace to themselves and to others.

 

16. It seems to me that the correct approach to regulation 19(4) is as follows. If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it. If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it. If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same. However, I do not agree with the Secretary of State that in this latter case there does not have to be any explanation of how the aid or appliance could help the particular claimant and that the advantages are obvious. The degree of detail is a matter for the tribunal on the facts of each particular case, but in my view, in the absence of actual use or prescription, there does need to be some explanation.”

 

19.       So, Judge Levenson considered that questions of reasonableness arose, even though the legislation then used only the word “normally”. 

 

20.       The first of the cases on Activity 1 as amended in 2011 to which we were referred was DM v Secretary of State for Work and Pensions (ESA) [2012] UKUT 376 (AAC), in which Upper Tribunal Judge Gamble accepted a submission, supported by the Secretary of State, that the First-tier Tribunal had erred in not considering whether use of a wheelchair had been considered by the claimant’s medical advisors and whether it would have been reasonable given their plans for her rehabilitation and also whether a wheelchair would have been available to her and whether it would have been practical for her to use one in view of the fact that she lived in an upstairs tenement flat.  In a later decision on file CSE/415/2012, where it was held that the First-tier Tribunal had failed to give adequate reasons for its decision, Judge Gamble agreed with the Secretary of State that the correct approach was not only set out in his earlier decision in DM but also in paragraph 16 of Judge Levenson’s decision in RP.

 

21.       In MG v Department for Social Development (ESA) [2013] NICom 359, Mr Commissioner Stockman, applying the equivalent legislation in Northern Ireland, considered that the correct approach was to be found in Judge Levenson’s decision in RP but not in DM, which he considered impermissibly departed from a purely functional analysis in considering the claimant’s living arrangements to be relevant.  He considered that the introduction of the word “reasonably” into Activity 1 “effectively makes express provision for the conditions implied by Judge Levenson”, but that DM was inconsistent with the “functional assessment” approach taken in GS v Secretary of State for Work and Pensions (ESA) [2010] UKUT 24 (AAC).  Although GS was not actually concerned with the use of aids and appliances, it was concerned with the general approach to be taken to the application of Schedule 2.  In relation to descriptor 6(f) in the original version of the Schedule, “cannot do up/undo small buttons, such as shirt or blouse buttons”, Upper Tribunal Judge Jacobs had said:

 

“13.      …  It is important to appreciate the context. The ultimate purpose of the descriptors is to test a person’s capability for work. They test the claimant’s manual dexterity for work-related purposes. They do not test the claimant’s ability to self-care. The reference to shirts and blouses is for the purpose of illustration. They are not words of definition or limitation.

 

14.       The proper approach to the interpretation and application of descriptor 6(f) is this. The descriptor tests the claimant’s anatomical functions that would be involved in fastening or unfastening buttons. They include pinch grip, co-ordination of finger movements, and flexibility of the finger joints. The reference to small buttons identifies the size and shape of the object to which those functions are applied. The First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor. By doing that, it will avoid the myriad questions that otherwise appear to arise on descriptors. Is the ability to use a tap tested with wet or dry hands? What sort of surface is the £1 coin resting on? How smooth or thick are the pages of the book? And so on and so on.”

 

22.       Mr Commissioner Stockman recognised that further questions arose where aids and appliances are concerned.  He said –

 

“42.      …  When assessing functional ability, just because there is no reason why he or she cannot use a wheelchair, should a decision-maker conclude that use of a wheelchair by a claimant is reasonable?

 

43.       I consider that, in addressing this question, it is important to recall that, while the heading to the “Mobilising” descriptor expressly introduces the condition that a wheelchair can reasonably be used, regulation 19(4) continues to require that a wheelchair is normally used.  Referring to the use of aids and appliances in general, Judge Levenson in RP v SSWP added the qualification “by people in that situation acting reasonably in all the circumstances”.  I consider that this qualification is better expressed, in the context of “Mobilising”, in terms of whether a wheelchair would normally be used by a person with the appellant’s degree of walking disablement in order to enhance his or her ability to mobilise.  ….

 

44.       How then, in the absence of actual or recommended use, is the question of whether a wheelchair would normally be used by a claimant to be assessed?  In answering that question, it seems to me that the system of eligibility for public provision of wheelchairs must remain a central factor.  In general, people who normally need to use a wheelchair will be assessed for one and if appropriate will have this item provided without charge by the NHS.  In the context of a relatively specialised aid such as a manual wheelchair, it seems appropriate to construe the requirement of reasonableness in the heading to the activity of “Mobilising” with this aspect of government policy in mind.

 

45.       Typically, an individual will be referred for assessment for eligibility for wheelchair provision by their doctor, a hospital consultant or an OT.  Such a referral will take place against a background of appropriate therapeutic assessment, with regard to the level of the relevant mobility difficulties and the individual’s needs.  Under the NHS in Northern Ireland, a comprehensive assessment by an OT will take place for all wheelchair requests.  I consider that it would be difficult to conclude that a wheelchair would be normally used by a claimant with a particular degree of disability without the benefit of such an assessment.”

 

23.       In NT v Secretary of State for Work and Pensions (ESA) [2013] UKUT 360 (AAC), Upper Tribunal Judge Ramsay also expressed doubt about DM, but to a lesser extent.  She said:

 

“10.      Upper Tribunal Judge Gamble was concerned with questions such as whether a wheelchair would be medically advisable, whether the claimant’s home would be suitable for use of a wheelchair indoors, or otherwise practicable in view of the claimant’s living arrangements. However, I must admit to some doubts about this approach. The medical advisability of using a wheelchair seems to me to be a therapeutic question, whereas the test in the regulations is arguably one of practicability, either outdoors or in the work place. There are many with mobility disorders who do not use a wheelchair indoors, but do so outdoors. The distances in question in the schedule far exceed the likely dimensions of even the most spacious home, so it would seem reasonable to consider these questions either outdoors or in the workplace.

 

11.       Although Judge Gamble’s decision has been widely cited and approved, I am not sure that it reflects the intentions of the legislature. Where legislation fails to make its meaning clear, judges and other decision makers in applying the principles of statutory interpretation may, without error, end up with divergent ideas on the application of the legislative test. However, my understanding of the test set out in the legislation is whether a manual wheelchair or other such aid can reasonably be used, not whether the claimant’s doctor or consultant would recommend its use for him.  The words of the actual provision in the regulations are few and sparse and do not indicate if the words ‘can reasonably be used’ are to be considered in the context of a work day, in which case a level surface indoors other than the home would be what was in contemplation, or whether it relates to therapeutic considerations. Whether in fact the claimant would be able to use a wheelchair does not in my view involve consideration of whether it could be used indoors in his home, but it would involve consideration of whether the claimant has a hallway, garage or other secure space in which a wheelchair could be kept available for trips outside the home; on this Judge Gamble and I are not far apart.”

