IN THE UPPER TRIBUNAL Case No.  CE/3634/2014

ADMINISTRATIVE APPEALS CHAMBER

 

BEFORE UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Ms Sara Lewis, Derbyshire County Council Welfare Rights Service

 

For the Respondent: Ms Joanne Clement, instructed by Government Legal Department

 

Decision:

 

The Respondent has succeeded on the matters argued before me at the oral hearing but overall the appeal is allowed.  The decision of the First‑tier Tribunal sitting at Derby under reference SCO34/13/005621 on 8 May 2014 involved the making of an error of law and is set aside.  The case is referred to the First‑tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph [59] of the Reasons. 

 

REASONS FOR DECISION

 

1. The First-tier Tribunal on 8 May 2014 dismissed the Appellant’s appeal against the Respondent’s decision of 18 September 2012 that she did not qualify for employment and support allowance (“ESA”) as she did not score 15 or more points against the activities listed in Schedule 2 of the Employment and Support Allowance Regulations 2008 SI 2008 No. 794 (as amended) and did not fall within the scope of regulation 29 either.  On 10 November 2014 I gave permission to appeal to the Upper Tribunal.

 

2. In a submission dated 19 December 2014 the Respondent accepted that the tribunal’s decision was in error of law for having failed to give sufficient reasons why the Appellant did not fall within the scope of regulation 29 and that the case should be remitted for re-hearing.  The Respondent dealt with the Appellant’s further grounds that there had been errors in relation to activities 14 and 16 by pointing out, correctly, that the rehearing would have to deal afresh with all the relevant evidence and no further submission was made on those points.  He did however expressly adopt the position as regards activity 2 which, as developed by Ms Clement, formed the subject of the hearing before me, and which required to be addressed before directions could be given for the rehearing.

 

3. Activity 2 of the 2008 Regulations had been amended with effect from 28 March 2011 by the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work‑Related Activity) (Amendment) Regulations 2011 SI 2011 No. 228 (“the 2011 Regulations”) and again, with effect from 28 January 2013, by the Employment and Support Allowance (Amendment) Regulations 2012, SI 2012 No. 3096.  In both cases there were transitional provisions, but they are not relevant to this case.  The case is concerned with the position between 28 March 2011 and 27 January 2013 (inclusive).  However, it also addresses some questions of wider significance, in particular concerning the correct approach to be adopted to conflicting decisions of Upper Tribunal judges in Great Britain and Social Security Commissioners in Northern Ireland. 

 

4. Prior to the changes the 2011 Regulations sought to implement, activity 2 and its associated descriptors read as follows:

 

“2. Standing and sitting.			2	(a)	Cannot stand for more than 10 minutes, unassisted by another person, even if free to move around, before needing to sit down.	15
				(b)	Cannot sit in a chair with a high back and no arms for more than 10 minutes before needing to move from the chair because the degree of discomfort experienced makes it impossible to continue sitting.	15
				(c)	Cannot rise to standing from sitting in an upright chair without physical assistance from another person.	15
				(d)	Cannot move between one seated position and another seated position located next to one another without receiving physical assistance from another person.	15
				(e)	Cannot stand for more than 30 minutes, even if free to move around, before needing to sit down.	6
				(f)	Cannot sit in a chair with a high back and no arms for more than 30 minutes without needing to move from the chair because the degree of discomfort experienced makes it impossible to continue sitting.	6
				(g)	None of the above apply.”	0

 

5. After those changes (and so in the period with which this case is concerned), activity 2 and its associated descriptors read as follows:-

 

“Standing and sitting.	2	(a)	Cannot move between one seated position and another seated position located next to one another without receiving physical assistance from another person.	15
		(b)	Cannot, for the majority of the time, remain at a work station, either:	9
			(i) standing unassisted by another person (even if free to move around); or
			(ii) sitting (even in an adjustable chair)
			for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion.
		(c)	Cannot, for the majority of the time, remain at a work station, either:	6
			(i) standing unassisted by another person (even if free to move around); or
			(ii) sitting (even in an adjustable chair)
			for more than an hour before needing to move away in order to avoid significant discomfort or exhaustion.
		(d)	None of the above apply.	0”

6. Differences of view had emerged as to whether, under the descriptors immediately above, a claimant qualified for points if s/he was merely able neither to stand (and thus to “remain at a work station”) for the requisite period nor to sit for the requisite period, or whether, additionally, s/he had to be unable to manage the requisite period through a combination of standing and sitting. 

