Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CE/3688/2013

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Darlington on 24 June 2013 under reference SC224/12/02521 involved an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

 

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

 

DIRECTIONS

 

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

(1)               The new hearing will be at an oral hearing

 

(2)              The appellant is reminded that the tribunal can only deal with her situation as it was down to 19 April 2012 and cannot deal with any changes after that date.

 

(3)              If the appellant has any further evidence that she wishes to put before the tribunal that is relevant to her health conditions in April 2012, this should be sent to the First-tier Tribunal’s office in Newcastle-Upon-Tyne within one month of the date this decision is issued.

 

(4)              The First-tier Tribunal should have regard to the points made.

 

 

 

 

 

 

REASONS FOR DECISION

 

Introduction

 

1.                   The narrow but important issue with which this appeal is primarily concerned is the extent, if any, to which the Equality Act 2010 falls to be considered when deciding whether “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” under regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 (“the ESA Regs”).

 

2.                  Putting matters very briefly at this stage, evidence had been provided to the First-tier Tribunal by the appellant’s GP that her mental state would significantly deteriorate if she was found fit for work or to take part in work-related activities.  However, the First-tier Tribunal reasoned that regulation 29(2)(b) of the ESA Regs was not met, inter alia, because:

 

“The Equality Act 2010 includes provisions concerning disability discrimination in the work place. This legislation is designed to ensure that people with a range of health conditions can be accommodated in the workplace.  The provisions apply to all facets of employment and protect job applicants and employees.  For example, it is unlawful for an employer to discriminate directly by treating a job applicant or employee less favourably then others because of disability or unfavourably because of something arsing in consequence of disability, without objective justification.  Steps are also required to be taken by employers to enable employees to undertake work with supervision and support, after appropriate training; where appropriate with reasonable adjustments.  Positive discrimination in favour of a disabled job applicant or employee is not unlawful. The Appellant’s needs shall be taken into consideration by an employer.  Appropriate aids and appliances will be provided as appropriate.  On consideration of all the information provided, the Tribunal was satisfied that the Appellant could undertake any supervised low skilled, non manual or light manual, non-demanding job, taking into account her overall disability. Such jobs are available in a range of organisations including, but not limited to, supermarket chains or call centres or other workplaces employing fewer people.”

 

3.                  In other appeals I have seen the reasoning is shorter but the gist is the same: because the Equality Act 2010 will require an employer not to discriminate against, and make reasonable adjustments in the workplace to accommodate, a ‘disabled person’, there will be no risk arising from the person being found fit for work.  The question this decision addresses is whether that approach is permissible.

 

4.                  Instinctively the breadth of the approach seems problematic because if the Equality Act 2010 is such a universal panacea then it leaves unclear in what situations regulation 29(2)(b) continues to have application, yet Parliament has not sought to amend or remove it as a provision on the enactment of the Equality Act 2010. On the other hand it can be argued that neither does regulation 29(2)(b) expressly exclude the Equality Act 2010.

 

Summary of decision

 

5.                  The conclusion I have arrived at is that the assessment of risk under regulation 29(2)(b) of the ESA Regs does not require or involve the decision maker (be that the Secretary of State’s delegate or the First-tier Tribunal) in making an assessment as to whether employers would owe a duty under the Equality Act 2010 to make reasonable adjustments in respect of the individual claimant whose case falls for decision, and in my judgment the tribunal therefore erred in law in relying on the Equality Act 2010 to that effect.

 

Relevant background – Facts

 

6.                  The appellant was aged 32 at the time of the conversion decision that was under appeal to the First-tier Tribunal.  She had been entitled to incapacity benefit for 10 years prior to this decision due to anxiety and depression. By the time of the conversion decision on 19 April 2012 she also had problems with alcohol abuse.  As the focus of the appeal is on regulation 29(2)(b) of the ESA Regs, I need not set out what she said on her ESA50 form about how her health conditions affected her in relation to activities corresponding with Schedules 2 and 3 of the ESA Regs.

7.                  She was seen by a health care professional, a registered nurse, on 2 April 2012. The nurse recorded that he had identified her medical condition as “Mental Health Problem”.  Although not very enlightening as an identified medical condition (as the words used could cover a number of mental health conditions), on the face of it and taken with the evidence on the ESA50 form there seems no issue that the appellant met the first part of regulation 29(2)(b) as someone suffering “from some specific disease or bodily or mental disablement”, and the contrary was not argued before me. The nurse considered that the appellant met none of the Schedule 2 descriptors nor was regulation 29(2)(b) of the ESA Regs satisfied. 

 

8.                 A decision maker for the Secretary of State then decided, on 19 April 2012, that the appellant’s award of incapacity benefit did not qualify for conversion to an award of employment and support allowance. I simply record that on the face of the conversion decision of 19 April 2012 (pages 50-51), no consideration was given to regulation 29(2)(b) of the ESA Regs and whether the appellant met its terms.

 

9.                  An appeal was lodged against this decision on 2 May 2012. In the body of her appeal form the appellant said, inter alia: that she did not have a moderate condition; that it was not a matter of choice; that she could not cope with other people or going places alone; and that her doctor had all the information about her health.

 

10.              The appeal response submitted by the Secretary of State to the First-tier Tribunal referred to regulation 29(2)(b) as part of his response, thus suggesting it was an issue raised by the appeal, but then did not provide any analysis or argument as to why it was not met.  Paragraph 5.5 of that response says “[The appellant] made an appeal on the approved form, on the grounds that her alcoholism and depression limit her functionality against the mental health descriptors”, which may suggest the Secretary of State’s response writer took the view that the descriptors in Schedule 2 to the ESA Regs were the only issues raised on the appeal. 

11.               As the issue was not argued before me, I merely comment that it may be difficult to read the letter of appeal as not raising the terms of regulation 29(2)(b) as an issue on the appeal given: (a) the reference in the appeal to “struggling to cope with even just the basic’s of daily life” and “I cannot cope with other places or going places alone”; and (b) the fact that the decision under appeal did not address regulation 29(2)(b) and so did not alert the appellant to the possibility that it could be an issue on the appeal: see, relatedly, TC –v- SSWP (ESA) [2014] UKUT 371 (AAC). .

12.              Whatever the terms of the appeal letter should have been construed as raising, a submission made to the First-tier Tribunal by the Darlington CAB dated 17 May 2013 did expressly raise regulation 29(2)(b) of the ESA Regs as an issue to be addressed on the appeal.  Attached to the CAB’s submission was a letter from the appellant’s GP, dated 18 March 2013, which, amongst other matters, gave the opinion that the appellant’s:

 

“mental health would significantly deteriorate if she was found fit to work or to take part in work related activities”.