 

24.       In TB v Secretary of State for Work and Pensions (ESA) [2013] UKUT 408 (AAC), Upper Tribunal Judge Gray preferred MG to DM but considered that the approach taken in RP needed restating to take account of the use of the words “reasonably” or “reasonable” in Activities 1 and 7.  She changed Upper Tribunal Judge Levenson’s test by omitting the reference to “normally used” and by adding a qualification to the reasonableness test that limited it to a consideration of medical conditions.  So she reformulated part of the test set out in paragraph 16 of RP as follows:

 

“If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision-maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and only if it would be reasonable for the claimant to do the same, reasonableness of use being considered in terms of the effect such use would have upon their medical condition.”

 

She also said:

 

“26.      … it is for the Secretary of State to establish that the manual wheelchair or other aid can reasonably be used, and to do so it is insufficient simply to rely on the fact that the person has no, or minimal, upper limb or cardio-respiratory problems; that may mean that they can propel a wheelchair, but it does not establish that one can reasonably be used.  Common sense dictates that if a person cannot physically propel themselves in a manual wheelchair then the reasonableness issue is irrelevant. 

 

27.       Although each case must be looked upon individually, it will be easier for the Secretary of State to show that it is reasonable to use an aid such as a walking stick than a wheelchair.  In my judgement there is a qualitative difference in expecting someone to use spectacles to aid seeing or a walking stick to aid walking, and the use of a wheelchair to mobilise.  A wheelchair replaces walking; there are attendant consequences, for example muscle wasting, and the threshold for whether its use is reasonable must be higher than that of a simple manually used aid which could be discarded without residual physical consequence. I endorse the general view of Commissioner Stockman as to it being difficult to conclude that a wheelchair can reasonably be used without the person having been referred by their clinicians for a wheelchair assessment. (MG v Department for Social Development paragraph 45.) The converse will not always apply.  Where an appellant has been positively assessed for a wheelchair but is unwilling to adopt its use the question arises as to how the issue of reasonableness may be considered.  In my judgement the FTT, using the expertise on the panel, is best placed to determine in the light of the medical issues whether there may be personal adverse effects upon their ongoing health conditions or recovery which make wheelchair (or indeed other prescribed aid) use unreasonable.  The Secretary of State, when considering the issue at an earlier stage may call upon the medical advisors it has available to offer an opinion on the facts of the case, and any case specific advice should form part of the evidence before the FTT.”

 

25.       In AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 417 (AAC), Upper Tribunal Judge Williams reviewed the authorities but suggested that the approach to wheelchairs in Activity 1 should be the same as that taken to aids and appliances in the “cooking test” for the care component of disability living allowance (see section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992) which, he held, was “purely functional” and did not involve considering whether a claimant who did not have a wheelchair could afford to buy one.  He broadly agreed with Judge Gray’s approach in TB but he considered that the functional test had to include being able to get in and out of a wheelchair unaided and deal with all other aspects of wheelchair use unaided.

 

26.       The leading case on the “cooking test” to which Judge Williams referred is the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44; [2013] 1 W.L.R. 1929 (also reported as R(DLA) 7/03).  The question was whether the claimant was “so severely disabled physically or mentally that … he cannot prepare a cooked main meal for himself if he has the ingredients”.  The legislation did not include an equivalent of regulation 19(4) of the ESA Regulations or any reference to normal or reasonable use of an aid in the description of the activity of cooking a main meal.  Rather, the statutory language linked the activity directly to the impact of the relevant physical or mental disability.  Mrs Moyna had said on her claim form that she needed help with cooking utensils, taps and hot pans on from one to three days a week and added, by way of explanation –

 

“If pans are heavy, I need someone to carry them and put them on cooker or away. I cannot carry anything heavy as if I do it brings on angina attacks.”  

 

27.       Lord Hoffmann said of the “cooking test” that:

 

“17.      … its purpose is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance. It is a notional test, a thought-experiment, to calibrate the severity of the disability. It does not matter whether the applicant actually needs to cook. As the form DLA 1 said, “try to imagine how much help you would need if you tried to do this.” No doubt some people (disabled or otherwise) do need to cook or prefer to do so, although home cooking seems to be fighting a losing battle against convenience foods and ready-cooked meals. Not for nothing is the notional meal contemplated by the cooking test described in the authorities as “traditional”. It must be remembered that disability living allowance is a non-contributory, non-means tested benefit. A person who cannot cook for himself is entitled to the allowance, now £14.90 a week, whether he solves the eating problem by obtaining help, having a wife, buying television dinners or dining at the Savoy. On the other hand, even if a person needs to cook and has the motor skills to do so, he may still need assistance; to obtain the ingredients which the test assumes him to have, or because he is culinary incompetent. …”

 

He also mentioned at paragraph 19, with apparent approval, that taking a broad view “the tribunal went into the matter in some detail [and it] observed that she could cook for herself using lighter pans and cutting up smaller vegetables.”

 

28.       So in the admittedly different context of that legislative scheme Moyna is a confirmation of a “functional approach” by reference to a notional test or thought-experiment set by the statute and indicates that a broad view approach was to be taken to its application to a claimant as its subject (e.g. in determining what aids and adaptations were to be taken into account in setting the notional test or thought-experiment for that claimant).

 

29.       In BG v Secretary of State for Work and Pensions (ESA) [2013] UKUT 504 (AAC), Upper Tribunal Judge Mark expressed agreement with DM, rather than AR, partly because he considered that the work capability assessment was very different from the “cooking test”.

 

“14.      The context of the work capability for work test is an attempt to assess who is going to be able to undertake work of some sort.  For that being able to mobilise in fact rather than in theory is important.  It does not make sense to say that somebody has or does not have limited capacity for work based on a hypothetical ability to mobilise with an aid that he or she does not have and cannot for practical reasons obtain and use.  I disagree therefore with Judge Williams that the test is a freestanding one independent of the question whether the claimant can in fact reasonable be expected to have access to a wheelchair on a daily basis.  It is not a notional test or thought experiment such as the cooking test in DLA where it is immaterial whether a person needs to cook or not or has the equipment or not.