 

7. The point was addressed in varying degrees in a number of decisions.  In MC v SSWP [2012] UKUT  324 (AAC); [2013] AACR 13 Upper Tribunal Judge Wikeley had to address the position of a claimant who could sit for up to two hours at a time but who had difficulty standing for long periods.  The issue before him was accordingly whether it was necessary to be unable to achieve the specified period by both routes or whether an inability to achieve it by one route was enough for a claimant to get the points.  His was not a case that turned on combining standing and sitting.  His summary conclusion at paragraph 4 was:

 

“4. In summary, and again putting to one side some significant details, my   conclusion is that a person who can stand at a work station for more than an hour before needing to move away does not score six points (even if she cannot sit for that length of time). Similarly, a person who can sit at a work station for more than an hour before needing to move away also fails to score six points (even if she cannot stand for that period).  Furthermore, a person who can neither stand nor sit continuously but can remain at a work station by a combination of standing and sitting for more than an hour (before needing to move away) likewise does not meet the requirements of the descriptor. However, an individual who can manage none of these scenarios meets the test under descriptor 2(c) and so scores six points.”

 

For the reasons given above I respectfully consider the sentence commencing with “Furthermore” was obiter i.e. not required for the purposes of his decision.

 

8. Judge Wikeley’s decision was followed in Great Britain in EW v SSWP (ESA) [2013] UKUT  0228 (AAC) by Upper Tribunal Judge Williams, a decision which contains no additional analysis. 

 

9. In Northern Ireland however, in MT v Department for Social Development (ESA) NICOM 53, Commissioner Stockman, likewise obiter, disagreed with Judge Wikeley on the issue of the relevance of a person’s ability to achieve the requisite period through combining standing and sitting. 

 

10. When the point arose again in Northern Ireland, in what became MM v Department for Social Development (ESA) [2014] NICOM 48, in view of the difference of view mentioned above, Chief Commissioner Mullan, acting under Article 16(7) of the Social Security (Northern Ireland) Order 1998, as amended, directed that the appeal involved a question of law of special difficulty and that it should, accordingly, be dealt with by a tribunal consisting of three Commissioners.  I hold a parallel appointment as a Deputy Social Security Commissioner in Northern Ireland and was invited to join the two resident Commissioners on the panel. 

 

11. In MM the position of the Department for Social Development (“DSD”), articulated both in submissions beforehand and again at the hearing, was that on the disputed issue, Commissioner Stockman’s view should be preferred to that of Judge Wikeley and that the Northern Ireland legislation, which was in identical form to that in Great Britain, did not require between 28 March 2011 and 27 January 2013 that a claimant additionally should be unable to remain at a workstation for the specified period even by a combination of standing and sitting.  Such a position, it was submitted on behalf of the DSD, only came into force with the amendments from 28 January 2013.

 

12. Though there was thus agreement between the representatives on the point, the Tribunal of Commissioners was not obliged to accept it and with a view to reaching its own conclusions put questions to the representatives, including as to the legitimacy of looking at the Explanatory Memorandum to the (Great Britain) Statutory Instrument SI 2011 No. 228 which was the equivalent of the NI legislation the Tribunal of Commissioners had to apply.  The DSD’s representative adopted the position of the claimant’s representative in MC which included “the DWP’s policy intent is neither here nor there – what matters is what the legislation as it stands actually means” (cf. MC at para 10).  The Tribunal of Commissioners was offered a restricted view of the relevance of background materials (a view which the Commissioners did not accept or apply in the decision in MM); however, it was consistent with the DSD’s lack of enthusiasm for reliance on background materials that the Commissioners were not directed to any particular part of the Explanatory Memorandum and no mention whatever was made of the October 2009 report of the DWP’s Working Group on “Work Capability Assessment Internal Review” (“the 2009 Review”), on which Ms Clement now seeks to rely, nor of a number of other documents similarly referred to in footnotes to the Explanatory Memorandum, such as the addendum to the 2009 Review setting out the results of a technical review by the Chief Medical Adviser, the reference to the Social Security Advisory Committee (SSAC) and ensuing public consultation and the SSAC’s report on the outcome of that consultation. 