 

This was in reply to a letter from the CAB to the GP that had asked, relevantly:

 

“In your opinion, would there be a substantial risk to any person’s physical or mental health (i.e. hers or anyone else) if she was found fit to work or fit to take part in work related activities (e.g., work focussed interviews, work trials or training)?” (emphasis as in original)

 

13.              The appeal was heard by the First-tier Tribunal on 24 June 2013 (“the tribunal”), with the appellant and her partner attending. It dismissed the appeal. On regulation 29(2)(b), the tribunal’s decision notice simply stated “Regulation 29 does not apply”.  The tribunal provided its reasons why it did not apply in its statement of reasons. In addition to and immediately before the reasoning quoted in paragraph 2 above, the tribunal said this:

 

“..the Tribunal had regard to the type of employment which the Appellant is capable of undertaking. [The appellant] informed the Tribunal that since leaving college she had worked as a shop assistant and a care assistant.  She felt that she would not have been able to work “with people” in April of 2012.  Dr McLeish [the GP] expressed the view, of which the Tribunal took due note, that [the Appellant’s] mental state “would significantly deteriorate if she was found fit to work or take part in work related activities”. The Tribunal found that the ordinary meaning of the word significant was not the same as substantial which is used in the regulations, and, indeed, the GP had specifically and significantly not used the word substantial to which she had been referred in the commissioning letter.”

14.              I gave permission to appeal on 19 November 2013, and said as follows:

 

“I give permission to appeal as I consider it is arguable the tribunal erred materially in law in wrongly reading the word significant as if it qualified “risk” (and so was not substantial), when in fact it was being used to refer to the extent to which [the Appellant’s] health would deteriorate if found “fit for work”. If the tribunal accepted that being found fit for work would as a matter of fact lead to a significant deterioration in [the Appellant’s] health it is by no means clear why the “fit for work” finding would not give rise to a substantial risk to health, the significant deterioration then being a manifestation of that risk.

 

I also give permission to appeal to explore the potentially important issues of (a) when and to what extent a tribunal assessing regulations 29(2) and 35(2) of the ESA Regs 2008 is entitled to take into account the Equality Act 2010 and its impact on workplace environments in cases predating the amendments to those regulations on 28 January 2013, and (b) the evidence required for a First-tier Tribunal to make findings as to the impact of the Equality Act in fact in relevant workplaces.”

 

 

15.               After the exchange of submissions from representatives for the parties – the Appellant now being represented by David Philips and Partners, Solicitors - in which both agreed the tribunal had erred in law in its approach to regulation 29(2)(b) of the ESA Regs by reading the GP’s letter as meaning there was only a significant risk to the Appellant’s health from being found ‘fit for work’, on 6 February 2014 I directed that there be an oral hearing of the appeal.  My reasons for so doing were as follows.

 

“Neither party has sought an oral hearing of this appeal because, it would appear, both accept that the First-tier Tribunal erred in law in wrongly reading the word “significant” as if it qualified “risk”. Of itself this may give rise to an issue of whether the First-tier Tribunal ought to have found (and the Upper Tribunal ought to find if it sets the First-tier Tribunal’s decision aside) that regulation 29(2)(b) of the ESA Regs was satisfied.

 

If, however, the appeal is to be remitted to a freshly constituted First-tier Tribunal, that will mean that the issue of whether [the Appellant] met regulation 29(2)(b) as at April 2012 will have to be re-decided and that in turn may lead to the First-tier Tribunal having to confront issues surrounding the Equality Act 2010.  This is a legislative provision that is featuring to quite a significant extent in First-tier Tribunal decisions, and I consider an oral hearing is needed to further explore this issue with a view to providing, if possible, appropriate guidance to appellants, the Secretary of State and the First-tier Tribunal. The decision of Upper Tribunal Judge Mark in JB-v-SSWP (ESA) [2013] UKUT 0518 (AAC) may provide part of the answer, at least in the case of straightforward physical disablements, but it does not address people with mental health problems or those with a history of alcohol or substance abuse and the reasonable adjustments an employer may be required to take to seek to meet those problems.

 

I accept, at least at present, that in assessing the risk of being found “fit for work” under regulation 29(2)(b) the responsibilities of a prospective employer under the Equality Act 2010 in employing a claimant in a job within the Charlton “range or types of work for which [she] is both suited as a matter of training or aptitude and which [her] disabilities do not render [her] incapable of performing” may be a relevant consideration.  However, it is how the First-tier Tribunal works this through on the facts of individual cases, if applicable, that is likely to be key, and on which JB arguably may not assist. For example, is a blanket and simple reference to the Equality Act 2010 sufficient (as the tribunal arguably did in this case)?  Paragraph 9 of AT-v-SSWP (ESA) [2013] UKUT 630 (AAC) would seem to suggest not.  But what evidence would the First-tier Tribunal need of the adjustments that an employer would in fact be compelled, or be likely to be compelled, to make under the Equality Act 2010 in respect of, say, severe agoraphobia (but where that condition does not score the claimant 15 points under Schedule 2), or, in this case, the GP’s evidence (page 61) that the appellant’s mental state would significantly deteriorate if found fit for work or work related activities?  And in assessing risk can the First-tier Tribunal simply rely on an assumption that employers would have to meet the Equality Act 2010 requirements or does the assessment of risk require the First-tier Tribunal to assess the likelihood that (otherwise suitable employers) would in fact make such adjustments?”

16.              The hearing took place on 28 April 2014.  The appellant was represented by Ms Thaira Bibi from David Philips and Partners. The Secretary of State was represented by Ms Katherine Apps of counsel.  I am grateful to both advocates for their written and oral submissions.  Further written submissions were provided after the hearing by Ms Apps and it then, regrettably, took some time to obtain confirmation that no submissions were to be filed in reply on behalf of the appellant.

 

Relevant background - Law

Regulation 29(2)(b)

17.               Ignoring the legislative provisions concerning conversion (which is not an issue on this appeal), section 1(3)(a) of the Welfare Reform Act 2007  provides as a basic condition of entitlement to employment and support allowance (“ESA”) that the claimant “has limited capability for work”.  Whether a claimant has limited capability for work related activity then becomes of importance when deciding the level of ESA payable (i.e. with the “work related activity component” or the “support component”): see sections 2(1)(b), (2) and (3), and 4(2)(b), (4) and (5) of the Welfare Reform Act 2007. Sections 8 and 9 of the same Act then set out the basic structure for determining whether a person in fact has limited capability for work and limited capability for work-related activity.

 

18.              However, it is Schedule 2 to the Welfare Reform Act 2007 that empowers deeming provisions concerning limited capability for work and limited capability for work-related activity.  Paragraph 1(a) in Schedule 2 provides that:

 

“Regulations may make provision...for a person to be treated in prescribed circumstances as having, or as not having, limited capability for work”.

 

Paragraph 9(a) in Schedule 2 provides, similarly:

 

“Regulations may make provision…for a person to be treated in prescribed circumstances as having, or not as having, limited capability for work-related activity”.

 

It is under these provisions that, respectively, regulations 29(2)(b) and 35(2) of the ESA Regs are made.

 

19.              Regulation 29(1) and (2)(b) of the ESA Regs provided at the material time as follows:

 

“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…..

(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 nay person if the claimant were found not to have limited capability for work.” 

 

With effect from 28 January 2013 (that is, after the conversion decision in issue on this appeal), regulation 29 was amended and a sub-paragraph (3) added, which provides as follows:

 

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

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

(b)      the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating he claimant.”

