Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/2522/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and remit the case to be reheard before a new tribunal in accordance with the directions given below.

 

REASONS FOR DECISION

 

1.    This is an appeal with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 27 March 2013.  That decision dismissed the claimant’s appeal from a decision of the Secretary of State dated 27 March 2012 that although the claimant was entitled to have her previous award of income support on the grounds of incapacity converted to ESA from and including 21 April 2012, she did not have limited capability for work related activity.  There were issues before the tribunal whether the claimant satisfied any of the descriptors in Schedule 3 to the Employment and Support Allowance Regulations 2008 (the 2008 Regulations) and, if not, whether the claimant was to be treated as having limited capability for work-related activity by virtue of regulation 35(2) of the 2008 Regulations.

2.    Regulation 35(2) provides as follows:

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

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

(b) by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.”

3.     The reference to regulation 34(1) is to the regulation which applies the Schedule 3 descriptors.

4.    The claimant has both physical and mental health problems.  She was represented only by her husband and she had stated that she did not wish to have an oral hearing.  The decision of the tribunal was therefore arrived at on the papers only.  The problems claimed by the claimant included major depression and panic attacks – see p.30, where she also asserted fluctuating mood and sleep problems, and difficulty interacting with other people.  She needed help from her husband at any time because of a fear of falling and hurting herself due to her physical difficulties (pp.29, 34-35).  She had problems with picking up and moving a large light object because of feeling panicky (p.36), and other effects of her mental and physical disabilities are described at pp.39-45.  I note that the form ESA50 which contains this information appears to have been completed by the claimant’s husband on her behalf (p.47).

5.    So far as relevant to Schedule 3, with regard to moving around the claimant stated that it varied whether she could move at least 50 metres before needing to stop.  Although the question related to moving without the help of another person, the claimant then went on to state her husband helped her to move “by linking me”.  This clearly suggests that she may have been referring to walking holding onto her husband.  In relation to sitting and standing she stated that she could not move from one seat to another right next to it without help from someone else.  She stated that she could not rise from a chair without her husband pulling her up. 

6.    A registered nurse considered the claim form and advised that the claimed level of disability was consistent with the evidence before her, and considered that she scored 9 points on the physical descriptors in relation to using two steps and 6 points on the mental descriptors in Schedule 2 to the 2008 Regulations in relation to engaging in social contact with somebody unfamiliar.  I note that there is nothing in the report to suggest that the claimant may not qualify for further points under Schedule 2, as the report only deals with the Schedule 3 descriptors, and that there is no explanation why only 15 points were awarded under Schedule 2 beyond the obvious inference that there was no need for Schedule 2 purposes to consider what other descriptors might apply and no more than a bald statement in relation to regulation 35 that the available evidence did not suggest that there would be substantial mental or physical risk if the claimant were found capable of work-related activity.  The statement by the nurse that the claimed level of disability is consistent with the evidence before her appears to conflict with her statement that neither the mobilising nor the sitting descriptors in Schedule 3 applied to the claimant.  The claimant’s claimed level of disability appears to have been that she could not consistently walk 50 metres and then possibly only with her husband’s support and that she could not move from one seat to another without help.

7.    By letter dated 4 February 2013, the claimant’s husband wrote, when returning the standard enquiry form, that his wife would not be attending the tribunal because, in her own words, every time she got letters or phone calls which she did not understand, she did not sleep very well and it was on her mind.  She got anxiety attacks and got very depressed.  She did not like new things or new faces.  She liked the routine she was used to.  When she got the letter from the tribunal (this appears to refer to the enquiry form) her husband had to calm her down.  She told him to give her the key to where her tablets were locked up so she could take them all and be done with life but her husband stopped her.  The letter went on to describe her physical problems and the help she needed from her husband and an assessment for counselling that she had been to at Mind.

8.    A letter from her GP dated 11 February 2013 described the claimant as having severe generalised anxiety and depression which had increased quite a lot and she had been panicking continuously.  It also stated that her husband was her carer and he could not leave her on her own.  When he had come to see the GP, her mother had looked after her.