 

13. The Tribunal of Commissioners, having considered the relevant legislative history and the Explanatory Memorandum placed before Parliament and having conducted a linguistic analysis, concluded that in the period in question a person’s entitlement to points was not subject to the further condition that a person could not remain at a workstation for the prescribed period by combining standing and sitting.  There is no indication that the DSD has sought to appeal against that decision and it would now be out of time to do so.

 

14. In Great Britain, the DWP continued to contest the position which its counterpart in Northern Ireland had in effect conceded.  This resulted in a variety of decisions in the Upper Tribunal.  In CE/3565/2014 GC v SSWP (ESA)  Upper Tribunal Judge Eleanor Grey QC preferred MC and EW to MM, but her reasons for doing so are not evident on the face of the decision.  In CE/1257/2014 Upper Tribunal Judge Green followed MM in a decision which did not contain discussion of the MC/EW line.  In CC v SSWP (ESA) [2015] UKUT 0062 (AAC) Judge Wikeley returned to the issue of activity 2, even though that case was concerned with the legislation in force from 28 January 2013.  He observed as follows:

 

“11.On the face of it this might raise a knotty issue of precedent. Should the new FTT follow the single decision of the Upper Tribunal in Great Britain in MC or the subsequent and conflicting decision of the Northern Ireland Tribunal of Commissioners in MM? On one reading the decision in MC is binding on the FTT, as a decision of a higher appellate tribunal in the same jurisdiction. On the other hand, the Northern Ireland decision concerns the same wording in parallel   legislation and is a decision of a Tribunal of three Commissioners; it is therefore highly persuasive.

 

12. A three judge panel of the Upper Tribunal has confirmed that “If confronted with decisions which conflict, the appropriate decision-making authority and tribunals below must prefer the decision of a Three-Judge Panel of the AAC or a Tribunal of Commissioners to that of a single judge or Commissioner” (Dorset Healthcare NHS Foundation Trust v. MH [2009] UKUT 4 (AAC) at [37(ii)]). However, that observation was made in the context of appeals arising in Great Britain alone, without the added complication of any consideration of the impact of decisions taken in Northern Ireland.

 

13. If it were relevant I would direct the new FTT to follow my decision in MC over the decision of the Northern Ireland Tribunal of Commissioners in MM. I say that for two reasons. First, the former decision is directly binding in this jurisdiction. Second, and in any event, I am not persuaded that my decision in MC is wrong. This might provoke the Rice-Davies riposte. However, the approach in MC is purposive in that it ensures the focus is on a practical and functional approach to the activity in question, i.e. the claimant could manage the combined activity and so did not score any points.

 

14. In the event the conflict is not material on the facts. The terms of the relevant descriptors were amended with effect from January 28, 2013 so as to confirm the approach taken in MM. In the present appeal the Secretary of State’s decision was taken in May 2013, so the amended and clarified version of the descriptors applies.”

 

15. Judge Wikeley’s remarks were accordingly obiter, were apparently given without argument on the question of the status of decisions of a Tribunal of Commissioners in Northern Ireland and, insofar as they are dependent on the assertion that MC, as regards combining sitting and standing, is binding on the First‑tier Tribunal, in my respectful view were based on a false premise, as that part of MC was not part of the ratio. 

 

16. In considering which line of authority ought to be followed in Great Britain, I have the advantage of skilled representatives on both sides directing arguments to the specific issues and I do not regard myself as constrained by any of the post MM decisions in Great Britain.

 

17. The respondent in the present case made an application for a three judge panel to be convened.  This was refused by the Chamber President on 7 May 2015 indicating inter alia that:

 

”1. The approach taken by the Upper Tribunal (and its predecessors, the Social Security Commissioners) in Great Britain on the one hand and by the Social Security Commissioners in Northern Ireland on the other to decisions of the other body is based on comity and the practice relating to decisions of three judge panels.  It  points to decisions of a three judge panel of the Upper Tribunal and of the Commissioners in Northern Ireland on the same legislation being treated in the same way by both levels of tribunals in GB and NI.

…

4. To the extent that the Respondent wishes to rely on material not produced, or to take points that were not taken, by his counterpart in Northern Ireland in MM to justify not following that case, those points can and should be put to a single judge.  Whether they fail or succeed the place for removing problems flowing from divergent decisions in the UT is the Court of Appeal and not further decisions of one or more three judge panels.”

