Upper Tribunal (Administrative Appeals Chamber)

 

 

 

 

THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

The appeal is allowed.

 

The decision of the tribunal given at Edinburgh on 12 December 2013 is set aside.

 

The Judge of the Upper Tribunal remakes the decision of the First tier Tribunal on the tribunal’s findings in fact.  It is as follows: The decision made on 27 March 2013 is upheld.

 

 

REASONS FOR DECISION

 

 

1. The Secretary of State has appealed against the decision of the tribunal which allowed the claimant’s appeal and found in paragraph 3 of their decision that the claimant was entitled to employment and support allowance with the support component.  In making that decision the tribunal determined that the claimant attracted 6 points from the work capability assessment scored from the activities and descriptors in schedule 2 of the Employment and Support Allowance Regulations and that regulation 35 of the Employment and Support Regulations 2008 applied.  The crucial paragraph of the reasons for the tribunal’s decision in relation to the application of regulation 35 is contained in paragraph 27 where it is said:

 

 

“27. Miss Campbell’s evidence was important in the Tribunal reaching its conclusion.  In this unusual circumstance it felt that [the claimant] was at risk of substantial self-harm and on that basis Regulation 35 of the ESA Regulations should be applied.  It was acknowledged that Regulation 29(2) b of the same Regulations did not apply.  On that basis the appeal was allowed and [the claimant] was found to fall within Regulation 35.  It was agreed however that the Tribunal would recommend [the claimant] should not be reassessed for 1 year from the date of hearing.  It is hoped that her condition would improve in the interim and [the claimant] indicated her enthusiasm in being able to resolve her problems and look seriously for work opportunities.”

 

2. The Secretary of State’s grounds of appeal are at page 116.  In paragraph 8 of the grounds of appeal it is said:

 

 

“8. It is my submission that First-tier Tribunals and Upper Tribunals ought to follow Upper Tribunal Judge Jacobs analysis of the Employment and Support Allowance structure as set out in paragraphs 11-13 of NS v Secretary of State for Work and Pensions [2014] UKUT 149 (CE/2207/2012).  It is clear from this that a claimant has to be found to have LCW initially before any consideration is given to whether that claimant has LCWRA for the purpose of entitlement to a higher rate of benefit and being found to be exempt from certain activities.”

 

In a further submission at page 238 following a decision of a 3 Judge Panel in IM v SSWP (ESA) [2014] UKUT 412 (AAC),  it was said:

 

 

“2. I submit that the grounds of appeal remain as stated in the SSWP’s submission dated 26/06/14 (pages 109-118 of the bundle.  Essentially, the SSWP argues that the First-tier Tribunal (FtT) in the present case erred in law by awarding ESA by treating the claimant as having limited capability for work-related activity (LCWRA), despite a finding that the claimant did not have, and could not be treated as having, limited capability for work (LCW).  The SSWP relies on the argument that a claimant has to have been found to have LCW, a basis condition of entitlement to ESA, before a finding of LCWRA can be considered, as the latter is relevant only to the amount of benefit paid and to what extent, if any, the claimant has to attend work-focused interviews and work-related activity.

 

3. In IM, the three Judge panel of the UT was considering what information had to be given to the FtT in the context of Regulation 35 in an appeal where the claimant had been found by the FtT to have LCW  but did not satisfy any of the schedule 3 activities.  In paragraph 108 of IM the UT Judges rejected an argument by the SSWP that it would be disproportionate to supply such information in cases where the appeal was about whether the claimant had LCW. The Judges held that such information should be provided so that the FtT could deal with the new issue straightaway.  Therefore in my submission, it is clearly implied that there is no requirement to consider LCWRA and Regulation 35 where LCW has not been established.  On that basis, the UT decisions relied on by the FtT Judge in refusing permission to appeal were wrongly decided and should not be followed.

 

4. In my submission, the issue in the present case is not about whether the claimant should be treated as having LCWRA under Regulation 35 (thereby applying the guidance as to how that should be determined as per IM).  That could only be relevant in the circumstances described in paragraph 108 of IM.   The issue in the present case is whether a claimant can be treated as having LCWRA and therefore entitled to ESA when they have been found not to have LCW.  Thus the SSWP submits that the FtT erred in law by finding that the claimant satisfied Regulation 35.”

