Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/467/2013

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before Upper Tribunal Judge Rowland

 

The claimant appeared in person.

 

The Secretary of State was represented by Ms Sasha Blackmore of counsel, instructed by the Solicitor to the Department of Work and Pensions.

 

 

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 31 May 2012 is set aside and there is substituted a decision to the effect that the claimant had limited capability for work on 19 April 2011. 

 

 

REASONS FOR DECISION

 

The procedural history of this case

 

1. This is an appeal, brought by the claimant with my permission and a degree of support from the Secretary of State, against a decision of the First-tier Tribunal dated 31 May 2012 whereby it dismissed the claimant’s appeal against a decision of the Secretary of State dated 19 April 2011, superseding an award of income-related employment and support allowance made from 16 February 2011 and deciding that the claimant was not entitled to income-related employment and support allowance from 19 April 2011 because she did not have limited capability for work.

 

2. The Secretary of State’s decision was made only five days after the claimant had been examined by a health care professional for the purpose of assessing whether she had limited capability for work in accordance with Part 5 of the Employment and Support Allowance Regulations 2008 (SI 2008/794).  This was the first assessment following a new claim and so, as explained below, the claimant was at the time entitled only to a rate of employment and support allowance calculated on the basis that her applicable amount did not include the work-related activity component or the support component.  During the course of the examination, the claimant mentioned that she was to have an endometrial ablation “next week”.  The health care professional did not draw the decision-maker’s attention to that information or offer any advice as to the likely short-term effects of such a procedure.  The claimant in fact had the operation on Monday, 18 April 2011, the day before the Secretary of State’s decision.  There is no indication that, when making his decision, the Secretary of State considered the possibility that she might have already had the operation.  Unsurprisingly, the claimant referred to the operation in her letter of appeal.  The Secretary of State mentioned the operation in Section 4 of his submission to the First-tier Tribunal, under the heading “The facts of the case”, but he said nothing about its relevance in Section 5 of the submission which contained the reasoned response to the appeal. 

 

3. The First-tier Tribunal dismissed the claimant’s appeal.  It found that she did not have limited capability for work but it also said in its statement of reasons –

 

“10. The Tribunal notes that [the claimant] underwent surgery for an endometrial ablation on 18/4/11, the day before the decision under appeal.  However, her evidence was that this operation involved a day admission and that she was free of after-effects after two weeks.  From the broad perspective of [the claimant’s] functional ability this was not significant.”

 

4. When I granted permission to appeal, I said –

 

“I consider it arguable that the First-tier Tribunal’s approach was flawed.  The broad approach taken in R(IB) 2/99 is arguably not applicable where there has been a clearly identifiable change of circumstances.  It seems likely that the claimant would have had limited capability for work immediately after her operation and, if so, it is arguable that the decision-maker ought to have deferred the supersession of the award for, say, two weeks.  Having not done so, the decision-maker could, upon receipt of the letter of appeal, have revised the supersession and reinstated the award and then superseded it to terminate it again on the ground of change of circumstances.  The claimant’s appeal would have lapsed but she could have made a new appeal against the new supersession.  However, by virtue of section 12(8)(b) of the Social Security Act 1998, the First-tier Tribunal could not take account of the passing of the effects of the operation because that would have been to take account of circumstances not obtaining at the time of the Secretary of State’s decision.  Instead, if the First-tier Tribunal had found that the claimant did have limited capability for work on 19 April 2011, it would have had simply to allow the appeal and reinstate the award, leaving the Secretary of State to consider superseding it again.  (Whether the Secretary of State could then have superseded the decision retrospectively, I have not yet considered in detail.  However, at first glance it seems possible that he could not have done so.)”

 

5. The Secretary of State concedes that paragraph 10 of the statement of reasons does reveal an error of law and that the First-tier Tribunal should have made a finding as to whether, having regard to the effects of the operation, the claimant had limited capability for work on the date of his decision.  Because it failed to do so, its decision must be set aside.  However, this raises interesting questions as to what, given section 12(8)(b) of the 1998 Act, the First-tier Tribunal should have done had it considered that the claimant had limited capability for work for, say, two weeks after the operation and therefore what decision I should now give.  What I suggested when I granted permission to appeal is not entirely right.

 

6. In his initial response to this appeal, the Secretary of State said –

 

“I agree with the Upper Tribunal Judge that the Secretary of State’s decision maker is unable to remake the decision correctly at this late date.  There is no ground for revision in Decisions and Appeals Regulation 3.  There is no ground for supersession in accordance with Regulations 6 and 7, except from the date such decision is made, in accordance with s.10(5) of the 1998 Social Security Act”. 