 

Thus it was that the present case came before me for hearing.  A number of other cases in the Upper Tribunal are stayed behind it. 

 

18. The issues were in essence:-

 

(a) what is the correct approach that should be adopted by a single judge of the Upper Tribunal in Great Britain (and, a fortiori, a judge of the First-tier Tribunal) to the decision of a Tribunal of Commissioners in Northern Ireland?

 

and

 

(b) on the basis of the approach so identified, what follows?

 

19. The starting point for consideration of issue (a) is the decision in Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT  4 (AAC).  The decision was given on 8 January 2009, thus following very shortly after the introduction of the tribunal system under the Tribunals, Courts and Enforcement Act 2007, which had taken effect on 3 November 2008.  In para 37, the three judge panel ruled as follows:

 

“37. Until further guidance is available as to the precedential authority to be given to various constitutions of the AAC (either through a Practice Direction or case law), the principles laid down in paragraphs 19-21 of R(I) 12/75 as applicable to Tribunals of Commissioners in social security cases should continue to be applied in the AAC where a Three-Judge Panel sits to hear a case involving a question of law of special difficulty or an important point of principle or practice (see the Practice Statement of the Senior President of Tribunals dated 30 October 2008 on the composition of tribunals in relation to matters that fall to be decided by the Administrative Appeals Chamber of the Upper Tribunal on or after 3 November 2008).  Such cases will be clearly identified on their face.  Making only the necessary adjustments to take account of the new arrangements, those guidelines are as follows:

 

(i) Judges of the Upper Tribunal in the AAC speak with equal authority.  All their decisions may be cited to the Upper Tribunal, First-tier Tribunals and other tribunals from which appeals to the AAC come and the appropriate   decision-making authorities. Where they decide questions of legal principle they must be followed by the appropriate decision-making authorities and the tribunals below in cases involving the application of that principle, unless they can be distinguished. It should be borne in mind that similarity in underlying facts does not automatically give rise to similarity in the principle to be applied and questions of fact should not be elevated into questions of legal principle.

 

(ii) If confronted with decisions which conflict, the appropriate decision-making   authority and tribunals below must prefer the decision of a Three-Judge Panel of the AAC or a Tribunal of Commissioners to that of a single judge or Commissioner.

 

(iii)In so far as the AAC is concerned, on questions of legal principle, a single judge shall follow a decision of a Three-Judge Panel of the AAC or Tribunal of Commissioners unless there are compelling reasons why he should not, as, for instance, a decision of a superior court affecting the legal principles involved.  A single judge in the interests of comity and to avoid confusion on questions of legal principle normally follows the decisions of other single judges.  It is recognised however that a slavish adherence to this could lead to the perpetuation of error and he is not bound to do so.”

 

20. The panel indicated that it was “making only the necessary adjustments to take account of the new arrangements”.  The predecessor authority of R(I) 12/75 contains no hint of a reference to Northern Ireland and I conclude that in referring to “a three judge panel of the AAC or a Tribunal of Commissioners” the panel in Dorset Healthcare was acknowledging that decisions of the former Social Security Commissioners in Great Britain were liable to continue to be cited for a considerable time and was not intending by that terminology to address decisions of future Tribunals of Commissioners which following the 2007 Act could by definition only be taken in Northern Ireland.  On that point, therefore, I agree with para 12 of CC (see above). 

 

21. It follows that in reaching my decision I am not constrained by Dorset Healthcare, being a decision of a three judge panel, because it does not directly apply to the issue I have to address. 

 

22. It remains open to me however to apply similar principles.  That is what the Chamber President appears to have been envisaging in his directions of 7 May 2015, though I note Ms Clement’s observation that, having been given as an interlocutory matter and without argument, limited weight should be given to them as a statement of the law. 

 

23. However, I respectfully consider that the directions are right.  In my view, analysis of the respective social security systems in Great Britain and Northern Ireland, such authority as there is and questions of judicial comity all point in the direction of treating decisions of a Tribunal of Commissioners in Northern Ireland on a similar basis to decisions of three judge panels in Great Britain. 