 

20.             It was argued before me by the Secretary of State that sub-paragraph(3) was added to regulation 29 of the ESA Regs in order to make clear the original policy intent on the scope of the regulation 29(2)(b) test.  This is the view expressed in the Explanatory Memorandum to the Social Security Advisory Committee that accompanied the draft amending regulations which then became the Employment and Support Allowance (Amendment) Regulations 2012 (SI 2012/3096). I need not decide this point on this appeal.  Certain aspects of the wording of the said sub-paragraph (3) are puzzling. For example, sub-paragraph (3)(a) refers to adjustments being made “in the claimant’s workplace” which suggests the claimant has a workplace, yet ESA is in essence an out of work benefit.  However, I accept, as did Lord Justice Hughes (as he then was) in Cattrell (see paragraph 25 below), that in assessing risk under regulation 29(2)(b) account ought to be taken of reasonable measures that can be taken by or in respect of an individual claimant to reduce or alleviate the risk from working or being found “fit for work”[1].

21.              Regulation 35(2) of the ESA Regs provides as follows:

 

“35.-(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if:

(a) the claimant suffers from some specific disease or bodily or mental disablement; and

(b) by 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-related activity.”

 

Caselaw on regulation 29(2)(b)

22.             The Court of Appeal’s decision in Charlton –v- SSWP [2009] EWCA Civ 42; R(IB)2/09,  concerned the application of the ‘substantial risk’ test now found in regulation 29(2)(b) of the ESA Regs to the predecessor statutory regime concerning “incapacity for work”. The relevant legal test was in regulation 27(b)[2] of the Social Security (Incapacity for Work) (General) Regulations 1995 and was identical to the test under regulation 29(2)(b) of the ESA Regs save that for the closing words “if the claimant were found not to have limited capability  for work” the wording was “if he were found capable of work”.  Charlton applies equally to regulation 29(2)(b) of the ESA Regs:  see paragraph 4 of Charlton itself and, for example, MB –v- SSWP (ESA) [2012] UKUT 228 (AAC).

23.             Given its importance, I need to set out the core reasoning in Charlton (at paragraphs 32-35, 38-39 and 46-47):

“Regulation 27(b) is designed to provide an additional test of incapability not a substitute test; the claimant may be deemed incapable despite the fact that he is capable of performing those everyday tests which, but for regulation 27(b), would demonstrate that he is capable of work.

Once it is appreciated that regulation 27(b) applies only when a claimant’s functional abilities in the performance of everyday tasks have been established, it becomes clear that the risk to be assessed must arise as a consequence of work the claimant would be found capable of undertaking, but for regulation 27. Were it not so, there would be no statutory purpose in requiring a claimant to have undergone an assessment before consideration of the effects of any disease or disablement on his or others’ safety.

Regulation 27(b) may be satisfied where the very finding of capability might create a substantial risk to a claimant’s health or to that of others, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused. Apart from that, probably rare, situation, the determination must be made in the context of the journey to or from work or in the workplace itself.

…..in the end the Commissioner does…..ask and answer the correct question posed by the regulation, namely whether a substantial risk should be foreseen in the light of the work the claimant might be expected to perform in the workplace in which he might be expected to be. This gives rise to the second issue in the appeal: how the decision-maker is to identify the nature of claimant’s work and workplace….

Regulation 27(b) requires the decision-maker to assess risk in the context of the work or workplaces in which the claimant might find himself.

 

…..In order to determine whether there is any health risk at work or in the workplace it is necessary to make some assessment of the type of work for which the claimant is suitable. The doctor, the decision-maker and, if there is an appeal, the tribunal, should be able to elicit sufficient information for that purpose. The extent to which it is necessary for a decision-maker to particularise the nature of the work a claimant might undertake is likely to depend upon the claimant’s background, experience and the type of disease or disablement in question. It is not possible and certainly not sensible to be more prescriptive. The most important consideration is to remember that the purpose of the enquiry is to assess risk to the claimant and to others arising from the work of which he is capable. No greater identification of the type of work is necessary other than that which is dictated by the need to assess risk arising from work or the workplace.

The correct approach has been identified by Deputy Commissioner Paines in CIB/360/2007:

“17. The degree of detail in which [the consequences of a finding that the claimant is capable of work] will need to be thought through will depend on the circumstances of the case … . A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).

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

……Sufficient information may be elicited by reference to the claimant’s completion of the initial questionnaire, questioning during his medical examination, or by any evidence he may choose to give on an appeal to the tribunal. The process to be adopted by the decision-maker or tribunal is to be regarded as inquisitorial and not adversarial. It is a process described by Diplock J in R v Medical Appeal Tribunal (North Midland Region ex parte Hubble) [1958] 2 QB 228 at 240 as a fact-gathering exercise in which there is no formal burden of proof on either side. There should be no difficulty provided the decision-maker or tribunal recall that the essential question is whether there is an adequate range of work which the claimant could undertake without creating a substantial risk to himself or to others.

This conclusion is consistent with the practical application of these regulations. Any interpretation must bear in mind that the regulations are designed to provide a fair and effective system for assessing entitlement to incapacity benefit and to allied benefits when a claimant has passed the personal capability assessment. It would not be possible to achieve the aim of those regulations were the decision-maker to be required to make findings of the particularity for which the claimant contends. The decision-maker, it must be recalled, will be provided only with the report of the doctor based upon the doctor’s interview with the claimant and the claimant’s completion of the questionnaire. It is quite impossible for the decision-maker to identify actual positions of employment or the nature of the duties and location of any job which the claimant might undertake, not least because the decision-maker may often be based in Belfast, or elsewhere, and can have no possible means of discovering employment circumstances throughout the country. The conclusion which requires no more than that the decision-maker or tribunal assess the range of work of which the claimant is capable for the purposes of assessing risk to health has the merit of achieving the objective of the regulations.”

 

24.             The Court of Appeal has considered regulation 27b of the Social Security (Incapacity for Work) (General) Regulations 1995 on one other occasion, in SSWP –v- Cattrell [2011] EWCA Civ 572; [2011] AACR 35.  Much of Cattrell is concerned with whether the second appeal test for appealing to the Court of Appeal was satisfied. The facts of the case in Cattrell, as found by the First-tier Tribunal, were that there was no work which did not carry a risk to the Mrs Cattrell’s health (she suffered from a latex and rubber allergy).  As Lord Justice Hughes (as he then was) put it (at paragraph 36): “If that is the fact then the question of examining the range of possible employment as is ordinarily necessary under [Charlton] does not arise”.

25.              Lord Justice Hughes went on to comment in paragraph 37:

 

“….I can see why the Secretary of State wished to say that there were grounds for contending that that last conclusion was simply wrong on the facts. I can see why he wished to say that on the facts the tribunal ought to have found that once you take into account such ordinary precautions as might reasonably be expected, including carrying the epi-pen, against the limited possibility of severe anaphylactic shock, and once you take into account screening out occupations with obvious exposure to rubber and latex, the risk to health should be found not to be substantial. That however is a question of fact in each case. It was not a question of law on appeal of the Upper Tribunal and it is not a question of law here.”