9.    The tribunal recorded in the decision notice that neither party had requested an oral hearing and that having considered the appeal bundle the tribunal decided that it was able to decide the appeal without an oral hearing and that it would be just to do so.  The statement of reasons recites the 15 points awarded under Schedule 2, but does not consider what other mental or physical problems might apply to the claimant and does not clearly explain why it finds that the claimant would mobilise more than 50 metres without help in view of her statement that she linked with her husband, or why she could repeatedly mobilise 50 metres within a reasonable timescale.  The relevance of the fact that she could take advantage of public transport because she had a bus pass is also unclear in the absence of evidence of how often she was able to do so, and of any evidence the distances she walked at either end and whether she did so alone or holding onto somebody.

10. The tribunal also does not consider her claim that she could not transfer from one seat to another by reference to the evidence she gave as to this.

11. In both these respects the tribunal was in error of law. 

12. In relation to regulation 35, the tribunal found as follows:

“in the event of her being found not to have limited capability for work related activity, we anticipate that the appellant would be required to attend for interview and to comply with any request made of her in relation to any work related activities in which she was asked to engage.  This would presumably entail her leaving her home and then travelling to possibly unfamiliar places and there engaging in contact with people with whom she is not familiar.  While accepting, that the appellant does express some hesitation to do so, we nonetheless note that, in the company of her husband, she has been able to go to MIND for the purposes of counselling which will of course inevitably require her to meet persons with whom she is not acquainted.

It therefore seems to us that, whereas she may well experience some stress in attending such meetings this does not necessarily imply such would represent a substantial risk to her health.  Using the medical expertise available to the Tribunal we concluded that this would not be the case and were therefore persuaded that Regulation 35(2) would not apply.”

13. There are a number of errors of law in this approach, some of which should have been apparent at the time and others of which have emerged as a result of later Upper Tribunal decisions, in particular the recent decision of a panel of judges in IM v SSWP [2014] UKUT 412 (AAC).

14. Firstly, the tribunal fails to refer to, or make any findings as to, the evidence in the letter of 4 February 2013 as to the claimant’s reaction to receipt of the enquiry form.  Secondly, the tribunal was woefully short of evidence to justify its findings.  It appears to rely on the evidence that, in the company of her husband, the claimant was, on one occasion, in February 2013 able to go to an assessment for counselling.  There was no evidence before the tribunal whether she had problems with this or how she was at the assessment. 

15. As I pointed out in LM v SSWP[2013] UKUT 552 (AAC), evidence that the claimant had gone accompanied to an unfamiliar place trembling and sweating could not support a finding that she could go unaccompanied to an unfamiliar place.  So too, evidence on a single occasion that the claimant had gone with her husband for a mental health assessment, without any further evidence as to how she coped being given or sought, cannot support a finding that she could deal with the consequences, in the terms anticipated by the tribunal as set out above, of her being found not to have limited capability for work-related activity.  Taking into account the other findings made or accepted by the tribunal, it would appear that the claimant could not for the majority of time engage in social contact with someone unfamiliar to her due to significant distress experienced by her, and, apparently, that she could not get at least to unfamiliar places without being accompanied by her husband.

16. There also appears to have been an assumption by the tribunal that the claimant’s husband would always be there to accompany her to any interview or work-related activity, or else that, despite the evidence to the contrary, she would be able to go alone if necessary.  There does not appear to be any evidence justifying either assumption.

17. I am also left unclear how the medical expertise of the medical member of the tribunal could assist in coming to the conclusion to which the tribunal came on the limited evidence available.  Medical expertise has to be based on relevant evidence and there appears to be inadequate evidence here to justify such a conclusion.

18. It appears to me that the only sensible course for the tribunal to take was to adjourn the case.  While the claimant had made it plain that was unfit to attend, and this was supported by medical evidence from her GP, there seems to have been no reason why her husband, as her representative and as a witness, should not have been invited to attend a hearing, with an explanation of how his attendance could help.  It is plain from the evidence that although it was claimed that the claimant could not be left alone, her mother sometimes looked after her when her husband had to be elsewhere.  In addition or alternatively the tribunal could have asked questions of the claimant and her husband to clarify the matters to which I have referred.  It could also have sought disclosure of the claimant’s medical records and might have considered directing a physical examination.

19. Finally, the panel of judges in IM has now clarified the law as to the proper approach to regulation 35, where the position is stated as follows:

 

“23. Regulation 35 is clearly intended to be a safety net to avoid some claimants facing the consequences or potential consequences of a conclusion that applying the points system based on functional tests a claimant is found not to have limited capability for work-related activity.  So far as relevant here, regulation 35(2)) is based on the existence of a risk arising from those consequences. Some of the possible consequences of being found not to have limited capability for work-related activity are founded on decisions that have to be made by the Secretary of State and others on decisions made by providers.