 

24. Under section 4 of the Northern Ireland Act 1998, read together with Schedules 2 and 3, social security is broadly a “transferred matter” although various matters relating to national insurance contributions and tax credits and health in pregnancy grants, child benefit and guardians allowance are “excepted matters” by virtue of paras 10, 10A and 10B of Schedule 2.  Subject to those rather limited exceptions, section 87 of the Northern Ireland Act provides for matters of consultation and co‑ordination in relation to social security.  Sub-sections (1) and (2) provide:

 

“(1) The Secretary of State and the Northern Ireland Minister having responsibility for social security (“the Northern Ireland Minister”) shall from time to time consult one another with a view to securing that, to the extent agreed between them, the legislation to which this section applies provides single systems of social security, child support and pensions for the United Kingdom.

 

(2) Without prejudice to section 28, the Secretary of State with the consent of the Treasury, and the Northern Ireland Minister with the consent of the Department of Finance and Personnel, may make—

(a) arrangements for co-ordinating the operation of the legislation to which this section applies with a view to securing that, to the extent allowed for in the arrangements, it provides single systems of social security, child support and pensions for the United Kingdom; and

(b) reciprocal arrangements for co-ordinating the operation of so much of the legislation as operates differently in relation to Great Britain and in relation to Northern Ireland.”

 

25. Regulation-making powers are conferred by sub-sections (4) (Great Britain) and (5) (Northern Ireland) but neither representative nor I have been able to identify any exercise of them which is material for present purposes.  There are earlier Statutory Instruments (1976/1003 and 1999/2227) and equivalent measures in Northern Ireland (SR 1976/196 and SR 1999/350), the operation of which is preserved by paragraph 17 of schedule 14 of the Northern Ireland Act 1998, but these do not appear materially to add anything for present purposes.

 

26. It is clear that Northern Ireland social security law is not invariably exactly the same as in Great Britain.  That is implicit in the status of much of it as a “transferred matter” (and indeed parts of the UK Government’s welfare reform agenda have yet to be implemented in Northern Ireland).  Differences may also result from the existence of different statutory processes in Great Britain and Northern Ireland leading, for instance, to a lack of vires in one jurisdiction but not the other, as occurred in R1/05(IB)(T).  That there may be differences even in the legislation to which section 87 applies is expressly envisaged by sub-section (2)(b). 

 

27. In R(SB) 1/90, the Tribunal of (GB) Commissioners observed that:

 

“manifestly, it is in contemplation that the same social security system should within limits operate both in Northern Ireland and in Great Britain, and in   pursuance thereof, it would be natural to suppose that the same interpretation should be given throughout the United Kingdom to identically worded provisions.” (My underlining).

 

Even in 1990 the observation was qualified by the words “within limits”. The principle that there is the same social security system has become somewhat further diluted as a result of the matters discussed above.  Nonetheless very substantial amounts of social security law remain the same between the two jurisdictions, including, importantly for our purposes, the provisions relating to employment and support allowance.

 

28. Turning to the authorities, in SSWP v Deane [2010] EWCA Civ 699, Ward LJ, giving the judgment of the court, noted Abbott v Philbin (Inspector of Taxes) [1959] 1 Ch 27 where the Court of Appeal (and subsequently the House of Lords) drew attention to the undesirability of conflicting decisions on revenue matters in England and Scotland when the legislation was the same.  Ward LJ’s conclusion was that the Court of Appeal was:

 

“not obliged to follow decisions of the Northern Ireland Court of Appeal, but we must accord them the greatest respect.  Where the decision relates to a statutory requirement which applies or which is the same as that which applies in England and Wales, then we ought to follow that Court in order to prevent the wholly undesirable situation arising of identically worded legislation on the   other side of the Irish Sea (or the other side of the Tweed) being applied in inconsistent ways.”

 

He went on to at para 27 to indicate his agreement with the Commissioners who in R(SB)1/90 had held that identically worded provisions operating in both Northern Ireland and Great Britain should be interpreted uniformly. 

 

29 In R(SB) 1/90 the question for the Tribunal of (GB) Commissioners was whether to follow a decision of the Court of Appeal in Northern Ireland, Carleton v Department of Health and Social Services (25 June 1987) in preference to R(SB) 10/88, a contrary decision of another Tribunal of Commissioners in Great Britain.  The Commissioners in R(SB) 1/90 held (at paragraph 15) that:

 

“it is incumbent upon us, particularly as the decision of the Court of Appeal in [sc. Northern] Ireland was unanimous and notwithstanding that the Court chose not to have R(SB) 10/88 argued, to follow that decision rather than that   of the Tribunal of Commissioners in England in R(SB) 10/88.”