 

I was told by Ms Apps that it was these remarks that, at least in part, provided the impetus for the addition of sub-paragraph (3) to regulation 29 of the ESA Regs as set out in paragraph 19 above.

 

 

26.             Lord Justice Hughes concluded his concurring judgment in Cattrell by saying:

 

“In all cases which come before it the tribunal must identify the risk; that is to say it must look at the probability of the suggested adverse occurrence and the gravity of that occurrence if it should occur, and it must say whether there is no underlying work which the claimant otherwise could do which would not carry a substantial risk to her health. If the Secretary of State wishes to contend in a particular case there are clearly some jobs that the claimant can do, whether available in large numbers or in small numbers, it is of course open to him to attend either in person or in writing and to say so.”

 

Equality Act 2010

27.              The Equality Act 2010 is said by its title to be an:

“An Act to make provision to require Ministers of the Crown and others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities; to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics; to enable certain employers to be required to publish information about the differences in pay between male and female employees; to prohibit victimisation in certain circumstances; to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct; to enable duties to be imposed in relation to the exercise of public procurement functions; to increase equality of opportunity; to amend the law relating to rights and responsibilities in family relationships; and for connected purposes.”

Broadly speaking, from the perspective of disability it has replaced the provisions of the Disability Discrimination Act 1995 (see sections 3A, 4 and 4A of the latter Act for the provisions it contained concerning employers’ duties to a disabled person).

28.             At this stage I merely comment that despite the Disability Discrimination Act 1995 being in place between 1995 and 2010, Parliament did not bring it into account under the Welfare Reform Act 2007 in terms of the statutory tests for limited capability for work/work-related activity. Nor has it been brought into account under regulations 29(2)(b) or 35(2) of the ESA Regs, despite both being concerned, at least in some sense, with the field of work and thus employment.  Even the addition of sub-paragraph (3) to regulation of the ESA Regs (referred to in paragraph 18 above), does not refer to  “reasonable adjustments an employer would be required to make in the claimant’s workplace pursuant to his duties under the Equality Act 2010”.

 

29.             Part 2 of the Equality Act 2010 deals with what it calls Key Concepts.  Section 4 in Part 2 of the Act sets out which “characteristics” are “protected characteristics”: “disability” is one of them.  Under section 6(1), also in Part 4, “disability” is defined as follows:

 

“A person (P) has a disability if:-

(a)    P has a physical or mental impairment, and

(b)    the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

 

Under section 212(1) of the same Act “substantial” is defined as meaning “more than minor or trivial”, so is not a high threshold: see, further, paragraph 42 of SSWP –v- MM and DM [2013] EWCA Civ 1565.  Furthermore, paragraph 2(1) of Schedule 1 to the Equality Act 2010, which complements section 6, provides that:

 

“The effect of an impairment is long-term if—

(a)it has lasted for at least 12 months,

(b)it is likely to last for at least 12 months, or

(c)it is likely to last for the rest of the life of the person affected.”

 

30.             It is worth noting that paragraph 1 of the same Schedule 1 provides that “[r]egulations may make provision for a condition of a prescribed description to be, or not to be, an impairment”. Regulation 3(1) of the Equality Act 2010 (Disability) Regulations 2010 is made under this provision and provides that, subject to an immaterial exception:

 

“…addiction to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the Act”. 

 

By way of contrast, as the decision in JG-v- SSWP [2013] UKUT 37 (AAC); [2013] AACR 23 shows, alcohol dependency can amount to a “specific disablement” for the purposes of section 8(2) of the Welfare Reform Act 2007 and so can count for the purposes of the employment and support allowance scheme.

 

31.              Also worthy of note is paragraph 5 in Schedule 1 to the Equality Act 2010, which is concerned with the Effect of medical treatment and provides as follows.

“(1)An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if—

(a)measures are being taken to treat or correct it, and

(b)but for that, it would be likely to have that effect.

 

(2)“Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.

 

(3)Sub-paragraph (1) does not apply—

(a)in relation to the impairment of a person's sight, to the extent that the impairment is, in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed;

(b)in relation to such other impairments as may be prescribed, in such circumstances as are prescribed.

 

The terms of paragraph 5(1)(b) may be contrasted with regulation 19(4) of the ESA Regs which provides that:

“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.”

 

As I read these two statutory provisions, broadly speaking (and I need go no further for the purposes of this appeal) they contrast with one another.  On the former, use of a prosthesis or other aid (e.g. a walking stick) is to be discounted when determining whether a person has a “disability” for the purposes of the Equality Act 2010. On the latter, use of an aid is to be taken into account in determining the extent of the person’s ability to perform the Schedule 2 ESA Regs activities.  

32.             Sections 20 and 21 of the Equality Act 2010 also appear in Part 2 Key Concepts, but are in Chapter 2 which is concerned with Prohibited Conduct.  Section 20 is concerned with the duty to make reasonable adjustments for disabled persons.  Section 20(1) sets out:

“(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.”

 

The duty comprises three requirements. I will set out only one, as set out in subsection (3) of section 20.

 

“(3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

 

Section 21 of the same Act then provides:

“Failure to comply with duty

 

21.-(1)A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

 

(2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

 

(3)A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.”

33.             To understand how these Key Concepts apply to employers, consideration has to be given to Part 5 of the Equality Act 2010 (titled Work) and Chapter 1 thereunder (titled Employment etc).  I need only set out part of section 39 in Part 5:

 

“Employees and applicants

 

39.-(1)An employer (A) must not discriminate against a person (B)—

(a)in the arrangements A makes for deciding to whom to offer employment;

(b)as to the terms on which A offers B employment;

(c)by not offering B employment.

 

(2)An employer (A) must not discriminate against an employee of A's (B)—

(a)as to B's terms of employment;

(b)in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(c)by dismissing B;

(d)by subjecting B to any other detriment.

 

(3)An employer (A) must not victimise a person (B)—

(a)in the arrangements A makes for deciding to whom to offer employment;

(b)as to the terms on which A offers B employment;

(c)by not offering B employment.

 

(4)An employer (A) must not victimise an employee of A's (B)—

(a)as to B's terms of employment;

(b)in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service;

(c)by dismissing B;

(d)by subjecting B to any other detriment.

 

(5)A duty to make reasonable adjustments applies to an employer.” 

34.             Pursuant to section 20(1) and (13) and section 39(5), Schedule 8 to the Equality Act 2010 addresses reasonable adjustments at work.  However, it is important to note that the duty on the employer or prospective employer to “take such steps as it is reasonable to have to take to avoid the [substantial] disadvantage [the disabled person will be under]” (per s.20(3)) only arises in respect of what is termed an “interested” disabled person: see paragraph 2(2)(c) in Schedule 8.  Moreover, at least for the purposes of the regulation 29(2)(b) ESA Regs assessment of the range of likely employers set down by Charlton, the interested disabled person is tightly defined.