 

15.       The test in my judgment is whether the aid, the wheelchair, can reasonably be used by this claimant in his daily life.  The use includes not merely mobilising once for any particular distance, but being able repeatedly to mobilise and to do so not just on one day but over a period of time.  A claimant cannot reasonably use a wheelchair without having access to one, and I do not see how his ability to store one and to get to and from it can be disregarded in determining whether he can reasonably be expected to use it, in the same way as his ability to get in and out of it unaided would be relevant.  It is even possible that inability to afford a wheelchair may be relevant, although it is would not normally be so given their relative cheapness and their availability from the NHS and charities where reasonably required.”

 

30.       In AS v Secretary of State for Work and Pensions (ESA) [2013] UKUT 587 (AAC), Upper Tribunal Judge Wikeley had to consider whether the First-tier Tribunal had erred in finding that the claimant could not “repeatedly mobilise 50 metres within a reasonable timescale”.  It had found that, if the claimant walked as far as 55 yards, he would after half an hour, be able to walk 55 yards again.  Judge Wikeley said –

 

“18.        I also accept as correctly made [the Secretary of State’s] concession that the various activities in Schedule 2 have “a connection with the workplace”, albeit that the descriptors are not concerned with any one specific working environment and do not bring in wider questions of employability. This concession properly reflects the direction of policy travel as embodied in legislative change in this area. The first clue is in the change of name; Parliament has approved the shift from the “personal capability assessment” in the incapacity benefit scheme to the “work capability assessment” under the ESA regime. The second clue lies in the drafting of the various activities and individual descriptors, and in particular the amendments which took effect on March 28, 2011 (see further the Explanatory Memorandum to the draft 2011 Regulations, sent to the Social Security Advisory Committee on 13 August 2010). Thus the first three activities in the original Schedule 2 to the ESA Regulations – walking, standing and sitting, bending or kneeling – were seen as providing a high degree of overlap for e.g. wheelchair users, so providing an inaccurate assessment of an individual’s true level of functional limitation in the workplace. This resulted in a radical re-writing of the first activity, transforming it from “walking” to “mobilising”, the specific inclusion of the “work station” test in the second activity (standing and sitting) and the abolition of the third activity (bending or kneeling) as being both an unnecessary and undesirable requirement in the modern workplace.

 

19.          It follows that the activities and descriptors in Schedule 2 do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work. They have to be applied on their own terms, but understood against the backdrop of the modern workplace. In deciding whether a particular descriptor is met, decision makers and tribunals may therefore find it helpful to consider the claimant’s ability to undertake the activity in question in a range of different working contexts. However, claimants will not be awarded a defined descriptor simply because they can show that it would apply to them if they were employed to do a particular job in a specific type of working environment.

 

20.          This is entirely consistent with the well-established principle that decision makers and tribunals must consider whether a claimant can perform a particular activity with a reasonable degree of repetition, sometimes referred to as “reasonable regularity” principle. This principle applies to the ESA scheme just as it did to the previous incapacity benefit regime. As Upper Tribunal Judge Turnbull has explained, “if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account” (see AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61 (AAC) at paragraph 11, approved and followed in SAG v Department for Social Development (ESA) [2012] AACR 6). Judge Nicholas Paines QC has described the principle in similar terms: “it is implicit in this that a description set out in a descriptor will not fit a claimant who can only perform the relevant task exceptionally or infrequently” (AG v Secretary of State for Work and Pensions (ESA) [2013] UKUT 77 (AAC) (at paragraph 18).

 

21.          Within the legislative scheme as a whole, this principle only makes sense in the context of the needs of a modern workplace and the level of activity that an employer attuned to the requirements of disability discrimination law can reasonably expect. Plainly, the test is not about a high-pressure working environment, e.g. a call-centre with demanding targets or a factory production line with a fast-moving conveyor belt. Equally, however, the test is not about what the person can do in their own home and entirely in their own time and at their own pace, subject to no external constraints or pressures whatsoever. If reasonable regularity is judged by the latter criterion, then the test has ceased to be a test of “whether a claimant’s capability for work is limited by the claimant’s physical or mental condition” within regulation 19(1) of the ESA Regulations.

 

…

 

32.          …  The tribunal fell into error by not considering the question of what was a “reasonable timescale” against the background of a working environment. What might well be a reasonable timescale for the Appellant at home would not necessarily be a reasonable timescale in the workplace. The consequence of the tribunal’s approach was to rob the word “repeatedly” of any real meaning, as the tribunal’s findings would equally well meet a statutory test predicated on the activity in question being performed only “occasionally ... in the course of a day”.  ….”

 

The facts of the present cases and the parties’ initial submissions

 

31.       The claimant in the first case (CE/327/2013) was aged 25 when she claimed ESA, having given up work because her “flat” feet had been causing her problems, including back pain, which had developed over the previous eight years and limited her ability to walk, stand and sit.  An award was initially made with effect from 26 July 2011 but, following an assessment on 15 November 2011, the award was superseded and terminated with effect from 3 December 2011 on the basis that the claimant did not score any points on the assessment.  She appealed. 

 

32.       The First-tier Tribunal dismissed the appeal, agreeing with the Secretary of State that she did not score any points.  In respect of mobilising, the First-tier Tribunal concluded that the claimant could walk at least 200 metres but it also considered whether the claimant would be able to use a manual wheelchair.  It said:

 

“The Tribunal noted that she had no problems with her upper limbs and given that the findings for her back were muscular only, the Tribunal concluded that such aid could reasonably be used. The appellant’s representative in his submission raised the issue of availability of a wheelchair in considering whether one could ‘reasonably’ be used.  However, the Tribunal noted that no evidence had been produced to show that a wheelchair would not be available and therefore the Tribunal concluded that this did not affect their conclusions.”

 

33.       The claimant now appeals against the decision of the First-tier Tribunal, with permission granted by Upper Tribunal Judge Wikeley.  The claimant’s original ground was that the First-tier Tribunal had given inadequate reasons for finding that the claimant could walk at least 200 metres, but Judge Wikeley considered it also to be arguable that it had failed to consider whether she could “repeatedly” walk that distance within a reasonable timescale and had failed to address the question of the availability of a wheelchair.  As regards the latter point, Judge Wikeley drew attention to the decision of MG, mentioned above.  In his written submission, the Secretary of State supported the appeal on the grounds identified by Judge Wikeley, arguing in relation to the availability of  wheelchair –

 

“… that the likelihood that a person who does not use a wheelchair could produce evidence that one would not be available is so remote that to use the absence of such evidence as the reason for a conclusion on availability is an error of law.”

