Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 18 September 2014 at Stevenage under reference SC920/14/00152) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

DIRECTIONS:

A.        The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

B.        In particular, the tribunal must investigate and decide the claimant’s entitlement to an employment and support allowance on and from 1 May 2014.

C.        In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

Reasons for Decision

A.        The issue

1.         The issue in this case concerns home working. Is it relevant to the application of regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 (SI No 794), of regulation 35(2), of neither, or of both? I have decided that it is potentially relevant to both. In practice, though, it is unlikely to be relevant to regulation 29(2)(b), but it may be relevant to regulation 35(2), depending on the type of work-related activity appropriate to the claimant.

B.        The Secretary of State’s award and assessment

2.         The claimant was awarded an employment and support allowance from August 2013. She completed a questionnaire on her disabilities, in which she identified problems with learning tasks, getting about, and coping with social situations. She was then seen by a health care professional, who gave the opinion that the claimant’s only difficulty relevant to her capability for work was with getting about. She identified descriptor (c):

Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person.

This carries six points, which is less than the 15 required to establish entitlement to an employment and support allowance. On 1 May 2014, the decision-maker accepted the health care professional’s opinion and decided that the claimant was no longer entitled to an employment and support allowance on and from that date.

C.        The appeal to the First-tier Tribunal

3.         The claimant exercised her right to appeal to the First-tier Tribunal. She was represented by her local CAB, who submitted that she should score six points for mobilising, six points for standing and sitting, and nine points for getting about. The tribunal confirmed the score of six points for getting about, but allowed the appeal, finding that the claimant satisfied regulation 29, but not regulation 35. The tribunal’s reasoning on these paragraphs was this:

45. We accept that in relation to Regulation 29 we should not be looking at someone’s ability to work from home. Clearly job searches, signing on, and most types of work require a person to leave the house.

46. In our view this is different to Regulation 35 where activities can be carried out from home particularly as any activity [the claimant] is required to undertake must take into account her health problems and the functional difficulties this causes her. In our view she could undertake work related activity at home. There is no reason why the job centre cannot write to her at home or call her on the phone to inform her of what work related activity they would like her to undertake at home (such as online training, or discussing what equipment/help she would need to enable her to work or what treatment would help her).

47. Even if we are wrong about undertaking work related activities from home although we find she could not travel outside home unaccompanied she does have a friend who accompanies here to the town centre shops and supermarket (page 53). In our view there is no reason why this friend could not accompany her to her work related activity. We accept that her friend may well not be in a position to accompany her on a daily basis to work related activity but her friend’s availability can be taken into account when determining the frequency of any work related activity. Further as [the claimant] becomes used to going to a particular place there is no reason why she could not go alone as she did to see Dr Osman (page 100) and as she does to the chemists and doctors (page 53) although any work related activity may need to be at the same venue.

48. As such, we accept that there are certain work-related activities that she would not be able to take part in (such as work experience and mandatory work placements) and there may be a significant risk to her health if she is expected to go outside her home on her own to unfamiliar places but there are other activities that she could take part in.

D.       The appeal to the Upper Tribunal

4.         The claimant’s representative applied for permission to appeal to the Upper Tribunal, arguing that the tribunal had gone wrong in respect of home working and regulation 35, and by relying on the presence of her friend to accompany her. The First-tier Tribunal gave permission, saying:

The point raised by the appellant’s representative is an interesting one and one which, in my view, is certainly arguable.

I gave directions on the appeal and the representatives made their submissions.

5.         The Secretary of State’s representative argued that the tribunal had gone wrong in law by failing to approach the case in accordance with the decision of the three-judge panel in IM v Secretary of State for Work and Pensions [2014] UKUT 412 (AAC). He submitted that the tribunal was correct in its approach to regulation 29 and was consistent with the decision of Upper Tribunal Judge Wikeley in SM v Secretary of State for Work and Pensions [2014] UKUT 241 (AAC). That decision did not deal with regulation 35 and

there is much more scope for a claimant to undertake WRA [work-related activity] from home, the type and range of WRA being tailored to the claimant’s needs and abilities, and that the restrictive nature of home-working in relation to the application of regulation 29 does not feature.