 

(a)    When it comes to deciding to whom to offer employment, the duty to make reasonable adjustments only applies to an employer where the disabled person is an applicant for the employment or has notified the employer that he or she may be an applicant for the job.

 

(b)   When it comes to employment by the employer, the disabled person must either be an employee of the employers or an applicant for employment with the employer.

35.              Furthermore, if the employer does not know and could not reasonably be expected to know that an interested disabled person has a disability and is likely to be placed at a substantial disadvantage, the employer will not be under a duty to make reasonable adjustments: paragraph 20(1)(a) and (2) of Schedule 8 to the Equality Act 2010.  Allied to this, the disabled person applying for employment is under no obligation to inform a prospective employer of his or her disability and, generally,  the employer may not ask a person about his or health before offering the person work: section 60(1) and (13) of the Equality Act 2010.

 

36.             Lastly, as far as the Equality Act 2010 is concerned,  section 120 of the Act provides (save for Armed forces cases) that the jurisdiction for determining complaints relating to alleged breaches of Part 5 of the Act (including section 39 and employment, and thus reasonable adjustments in relation to employment), vests in the employment tribunal and, save for judicial review (see s.113(3)(a) of the Equality Act 2010), nowhere else.

 

Caselaw

37.              There have only been two decided cases of Upper Tribunal on the inter-relationship between regulation 29(2)(b) of the ESA Regs and the Equality Act 2010.

 

38.             The first is JB-v- SSWP (ESA) [2013] UKUT 518 (AAC). In that case the First-tier Tribunal had made a similar reference to an employer’s duty to make reasonable adjustment under the Equality Act when finding regulation 29(2)(b) of the ESA Regs was not satisfied.  On further appeal it was argued for the claimant that the First-tier Tribunal had been wrong to find the Equality Act would have been engaged as the claimant’s level of disability as determined by the tribunal would not have met section 6(1) of the Equality Act 2010. Upper Tribunal Judge Mark rejected this argument on the basis that no explanation had been made on behalf of the claimant as to why his disabilities did not meet section 6(1). Judge Mark said that, as far as he was able to judge, the claimant’s arthritis, epilepsy, asthma, vertigo and depression met the definition of ‘disability’ in section 6(1). On the other hand, Judge Mark pointed out that if the claimant was not disabled for the purposes of the Equality Act 2010 then it was still open to the tribunal to find he could do the work identified by them without needing to have regard to the Equality Act.  Moreover, and importantly, the claimant had not identified any substantial risk that might arise in respect of his health from his doing the work suggested.

 

39.             However despite these views as to the lack of merit in the appeal before him, Judge Mark did say (albeit obiter) in paragraph 15:

 

“…it appears to me that the tribunal is bound, if relevant to an issue before it, to make a determination as to whether a person would be owed a duty by a potential or actual employer under the 2010 Act.  In particular, if the existence of such a duty is a prerequisite for there being no substantial risk to a claimant’s mental or physical health for the purposes of regulation 29, then plainly a finding must be made as to that duty.”

And he went on:

 

“In the present case, it appears to me that the tribunal may more accurately have found that there was no evidence of any such risk if the claimant was found not to have limited capability for work, but that if there was any long-term disability so serious as otherwise to pose such a risk, then the employer would be under a duty to make reasonable adjustments under section 20 of the 2010 Act.  However, it does not appear to me that, on the basis of the unchallenged findings of fact by the tribunal, it could have come to any decision other than to dismiss the appeal and it does not appear to me that there was any relevant error of law in its reasons.”

 

40.             The other Upper Tribunal decision is that of Upper Tribunal Judge Gray in AT –v- SSWP (ESA) [2013] UKUT 630 (AAC), where she said at paragraph 9:

 

“Of considerable importance in this case, bearing in mind the diagnoses [of anxiety and depression and alcohol misuse], is the potential application of regulation 29. In this the tribunal’s reasoning was wrong. At paragraph 19 of the statement of reasons it is explained that FTT had regard to the type of employment which the appellant may be capable of undertaking. There is then something of a quantum leap from that comment into a generalised assertion that the Equality Act 2010, including as it does provisions concerning "disability discrimination" in the workplace, can be relied upon to prevent the risk to health envisaged by regulation 29. With respect, if that might be the position in relation to physical disablement, and I do not decide that important point upon which I have not had argument, to assume that because there is a duty on an employer to make reasonable adjustments there cannot be a substantial risk to health due to stress related matters for somebody with significant addiction or mental health problems, is to misunderstand the provisions of both sets of legislation.” 

 

She added in the next paragraph:-

 

“Also stated in the paragraph which dealt with relation 29, is the assertion that there were a number of manual jobs which the appellant could do under supervision, including a job at a call centre. From decisions I have seen there appears to be a common misconception that working in a call centre is a benign, stress-free occupation. On the contrary such work is generally highly target driven, and whilst it may be suitable for those with physical health problems for whom being settled in one place is an advantage over more peripatetic occupations it cannot be seen as invariably suitable for all those with disabilities.” 

 

I refer to this because of the tribunal’s similar reference in this case to a “non-demanding job” in a “supermarket chain or call centre”.

41.              The last Upper Tribunal decision I need to refer to is that of the Three Judge Panel in SI –v- SSWP (ESA) [2014] UKUT 308 (AAC). That decision was concerned with the factors and circumstances to be taken into account in determining whether a manual wheelchair could reasonably be used by a claimant who does not have such a wheelchair.  Having drawn on Upper Tribunal Judge Wikeley’s view in AS –v- SSWP (ESA) [2013] UKUT 587 (AAC), 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”, the  Judges commented, in paragraphs 73 and 74:

 

“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. 

 

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.”

 

 

Analysis and conclusion

 

‘Significant’ v ‘substantial’

42.             It was common ground before me that the First-tier Tribunal on the face of its reasoning had misread or misconstrued what the GP had said in the 18 March 2013 and had thereby erred in law.  I agree. The test under regulation 29(2)(b) is whether there would be a substantial risk to health of the claimant (or others) if he or she was found “fit for work”. The tribunal read the GP as saying that the risk to health was only significant and not substantial, but that is not what the GP said.  The GP’s letter said that the appellant’s mental health would significantly deteriorate if she was found fit for work, and so was addressing what in the GP’s judgment would in fact happen and was not addressing risk.  If the appellant’s health would in fact significantly deteriorate if found fit for work then that provided an evidential basis for a finding that a “fitness to work” finding would give rise to a substantial risk to the appellant’s health (i.e. the significant deterioration in her health).   The tribunal’s misreading of the GP’s evidence therefore led it into a material error of law.

 

43.             Speaking for myself, I may have been inclined to find, in the absence of any persuasive evidence pointing the other way, that the GP’s letter on the balance of probability ought to lead to the view that regulation 29(2)(b) was satisfied with effect from 19 April 2012. However, neither

 

party wished me to take this course (for differing reasons[3]), and so I say no more about it. In the circumstances I leave also to be decided by the next First-tier Tribunal whether regulation 35(2) of the ESA Regs was satisfied as at 19 April 2012.