 

24. So the application of regulation 35(2) involves a risk assessment at the time or times that a decision under it falls to be made. As it has to be applied before the next stage of the process begins for a person found not to have limited capability for work-related activity the analysis of and decision on whether the defined risk exists involves the making of predictions of the likelihood of the claimant facing the possible consequences and of the possible results of him doing so.  This process and so the making of the predictions it involves have to take place before the relevant claimant faces the relevant consequences.” 

20. After reviewing the way in which work-focussed interviews and work-related activities are dealt with in practice and considering earlier case law, including the decision of the Court of Appeal in Charlton v SSWP [2009] EWCA Civ 42, and its relevance to regulation 35, the panel’s decision continues at paragraphs 86 onwards:

 

“86. But we do not agree that Charlton founds directly or by analogy the argument that in other circumstances – i.e., cases where a claimant could safely be required to engage in some forms of work-related activity but not others – the regulation 35(2) decision-maker does not have to consider what work-related activities the particular claimant might be required to undertake and the consequences of him being required to do so.  This is because the purpose of the regulation is to provide a safety net for a particular claimant by recognising that in the case of some claimants (and probably a limited number of them) (a) if they are found not to have limited capability for work-related activity and so have to engage in the next stage of the system this could cause harm to the mental or physical health of that claimant or others, and (b) that the risk cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case. 

 

87. Accordingly, the regulation is directed to the vulnerable and to preventing such harm being caused to them or by them to others by treating them as not having the capability for work-related activity and so putting them in the support group and exempting them from having to undergo a work-focused interview and being the subject of a requirement to undertake work-related activity.

 

88. If the regulation 35(2) risk materialises it is plainly serious and so Parliament must have intended that this safety net was applied before a work-focused interview took place with appropriately detailed scrutiny of the position of the individual claimant.

89. So, returning to the general approach approved and applied in Charlton, to fulfil the underlying purpose of regulation 35(2) and thus the need to assess the regulation 35(2) risk the decision-maker on its application has to provide himself with, or be provided with, sufficient information to enable him to properly assess whether the particular vulnerable claimant should be protected by the regulation 35(2) safety net.

 

90. To do that, it is necessary to make predictions about the consequences for the individual claimant if he is found not to have limited capability for work-related activity.

 

91. This reflects the general approach to fair and so properly  informed decision making about the assessment of a risk that we have referred to earlier without reference to the authorities in this area.

 

92. As we have indicated, difficulty arises in cases where it is accepted that there would be a substantial risk to someone’s health if the claimant were to be required to engage in some forms of work-related activity but not others. So it is helpful to address what the approach of the regulation 35(2) decision-maker should be in such cases, 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-related activity depends in such cases on taking a view on what work-related activity that particular claimant would or might be required to do.

 

93. It is clear that regulation 35(2) has to be considered and applied before the work-focused interview takes place. Yet the Secretary of State argues that because the question what any particular claimant could reasonably be required to do is not to be determined until the work-focused interview has taken place, what he would or might be required to do at that later stage can and should only be considered  and taken into account by the regulation 35(2) decision-maker by reference to what any claimant might be required to do and thus he should not speculate or make assumptions about what the particular claimant would or might be required to do.  .

 

94. In support of his approach the Secretary of State submits that it cannot be presumed that he or a provider will act unreasonably in requiring, under regulation 3 of the 2011 Regulations, a claimant to undertake work-related activity.  We accept that, but it does not follow that at the regulation 35(2) stage it should be presumed that the work-related activity decision-maker would never make a decision that would trigger the regulation 35(2) risk.  Were that to be presumed, all the regulation 35(2) decision-maker would have to consider is the impact of attending the work-focused interview.  Like Upper Tribunal Judge White in AK we do not accept that – and, indeed, it was not submitted to us that – regulation 35(2) will only be engaged and satisfied by reference to being required to take part in and taking part in a work-focused interview. 

 

95. In any event, it would be inconsistent with the pragmatic approach taken in Charlton to ignore the risk that an inappropriate decision that triggers the regulation 35(2) risk might be made following the work-focused interview.  This is particularly so when the system and practice that the Secretary of State has devised for administering the legislation clearly fails to minimize the risk of a mistake being made in the decision on work-related activity, whether due to ignorance of material facts that have emerged in carrying out the work capability assessment or when making the regulation 35(2) decision or simply because a different view is taken of the risks involved.