6.         The claimant’s representative accepted that it was in principle possible to undertake work-related activity from home, but that the Secretary of State had not provided any evidence of what sort of activity might be availability or relevant to the claimant. He also argued that it would be unreasonable to take account of any support a claimant might derive from being accompanied by a friend. He concluded by inviting the Upper Tribunal to re-make the decision rather than remit the case, as the claimant would be unable to attend a hearing before the First-tier Tribunal.

E.        Regulation 29(2)(b)

The legislation

7.         This provides:

29 Exceptional circumstances

(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) Subject to paragraph (3) 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.

(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 the claimant.

SM

8.         Judge Wikeley considered home working in relation to this provision in SM. The relevant paragraphs of his decision read:

5. Mr Mick Hampton, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports the appeal from the decision of the FTT on the regulation 29 point. In summary, he argues as follows.

6. First, the tribunal made no real findings as to the claimant’s previous employment or any type of employment he could do. Second, the tribunal did not adequately address the evidence before it as to the risks posed by increased stress. Third, the tribunal’s analysis elided issues under regulations 29 and 35. Fourth, Mr Hampton argues that Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 (reported as R(IB) 2/09), in his words, ‘does not envisage home-working per se to be something to consider when looking at the range of jobs a tribunal might be looking at’. He accordingly suggests that the appeal is allowed, the tribunal’s decision set aside and the matter is remitted (or sent back) for re-hearing to a new tribunal.

7. I agree with Mr Hampton and Ms Davies-Khan that the tribunal erred in its treatment of regulation 29 and its application to the facts of this case. As Mr Hampton notes, there are jobs which allow for some home-working. This practice is more common in today’s post-Fordist economy than it used to be but it is still not the norm. Typically it is a matter which is entirely subject to the discretion (or whim) of the employer. The fact that the Court of Appeal in Charlton held that the statutory test has to be applied ‘in the context of the journey to or from work or in the workplace itself’ (at paragraph [34] per Moses LJ, emphasis added) is in itself instructive.

8. To say that a claimant cannot take advantage of regulation 29(2)(b) because they could always be able to do a job working from home would simply be to deprive the statutory provision of any real purpose for large numbers of claimants. Such an interpretation would defeat the statutory purpose of providing a degree of protection for exceptionally vulnerable individuals, especially for those suffering from mental health problems. The tribunal therefore went wrong in law by relying on the possible prospect of a job with home-working.

9. My interpretation of regulation 29 is confirmed by a statutory amendment to regulation 29 which by coincidence took effect on the very day that the Secretary of State’s decision was taken in the present case. As from 28 January 2013, regulation 29(2)(b) does not apply where the risk ‘could be reduced by a significant amount by … reasonable adjustments being made in the claimant’s workplace’ (regulation 29(3)(a)), as inserted by the Employment and Support Allowance (Amendment) Regulations 2012 (SI 2012/3096), regulation 3(6)). The ESA legislation does not define what is meant by the ‘claimant’s workplace’, but it seems to me the language used is consistent with the Court of Appeal’s understanding in Charlton, which envisages the claimant travelling from home to a workplace.

10. This usage is also consistent with the meaning associated with ‘workplace’ in other statutory contexts. Two examples will suffice. First, in revenue law, a workplace ‘in relation to an employment, means a place at which the employee’s attendance is necessary in the performance of the duties of the employment’ (Income Tax (Earnings and Pensions) Act 2003, section 339(1)). Second, under health and safety legislation, a ‘workplace’ means any premises or part of premises which are not domestic premises and are made available to a person as a place of work (Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004), regulation 2(1)).

11. Last but not least, the construction advanced above is implicit in the reasoning of Judge Ward in PD v Secretary of State for Work and Pensions (ESA) [2014] UKUT 148 (AAC). Judge Ward identified the central issue in that appeal as being the impact of regulation 29 ‘on persons who by reason of mental ill‑health have an impaired ability to get to places, such as a hypothetical workplace’ (at paragraph 1). If claimants could not avail themselves of regulation 29 simply because they could get a home-working job, then the whole premise of Judge Ward’s analysis was flawed. I do not accept that it was.