   

Regulation 29(2)(b) and Equality Act 2010

44.             I intend no disrespect to Ms Bibi and Ms Apps by reducing their arguments to binary opposites: Ms Bibi for the appellant following JB and contending that the First-tier Tribunal had to “make a finding as to the scope of the duty under section 20 and Schedule 8 of the [Equality Act] 2010 to the individual applicant” because regulation 29(2) refers to “reasonable adjustments” and because the “question of reasonable adjustments in employment and occupation under the EA 2010 can be determined by the DWP, Atos and FTT”; and Ms Apps for the Secretary of State arguing that the regulation 29(2)(b) risk analysis is “not an assessment of the application of the EA 2010”.  

45.              I confess that I have not found the point necessarily an easy one to resolve. However, in the end I have come to the conclusion that the Secretary of State’s argument is correct. Accordingly, I reject the submission of the appellant. In my judgment the assessment of risk under regulation 29(2)(b) of the ESA Regs does not require or involve the decision maker (be that the Secretary of State’s delegate or the First-tier Tribunal) in making an assessment as to whether employers would owe a duty under the Equality Act 2010 to make reasonable adjustments in respect of the individual claimant whose case falls for decision, and in my judgment the tribunal erred in law in relying on the Equality Act 2010.

 

46.             My reasons for arriving at this conclusion are incremental, and are set out below. In short, however, they may be grouped under the following broad headings:

 

(i)                the Equality Act 2010 and employment and support allowance schemes have different statutory aims and materially different statutory contents;

(ii)             an Equality Act 2010 test sits uneasily with Charlton;  

(iii)           the First-tier Tribunal is ill-equipped to make proper assessments under the Equality Act 2010; and

(iv)            recourse to the Equality Act 2010 is unnecessary.

47.              The statutory intendment is, perhaps, difficult to glean. As I said at the outset of this decision, regulation 29(2)(b) of the ESA Regs says nothing about the Equality Act 2010 (or its predecessor the Disability Discrimination Act 1995).  Moreover, if as Judge Wikeley says in AS the descriptors in the ESA Regs are not to be divorced from the real world of work then obligations that may be owed by employers in that real world under the Equality Act 2010 may be said to be relevant to the ESA Regs more generally.

 

48.             On the other hand, as I have already noted, regulation 29(2)(b) of the ESA Regs (and its regulation 27b predecessor in the Incapacity for Work Regulations 1995) has never been made subject to prospective employers’ duties under the Equality Act 2010 (or the Disability Discrimination Act 1995).  This is so even when sub-paragraph (3) was added to it with its reference to “reasonable adjustments”. Although this amendment falls after the date of the decision under appeal I do not consider I am precluded from having to regard to it as a guide to Parliamentary intention more generally. Whether or not it was affecting a change in the statutory test or merely seeking to make clearer the original intention, I consider it is instructive that even when using the language of “reasonable adjustments”, which is a statutory phraseology rooted in the Disability Discrimination Act 1995 and the Equality Act 2010, the language was not linked to, and has been kept separate from, the Equality Act 2010. This it seems to me points to regulation 29(2)(b) being intended to embody a test separate to the tests under the Equality Act 2010.

 

49.             This perspective is reinforced, in my judgment, when aspects of the Equality Act 2010, and employer’s duties under it in particular, are considered.

 

50.             First, the duties are not owed to world at large or prospective employees at large.  The duties, including the duty to make reasonable adjustments, only apply where there is an interested disabled person. That means either a person who has in fact applied for employment or has in fact notified the employer that he or she may apply for it, or is in fact an employee of the employer. However, these factual stages are not reached on the analysis required by regulation 29(2)(b).  Employment and support allowance is in essence a benefit for those not in employment and not able to work: see regulation 40(1) of the ESA Regs. 

 

51.               Moreover, as Charlton makes plain, regulation 29(2)(b) provides an additional test of “fitness for work”, the risk to be assessed must arise as a consequence of work the claimant would be found capable of doing but for regulation 29(2)(b), and that risk must be assessed in the context of the work or workplaces in which the claimant might find him or herself and which is work that is suitable for the claimant.  It thus embodies a forward looking test. This test is being applied at the date of the decision under appeal, and at that time almost by definition the claimant will not be in employment or applying for employment. By way of contrast the duties in respect of employers under the Equality Act 2010 arise in respect of actual employment the disabled person is already in, or has applied for or has said he or she will apply for. To apply such an “actual positions of employment” test in the context of regulation 29(2)(b) would run wholly contrary to the argument rejected by the Court of Appeal in Charlton (see its paragraph 37).

 

52.              Second, the reasonable adjustments only apply under the Equality Act 2010 if the employer knows, or ought to know, that the job applicant or employee is a disabled person. However, the disabled person is under no obligation to tell the employer of his or her disability and generally the employer cannot ask the person if he or she is disabled (per s.60 of Act).  A supposition that reasonable adjustments would be made by an employer under the Equality Act 2010 when making the risk assessment under regulation 29(2)(b) of the ESA Regs could cut across this statutory “right not to tell”. 

 

53.              Third, the tests for assessing disability under the Welfare Reform Act 2007 and the Equality Act 2010 are different, and noticeably different in two particulars.  First, alcohol or drug dependency does not count as an impairment under the Equality Act 2010 and so isn’t a disability which can call for any reasonable adjustments (in employment or elsewhere) under that statutory scheme, however the same conditions can count for the purposes of the Welfare Reform Act 2007: see JG above.  Indeed, one of the most common applications of regulation 29(2)(b) concerns those with drug or alcohol dependencies (as Charlton examples). That shows that the test under regulation 29(2)(b) cannot equate with the duties in respect of employment under the Equality Act 2010. Second, the approach to prostheses or other aids is markedly different under the two schemes (see paragraph 31 above). 

 

54.              In addition, the test for “disability” under the Equality Act 2010 of a more than minor adverse effect lasting for 12 months in respect of a person’s ability to carry out “normal day to day activities” may have some cross-over with the tests under the ESA Regs (e.g. picking up a coin, turning pages in a book, and standing and sitting), but it is not the same test and will encompass different considerations (e.g. can the person get out of bed, or have a bath).  It seems to me at the very least odd that the short wording of paragraph1(a) in Schedule 2 to the Welfare  Reform Act 2007 and regulation 29(2)(b) of the ESA Regs requires this different statutory test for disability, which arises under an entirely different enactment, to be applied and satisfied.

 

55.              Fourth, an employer’s duties under the Equality Act 2010 can have no application to the assessment of risk arising from the mere finding of “fitness to work” (per Charlton), and it is difficult to see how an employers’ duties under section 39 of the Equality Act 2010 in respect of employment (including to make reasonable adjustments) would extend (per Charlton) to the journey to and from work.  Ms Apps suggested that the duty might be found where the interested disabled person was unable to travel in crowds and at especially busy times, and the reasonable adjustment owed by the employer might be in changing the hours of work (so that the person can travel outside the rush hour). That may be so, however I struggle to see the basis on which the Equality Act 2010 would require an employer to provide a companion to travel with the disabled person to work (if, for example, the disabled person had scored 9 points under activity 15 in Schedule 2 to the ESA Regs: see PD in footnote 1 above).