 

However, he invited the Upper Tribunal not to follow MG and instead suggested that the proper approach was that taken in DM.

 

34.       The claimant in the second case (CE/509/2013) was awarded ESA from 11 February 2012 but, following an assessment, the award was superseded and terminated with effect from 28 May 2012.  She suffers from peripheral vascular disease which affects her left foot and ankle.  The healthcare professional considered that it was unlikely that she suffered from significant disability in mobilising, either walking or using a wheelchair, and the Secretary of State decided that she scored no points.  She appealed, producing evidence that she had been awarded the higher rate of the mobility component of disability living allowance, that her consultant vascular surgeon said she had “30 yard claudication” and that her general practitioner considered that she could not walk without pain for more than 25 yards.  In the light of that evidence, it was common ground before the First-tier Tribunal, and the First-tier Tribunal accepted, that her walking ability was “restricted to about 25 to 30 metres on the flat”, but the First-tier Tribunal went on to say:

 

“3.        However, the test of mobilising is not walking.  The appellant has been assessed for a walking stick but is reluctant to use one.  There is no good reason as to why she should have been assessed for a wheelchair at this stage.  She is able to function satisfactorily within her environment.  Her only difficulty is after about 30 metres her leg aches.  She sits down, she rests it and then she gets on and walks some more.

 

4.         The appellant is reluctant to use a walking stick.  She is unsure as to whether or not she could propel a wheelchair.  She has full upper body and upper limb function.  She is able to sit.

 

5.         The medical advice to the Tribunal is that there would not be any detriment to the appellant’s health if she were to utilise a wheelchair for a significant portion of the day.  She would still have the remaining portion of the day in which she could utilise her limbs and continue with ensuring the circulation of blood.  She would have access to a wheelchair but given her reluctance to accept any form of walking aid it is quite understandable as to why it has not been suggested by the Consultants.  A wheelchair could readily be made available to her either by her purchasing the same or alternatively with it being provided by an employer for example.  The appellant does not have issues with regards to her living arrangements.  She is indeed able to go upstairs and can manage half a flight of stairs at a time.

 

6.         The unanimous decision of the Tribunal is with the use of a manually self [sic] propelled wheelchair the appellant can mobilise repeatedly for in excess of 200 metres within a reasonable timescale before the onset of significant discomfort or exhaustion.  That is the only descriptor placed in issue, namely mobilising.”

 

35.       The claimant now appeals against the First-tier Tribunal’s decision with permission granted by Upper Tribunal Judge Wright.  The Secretary of State supported the appeal in his written submission, arguing that, although the First-tier Tribunal considered the availability of a wheelchair,

 

“… its conclusion that she could buy one, or that an employer might provide one, does not appear to have come about from a proper consideration of the availability.  In particular, where, as in this case, the clamant does not have an employer, this would seem to be an unlikely source.  I further submit that the sentence actually used by the Tribunal, ‘A wheelchair could readily be made available to her either by her purchasing the same or alternatively with it being provided by an employer for example’, could be said with equal applicability by any First-tier Tribunal in respect of any appellant, without indicating any proper consideration of the claimant’s actual particular circumstances.”

 

He again submitted that the approach in DM was to be preferred to that in MG.

 

The Chamber President’s direction and the parties’ subsequent submissions

 

36.       Although the Secretary of State had supported both these appeals, the Chamber President directed that the appeals be heard before a three-judge panel because of the different approaches adopted by Upper Tribunal judges to the application of Activity 1.  In doing so, he raised expressly the question whether, if potential access to a wheelchair were not relevant, there would be a risk that a person who was found not to be entitled to ESA because he or she was considered to be potentially sufficiently mobile might also be found not to be available for work if he or she claimed jobseeker’s allowance (“JSA”).

 

37.       JSA is payable to a person who, among other conditions, is “available for employment” (section 1(2)(a) of the Jobseekers Act 1995) and “does not have limited capability for work” (section 1(2)(f)).  Since any question as to whether the latter condition is satisfied is determined in accordance with Part 1 of the 2007 Act (see paragraph 2 of Schedule 1), the combined effect of section 1(2)(f) of the Jobseekers Act 1995 and section 1(3)(f) of the 2007 Act is that ESA and JSA are mutually exclusive benefits.

 

38.       So, the point that lay behind the question and which did not need to be spelled out to the parties was the fact that, in broad terms and with some exceptions, people of working age may only claim social security benefits if either unfit for work or looking for work.  JSA is therefore the benefit that claimants refused ESA and with no other income are likely to need to claim and it is likely that Parliament intended that the legislation relating to either benefit should be construed and applied in practice by the Department in a way that avoids (or seeks to avoid) a gap between the two schemes arising into which people might fall through no choice of their own.

 

39.       The claimants argue that the correct approach was that taken by Judge Gamble in DM, for the reasons given in BG.  This, they argue, is the only way of ensuring that there is no gap between ESA and JSA. They also pray in aid the approach taken by Judge Wikeley in AS.

 

40.       Having considered matters further, the Secretary of State now resiles from his support for the appeals and argues that it is not relevant to entitlement to ESA whether a wheelchair is actually available to the claimant or would be if he or she were to obtain employment.  It is submitted that Schedule 2 requires a functional assessment and that only medical considerations are relevant.  Thus, he has resiled from his support for the approach taken in DM but he also submits that Mr Commissioner Stockman’s decision in MG should not be followed in its entirety.  He expresses some reservations about Judge Levenson’s reasoning in RP, relied upon by both Judge Gamble in CSE/415/2012 and Mr Commissioner Stockman in MG, and in any event submits that “it would be completely impractical for an NHS occupational therapy wheelchair assessment to be incorporated into the decision making process of this activity”.  On the other hand, he agrees with Mr Commissioner Stockman’s view that the test is a functional one, to be applied so that those with the same disability have the same entitlement to benefit.  He also agrees with Judge Gray in TB and Judge Williams in AR insofar as they both said that only medical considerations are relevant in assessing whether a wheelchair or other aid “can reasonably be used”.

