DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

Before: Upper Tribunal Judge Gray

 

 

Decision

 

This appeal by the claimant succeeds. Permission to appeal having been given by me on 16 February 2015 in accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 on 12 September 2013 I set aside the decision of the First-tier Tribunal sitting at Leicester and made on 23 July 2014 under reference SC 038/13/04689.

 

I remake the decision as follows:

 

The appellant enters the support group from the date of the decision of the Secretary of State 9 July 2013 because although she does not satisfy any descriptor under schedule 3 Employment and Support Allowance Regulations 2008 the provisions of regulation 35 (2) of those regulations apply to her.

 

 

REASONS

 

Background

 

1.    The case concerned the appellant’s entitlement to Employment and Support Allowance (ESA) and references to regulations, unless otherwise stated, are to the Employment and Support Allowance Regulations 2008.  The FTT upheld the decision under appeal that regulation 29(2)(b) applied to the appellant who had limited capability for work but not limited capability for work related activities; the FTT found that no schedule 3 descriptor applied, and that regulation 35(2) was not applicable.  The conclusion in relation to regulation 35 forms of the nub of this appeal.  An application was made for permission to appeal, in the first instance to the FTT.

2.    Having been refused permission to appeal by a District Tribunal Judge she renewed that application before me. I granted permission to appeal, saying

2      There are arguably errors in the treatment of regulation 35 Employment and Support Allowance Regulations 2008 by the tribunal.  This case was heard prior to the decision of a 3 judge panel on issues concerning the application of that regulation, IM-v- Secretary Of State for Work and Pensions [2014] UKUT 412 (AAC).

3      The response did not contain details of what work related activity was available locally and therefore what such activities the applicant might have been required to perform. The FTT preferred to follow the approach of Judge White in CE/3916/2012 AK-v-SSWP (ESA) [2013] UKUT 545 (AAC) to the approach in MT-v-SSWP (ESA) [2013] UKUT 545 (AAC). (At [54]) That case was disapproved in IM, the MT approach being broadly preferred.

4      Arguably the FTT enquiry may be incomplete following the decision in IM as to a need to establish what the likely local expectations in relation to work related activity might have been.

 

3.    I gave directions for the further conduct of the case, and the submissions which I directed are now to hand. The appellant has asked for an oral hearing of this appeal, but in the event I am finding in her favour on the basis of the papers before me which renders such a hearing unnecessary.

The position of the parties

The Secretary of State

4.    The Secretary of State has responded, Mr Walker arguing that the decision did not involve an error of law and should be preserved.  His submission contains information which was not before the FTT in relation to Work Related Activities which would have been available in the area in which the appellant lived at the relevant time, and in which, therefore, she might have been expected to participate.  Notably that information includes work placements and work experience.

5.    His argument deals with what he describes as a thorough assessment of the applicable duty of regulation 35 by the FTT, and their application of what they consider to be appropriate guidance from the case of AK v Secretary of State for Work and Pensions (ESA) [2013] UKUT 435 (AAC) (AK).  He concedes that the FTT did not have the evidence of work related activities before it as required in the case of IM-v- SS WP (ESA) [2014] UK UT 412 (AAC) (IM). He argues that the tribunal decision did accord with IM in other areas, and argues that this case was illustrative of one where it was obvious that regulation 35 did not apply.  He relies on that part of IM where it was said that a first tier tribunal may decide that it can properly determine the case one way or other without the evidence. He relies upon the daily activities of the appellant as illustrating a lack of risk. 

The appellant

6.    The appellant resists the Secretary of State’s position, arguing before me that there would have been a substantial risk to her health in participating in Work Related Activities in 2013; she prays in aid the fact that she was not asked to do so as an ex post facto acceptance of that risk, but also argues that if that is why she was not required to participate then she was effectively in the Support Group throughout, yet being paid at the rate applicable to those in the Work Related Activity Group and apparently subject to conditiality in respect of the continuation of her award.