 

56.              Fifth, there is nothing in the Equality Act 2010 that vests any jurisdiction in the First-tier Tribunal to determine matters arising under that Act. As noted above, the jurisdiction to determine complaints as to alleged breaches of employers’ duties under the Equality Act 2010 in respect of disabled people lies with the employment tribunal.  Admittedly that jurisdiction is concerned with determining whether an employer has breached the Equality Act, whereas it may be argued that the regulation 29(2)(b) risk assessment is not concerned with deciding whether there has been such a breach and is only concerned with whether prospective employers might owe a duty to make reasonable adjustments. However, in the very detailed enactment that is the Equality Act 2010, where evident care has been taken to earmark those with adjudicatory responsibilities under the Act, it is noteworthy in my judgment that the Act says nothing, in respect of employers’ duties, about employment and support allowance decision makers.

 

57.              It is also worth emphasising that the above jurisdiction exercised by the employment tribunal can properly be characterised as a specialist one. The jurisdiction exercised by the First-tier Tribunal on questions of entitlement to employment and support allowance is also specialist, but on its face it is not concerned with assessing when an employer will in fact owe a duty to make reasonable adjustments in respect of a an individual disabled person.

 

58.             This leads on to another point which I consider to be of significance and which arises under points (ii) and (iii) in paragraph 46 above. (Many of the points made in paragraphs 50-57 above are also relevant to the Equality Act 2010 tests sitting uneasily with Charlton and the First-tier Tribunal being ill-equipped to make assessments under the Equality Act 2010.) This is the point made by the Court of Appeal in Charlton about the test under regulation 29(2)(b) having to be applied practicably. Although I consider that, in line with some of the comments made by the three judge panel in paragraphs 73-74 of SI (above), the Secretary of State can and ought to be better equipped to obtain and provide advice as to how certain health conditions, or restrictions in functioning arising under Schedule 2 of the ESA Regs, may in general impact on the risk to health of claimants with those conditions or restrictions from working, it be would likely to render impracticable a timeous decision on regulation 29(2)(b) if the decision maker had to consider whether the claimant would be likely to be owed a duty by an employer or employers to make reasonable adjustments under the statutory machinery contained within the Equality Act 201o.

 

59.              The final consideration which in my judgment militates against taking the Equality Act 2010 into account under regulation 29(2)(b) is simply that it is unnecessary to do so: the wording of regulation 29(2)(b), as interpreted by Charlton, allows for sufficient regard to be paid to actual steps that may reasonably be taken to reduce the risk to health.

 

60.             The wording of the test under regulation 29(2)(b) of the ESA Regs is:

 

“..by reasons of [some specific disease of bodily or mental disablement which the claimant has], 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.”

 

In most cases, the words I have inserted in square brackets ought not to be in issue at the stage regulation 29(2)(b) is being considered as they should already have been satisfied on the assessment under regulation 19(2) and Schedule 2 of the ESA Regs. (If not, see the penultimate paragraph below and JG.) There then needs to be a causative link between the disease or disablement and the risk.

61.              In terms of assessing that risk, however, the test the decision maker (here, the tribunal) has to apply - after consideration of any risk that might arise from the mere act of being found fit for work and the steps then needed to be taken to find work (IJ –v- SSWP (IB) [2010] UKUT 408 (AAC) – is  (per Charlton) “whether a substantial risk should be foreseen in the light of the work the claimant might be expected to perform in the workplace in which he might be expected to be” or, put another way, (per Charlton) “whether there is an adequate range of work which the claimant could undertake without creating a substantial risk to himself or others”. It seems to me that both forms of wording are wide enough and flexible enough to encompass reasonable steps that realistically on the evidence may be taken by, or in respect of, the claimant, including by prospective employers. But that does not require an assessment to be made of  employers’ duties under the Equality Act 2010. 

 

62.             However, the analysis must be specific to the individual claimant whose case is before the decision-maker or First-t0-tier Tribunal. This has two aspects. Firstly, the analysis has to be of the range or types of work which the individual claimant is suited to do as a matter of training or aptitude and which his or her disabilities do not render him incapable of performing. Secondly, the analysis has to consider the disease(s) or disablement(s) of the individual claimant and the risk they would give rise to, on the balance of probabilities, if the claimant was travelling to and from, and working in, employments he or she was otherwise suited to do.  Part of that risk assessment will involve consideration of the steps that, on the evidence and having regard to the individual claimant’s health conditions and other circumstances, could reasonably and realistically be taken to avoid any substantial risk to health.

 

63.             For example, in a Cattrell type case the relevant factors may be: what is the extent of the exposure needed to give rise to the anaphylactic shock?; how prevalent would such exposure be in the employments the claimant was otherwise suited to do?; if exposure occurred how likely was it that measures could be taken to avoid any substantial risk (e.g. by use of an epi-pen)?; how capable was the claimant of taking such preventative or reactive measures?; and, if unable to take such measures, who else could take the necessary measures in the workplace.  Another example is the PD case referred to above ([2014] UKUT 148 (AAC)). On remission the First-tier Tribunal were directed to consider the practical availability of third party arrangements to get the claimant to and from work. The Secretary of State on the appeal before me expressly accepted that PD was correctly decided on this issue.

 

64.             I should add that I do not consider that the decision in PD, with its focus on the specific journeys the particular claimant may in fact have to make to and from employment, cuts against Charlton and its rejection of identifying actual or specific employments for a claimant. It has to be remembered that the argument before the court in Charlton was concerned with how much detail of the work the claimant may be employed in was necessary in order to assess properly the risk to health from his working; it was not concerned with the other factors then to taken into account when assessing risk (less so was the Court of Appeal turning its mind to the journey to and from work). I interpret the Court of Appeal’s ‘decision maker in Belfast’ remarks in paragraph 47 of Charlton as being directed to the issue before it (i.e. how detailed the jobs information has to be).  Further, any wider application of those remarks would run up against the very real problem identified in PD of not properly assessing risk in respect of the individual claimant’s circumstances. Moreover, such an approach would stand contrary to the view of Lord Justice Hughes in Cattrell that whether there is a substantial risk is a question of fact in each case.

 

65.              PD does, however, highlight the problematic area of how mental health problems may be addressed in the workplace when assessing risk under regulation 29(2)(b). As Lord Justice Hughes’s comments in Cattrell and Judge Gray’s remarks in AT indicate, assessing risk, and the measures that may reasonably on the facts be available to alleviate it so as to stop it being substantial, in the Charlton range of work a claimant may be found suited to do may be reasonably straightforward in the case of physical disablements.  For example, a person with lower back pain with some restriction on bending and an inability to sit or stand for over 1 hour, may be suited to work in an office that involves regular moving around the office and no heavy lifting. Or it may be said that even if the office work was less conducive it would not give rise to any substantial risk to health[4].