 

41.       As to the possibility of a gap between ESA and JSA, the Secretary of State does not argue against the proposition that the legislation relating to ESA and JSA should be construed and applied in a way that avoids there being any gap between the two benefits such that a claimant refused ESA is unable, through no choice of his or her own, to qualify for JSA.  However, he refers to regulation 13(3) of the Jobseeker’s Allowance Regulations 1996 (SI 1996/207), which permits a claimant to “restrict his availability in any way providing the restrictions are reasonable in the light of his physical or mental condition”, even if the result is that he or she does not have any reasonable prospects of finding work, and he also points to the existence of disability employment advisers in Jobcentres.

 

Discussion

 

42.       We do not need to analyse the Upper Tribunal decisions or Mr Commissioner’ Stockman’s decision in great detail.  None of the Upper Tribunal decisions seems to have been given after detailed legal argument and a number of them were made in the light of enthusiastic support by the Secretary of State for claimants’ appeals which the Secretary of State now considers was misplaced. 

 

43.       We prefer to start from first principles.  Our task is to construe the legislation so as to give effect to the intention of the legislator, which is to be deduced from the language of the legislation in the light of its history, context and purpose. 

 

44.       To determine the mischief at which the legislation is directed and thus its underlying purposes a court or tribunal looks at the relevant and admissible background and so earlier legislation and decisions based on it and the enacting history (including amendments to the existing legislation).

 

45.       It is important, however, to remember that some aspects of the legislation have remained constant.  The express link in s. 1(3)(f) of the 2007 Act between ESA and JSA has remained the same.  So too has the general approach of the primary legislation and the ESA Regulations in that the primary legislation is directed to the individual claimant, defines limited capability for work and then prescribes that the approach to be taken by the person deciding whether a particular claimant has limited capability for work (as so defined) is to be determined in the way set out by the Secretary of State in Regulations.

 

46.       In the case of social security regulations, part of the admissible history is the exchanges with the Social Security Advisory Committee (for reasons explained in, for example, R(G) 3/58 at paragraph 18 et seq and R(IB) 2/07 at paragraph 38 et seq).  The court or tribunal also looks at admissible Parliamentary material (see Pepper v Hart [1993] AC 593).  Further, a court or tribunal will take into account official statements issued by a department administering an Act as persuasive authority but will not allow such statements or guidance to turn what has been enacted into what the department wish they had enacted (see Halsbury’s Laws 5^th edition Vol. 96 para. 1129). 

 

47.       We therefore asked the representatives of the Secretary of State to consider this approach and to provide us with any relevant Parliamentary material or statements.  After the hearing they did this and the representatives of the claimants have commented on that material and provided further material themselves.    

 

48.       The central feature as regards the language of the legislation as it applies to these appeals is that there are no words expressly qualifying the clause “which can reasonably be used” in Activity 1 so as to confine the relevant considerations to medical or any other particular matters.  There are, however some other observations that can be made about the language and history of the legislation.

 

49.       First, none of the parties has argued that the words “if such aid can reasonably be used” in Activity 1 qualified only the words “other aid” and did not also apply to “a walking stick” or a “manual wheelchair”.  We agree that, when read alone and in the context of the legislation as a whole, the qualification applies to all aids including walking sticks and manual wheelchairs.  

 

50.       Secondly, although the first column of Schedule 2 defines the activities and regulation 19(4) is concerned with the claimant’s ability to perform the activities, we are unable to detect from the changes that have been made or otherwise any practical difference as a result of the words “normally” and “reasonably” appearing in one place rather than the other.  Therefore, we do not consider that, in relation to Activity 1 where at the time material to these appeals “reasonably” was the word used in Schedule 2 while “normally” was used in regulation 19(4), the amendments to those provisions in 2013 made any difference to the law.  From 28 March 2011, aids to mobilising have been taken into account if they were normally used or if they could reasonably have been used.

 

51.       Thirdly, while “normally” and “reasonably” mean different things, they are related in that what the claimant normally does, or what people in similar circumstances generally do, may well be indicators as to what a claimant might reasonably be expected to do and, as shown by the decision in RP, what would be normal can include what people in the same situation acting reasonably would do.  These were live issues at the time material to the decision in RP but this ceased to be the case when the word “reasonably” was introduced into the legislation, even if initially only in column 1 of Schedule 2, and this introduction makes it unnecessary for us further to consider the reasoning in RP.  One way or another, the mischief identified in RP has now been addressed in the legislation.

 

52.       However, we record that at a meeting of the Social Security Advisory Committee on 3 October 2012 concerning the proposals to make the changes that were subsequently made with effect from 28 January 2013, there was the following exchange:

 

“Question by the Committee

Where the descriptors referred to “normally used”, should that be interpreted as normally used by the individual in question or people generally, or others with a similar impairment?

 

Answer by officials

It should be understood as referring to normal usage by the individual claimant.”

 

53.       That is consistent with the submission made by the Secretary of State to us at the hearing and is the same approach as is taken in the more clearly-worded regulation 12(4)(a) of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890) to the use of a prosthesis or artificial aid in considering entitlement to the mobility component of disability living allowance.  It also seems to us to be much the more natural meaning of the word when it is used alongside “reasonably”, since it is clear that the latter term must refer to what the individual claimant can reasonably do.

 

54.       Fourthly, the written material provided to the Social Security Advisory Committee in relation to the amendments made in 2011 and 2013 and the explanatory memoranda in relation to the two amending statutory instruments are both completely silent as to the purpose of the amendments to regulation 19(4) and the introduction of the word “reasonably” into Activity 1.  The Secretary of State submitted that that is because there was no change in policy but did not produce any evidence to support this and it seems to us that the amendments may reveal the development of a policy where there was none before. Certainly some of the guidance issued by the Secretary of State to decision-makers seems to have been issued merely in reaction to RP and DM.  In any event, we have not been provided with any admissible Parliamentary material or official statement by the Secretary of State that is persuasive on the construction of the word “reasonably”.

 

55.       The question then is whether the context or underlying purposes of the legislation support the conclusion that only limited circumstances (for example only medical circumstances as argued by the Secretary of State) are to be taken into account when deciding whether it is reasonable for a claimant to use a walking stick, manual wheelchair or other aid or whether they support an “in all the circumstances” approach.

 

56.       In our judgment, they support the latter. 

 

57.       As to the Secretary of State’s argument that the JSA regime prevents any gap between ESA and JSA (which is consistent with the Government’s response to the Social Security Advisory Committee’s report on the draft 2011 Regulations, published with the Committee’s report in February 2011), we accept that the avoidance of a significant gap is dictated by the interpretation and application of both statutory regimes and not just one of them and that it is primarily dictated by theory, and so how the two benefits were intended to operate, rather than practice.  But in our view it is clear that Parliament intended the two mutually exclusive statutory schemes to operate together in a way that avoided claimants falling into a gap between them or being passed backwards and forwards between the two decision making processes in circumstances that can often cause considerable hardship and upset.  It seems us that the promotion of this intention is an underlying purpose of both statutory schemes and that properly to promote it there needs to be “joined up thinking” based on complementary approaches and the sharing of information by the decision makers under the two schemes.