My decision and explanation of why I am deciding the matter

7.    I find in the appellant’s favour building on the facts found by the FTT; I have not needed to take heed of evidence produced in these proceedings from the appellants GP.  I consider this a case in which it is appropriate for me to make a decision; I now have the information demanded by the case of IM; it is a long time now from the date of the decision under appeal and it is preferable from me to dispose of the matter at this stage if I can. I can because a great deal of the factual spadework has been done by the FTT, the remaining matter is one of judgement as to whether or not the risk is substantial, and I believe that is an issue which I can determine without medical input.

The error of law

8.    I find that the FTT fell into error of law in its approach to the application of regulation 35 in the light of the decision of the three-judge panel in IM. The material finding of fact was that the appellant would be able to accomplish all of the Work Related Activities set out in the case of AK (which the FTT were not unreasonably in the absence of other evidence using as the likely work related activities which might be required) save for a work placement; this was because of what was described at [53] of the statement of reasons as her fragile mental health. The tribunal said in terms at [54] that it would recommend it that such activity was not included in any work related activity provision.

9.    That the decision was predicated upon the assumption that the reservations of the tribunal in this regard would be communicated to the provider of work related activity in her case leads me to the view that the FTT in this case found in addition that were the appellant to be required to carry out a work placement that would pose a substantial risk to her health.  This conclusion seems to me to follow logically from that position.

10. Having reflected further on the tribunal’s approach since I granted permission to appeal it seems to me that although the FTT specifically said that it was adopting the approach taken by Upper Tribunal Judge White in AK (which is referred to in the statement of reasons by the file reference CE/3916/2012) what they in fact did was to adopt the second approach that in MT-v- Secretary of State for Work and Pensions I ventured might be a way in which tribunals could deal with cases before them where regulation 35 required consideration without seeking further information and the difficulties that wholesale adjournments to obtain it would bring, namely to identify what work related activities were likely to constitute a substantial risk to health, in the expectation that those concerns would be forwarded to a work provider. (MT at [31]).

11. That approach may additionally have been an error in the light of IM, since the focus of that case was the lack of transmission of such information, resulting in a potential “knowledge gap” on the part of a work provider with the responsibility of deciding what work related activities would be required.  This is despite the fact that the approach that I took in MT was broadly approved and preferred to AK in IM [118].

12. On analysing that decision my conclusion is that although my approach to the question of whether all the work-related activities in which an appellant might be expected to participate must be assessed in relation to whether or not the engagement was likely to result in substantial risk to that person’s health (the regulation 35 (2) criteria) was preferred to that set out in AK, in which it was found to be sufficient if some activities would be able to be accomplished without such risk was approved, the approach that I adumbrated in MT and refer to above did not survive IM due to the misunderstanding as to transmission of the information, and the FTT’s adoption of it was therefore an error of law.

13. As was said in IM, in comparing the approaches of myself and Judge White, the difference was in fact quite subtle; that can be seen from the FTT in this case having said that they used Judge White’s approach when in fact they used the approach in MT.

14. Both approaches were predicated upon a finding that there was certain work related activity which an appellant could do without substantial risk and by implication those that could not be so accomplished.  As was made clear in IM these are the difficult cases.  The cases where the facts point to an appellant being able safely to undertake either any work related activity that they may be asked to do, or none at all, effectively solve themselves in the terms of their legal conclusion.  It is the middle ground where risk assessment is both imperative and problematic.

15. I had looked upon my MT approach (at [31]) of effectively blocking out certain activities as an extension of what used to occur at the FTT in relation to Incapacity Benefit where an appellant was found to score some points but insufficient to satisfy the then statutory test of capability for work (the test was in a negative form, the finding being that somebody was “not incapable”).  The decision notice would specify which descriptors applied to that individual, who would then be expected to seek work. The decision notice could be of assistance in the drafting of a Jobseekers Agreement because where specific functional difficulties were stated on the decision notice, for example where points were scored for an activity such as lifting, it would be understood and accepted that the person should not seek heavy manual work. Whether or not this had statutory force it was clear from the submissions of Presenting Officers at tribunal hearings that the difficulties highlighted by a tribunal in its decision would be heeded. The practice played a part in considerations of risk under regulation 27 of the applicable regulations, the equivalent of regulation 29 of the ESA regulations.  It should be remembered that the position in the days of Incapacity Benefit was that DWP staff were engaged in the drawing up of the Jobseekers Agreement and in control of the practicalities as well as the decision-making in respect of work search expectations and sanctions.  The position currently differs in that work-related activities are outsourced to various providers, and therefore generally outside the day-to-day control of the DWP.