 

Unsurprisingly in the light of what I had said, he also appeared to submit that the Upper Tribunal should make a decision substituting an award of employment and support allowance at the rate in payment before the Secretary of State’s decision.  Equally unsurprisingly, the claimant, whose case was that she had had limited capability for work ever since 19 April 2011, resisted that submission because she sought to have the work-related activity component included in her applicable amount so that her entitlement to employment and support allowance would be increased.

 

7. In the light of those submissions, I issued a further direction, seeking further submissions on both the facts and the law and asking for further information about a new claim that the claimant had said she had made.

 

8. The Secretary of State made a detailed written submission as to why the First-tier Tribunal did not err except in respect of the matter already conceded and, on the assumption that I had had in mind only regulation 29(2)(b) of the 2008 Regulations, as to why it would not be appropriate for the Upper Tribunal to substitute a decision that the claimant had limited capability for work from 19 April 2011. 

 

9. The Secretary of State also informed me that a further claim for employment and support allowance had been made on 11 March 2013 but the claimant had erroneously not been referred for another work capability assessment.  This “claim” may technically have been an application for supersession because the Secretary of State further informed me that the award of employment and support allowance made to the claimant while her appeal to the First-tier Tribunal was pending had erroneously not been terminated after the First-tier Tribunal had made its decision which, it was accepted, meant that the claimant had not had an opportunity to make a new claim immediately after the decision.  It was then submitted that –

 

“If having undergone a further WCA the claimant is found to have LCW, regulation 5 will apply and her previous entitlement to ESA will be linked so that any component would be payable from week 14 (24/05/11) of her claim.  If the claimant is found not to have LCW she will then have a further right of appeal.”

 

In reply, the claimant made a detailed submission in relation to the facts but, understandably, not on the law.

 

10. I considered that I would be assisted as regards both the facts and the law by an oral hearing.  At the hearing, I heard evidence from the claimant and also submissions from Ms Blackmore in support of the Secretary of State’s written submission.  Having expressed some doubts about the accuracy of the Secretary of State’s submission on the law, I gave Ms Blackmore the opportunity to take further instructions and make a further submission after the hearing.  In her further submission, she conceded that the previous submission of the Secretary of State had been “potentially inaccurate” and that the award of any component from April 2011 would be dependent on the claimant being found to have limited capability for work or for work-related activity in these proceedings. 

 

11. I am now satisfied that I can give a proper decision on both the facts and the procedural law.  I am particularly grateful to the Secretary of State and Ms Blackmore for drawing my attention to some provisions of the legislation that I might otherwise have overlooked.  I am not sure to what extent the Secretary of State’s thinking has really developed during the course of the proceedings – it may just have become clearer – but my own thinking has certainly developed in the light of the submissions.

 

Findings of fact

 

12. The claimant, who had been involved in road traffic accidents in both 2002 and 2010 but also had unrelated problems, suffered from hip and back pain, irritable bowel syndrome, stress and anxiety and also gynaecological problems but both the Secretary of State and the First-tier Tribunal decided that she did not have limited capability for work for the purposes of the 2008 Regulations.  Although the claimant disagrees with a number of the First-tier Tribunal’s findings, I see the force of the Secretary of State’s argument that – jurisdictional issues apart – the First-tier Tribunal did not materially err in law in deciding that, except for the effects of the endometrial ablation, the claimant did not have limited capability for work.  Since the First-tier Tribunal’s decision, the claimant has been diagnosed as suffering from fibromyalgia.  However, the First-tier Tribunal was concerned with the practical effects of the claimant’s various conditions rather than with their cause and I am not persuaded that that diagnosis undermines the First-tier Tribunal’s finding that the claimant did not have limited capability for work apart from the effects of the endometrial ablation.  The Secretary of State points out that a person may reasonably be found not to have limited capability for work even though not able to work full time.  This is not illogical.  A person with a disability who is claiming jobseeker’s allowance is entitled to restrict his or her availability for work in the light of the disability. 