 

58.       Therefore, while both a person’s right to restrict his or her availability for work providing the restrictions are reasonable in the light of his or her physical or mental condition and the existence of disability employment advisers may be relevant to how the ESA Regulations are applied in practice (as we shall explain below), we do not consider that they throw any light on the principle to be derived from construing the legislation.  On the contrary, if a person is in practice precluded from using an aid for any reason and would on that ground be excluded from part of the job market, it is unfair to assess his or her entitlement to ESA on the basis that he or she could use the aid.  We cannot believe that such unfairness was intended by the legislator.

 

59.       The purpose of expanding the concept of walking to that of mobilising was described in the Department for Work and Pensions’ Explanatory Memorandum to the draft 2011 Regulations, sent to the Social Security Advisory Committee on 13 August 2010, thus:

 

“Assessing an individual’s ability to walk does not provide the most appropriate measure of their capability for work.  The intention of this activity is to identify an individual’s mobility in and around the workplace.  This mobility can be achieved through a variety of means of which walking is only one.” (paragraph 2.4)

 

This explanation strongly supports the conclusion that “reasonably” was introduced to ensure that claimants could not inflate their functional limitations by declining to take advantage of aids and appliances that they could reasonably use.  Also the reference to the workplace in the Memorandum and the point that those who failed to qualify for ESA would generally be expected to extend their search for work to work in which they might need to mobilise with aids and appliances, provide strong support for the view that all circumstances that might impede use of an aid or appliance in the workplace by the individual claimant should be taken into account, whether or not they relate to the claimant’s physical or mental condition.

 

60.       In our judgment, the point that the work capability assessment is, like the “cooking test”, a functional assessment does not found a conclusion that an in all the circumstances approach is inappropriate.  This is because a distinction must be drawn between the setting of the parameters of the functional test and the assessment of a person’s ability to carry it out.  The latter is the functional test.  Carrying out the assessment as if the claimant was “using any aid or appliance which is normally … used” and assessing his or her ability to mobilise “with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used” are statutory parameters for the test (or thought-experiment) to be applied in the work capability assessment.

 

61.       It is for this reason that we do not agree with the Secretary of State that a functional test is necessarily inconsistent with an approach that can lead to different outcomes for people with the same physical or mental disability: it depends on the parameters of the test which may in turn depend on what the purpose of the test is.  Thus for example if a person normally uses an aid, for example a manual wheelchair, but could otherwise not reasonably be expected to do so for what the Secretary of State would accept as medical considerations, there will be a different outcome for that claimant by comparison with most others with the same physical and mental disabilities.

 

62.       The Secretary of State’s submission is also inconsistent with another answer given to the Social Security Advisory Committee on 3 October 2012 in relation to the proposals to make the changes that were later made from 28 January 2013:

 

“Question by the Committee

Would the phrase “could reasonably be used” in relation to visual impairment (activity 8) mean that a person could be expected to acquire a guide dog when it is known that only 15% of blind people had a guide dog? Part of the reason for the low figure could be that the accommodation was unsuitable for an animal, or the person was unable to handle or care for a dog.

 

Answer by officials

No, the intention was that people would be expected to use aids which were cheap and readily available to them. A blind person would not be expected to get a guide dog for example; nor would they be penalised for failing to do so.”

 

This seems to be an acceptance that availability at least, and possibly also home environment, are material to the question whether a guide dog could reasonably be used.

 

63.       The Secretary of State seeks to distinguish the availability of a guide dog from the availability of a wheelchair on the ground that a guide dog does not alleviate sight problems in the way that a walking stick or wheelchair alleviates mobility problems.  That is not, in our judgment, a valid distinction.  Although in the original version of Schedule 2 Activity 9 was “vision” (perhaps really a bodily function rather than an activity), since 2011 Activity 8 has been “navigation and maintaining safety” and a guide dog helps with that in a similar way to that in which a walking stick or wheelchair helps with mobilising.  Even were that not so, the distinction drawn by the Secretary of State would be difficult to maintain in the light of Mallinson v Secretary of State for Social Services [1994] 1 W.L.R. 630 (also reported as R(A) 3/94), where the House of Lords rejected a similar distinction and held that guiding a blind person could be considered to amount to attention in connection with his bodily function of sight notwithstanding that it did not help the person to see.

 

64.       Moreover, it is difficult to see the relevance of the claimed distinction.  If regard may be had to matters other than the claimant’s physical or mental condition when considering what aids can reasonably be used for the purposes of an assessment under Activity 8, the distinction fails to explain why regard may not also be had to such matters when considering what aids can reasonably be used for mobilising.  On the other hand, if such matters are irrelevant in relation to Activity 1, the distinction does not provide an explanation for them being relevant in relation to Activity 8. 

 

65.       A similar inconsistency in the Secretary of State’s position relates to the use of a powered wheelchair.  The Secretary of State accepted in argument at the hearing, as did the claimants, that a powered wheelchair is an “other aid” and that a person who normally uses a powered wheelchair has to be assessed as if using it.  If, as we thought at the hearing they were, the parties are right, what prevents all people with the physical or mental capacity to use a powered wheelchair from being assessed as though using such a wheelchair, unless the reasonableness of expecting a claimant to acquire such a wheelchair is a material consideration in the same way that the Secretary of State accepts it is in relation to guide dogs?  However, on reflection, we prefer to leave open the question whether for Activity 1 a powered wheelchair is an “other aid” or an “other aid” that could reasonably used, given the specific reference in the legislation to a walking stick and a manual wheelchair and the ejusdem generis rule, and in any event there may be questions as to whether use is “normal” for a claimant if, for example, his or her powered wheelchair can only be used in certain circumstances or certain places.

 

66.       Finally, the range of the conclusions reached by judges of the Upper Tribunal and Mr Commissioner Stockman shows the real difficulty, if not impossibility, that exists in taking a rigid or defined middle course between limiting the circumstances that can be taken into account to the claimant’s physical and mental condition and taking an in all the circumstances approach.

 

67.       For all these reasons, we are satisfied that, in principle, all circumstances should be taken into account when considering whether a person can reasonably use a manual wheelchair or other aid.