 

16. In IM evidence was produced as to the liaison or flow of information between the DWP (in the form of the various Job Centres) and the work related activity providers. At [98] and [99] in considering the risk issue the panel rehearse the circumstances I had set out in MT saying

 

[98].. it could perhaps be arranged that the First-tier Tribunal making a decision under regulation 35(2) would record on its decision notice findings (and perhaps brief reasons) as to any forms to work-related activity that he or she considered would give rise to a substantial risk to someone’s health if the claimant were to engage in them and then for those findings could be passed to the person making the decision under regulation 3.)

 

 

[99 ]“ “The risk might be eliminated altogether if the practice was for a decision-maker making the decision under regulation 3 (a reference to the Employment and Support Allowance Regulations 2011, regulation 3 dealing with the requirement to undertake Work Related Activity) to make a decision in conformity with findings made by a decision-maker or the First-tier Tribunal when making a decision under regulation 35(2). (Section 17(2) of the Social Security Act 1998 carries the clear implication that a finding of fact embodied in a decision is binding for the purposes of another decision only if regulations so provide, so that it could only be guaranteed that a decision under regulation 3 would be made in conformity with a decision under regulation 35(2) (at least to the extent of not making a decision less favourable to a claimant) if the Secretary of State were to make that a matter of practice.”) 

 

And later, immediately prior to explaining the extent to which information was required by the tribunal in order for them to carry out the regulation 35 (2) risk assessment, said

 

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. 

 

 

17. What I have referred to as the “knowledge gap” is also the subject of comments by Upper Tribunal Judge Rowland.  Judge Rowland was a member of the three-judge panel in IM, and he has more recently elaborated on the difficulty that it dealt with in the case of CE/4053/2013 saying

 

'The difficulty highlighted in IM is that, because the results of work capability assessments are not routinely passed to providers who determine what work-related activity a claimant should be required to do, there may a risk of a provider requiring a person with, say, mental health problems to perform unsuitable work-related activity, due to the provider’s ignorance of those problems or their extent. 

 

18. To bring matters back to the present, in this case the FTT finding that the appellant should not be required to engage in a work placement, from the context in which it is stated, was impliedly because they found that, unlike any of the other work related activities to which they referred, such a placement would carry with it substantial risk, the risk being a deterioration in the appellant’s mental health, which they had described as fragile.

 

19. The solution which they adopted was one that they thought would obviate the risk.  IM explains why it did not do that.  There are currently (according to the Secretary of State’s submission in IM) no processes for bringing such risks as a decision maker or an FTT identifies or the facts underlying the potential vulnerability of a claimant to the attention of those organisations providing the work related activity although with that knowledge they might assess the level of risk. 

 

20. Given that knowledge gap, and the situation where some activities might pose a substantial risk, an important question is whether the person themselves could be expected to effectively communicate that risk to a work provider. It is one that I must answer in order to dispose of this appeal.

 

21.  I do not need to, and indeed cannot provide a generic answer and I confine myself to the current circumstances. It seems to me that although this appellant is educated to a high level and articulate she may not be able to persuade a work provider that it would be inappropriate to require her to attend a work placement.  Indeed the very qualities that one might think advantage her in putting forward that argument may to someone with no knowledge of her medical problems be equally persuasive of her being apparently able to carry out any such activity; it is easy to overlook mental fragility in somebody who is articulate in their own cause and who on the surface may appear highly capable.  I find that, at the date that I must look at, the date of the decision under appeal, given the regime with the lack of communication identified by IM she might indeed have been required to engage in a work placement.