 

 

3. The claimant responded to that submission as follows:

 

 

“I refer to Document 105 and in particular the findings of facts points 17 and 22 and also the reasons for the tribunal’s decision at 26 and 27 which clearly shows that the tribunal had fully considered the risk to [the claimant’s] health if she were required to take part in work-related activity.  We are in agreement with Mr Collins who states on document 99 “Reg 35 is not dependent on Reg 29; the tribunal does not have to be satisfied that the latter applies before granting benefit under the former.  CSE/3453/2013 at documents 198 to 234 confirms at section 117 “the First Tier Tribunal is entitled to use its own knowledge, if it is confidence that it is up to date and complete as to the more demanding types of work-related activity … this is confirmed in the full written reasons provided by Mr Court.”

 

 

 

 

The reference to Mr Collins was a reference to the determination of the First-tier Tribunal Judge in refusing permission to appeal. 

 

At page 136 the scheme of the legislation is set out by the Upper Tribunal Judge (Jacobs) in NS v Secretary of State for Work and Pensions (ESA) [2014] UKUT 149 (AAC).  There it is said:

 

 

“11. The Employment and support allowance is governed by the Welfare Reform Act 2007, the Employment and Support Allowance Regulations 2008 (SI No 794) and Employment and Support Allowance (Work-related Activity) Regulations 2011 (SI No 1349).  All references to sections are to the 2007 Act and all references to regulations are to the 2008 Regulations unless otherwise stated.

 

12. Entitlement is initially based on a doctor’s fit note (regulation 30). After this initial assessment phase, the claimant may continue to qualify on the basis of limited capability for work.  Broadly, this can be shown in three ways.  The first way is on account of the nature and extent of the claimant’s disabilities, demonstrated by scoring at least 15 points for the activities in Schedule 2 to the Regulations (regulation 19).  The second is on account of the nature of the claimant’s condition or treatment.  For example, the claimant may be terminally ill or receiving chemotherapy (regulation 20).  The third is on account of the risk that would be posed if the claimant were to undertake work.  This is regulation 29, which at the relevant time provided:

 

29 Exceptional circumstances

…

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

 

13. A claimant who has limited capability for work may qualify for a higher payment and be exempt from undertaking work-related activity by coming within the support group.  This can be shown in two ways.  The first way is on account of the nature and extent of the claimant’s disabilities, demonstrated by satisfying at least one of the activities in Schedule 3 to the Regulations (regulation 34).  Most of these are the highest scoring descriptors from Schedule 2.  The second is on account of the risk that would be posed if the claimant were to undertake work-related activity.  This is regulation 35 …”.

 

 

 

 

 

 

 

 

4. I find myself in agreement with that analysis of the statutory scheme for employment and support allowance.  It is quite clear from the first sentence in paragraph 13 that the application of schedule 3 and the descriptors therein and regulation 35 is dependent upon a claimant having limited capability for work.  In this case such limited capability for work was not established.  It does not seem to me that on the Upper Tribunal Judge’s narration of the statutory scheme that schedule 3 descriptors and regulation 35 can be free-standing and can give rise to an entitlement to benefit on their own without limited capability of work having been established.  That is where the tribunal’s decision and in particular paragraph 27 thereof demonstrated an error in law on their part in making the award in paragraph 3 of their decision.  I accept paragraphs 2 and 4 of the Secretary of State’s submission at page 238 quoted above.

 

5. In reaching that conclusion it is incumbent upon me to deal with the decision of Upper Tribunal Judge Gamble in CSE/490/2013 which the claimant seeks to rely on.  In making that decision Upper Tribunal Judge sought to rely on paragraph 14 of ML v SSWP [2013] (AAC) when he said:

 

 

“Thus the tribunal were not precluded from considering the application to the claimant of regulation 35(2) although they had held that she neither satisfied the limited capability for work assessment nor fell to be treated as having satisfied it.”

 

 

In ML when considering regulations 29 and 35 Upper Tribunal Judge Jacobs said:

 

 

“There is no reason why the former should be determinative of the latter”

 

 

It seems to me that Upper Tribunal Judge Gamble gave wider effect there to what was said by Upper Tribunal Judge Jacobs than was intended.  I am satisfied that what Upper Tribunal Judge Jacobs was saying was that satisfaction of regulation 29 did not mean that a claimant automatically satisfied regulation 35.  However in this case regulation 29 or sufficient schedule 2 descriptors were not satisfied and thus in turn regulation 35 could not be satisfied.

 

Further in these circumstances it does not seem to me that the Secretary of State, having regard to what was said by the Upper Tribunal Judge (Jacobs), as quoted above, require  to rely on any implication that he seeks to draw from the decision of the 3 Judge Panel in IM v SSWP (ESA) [2014] UKUT 412 (AAC).   In the circumstances I allow the appeal and uphold the decision appealed against to the First-tier Tribunal.

 

 

 

 

 

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 12 March 2015