 

It is one thing for the Secretary of State to presume when making a decision under regulation 35(2) that his decision-maker or a provider will take a similar view of the case when regulation 3 is being applied, particularly if such risk as there would be to a person’s health if the claimant were to be required to engage in work-related activity was fairly obvious.  Even so, the fact that he has not made provision for the evidence upon which the regulation 35(2) decision was made and its reasoning to be provided to the later decision-maker greatly increases the risk that he will not reach the same conclusion and so undermines the presumption.

 

………………………

 

100. As we have already mentioned, it is for the Secretary of State to decide how the legislation is to be administered but, because regulation 35(2) is concerned with assessing risk in the real world having regard to whether the administrative process creates or eliminates relevant risks, the way the legislation is administered has a considerable bearing on how that provision is to be applied. 

 

101. In our view the absence of any system for ensuring that relevant information obtained, and findings made, in the course of carrying out a work capability assessment and applying regulation 35(2) and the reasoning behind the decision made on regulation 35(2) are made available to a person considering whether a requirement to engage in work-related activity should be imposed on the claimant effectively destroys the Secretary of State’s argument that only generalised information about some types of work-related activity need be taken into account by the regulation 35(2) decision-maker when considering the possible consequences of a particular claimant being found not to have limited capability for work-related activity.  The purpose underlying regulation 35(2) requires that those applying it make predictions about the consequences to the particular claimant of him being found not to have limited capability for work-related activity.  In a few cases, the risks of an inappropriate requirement to engage in work-related activity being imposed will be too great to be ignored. 

 

 

Information to be provided to the First-tier Tribunal

 

102. The evidence that must be supplied to the First-tier Tribunal is determined by the factual issues that may arise.  The Departmental decision-maker should have regard to the same factors as the First-tier Tribunal and so should often have obtained and considered the evidence that should be provided to the First-tier Tribunal.  However, there are many cases such as the present where, on the Secretary of State’s view of the facts, the claimant does not even have limited capability for work and therefore it is unnecessary for him to consider whether the claimant has limited capability for work-related activity.  He argues that it would be disproportionate to require him to make a submission in respect of regulation 35(2) whenever there is an appeal against a decision that a claimant does not have limited capability for work even though, of course, the question whether the claimant has, or should be treated as having, limited capability for work will inevitably arise if the claimant is successful in his or her challenge to the original decision.

 

103. It is therefore useful to focus on what information is actually needed by the First-tier Tribunal in order to make a decision under regulation 35(2).  It is also important to remember that the purpose of a response to an appeal in this sort of case, where a claimant is often unrepresented, is as much to tell the claimant what the potential issues are as to provide information to the First-tier Tribunal.

 

104. It will be apparent from what we have said above that, at least while the legislation is administered in the current fashion, the First-tier Tribunal needs to know not only what the least demanding types of work-related activity are but also what the most demanding types are in the area where the claimant lives.  As Judge Jacobs pointed out in AH, that information can come only from the Secretary of State.

 

105. As indicated above, we accept the Secretary of State’s submission that, on an appeal in which regulation 35(2) is in issue, he cannot be expected to anticipate exactly what work-related activity a particular claimant would in fact be required to do.  This is axiomatic

 

But what the Secretary of State can and should provide is evidence of the types of work-related activity available in each area and by reference thereto what the particular claimant may be required to undertake and those which he  considers it would be reasonable for the provider to require the claimant to undertake.  The First-tier Tribunal would then be in a position to assess the relevant risks.

 

We understand that the types of work-related activity available may vary from provider to provider, but it should not be beyond the wit of the Department and providers to produce and maintain a list, perhaps for each of the regions into which the First-tier Tribunal is organised, of what is available in each area within the region.  The relevant information could then be included in submissions in individual cases.  The First-tier Tribunal would be able to assess the evidential force of such a submission.

 

………………………

 

110. The issue under regulation 35(2) is not whether the claimant could carry out all forms of work-related activity or even whether he or she might inappropriately be sanctioned.  Satisfaction of regulation 35(2) requires a substantial risk to health to be identified (in the sense of a risk that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case).  Being unable to carry out an activity does not necessarily imply that there will be a substantial risk to anyone’s health if the claimant is required to engage in the activity.  Nor does the risk of being sanctioned.  Therefore, it may be fairly obvious in most cases that the claimant does not have any realistic argument under regulation 35 and indeed, if made aware of the issues, the claimant may often accept that that is so.  But where there turns out to be a serious argument in relation to regulation 35, the provision of the basic information about the more demanding types of work-related activity would enable the First-tier Tribunal to make the necessary predictions by reference to possible outcomes for the particular claimant. 