 

13. However, I do consider that the First-tier Tribunal erred in law in one aspect of its reasoning that was not material to its ultimate conclusion.  The pre-28 March 2011 version of Schedule 2 to the 2008 Regulations applied because the questionnaire had been issued to the claimant before that date.  In relation to Activity 10(a) (continence), I accept that the First-tier Tribunal did not err in not awarding points under descriptors 10(a)(i) to (vi), but I do not consider that its reasoning is sufficient to show why the claimant did not score 6 points under descriptor 10(a)(vii) (“risks losing control of bowel or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach a toilet quickly”).  It said simply:

 

“8. [The claimant] in her questionnaire said her IBS was exacerbated by stress and anxiety but that she could usually control herself: she could usually control her bowel, and always control her bladder.  The Tribunal found she did not meet any of the incontinence descriptors.

…

11. In summary, the Tribunal found that [the claimant] did suffer from back pain, irritable Bowel Syndrome, stress and anxiety, but that these conditions were relatively mild in degree, and did not have a significant impact on her ability to function both physically and mentally. …”

 

14. In her questionnaire, the claimant had also said: “I sometimes cannot go anywhere where there are no toilets”.  The health care professional referred, among other things, to the claimant’s ability to go to the shops, walk the dog and drive her car, but in oral evidence to the First-tier Tribunal the claimant said that her IBS was one of the reasons for driving a car.  That evidence, together with the First-tier Tribunal’s finding that she could only “usually” control her bowel, seem to me clearly to raise the question whether descriptor 10(a)(vii) was satisfied and the terms of the First-tier Tribunal’s reasoning are not sufficient to show that they had the precise terms of that particular descriptor in mind.  In her submissions to the Upper Tribunal and her oral evidence to me, the claimant has expanded on this issue explaining, for instance, how she took Imodium and avoided eating save for a slice of toast before she attended the First-tier Tribunal hearing and how she planned her journeys so as to be able to use toilets and, even so, sometimes had to “go behind a tree” or “go in a field”.  She explained that she did not use buses because of the time the journey took and the inability to get off in a hurry and that that was why she needed to use a car.  She referred particularly to the difficulties she had had when she had lost an earlier appeal and had to claim jobseeker’s allowance which involved going to the jobcentre.  There were no toilet facilities there and staff said the nearest were on the top floor in Marks and Spencer’s store, 200 yards away.  Had the First-tier Tribunal focused on the language of descriptor 10(a)(vii) and asked the claimant appropriate questions, I have little doubt that it would have elicited that evidence.  In any event, having heard the claimant myself, I am satisfied that she did score 6 points under that descriptor.  There was a very material risk of the claimant losing control of her bowel so that she could not control its full evacuation if not able to reach a toilet quickly.

 

15. The primary factual issue that then arises is whether, the day after her operation, the claimant scored at least another 9 points.  Her letter of appeal to the First-tier Tribunal, written on 3 May 2011, is the most contemporaneous account of her difficulties then.  She said –

 

“Following my surgery, I have suffered excessive pain in my hip, causing further pain in my back, to the point when home from hospital I suffered another fall due to this and am in serious pain, my [orthopaedic physio]therapist is going to reassess me on 9^th May 2011, giving me a chance to get over the surgery and for things to settle down.  He was concerned that the surgery would affect my back and hip.  This continues to leave me waking 4 or 5 times at night sometimes not being able to sleep at all once woken leaving me feeling exhausted.

 

My depression and anxiety has also been exacerbated by the surgery, having accepted the surgery, which I needed to have to help me physically and mentally in the long term, I have given up my choice to have more children as the result of the surgery leaves me unable to carry children and this ahs left me feeling bereft and very tearful, bursting into tears without warning.

 

If I am not allowed ESA I have no choice but to go onto Jobseeker’s which then causes me further problems as due to pain and depression/anxiety it would not be possible for me to walk from the car park to the jobcentre, my IBS has also flared up due to all the before mentioned and I cannot go anywhere at present where there isn’t suitable toilet facilities.”

 

16. In a submission to the Upper Tribunal, the claimant has explained that the ablation was carried out as day surgery under a general anaesthetic.  However, she suffered serious pain in her back and hip as a result of being manoeuvred when in theatre.  “The next day exhausted, upset and bleary I managed to fall over and injure my shoulder.”  In oral evidence, she told me that the day after the operation she took Co-codamol 15mg/500mg tablets for her hip pain but still felt low after the anaesthetic and would not have driven the car and was not safe to leave the house.  She spent a long time bursting into tears, which she felt was partly due to the anaesthetic and partly due to what she had done (i.e., prevented herself form having more children).  She was not able to see people at that time. As she had said in her written submission, the effects of “being turned” in the operating theatre were a problem and she was in pain and couldn’t walk.  She fell and had significant pain in her right shoulder.  She also said that she had never argued that she should be in the support group; she wanted to be in the work-related activity group and to be supported back to work through work-related activity.