 

Application

 

68.       Nonetheless, the impact of those circumstances in answering the question whether the use of a manual wheelchair or other aid (including a powered wheelchair) is reasonable will be guided by the underlying purposes of the work capability assessment and the legislation governing ESA.

 

69.       It is clear from such documents as the Explanatory Memorandum to the draft 2011 Regulations to which we have already referred and which was considered by Judge Wikeley in AS, that the work capability assessment is intended to be a functional assessment based on an approach that a health condition or disability should not automatically be regarded as a barrier to work and which seeks to determine the ability of a claimant to work by considering the impact of his or her health conditions and disabilities on his or her ability to carry out a range of activities which have been formulated having regard to developments in healthcare and the modern workplace.

 

70.       We therefore agree with Judge Wikeley’s statement in AS that “the activities and descriptors in Schedule 2 do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work” and we also agree that they are to be applied by reference to “the modern workplace” and “an employer attuned to the requirements of disability discrimination law”.  This latter point has been reinforced by the reference in the new regulation 29(3)(a) to reasonable adjustments being made in the workplace, although that was introduced after the date relevant to the present cases and would anyway be of only indirect relevance to the construction of Schedule 2.

 

71.       As we have also mentioned, the ESA legislation should be construed and applied so as to avoid or minimise the risk that any claimant would fall into a gap between ESA and JSA.  It seems to us that this requires “joined up thinking” that should provide an important guide to determining when, on an in all the circumstances approach, it is reasonable to assess the ability of a particular claimant to mobilise on the basis that he uses a manual wheelchair or other aid.  This is because it highlights whether it is reasonable for difficulties that the claimant has in mobilising to act in his or her case as a barrier to work in the modern workplace.

 

72.       That the application of the legislation does not always succeed in preventing claimants from falling into a gap is apparent from two documents provided to us by Mr Serjeant (the second claimant’s representative).  They were excerpts from a report by the Work and Pensions Committee of the House of Commons “The role of Jobcentre plus in the reformed welfare system” (28 January 2014) and a DWP research report “Unsuccessful Employment and Support Allowance claims – qualitative research” by Helen Barnes, Joy Oakley, Helen Stevens and Paul Sissons.  At paragraph 5.2.2 of the latter report, it is stated;

 

Boundary issues between ESA and JSA

 

There are clearly some people who fail to qualify for ESA who may nevertheless find it difficult to establish a JSA claim, and comply with the requirement to be actively seeking work due to health reasons.  There is a potential for these people to fall into a gap between the two benefit regimes.  If the threshold for ESA excludes some people with ongoing, but still work-limiting, health issues the findings of this research suggest that there needs to be more recognition of such health issues within the JSA regime.  This should be made more explicit, so that people feel able to discuss their health conditions without fears that this will prejudice their JSA claim.  At the same time, it is important to ensure that personal advisors for JSA customers are equipped to help and support customers with health issues to find suitable work.

 

Support for health issues in JSA claims

 

People who were claiming JSA and had ongoing health issues generally reported that they were not receiving support with these.  Although some people had discussed health issues and had these incorporated into a Jobseeker’s Agreement, more generally, JSA customers tended to be wary of raising the subject in case it cast doubt on their availability for work.  There may be a need for these issues to be addressed more proactively by Jobcentre Plus advisors, so that more effective return to work support can be provided to customers with work-limiting health conditions.”

 

73.       That the Secretary of State has not attempted to demonstrate to us or other tribunals that, where a claimant is assessed for ESA purposes as able to mobilise only if using a manual wheelchair, barriers that there might be to gaining access to parts of the job market requiring wheelchair use can in practice be overcome suggests that there is not the joined-up thinking we consider necessary.  If disability employment advisors were providing support to such people, we would have expected there to be a ready response to the questions raised by claimants and tribunals.  Moreover, the flow of information needs to be two-way and it appears that, at least until recently, disability employment advisers have not been informed of the basis upon which claimants have been found not to have limited capability for work.  For instance, people assessed as able to mobilise more than one of the statutory distances only if using a wheelchair are not drawn to the attention of disability employment advisers in order that those who do not actually have a wheelchair may be given the advice and assistance necessary to enable them to take up employment in which such mobility might be required.  We acknowledge that a person with limited mobility who does not have a wheelchair might be able to find employment for which a wheelchair would not be required (because it might not be necessary to be able to mobilise to an extent only possible for that claimant with a wheelchair), but it is unfair and inconsistent with the statutory scheme for a person not to be able to seek work in as wide a field of employment as is suggested by a work capability assessment.  The amendment of Activity 1 has, in our judgment, as an aspect of the general duty to act fairly placed a duty on the Secretary of State to ensure that disability employment advisers are adequately equipped to give appropriate advice to those found not to qualify for ESA as a result of the amendment. 

 

74.       Many of the practical problems raised by such claimants are likely to be soluble, given the modern workplace and an employer who is conscious of his or her obligations under the Equality Act 2010..  Where that is so and it is considered that a work capability assessment should be carried out on the basis that the claimant could reasonably use a manual wheelchair (or other aid), disability employment advisers clearly also have a role to play in advising as to the solution.  Thus, for instance, where a claimant argues that he or she could not reasonably be expected to use a manual wheelchair at work because it could not be taken home, it might be pointed out that, unlike a guide dog, a manual wheelchair used in the workplace does not have to be taken home after work and the solution to the problem might be to make arrangements for a manual wheelchair to remain in the workplace.  If ESA were disallowed on that basis, a disability employment adviser might advise as to how a prospective employer could be asked about making such arrangements.  There is then no unfairness, although it might also be worth considering whether, if a disability employment adviser considers that a person who has failed a work capability assessment is in reality unemployable, he or she ought to be able refer the person for reassessment on an accelerated basis, with an explanation that will be before the person carrying out the reassessment.

 

75.       Against this background, we can give the following more specific guidance to the application of Activity 1 to claimants who do not normally use manual wheelchairs. 

 

76.       First, because the work capability assessment is not to be divorced from the real world of work and the claimant does not actually have an employer, the test must be applied on the basis that the notional employer from whom the claimant might obtain employment has a modern workplace and is prepared to make reasonable adjustments in order to enable the claimant to be employed.  To that extent the test is a thought-experiment like the “cooking test”.