 

The Tribunal of Commissioners were not indicating that they were bound by the decision of the Court of Appeal in Northern Ireland any more than they would have been, applying the principles of R(I) 12/75, by that of the Tribunal of Commissioners in R(SB) 10/88.  The reason why it was “incumbent” upon them to adopt the approach they did flows from the authorities confirming that in the interest of comity there should be uniform interpretation between England and Scotland in revenue matters where the legislation was the same: Re Hartland, Banks v Hartland [1911] 1Ch 459 and Abbott v Philbin. 

 

30. The principles set out in Dorset Healthcare are likewise not concerned with what is strictly speaking binding, but set out a scheme which aims to manage divergences of view at Upper Tribunal level, including in relation to the interpretation of statute, by providing at Upper Tribunal level a means for resolving them.  Such a mechanism has obvious advantages in allowing them to be addressed by a specialist tribunal and without the expense and risk of costs involved in an appeal to the Court of Appeal. 

 

31. If the Court of Appeal of England and Wales in Deane is prepared to defer to the Court of Appeal in Northern Ireland for the reasons it gave and if, as in R(SB)1/90 a Great Britain Tribunal of Commissioners will out of comity follow the Northern Ireland Court of Appeal, it seems to me that for the same reason of promoting the same interpretation of identically-worded provisions, a single judge of the Upper Tribunal should out of comity apply the same approach to decisions of a Northern Ireland Tribunal of Commissioners as he or she would to those of a three judge panel of the Upper Tribunal or to those of a Tribunal of Commissioners in Great Britain prior to the reforms introduced by the 2007 Act.

 

32. I am fortified in this view also by consideration of the basis of appointment of the Northern Ireland Commissioners.  The reforms of the 2007 Act have not reached Northern Ireland and Commissioners there are appointed under section 50 of the Social Security Administration (Northern Ireland) Act 1992.  However, pursuant to section 5(1)(e) of the 2007 Act the resident Commissioners in Northern Ireland are ex officio judges of the Upper Tribunal.  They are assigned to the AAC and can and do sit on some categories of case in Great Britain, among them social security cases  (including by way of participation in three judge panels).  The Deputy Commissioners in Northern Ireland are, or have been, salaried Upper Tribunal judges in Great Britain in any event, so there is a similar cross‑over of personnel and jurisdiction.  If a Deputy Commissioner were appointed who was not an Upper Tribunal judge he or she would, like the Commissioners, be an Upper Tribunal judge ex officio:  2007 Act section 5(1)(f). 

 

33. Further, in a Northern Ireland authority, R1/05 (IB)(T), a Tribunal of Commissioners endorsed what had been said in R(SB)1/90 and in Re Hartland and Abbott v Philbin in support of the need for a common approach to questions of construction common to both jurisdictions.

 

34. Ms Clement seeks to persuade me that, for a single judge of the Upper Tribunal, the decision of a Tribunal of Commissioners in Northern Ireland should merely be of persuasive authority, so it would not be necessary to show “compelling reasons” to depart from it:  rather, it would suffice to treat it in the same way as, for instance decisions of different single judges are treated in the High Court.  She submits that the authorities about the effect of Court of Appeal decisions in either jurisdiction should not be applied to decisions of Tribunals of Commissioners/three judge panels.  The reason she says, is that decisions of the Court of Appeal bind that Court subsequently, subject to limited exceptions, but that is not the case for three judge panels and Tribunals of Commissioners (cf. Dorset Healthcare).  It seems to me that is a distinction without substance.  Even if a three judge panel could depart from an earlier decision of a three judge panel in circumstances where the Court of Appeal could not depart from one of its own earlier decisions, that does not take away the desirability of an established interpretation of the legislation and one which is uniform across the two jurisdictions at as early a stage as possible, which is the driver for the approach.

 

35. I therefore conclude that the approach in Dorset Healthcare to be adopted by a single judge of the Upper Tribunal to decisions of a three judge panel of the AAC or a Tribunal of (Great Britain) Commissioners should apply in the same way to the approach to be adopted to decisions of a Tribunal of Commissioners in Northern Ireland. 