 

17. Having listened to the claimant, I really have no doubt that she was not in a fit state to do anything much on that day, which was the day of the Secretary of State’s decision.  Whether or not she would have scored any points in respect of walking – and she might on that day have had difficulty walking for 200 metres without stopping or suffering severe discomfort – it seems to me that the stress and anxiety that the First-tier Tribunal accepted she was suffering from were exacerbated by the procedure she had undergone and its implications such that, temporarily, her ability to cope with social situations was inhibited (Activity 19) and descriptor 19(b) (“normal activities, for example, visiting new places or engaging in social contact, are precluded for the majority of the time due to overwhelming fear or anxiety”) was satisfied.  With the 6 points scored in respect of Activity 10(a), she therefore scored the 15 points necessary to be found to have limited capability for work. 

 

18. However, applying Schedule 3 to the 2008 Regulations, I do not consider that she had limited capability for work-related activity on that particular day and, as regards regulation 35(2), I am satisfied that there would have been no risk to her health in finding that she did not have limited capability for work-related activity because I do not think there would have been any realistic risk of anyone insisting on her trying to do something she could not have done so soon after her operation.

 

19. Thus this case falls to be determined on the basis that the claimant had limited capability for work, but not limited capability for work-related activity, at the date of the Secretary of State’s decision on 19 April 2011.  The claimant told the First-tier Tribunal that the effects of the endometrial ablation had largely passed within two weeks and, on its findings, she did not have limited capability for work once those effects had passed.  However, I am no more entitled than was the First-tier Tribunal to make any finding as to the whether the claimant had limited capability for work after the effects of the operation wore off and therefore after the date of the Secretary of State’s decision.  Both parties have arguments they can make on that issue and the question that arises is whether there is any mechanism by which, if they both maintain their positions, the issue can be considered by a tribunal that does have jurisdiction to determine it.

 

The law

 

20. The first implication of the Secretary of State’s concession that the First-tier Tribunal erred in law is that his own decision-maker should have made further enquiries of the health care professional as to the likely effects of the endometrial ablation.  What then should he have done had he been advised that the claimant would have limited capability for work for, say, two weeks after the operation but not thereafter?  It is necessary to answer this question in order to determine what decision the First-tier Tribunal could, and the Upper Tribunal can, substitute for the erroneous decision he made.  Answering the question requires some consideration of both the powers of the Secretary of State to make decisions as to entitlement and the structure of employment and support allowance which provides the relevant context in which such decisions are made.

 

21. Decisions about entitlement to social security benefits are made under the Social Security Act 1998.  Initial awards are made under section 8 but may be altered by way of revision under section 9 or supersession under section 10.  Section 12 provides for appeals to the First-tier Tribunal against decisions made under sections 8 and 10.  In this case, the Secretary of State’s decision of 19 April 2011 was made under section 10 which, at the material time, provided –

 

 “(1) Subject to subsection (3) and (4) and section 36(3) below, the following, namely—

(a) any decision of the Secretary of State under section 8 above or this section, whether as originally made or as revised under section 9 above; and

(b) any decision under this Chapter of the First-tier Tribunal or any decision of the Upper Tribunal which relates to any such decision,

may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative.

  (2) In making a decision under subsection (1) above, the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.

  (3) Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this section.

  (4) [repealed].

  (5) Subject to subsection (6) and section 27 below, a decision under this section shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.

  (6) Regulations may provide that, in prescribed cases or circumstances, a decision under this section shall take effect as from such other date as may be prescribed.”

 

22. Regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is made under section 10(3) and so defines the cases and circumstances in which a decision may be superseded.  In particular, regulation 6(2)(a) and (r)(i) provide –

 

 “(2)  A decision under section 10 may be made on the Secretary of State’s own initiative or on an application made for the purpose on the basis that the decision to be superseded—

(a) is one in respect of which—

(i) there has been a relevant change of circumstances since the decision had effect or …; or

(ii) it is anticipated that a relevant change of circumstances will occur;

…

(r) is an employment and support allowance decision where, since the decision was made, the Secretary of State has –

(i) received medical evidence from a health care professional approved by the Secretary of State; or

(ii) made a determination that the claimant is to be treated as having limited capability for work in accordance with regulation 20, 25, 26 or 33(2) of the Employment and Support Allowance Regulations;

…”

 