 

77.       Secondly, as the Secretary of State concedes, all medical considerations will need to be taken into account.  This includes “attendant consequences, such as muscle wasting” identified by Judge Gray in TB which, we observe, are matters beyond the current “physical and mental condition” mentioned in section 1(4)(a) of the 2007 Act and regulation 19(1) of the ESA Regulations and the current “specific bodily disease” and “specific mental disease” mentioned in regulation 19(5).  However, we draw attention to the view of the First-tier Tribunal in the second case before us that “there would not be any detriment to the appellant’s health if she were to utilise a wheelchair for a significant portion of the day” because “she would still have the remaining portion of the day in which she could utilise her limbs and continue with ensuring the circulation of blood”.  Also, while we agree with Judge Williams in AR that all aspects of wheelchair use need to be taken into account, we would point out that a person unable to get in and out of a wheelchair unaided is unlikely to need to score points under Activity 1 because he or she would probably score 15 points under Activity 2 (standing and sitting) on the ground that he or she “[c]annot move between one seated position and another seated position next to one another without receiving physical assistance from another person”.

 

78.       Thirdly, the home environment is potentially relevant but, for the reason suggested in paragraph 74 above, an inability to use a manual wheelchair at home or to store it there due to the physical layout of the home is unlikely to be as important as was suggested in DM and NT.

 

79.       Fourthly, the availability of manual wheelchairs is a question of fact, to be proved by evidence although the First-tier Tribunal is entitled to use its own knowledge.  No Upper Tribunal judge has adopted Mr Commissioner Stockman’s emphasis in MG on NHS assessments.  Whatever may be the position in Northern Ireland, there are powerful arguments for not requiring there to be an NHS assessment before it is considered reasonable for a claimant to use a manual (or powered) wheelchair in Great Britain.  This is not simply a matter of practicality, although we are inclined to agree with the Secretary of State that requiring such an assessment would be impractical, but is because such an assessment is not required by the legislation and, at least in England, the criteria for providing wheelchairs through the NHS or local authorities vary from area to area and are generally wholly unrelated to the issues raised by the ESA Regulations.  No doubt any assessment would be valuable evidence, but it is not necessary to obtain one if one does not already exist.  Moreover, there are other ways of obtaining manual wheelchairs.  Judge Mark referred in BG to the “relative cheapness” of manual wheelchairs and to their availability from charities where reasonably required.  They can also often be rented at a modest cost that might be met out of earnings, although this may not be possible everywhere.

 

80.       However, it seems to us that the Access to Work scheme operated by Jobcentres may well make it unnecessary to consider in each case whether a claimant would be able to obtain a manual wheelchair.  If the Secretary of State is able to say that any claimant otherwise unable to obtain a manual wheelchair will be enabled to obtain one through the Access to Work scheme (or some other scheme) if a manual wheelchair is required to enable the claimant to take up an offer of employment, the question of the availability of manual wheelchairs will, for most if not all claimants, cease to be an issue in ESA cases.  The Secretary of State has not mentioned the Access to Work scheme to us but, if he has the sort of joined-up approach to assisting people with disabilities into work that we consider he should have, he ought to be able to provide short evidence-based guidance to decision-makers and submissions to the First-tier Tribunal to the effect that the Access to Work scheme or a similar scheme will act as such a safety net.  If, on the other hand, he is unable to show that such a scheme will fill in any gaps in the availability of manual wheelchairs, the question whether a claimant could obtain a manual wheelchair will remain a live one in ESA cases, that the Secretary of State’s decision-makers and submission-writers will need to address in each case.  As the Secretary of State controls the Access to Work scheme, the matter is in his hands.

 

81.       Fifthly and more generally, it will be clear from what we have already said that it is necessary for the Secretary of State to anticipate or at least answer objections that claimants who do not use manual wheelchairs or other aids might make to being expected to consider using one.  Thus reasons for decisions or submissions to the First-tier Tribunal need to show why the decision that the use of an aid is reasonable for that claimant accords with and promotes the underlying purposes of the legislation governing entitlement to ESA.  They would also indicate to the claimant, those concerned with JSA and the First-tier Tribunal why it was thought that the particular claimant’s capability for work should be assessed on the basis that he used the relevant aid or appliance.  Naturally, those reasons and the manner in which they are provided will be case and aid or appliance specific.  Some (e.g. medical issues) will appear in and can be given by the provision of or by reference to the Health Care Professional’s report.  Other reasoning could no doubt be based on generic and published evidence based material. 

 

82.       It is initially for the Secretary of State to make the relevant decisions on the application of the Activities set out in Schedule 2 to a particular claimant and in our view his duty to act fairly, and the joined up thinking that requires, mean that initially it is also for him to determine how and when the reasoning that underlies those decisions is to be appropriately provided to the claimant, the JSA decision makers and First-tier Tribunals.  However, he might think that properly showing claimants how their concerns can be overcome might promote more positive thinking on their part.  We invite the Secretary of State to consider giving guidance to decision makers on the ways in which they should do this. 

 

Conclusion

 

83.       In the present cases, the First-tier Tribunal has assumed in each case that the claimant could obtain a manual wheelchair.  They may have been right but it seems to us that there is force in the Secretary of State’s initial submissions in these appeals which effectively and in our view correctly acknowledge that the claimants were, in substance, unfairly required to prove a negative on an issue that had not been addressed in the Secretary of State’s submission.  It is necessary in both cases to consider use of a manual wheelchair because in the first case it is common ground that the claimant could not walk more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion and in the second case we accept the submissions of both parties that the First-tier Tribunal failed to consider the extent to which the claimant could “repeatedly” mobilise by means of walking.  We therefore allow both of these appeals and remit the cases to the First-tier Tribunal.  If the Secretary of State continues to oppose the appeals, he should make a further submission, supported by appropriate evidence, setting out why he asserts that, on the in all the circumstances approach set out above, it is reasonable for that claimant to be assessed under Activity 1 on the basis that she uses a manual wheelchair and, in particular, how that claimant might have acquired and so have been in a position to use such a wheelchair at work at the time of the Secretary of State’s decisions (see section 12(8)(b) of the Social Security Act 1998).  It will then be for the claimants to consider whether they wish to continue with their appeals.

 

 

 

 

MR JUSTICE CHARLES

Chamber President of the Administrative

Appeals Chamber of the Upper Tribunal

 

 

 

 

HIS HONOUR JUDGE MARTIN

Chamber President of the Social Entitlement

Chamber of the First-tier Tribunal

 

 

 

 

MARK ROWLAND

Judge of the Upper Tribunal

 

 

4 July 2014