 

22. Such a placement would have put her at risk.  That comes across from the findings of the FTT.

 

Is the risk substantial, as is required to satisfy regulation 35 (2)?

 

23. I adopt the test of risk set out in IM at [65]

 

[65] a “substantial risk” in this context means a risk:

 

 “that cannot sensibly be ignored having regard to the nature and gravity of the feared harm

 

67. Regulation 35(2) also identifies the relevant cause of that harm and the trigger of the risk that having regard to its nature and gravity cannot sensibly be ignored.  That trigger is that the person is found not to have limited capability for work-related activity.  As we have mentioned earlier this finding gives rise to a progression of consequences and possible consequences starting with a work-focused interview, followed by its result, followed by possible sanctions.

 

68. …it is therefore clear that the application of regulation 35(2) involves a consideration of both its elements and thus whether that progression of possible consequences might by reason of the claimant’s disease or disablement result in that substantial risk.

 

69. The first stage is to consider the impact of the work-focused interview.  The next is to consider its possible results.

 

24. A possible result here would be a requirement to perform work related activity which is more challenging than the matters identified by the tribunal as those in which she could safely engage, that is to say of her being required to attend a work placement.  The risk of that result would be deterioration in her fragile mental health which would be harmful of itself and would delay her recovery.  The risk is substantial in that it cannot safely be ignored.

 

25. If it is relevant that the appellant has not been required to do anything by way of work related activity the situation seems to me to replicate that dealt with by Upper Tribunal Judge Bano in CMcC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 176 (AAC)) reported as [2015] AACR 9 in which he said at [ 11]

 

11. ….If regulation 35(2) is to have any real meaning, it is not open to a tribunal to find that work-related activity does not present a risk of harm to a claimant on the basis that the claimant will not actually be required to undertake any meaningful activity if it turns out to be harmful. I therefore consider that the action of the employment adviser of effectively bringing the claimant’s action plan to an end out of concern for her health was evidence which the tribunal should have taken into account when evaluating the risk of harm to the claimant if she were not found to have limited capability for work-related activity.

 

 

26. I base my conclusion on the predictive risk assessment in which I have engaged.  My conclusion may be fortified by no requirement to engage in work related activity having been made of the appellant throughout the period since the date of Secretary of State’s decision, at least until the time that she made her submission to me in these proceedings.  Whilst that is evidence which has arisen subsequent to the date of the decision of the Secretary of State which forms the foundation of the appeal, it is nonetheless evidence which sheds light on the position as it is likely to have been at that time insofar as it might indicate that she has not been required to perform work related activities because of some vulnerability that has been perceived by the staff of the work provider.  That seems to me to be a fortuitous occurrence, however.  It cannot form the basis for finding that, at the date of the decision, a work provider was likely to have known of or recognised such a vulnerability in the light of the remarks in that regard in IM. 

 

27.  For these reasons I decide this appeal in favour of the appellant and substitute the decision set out above, that she should have been placed in the Support Group by the Secretary of State in his decision under appeal having Limited Capability for Work-Related Activity due to the application of regulation 35 (2).

 

28.  I conclude by commenting that were details of medical problems and particular vulnerability, found either by the Secretary of State or following an enquiry by the FTT, effectively communicated to work providers, the landscape in relation to regulation 35 may well change, preserving the integrity of this essential safeguard, yet allowing a more informed and reliable risk assessment.  As was said in IM at [114]

 

114. .. if the First-tier Tribunal were able to be confident that concerns it had about the risk to a person’s health if the claimant were required to engage in certain forms of work-related activity would be transmitted to a provider, it might be less inclined to find that there would be a substantial risk to the mental or physical health of any person if it were to find the claimant not to have limited capability for work-related activity.

 

 

Upper Tribunal Judge Paula Gray

 

Signed on the original on 21 October 2015