23. Regulation 7, made under section 10(6), provides for exceptions to the general rule under section 10(5) that supersessions take effect from the date on which they are made (if made on the Secretary of State’s own initiative) or from the date of the relevant application (if made on an application).  Of particular importance in the present case are paragraphs (2)(c), (38) and (40), which provide –

 

 “(2)  Where a decision under section 10 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision had effect …, the decision under section 10 shall take effect—

…

(c) where the decision is not advantageous to the claimant –

(i) [revoked]

  (ii) in the case of a disability benefit decision, or an incapacity benefit decision where there has been an incapacity determination or an employment and support allowance decision where there has been a limited capability for work determination (whether before or after the decision), where the Secretary of State is satisfied that in relation to a disability determination embodied in or necessary to the disability benefit decision, or the incapacity determination or an employment and support allowance decision where there has been a limited capability for work determination, the claimant or payee failed to notify an appropriate office of a change of circumstances which regulations under the Administration Act required him to notify, and the claimant or payee, as the case may be, knew or could reasonably have been expected to know that the change of circumstances should have been notified,

(aa)  from the date on which the claimant or payee, as the case may be, ought to have notified the change of circumstances, or

(bb)  if more than one change has taken place between the date from which the decision to be superseded took effect and the date of the superseding decision, from the date on which the first change ought to have been notified, or

(iii) [revoked]

(iv) in the case of a disability benefit decision, where the change of circumstances is not in relation to the disability determination embodied in or necessary to the disability benefit decision, from the date of the change; or

(v) in any other case, except in the case of a decision which supersedes a disability benefit decision, from the date of the change.

…

  (38)  A decision made in accordance with regulation 6(2)(r) that embodies a determination that the claimant has—

(a) limited capability for work; or

(b) limited capability for work-related activity; or

(c) limited capability for work and limited capability for work-related activity

which is the first such determination shall take effect from the beginning of the 14th week of entitlement.

…

  (40)  A decision made in accordance with regulation 6(2)(r) that embodies a determination that the claimant has—

(a) limited capability for work; or

(b) limited capability for work-related activity; or

(c) limited capability for work and limited capability for work-related activity

where regulation 5 of the Employment and Support Allowance Regulations (assessment phase – previous claimants) applies shall take effect from the beginning of the 14th week of the person’s continuous period of limited capability for work.

…”

 

It is to be noted that regulation 7(38) applies only to the “first such determination”.  The need for it arises from the structure of employment and support allowance. 

 

24. I will consider the usual position in relation to income-related employment and support allowance, which is relevant to this case, but very similar considerations apply in relation to the contributory allowance.  Disregarding cases where there is an earlier “relevant linked period”, when a claimant first claims income-related employment and support allowance, he or she enters the “assessment phase” during which he or she is usually treated under regulation 30 of the 2008 Regulations as having limited capability for work and is awarded a basic amount of employment and support allowance calculated without including the work-related activity component or the support component in the applicable amount (see section 4 of the Welfare Reform Act 2007).  During that assessment phase, the first work capability assessment is carried out, following which the award is superseded under section 10 of the 1998 Act and regulation 6(2)(r)(i) of the 1999 Regulations.  If the claimant is found not to have limited capability for work, the award is terminated on the supersession, with effect from the date of the supersession, as happened in this case (because there is no relevant exception to the general rule in section 10(5)).  If the claimant is found to have limited capability for work, the award is increased on supersession so as to reflect the inclusion of either the work-related activity component or the support component in the claimant’s applicable amount.

 

25. However, entitlement to these components arises only from the end of the assessment phase (see section 4(4)(a) and (5)(a) of the 2007 Act).  The assessment phase usually lasts for 13 weeks from the beginning of the period of entitlement to employment and support allowance (see section 24(2) of the 2007 Act and regulation 4 of the 2008 Regulations).  In the present case, the assessment was made on 19 April 2011, but the assessment phase did not end until 18 May 2011.  This would not have presented a difficulty to the Secretary of State had he considered in the light of the health care professional’s report that the claimant had limited capability for work.  By virtue of regulation 7(38), the supersession necessary to increase the claimant’s award by the amount of the work-related activity component would have been effective from the beginning of the 14th week of entitlement (i.e., immediately after the assessment phase had ended).  Thus, in a case like the present, a finding adverse to a claimant results in a supersession that takes effect immediately whereas a favourable finding results in a supersession that does not take effect until the assessment phase comes to an end.