 

66.             Reverting to mental health problems, however, one of the key difficulties in my experience is the lack of any, or any detailed, information that is put before the First-tier Tribunal on how particular mental conditions may impact on a person’s ability to carry out a job he or she may otherwise be suited to do.  In part this seems to flow from a reluctance on the part of the Secretary of State, and then some First-tier Tribunals (though not the tribunal here), to accept regulation 29(2)(b) as being an issue that arises on such appeals.  However, unless and until the Secretary of State’s decision addresses regulation 29(2)(b) and says why it is not met on the facts of the case and thus informs the claimant of a ground on which he may wish to appeal (see, again, TC in paragraph 11 above), and bearing in mind the view of Upper Tribunal Judge Ward in RB –v- SSWP (ESA) [2012] UKUT 431 (AAC) that “the more onerous the points-based regime becomes, the more cases are likely to require attention to be given to the terms of regulation 29, to which correct application by decision makers and tribunals of Charlton will be vital”, in my judgment the Secretary of State’s decision maker on receipt of an appeal against the decision and First tier Tribunal’s hearing such appeals ought to be slow to form the view that regulation 29(2)(b) is not an issue raised by the appeal.

 

67.              An example where regulation 29(2)(b) of the ESA Regs might be found not to be an issue raised by the appeal is where the appellant is represented on the appeal by someone experienced in making such appeals and regulation 29(2)(b) is not taken as a ground of appeal.  Examples of where it is raised as an issue on the appeal, even though it may not be expressly be stated to be an issue, would in my judgment be likely to cover the terms of the appellant’s appeal letter in this case (i.e. before the CAB’s submission in which regulation 29(2)(b) was expressly taken), and the type of case in issue in PD (i.e. where the mental health problems have been decided (by the Secretary of State) as meaning that the person cannot get anywhere, or anywhere unfamiliar, on his own). 

 

68.             If regulation 29(2)(b) is an issue raised by the appeal, however, then it is an issue that must be addressed, and addressed properly on the facts of the individual case before the decision maker.  For the Secretary of State as decision maker that duty arises under section 9(2) of the Social Security Act 1998 and rule 24(4)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Procedure) Rules 2008; for the First-tier Tribunal as decision maker it arises under section 12(8)(a) of the Social Security Act 1998.

 

69.             However, one of the key difficulties that First-tier Tribunal’s face, in my experience, is that the Secretary of State does not properly address in the appeal response, or any other document made available to the tribunal, the range of work that the claimant with his or her (mental) health problems could do without substantial risk to health.  As was said in by Lord Justice Hughes in Cattrell “[i]f the Secretary of State wishes to contend in a particular case there are clearly some jobs that the claimant can do, whether available in large numbers or in small numbers, it is of course open to him to attend either in person or in writing and to say so”.

 

70.             The degree of detail that the Secretary of State will need to provide will vary on the facts of each individual case.  For example, where the Secretary of State’s decision maker has awarded 6 points for a claimant being unable to get anywhere unfamiliar on her own (descriptor 15(c) in Schedule 2 to the ESA Regs) and/or 6 points for being unable for the majority of time to engage socially with unfamiliar people (descriptor 16(c)), the information provided by the Secretary of State would need to address the evidential basis for how these difficulties could be addressed in terms (per PD) of the journey to and from, and in the workplace, and the likelihood of these steps being taken, whether by the claimant, family or friends of the claimant, or prospective employers.

 

71.               Even where specific descriptors do not apply at the time of his decision, the Secretary of State could still assist the First-tier Tribunal by providing it with information on reasonable steps that could be taken by or in respect of most claimants to reduce the risk to them from working that addressed the less than 15 point scoring descriptors under Schedule 2. For example, and following PD, what steps could realistically and reasonably be taken in terms of working in respect of  someone who cannot get anywhere without being accompanied?

72.              I do not see why this cannot be done. Regulation 29(2)(b) is part of the Secretary of State’s scheme and carries with it the need to make a claimant specific risk assessment.  In a Kerr-v-DSD [2004] UKHL 23; R 1/04(SF) world of co-operative decision making, and where the Secretary of State can call on specialist disability employment advisers (see discussion in SI –v- SSWP (ESA) [2014] UKUT 0308 (AAC), I do not see why he ought not to be in a position to advise the First-tier Tribunal on an appeal of the steps that could reasonably and realistically be taken on the facts of an individual claimant’s case, in terms especially of the journey to and from work and their time in the workplace, so as to avoid substantial risk to their or another’s health. If such advice is needed by the First-tier Tribunal to fairly and justly decide the appeal that is before it but it has not been provided by the Secretary of State, then he may need to be required to provide it in writing or by attending in person.

 

73.              I turn finally to the relevant Upper Tribunal caselaw. I do not consider that there is anything said in AT or SI that stands against my view of what falls to be taken into account under regulation 29(2)(b) of the ESA Regs. Nothing Judge Gray says in paragraph 9 of AT is founded on her accepting as correct that employers’ duties to the appellant under the Equality Act 2010 fell to be taken into account under regulation 29(2)(b). Further, the comments of the three judge panel in SI were not concerned with regulation 29 or 35 of the ESA Regs but rather with those found not to qualify for ESA (i.e. those then having to claim jobseeker’s allowance).

 

74.              However, I accept that in so far as it was necessary to his decision (which I do not think it was), paragraph 15 of Judge Mark’s decision in JB is contrary to the view I have come to. However, I decline to follow it as I consider it was wrongly decided.  It seems to me that I am entitled to take this course because: (i) the issue was not as fully argued before Judge Mark as it has been before me, (ii) what he said in paragraph 15 was not part of the ratio of his decision, and (iii) I consider the view he took is wrong.

 

75.              The tribunal therefore erred in law (i) in its approach to the GP’s evidence on significant deterioration in the appellant’s health if she was found not to have limited capability for work, and (ii) in its taking account of the Equality Act 2010 when assessing risk under regulation 29(2)(b) of the ESA Regs, and its decision must be set aside. The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).

76.              The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.

 

Other issues 

77.              The tribunal found that no descriptor in activity 17 was satisfied because, in large part, “the Tribunal found that any problems encountered by [the appellant] in this respect were related directly to alcohol consumption but that this was matter of choice and not any indication of a medical condition or dependency”. As the appeal is being remitted to another First-tier Tribunal all issues will be open for redetermination, including the Schedule 2 descriptors in issue on the appeal.  In the context of the appellant’s alcoholism and “choice” (as it applies to activity 17 or elsewhere) the new First-tier Tribunal will need to pay particular regard to JG –v- SSWP [2013] UKUT 37 (AAC); [2013] AACR 23. It may assist the new First-tier Tribunal if the Secretary of State was to say before the hearing whether he contends that the appellant’s alcoholism did not amount to “a specific disease or bodily or mental disablement” and, if so, why, as the tribunal in the quote above seem to be making such a finding: (see relatedly paragraph 43 of JG).

 

78.             In terms of its analysis of regulation 29(2)(b) of the ESA Regs (if it arises), I  would also expect the new First-tier Tribunal to be mindful of the comments of Judge Gray in AT (paragraph 40 above) about the lack of obviousness as to why work in a call centre is a stress–free occupation, comments with which I agree.

 

 

 

 Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

 

Dated 18^th September 2014