Charlton

9.         Judge Wikeley referred to the Charlton case. That was decided under regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995:

A person who does not satisfy the all work test shall be treated as incapable of work if in the opinion of a doctor approved by the Secretary of State –

…

(b) he 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 he were found capable of work; …

The Court was aware of employment and support allowance and said:

4. … the question of interpretation remains relevant to the regulations under the new scheme …

That is not quite saying that the same interpretation applies, but that is how that remark has always been understood.

10.      The issue before the Court was whether the risk had to arise from the act of being found capable of found, which is what the provision seemed to say, or whether it may also be found in the work that the claimant would be expected to undertake. The Court decided that it was the latter. Its conclusion was stated in this paragraph:

34. 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.

Analysis

11.      I respectfully agree with Judge Wikeley’s decision on the facts of SM. I would not, though, go so far as to decide that there is an absolute prohibition on considering home working under regulation 29. I am not sure that Judge Wikeley intended to quite so far. If he did, I would qualify it only slightly.

12.      As far as I recall, the issue of travel to work had never arisen as a separate issue in dispute before Charlton. I would not attribute to paragraph 34 in that case an absolute prohibition on taking home working into account. It is possible that the only type of work for which the claimant is suitable might be in an industry where home working is possible, even encouraged. That may be rare, but I do not read what the Court said as excluding that possibility. As I have said, home working was not an issue before the Court. What it said in paragraph 34 followed from the way that its decision on the issue in dispute would apply in the overwhelming majority of cases. But the Court was not called upon to be prescriptive that home working could not be considered if appropriate.

13.      As to regulation 29(3)(a), this does not in terms deal with the work that a decision-maker or tribunal may take into account. It merely makes provision for reasonable adjustments when work is done in a workplace.

14.      Turning to the facts of this case, I accept the Secretary of State’s submission that the tribunal was right to disregard home working.

F.        Regulation 35(2)

The legislation

15.      This provides:

35 Certain claimants to be treated as having limited capability for work-related activity

…

(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.

The error of law

16.      I accept the Secretary of State’s submission that the tribunal was in error of law by failing to apply IM. That decision had only just become available when the tribunal heard the claimant’s appeal, so it is probable that the presiding judge was unaware of it.

Analysis

17.      Although the tribunal’s analysis was flawed by being unaware of IM, its general approach that home working could be relevant to the application of regulation 35 was correct. That provision has to be applied to the work-related activity that is appropriate for the claimant. The claimant’s ability to travel to unfamiliar places is a factor that may affect the activity that is identified as appropriate. And, in so far as that activity does not involve travel, any difficulties that might otherwise arise in the course of travel to and from her home do not arise. I accept the Secretary of State’s submission to that effect.

G.       The benefit of a companion

18.      The claimant’s representative has argued that the tribunal went wrong in taking this into account as an alternative basis under regulation 35. The Upper Tribunal has considered this issue. Judge Gray decided that the benefit of a companion had to be disregarded: MT v Secretary of State for Work and Pensions [2013] UKUT 545 (AAC). Judge Ward took a more qualified view: PD v Secretary of State for Work and Pensions [2014] UKUT 148 (AAC). I know that there are other cases in which this issue has arisen in a variety of contexts. I prefer not to comment without argument on the issue, especially as it is not clear whether this issue will arise when the Secretary of State has identified work-related activity that is relevant to the claimant.

H.       I have remitted the case to the First-tier Tribunal

19.      The claimant’s representative has asked me to re-make the decision rather than remit it for rehearing. I cannot do that, because I do not have the necessary evidence to comply with IM. The First-tier Tribunal will be able to obtain that evidence and, even if the claimant cannot attend, the tribunal will have the benefit of the knowledge and experience of the doctor on the panel to assist in its decision-making. I remind the claimant that, although she may not feel able to attend, she could ask someone to attend who can speak of her difficulties from their own knowledge. Finally, I warn the claimant that the rehearing will consider all issues afresh, including whether she has limited capability for work. In particular, it will not be bound to accept that the claimant satisfies regulation 29, as the tribunal did last year.