 

26. That is all well and good if no significant change in the claimant’s condition is expected between the date of the decision and the end of the assessment period but, as the Secretary of State concedes, there is a difficulty if such a change is anticipated, at least where there is subsequently an appeal.  This difficulty arises in the present case where, on my findings, the claimant had limited capability for work on 19 April 2011 but, on the First-tier Tribunal’s findings, she would not have done on 18 May 2011.

 

27. When making an award on an initial claim for benefit, the Secretary of State is precluded by section 8(2)(b) of the 1998 Act from having regard to circumstances not obtaining at the date of his decision so that an advance award can be made only where entitlement will arise in the future merely due to the passage of time (see R(DLA) 4/05 and Secretary of State for Work and Pensions v Bhakta [2006] EWCA Civ 65 (reported as R(IS) 7/06)).  In contrast, there is no such inhibition when the Secretary of State is superseding a decision under section 10, which is why  regulation 6(2)(a)(ii) of the 1999 Regulations can properly provide that a decision may be superseded where “it is anticipated that a relevant change of circumstances will occur”.  Moreover, as will be seen below, regulation 7(2)(c) facilitates anticipatory supersessions because it has the effect that an adverse supersession based on an anticipated change of circumstances will not take effect until the change is expected to occur.

 

28. However, a problem arises if there is an appeal against a supersession on the ground of an anticipated change of circumstances because section 12(8)(b) of the 1998 Act is in terms similar to section 8(2)(b).  It provides that the First-tier Tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” and no exception is allowed where the decision appealed against was a supersession based on an anticipated change of circumstances that is not due merely to the passage of time.  Presumably this arises from the draftsman of the Act not having foreseen that regulations made under section 10(3) might enable a supersession to take account of circumstances not obtaining at the time of the decision.

 

29. This difficulty is of significance in the present case.  While the Secretary of State could have decided on 19 April 2011 to supersede the claimant’s award so as to terminate it from, say, 4 May 2011 on the basis that the claimant had limited capability for work and so remained entitled to benefit at the same rate until then but that there would then be a change of circumstances due to her recovering from the effects of the operation and ceasing to have limited capability for work, the First-tier Tribunal was not able to consider whether to substitute a decision to that effect for the decision the Secretary of State did in fact make.

 

30. There are at least two alternative approaches that the Secretary of State might have taken.  One, and possibly the more practical at the time, would have been to delay making any decision until 4 May 2011 so that any appeal from that decision could have taken account of the restoration of the claimant to what had become her normal state of health.  That would not have prejudiced the claimant in this case because the delay would not have extended the assessment phase and it would have extended the period of the award until the effects of the operation had passed.  The second approach, open theoretically although it might have been objectionable in practice as it might have confused the claimant unless accompanied by a very clear explanation of what was going on, would have been to make a decision on 19 April 2011 superseding the award in favour of the claimant by adding the work-related activity component with effect from 18 May 2011 but then on 4 May 2011 to supersede that decision before it took effect and terminate the award on the ground of change of circumstances. 

 

31. However, on appeal, the First-tier Tribunal could not entirely recreate either of those situations because they each require a decision to have been made on or after 4 May 2011 and it could not ignore the facts that the Secretary of State’s decision was actually given on 19 April 2011, that the only appeal before it was against that decision and that it had to give a decision that did not take account of any improvement there might have been in the claimant’s health after 19 April 2011. 

 

32. The consequences of any change of circumstances would therefore have to be addressed by a further decision by the Secretary of State.  The question is whether, by the time the appeal was decided, the Secretary of State could make a decision with retrospective effect from 4 May 2011.  It will be recalled that when I granted permission I suggested that, at first glance, it seemed possible that the Secretary of State would have no power to make a retrospective supersession and the Secretary of State submitted that that was so. 

 

33. I agree that no supersession favourable to the claimant but made after the First-tier Tribunal’s decision could have effect from 4 May 2011, because nothing in subparagraphs (a) to (be) of regulation 7(2) of the 1999 Regulations, which deal with supersessions on the ground of a change of circumstances that are favourable to the claimant, would apply so as to enable the supersession to be effective from the date of the change of circumstances rather than the date of an application by the claimant or the commencement of action by the Secretary of State.  It would therefore not be fair to the claimant for me to adopt the suggestion of the Secretary of State in this case and make a decision reinstating the award at the rate previously in payment.