 

111. In some cases the First-tier Tribunal may be able to conclude that the regulation 35(2) risk does not exist because it is sufficiently obvious that the claimant will not be required to do anything by the work-related activity decision-maker that will cause such a risk to materialise.  That will certainly be so where the First-tier Tribunal is satisfied that none of the types of work-related activity available in the relevant area would give rise to a substantial risk to anyone’s health if the claimant were required to undertake it.

 

112. However, we suspect that the present failure to pass on information to the work-related activity decision-maker will mean that in some other cases the First-tier Tribunal will be unable to make predictions with sufficient confidence to conclude that the regulation 35(2) risk does not exist and so will be entitled to decide that if the claimant engaging in any of the forms of work-related activity that might be imposed on a claimant in the relevant area would give rise to the regulation 35(2) risk the claimant must be treated as having limited capability for work-related activity.

 

113. The position may be slightly different where the Secretary of State accepts that the claimant does have limited capability for work for two reasons.  First, the Secretary of State can be expected to make a more focused submission as to why regulation 35(2) does not apply given the accepted disablement of the claimant.  Secondly, in at least some of those cases a work-focused interview will have been carried out and the provider may have considered whether the claimant should be required to carry out work-related activity before the appeal is heard by the First-tier Tribunal.  Information about the outcome of such consideration of the claimant’s case is likely to be relevant to the First-tier Tribunal and reduce the element of prediction required and so ought to be provided to the first-tier tribunal where possible.  Thus, in CMcC, Judge Bano was able to take account of an employment adviser’s abandonment of any meaningful form of work-related activity out of concern for the claimant’s health as a reason for finding that regulation 35(2) should have been found to apply in her case.  In other cases, the effect of evidence may be to show that the provider is well aware of the claimant’s state of health and is unlikely to overlook risks.  This suggests that the provision of information should be a two-way process. It should be remembered that s 12(8)(b) of the Social Security Act 1998 applies to the application of such evidence and so it should only be taken into account so far as it is relevant to the position at the time of the decision of the Secretary of State.”

 

21. It is clear from the passages I have cited that regulation 35 is concerned with the risk to the claimant or others of being found to have limited capability for work.  It is not a sweeping up provision to catch the most serious cases not falling within Schedule 3.

22. With hindsight in the light of that decision, in addition to its other errors, the tribunal was also in error of law in not adjourning to obtain the information there referred to from the Secretary of State as to the type of work-related activity in the area including Stalybridge, where the claimant lives.  In addition, to enable the tribunal to assess the risk in the present case to the claimant, the Secretary of State should also provide evidence of any general practical limitations on the extent to which work related activity is required in the area, so that, for example, a practical decision not to ask anybody over 55 to undertake work-related activity would be relevant to the question of risk, the claimant having been born in 1956.  If the practical position on the ground in the area is that it is clear at the date of the decision that the claimant would not be required to do anything, then the risk from doing anything would be averted just as much as if the work-related activities in the area did not include anything potentially harmful to a particular claimant.  If, however, the practical position on the ground is that there are potentially dangerous activities that a claimant might be required to undertake even though she should not be required to undertake them, then the tribunal must assess the risk of this and the possible consequences that might ensue.

23. The decision of the panel also appears to resolve the conflict between Judge Ward and Judge Gray referred to in the direction of Judge Lane in the present case as to the extent to which the ability of the claimant to call on a third party for assistance is relevant.  It is for the tribunal to seek evidence and make findings as to the likely extent to which a third party may be available and to assess overall in the light of that evidence whether there is a substantial risk to the health, in this case, of the claimant from anything she may, seen as at the date of the decision, be required to do, rightly or wrongly, by those acting in relation to work-related activity for the DWP.  Depending on the evidence, the risk assessment may be on the basis that the claimant will always have the support of the third party or that she will rarely have that support or that it will commonly but not always be available and possibly may become unavailable unexpectedly.

 

(signed) Michael Mark

Judge of the Upper Tribunal

16 October 2014