 

34. But could the First-tier Tribunal have superseded the award in favour of the claimant by adding the work-related activity component with effect from 18 May 2011 and then left it to the Secretary of State to make the further supersession decision, without being unfair to the Secretary of State?  Further consideration of regulation 7(2)(c) of the 1999 Regulations has satisfied me that that is not correct.  This is not a case that falls within head (ii), because the claimant did not “fail to notify an appropriate office of a change of circumstances which regulations under the Administration Act required him to notify”, and it therefore falls within the scope of head (v), which clearly has the effect of enabling a supersession decision on the ground of a change of circumstances in respect of employment and support allowance that is disadvantageous to the claimant to take effect from the date of the change whenever the decision is made unless the case falls within head (ii).  As I suggested above, this is relevant when the Secretary of State supersedes a decision on the basis of an anticipated change of circumstances but it would also enable the Secretary of State to supersede a favourable decision of a tribunal with effect from the date of a change of circumstances occurring before the tribunal gave its decision but after the date of the decision challenged in the appeal to the tribunal.

 

35. Accordingly, subject to one further consideration, there would be no unfairness to the Secretary of State if I were to substitute for the First-tier Tribunal’s decision a decision superseding the original award so as to include the work-related activity component within the claimant’s applicable amount from the beginning of the 14th week of entitlement.  The Secretary of State could supersede my decision if minded to do so, but the claimant would have a further right of appeal against any adverse decision.

 

36. However, Ms Blackmore’s further written submission draws attention to yet a further issue that arises in this case and, indeed, in most cases where there is an appeal against the termination of an award on the ground that the claimant does not have limited capability for work.  Following the Secretary of State’s decision, the claimant continued to submit medical evidence in accordance with regulation 30 of the 2008 Regulations and accordingly, when she appealed, the Secretary of State made a new award of employment and support allowance on the ground that she was to be treated under regulation 30 as having limited capability for work.  This award was made at the same rate as the previous award and with effect from the date the previous award had ended (despite the words “has made and is pursing an appeal” in regulation 30(3) of the 2008 Regulations).  Such an award may be made without a claim by virtue of regulation 3(j) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) as amended.

 

37. It is implicitly argued by Ms Blackmore that, since there cannot be two awards at the same time, the First-tier Tribunal had no power to make a decision actually awarding benefit for any period after 19 April 2011.  Its primary task was to make a finding of fact as to whether the claimant had limited capability for work.  If it decided against the claimant, it could dismiss the appeal but, if it decided in her favour, it was for the Secretary of State to give effect to that finding by revising or superseding the award he had made while the appeal was pending, having regard to regulation 147A of the 2008 Regulations.  Regulation 147A provides, so far as is material –

 

“147A.—(1) This regulation applies where a claimant has made and is pursuing an appeal against a decision of the Secretary of State that embodies a determination that the claimant does not have limited capability for work.

  (2) Subject to paragraph (3), where this regulation applies, a determination of limited capability for work by the Secretary of State under regulation 19 shall not be made until the appeal is determined by the First-tier Tribunal.

…

  (6) Where a claimant’s appeal is successful, subject to paragraph (7), any finding of fact or other determination embodied in or necessary to the decision of the First-tier Tribunal or on which the First-tier Tribunal’s decision is based shall be conclusive for the purposes of the decision of the Secretary of State, in relation to an award made in a case to which this regulation applies, as to whether the claimant has limited capability for work or limited capability for work-related activity.

  (7) Paragraph (6) does not apply where, due to a change of circumstances after entitlement to which this regulation applies began, the Secretary of State is satisfied that it is no longer appropriate to rely on such finding or determination.”

 

38. On this basis, Ms Blackmore submits that there are two distinct periods of entitlement to employment and support allowance, the second of which is to be treated as a continuation of the first under regulation 145 of the 2008 Regulations and, because there was no gap between them, regulation 5 has the effect that the assessment phase would end on the same day as it would have done if they really had been one period. 

 

39. Thus far, I agree with Ms Blackmore’s analysis.  She then further submits that effect would be given to a favourable decision of the First-tier Tribunal by superseding the award made pending the appeal under section 10 of the 1998 Act and regulations 6(2)(r)(ii) and 7(40) of the 1999 Regulations, in the light of regulation 147A(6) of the 2008 Regulations.  However regulation 6(2)(r)(ii) does not apply, because it does not include a reference to regulation 30 of the 2008 Regulations.  Ms Blackmore may have meant to refer to regulation 6(2)(r)(i) but that does not appear directly relevant either, because what would be triggering the supersession would not be receipt of evidence from a health care professional but receipt of the decision of the First-tier Tribunal. Moreover, the only evidence received from the health care professional was received before the decision to award employment and support allowance while the appeal was pending. 

 

40. The more obvious way of altering an award made pending a successful appeal is by way of a revision under section 9 of the 1998 Act and regulation 3(5E) of the 1999 Regulations, which is clearly intended for that role.  Regulation 3(5E) provides –

 

“(5E) A decision under section 8 or 10 awarding an employment and support allowance may be revised if –

(a) the decision of the Secretary of State awarding an employment and support allowance was made on the basis that the claimant had made and was pursuing an appeal against a decision of the Secretary of State that the claimant did not have limited capability for work (“the original decision”); and

(b) the appeal to the First-tier Tribunal in relation to the original decision was successful.”

 

41. It is true that section 9(3) provides that “a revision under this section shall take effect as from the date on which the original decision took (or was to take) effect” and that the amount of the award in the present case would not fall to be altered until the end of the assessment phase, but I do not consider that to be an obstacle.  The object of section 9 and regulation 3(5E) is to enable a decision awarding employment and support allowance pending an appeal to be corrected in the light of the appeal having been allowed.  On the day that the original award pending the appeal was made, the Secretary of State would have had the power to make a decision that had the effect of increasing the amount of an award from the end of the assessment phase, had the appeal already been determined.  (Even if the decision had been made before the end of the assessment phase, that would have been possible having regard only to the circumstances obtaining at the time – not by way of an advance award (because regulation 146 of the 2008 Regulations would not have applied), but by way of an award followed by a supersession under section 10 and regulations 6(2)(r)(i) and 7(40) of the 1999 Regulations.  Thus the provisions on which Ms Blackmore relied may have indirect relevance.)

 

42. But what if the Secretary of State were to take the view that the claimant had ceased to have limited capability for work before the end of the assessment phase so that the claimant did not become entitled to have the work-related activity component included in her applicable amount?  In such a case, regulation 147A(7) would disapply regulation 147A(6).  At first sight, it is arguable that he could decline to revise the award on the ground that no additional benefit would be payable to the claimant.  However, a refusal or failure to revise a decision under section 9 and regulation 3(5E) does not give rise to a right of appeal or extend the time for appealing against the original decision and it seems to me that, for the legislation to operate fairly, there must be a public law duty on the Secretary of State first to give effect to the First-tier Tribunal’s decision by revising the award and then, if he takes the view that there has been a relevant change of circumstances that brings regulation 147A(7) into play, superseding the revised decision under section 10 and regulations 6(2)(a)(i) and 7(2)(c)(v) in the light of that change of circumstances with effect from the date of the change.  There would be a right of appeal against such a decision.

 

43. This produces a sensible result in that it provides a mechanism whereby the outstanding dispute in this case as to whether the claimant had limited capability for work after the effects of her operation wore off can be determined by a tribunal with jurisdiction to do so.  However, it is extremely convoluted, even by the standards of social security adjudication.  The main difficulty arises from the lack of any qualification of section 12(8)(b) of the 1998 Act but I also wonder whether decision-making in this type of employment and support allowance case might be easier if, instead of requiring a decision of the First-tier Tribunal in favour of a claimant to be given practical effect through the revision of an award made pending the appeal, the legislation provided for such an award to come to an end when the Secretary of State receives notice of the First-tier Tribunal’s decision and for the payments made under the award to be treated as having been paid on account of any arrears of entitlement due under the decision of the First-tier Tribunal (or, if there is a further appeal, the decision of the Upper Tribunal or an appellate court).

 

Conclusion

 

44. The First-tier Tribunal erred in law in failing to take account of the effects of her operation when considering whether the claimant had limited capability for work on 19 April 2011.  I have found that the claimant had limited capability for work on 19 April 2011.  I have no power to consider whether the claimant ceased to have limited capability for work after that date, when the effects of her operation had passed.  The Secretary of State does have the power to make such a decision but should only do so after revising the award made pending the claimant’s appeal to the First-tier Tribunal so as to give effect to my decision.  If he decides that the claimant did at any time after 19 April 2011 cease to have limited capability for work and that the revised award should be superseded, the claimant will then have a right of appeal against that decision. 

 

45. The claimant will also have a right of appeal arising out of any decision made in consequence of a further referral for a medical examination since her “claim” made on 11 March 2013.  If more than one appeal is brought, steps should be taken to ensure that they are heard together.

 

 

 

 

Mark Rowland

25 March 2015