 

36. With that in view, I consider whether there are “compelling reasons” to depart from that decision.  At paragraph 41 the Commissioners in MM directed themselves by reference to R(D) and Others v SSWP [2010] EWCA Civ 18 about the permissibility of referring to an explanatory memorandum where the statutory instrument was ambiguous and proceeded at paragraph 42 to accept “for the moment” that it was.  At paragraph 58, the decision records that the explanatory material placed before Parliament was considered.  At no point does the decision resile from the interim acceptance in paragraph 42 that the statutory instrument was ambiguous. 

 

37. If such ambiguity existed, would it have been permissible to go on to look at materials lying behind the explanatory memorandum and referred to in it?  These notably include the October 2009 Review, the report of the further technical review undertaken by the DWP’s Chief Medical Adviser and the reference to the SSAC and the SSAC’s ensuing report to the Department. 

 

38. Ms Clement invites me to consider, and rely upon as illustrating the mischief at which the 2011 Regulations were aimed, the October 2009 Report.  Her submission stopped with that document but in my view was conceptually wrong to do so.  In support of the legitimacy of referring to it she relies on the indication in the Explanatory Memorandum to the 2011 Regulations (at para 4.2) that the Regulations implement the recommendations of the Review.  What is referred to in paragraph 4.2 however is the publication of that review in March 2010, by which time there had been the further technical review by the Chief Medical Adviser.  It is therefore the two taken together which the Explanatory Memorandum said that the 2011 Regulations implemented.

 

39. I accept that those reports constitute part of the enacting history of the ensuing legislation.  While I am not persuaded that they literally fall within Lord Diplock’s dicta in Fothergill v Monarch Airlines Ltd [1981] AC 251 on which Ms Clement sought to rely, it seems plain that regard should be had to them and Ms Lewis does not suggest otherwise.  Use of committee reports for such a purpose is supported by Benyon on Statutory Interpretation 6^th Edition at page 564 and by Craies on Legislation, 10^th Edition, albeit the latter does so mostly by reference to Fothergill.

 

40. Benyon observes at page 565 that:

 

“The weight to be given to a committee report depends on the standing and authority of the committee members, and the degree to which it appears Parliament followed their proposals.  In referring to a committee report for the purpose of ascertaining the legal meaning of an enactment, care must be taken to ensure the version report refers to was not altered before enactment.”

 

41. As to the first of those sentences, I consider that the degree to which it appears Parliament followed their proposal is the more germane factor in the present context and, as noted, the Explanatory Memorandum makes clear that the Regulations were intended to “implement the recommendations of that review”.  The point in the second sentence above is well made, but I accept that as regards the particular part of descriptor 2 in issue, the March 2010 technical review did not alter the statement of intention which had appeared in the October 2009 Review.  That appears at page 19 of the latter where it is stated in the following terms (emphasis added):

 

“The modern workplace requires an individual to remain at their workstation long enough to do their job.  Whether this requirement be to stand or to sit depends upon the job itself, therefore assessing the ability to do one or other within the same activity is inappropriate.  Amalgamating the descriptors facilitates assessment of an individual’s ability to remain at their workstation either standing, sitting or a combination of both.  In removing the requirement that an individual be able to both stand and sit, the need for a descriptor relating to movement between the two is also negated.” 

 

This was not something to which the Tribunal of Commissioners in MM was referred.

 

42. This was then followed by a legislative proposal for activity 2 which, though it was modified subsequently in a number of respects as a result of the March 2010 technical review and otherwise, contained the “either … or” formulation which has proved troublesome once it found its way into the 2011 Regulations.  Ms Lewis questions whether the policy intention in fact was to require an inability to manage the period by way of combining standing and sitting.  She does so by reference to the final sentence quoted above.  However in my view that is saying, albeit somewhat opaquely, that if a person can either sit or stand for the requisite period, they do not qualify and that whether they are able to get through the period by combining sitting and standing (and hence needing to rise from sitting to standing) will essentially be a question of fact for the tribunal or other decision maker.  That view is unaffected by Ms Lewis’s point that a person might have all sorts of difficulty in rising without being forced to “move away” from the workstation.  The ability to perform the various activities for ESA is generally subject to tests of whether they can be performed with reasonable regularity and I see no reason why that should not be applied to a person’s ability to rise from sitting to standing in order to remain at a workstation for the period by a combination of the two. 

 

43. Ms Clement’s slightly amended position is that the Regulations sought to implement the recommendations of the Review as they stood in March 2010.  To that extent I agree the policy intention at that stage was as claimed.

 

44. I do not consider however that it is possible to stop there.  Regulations made under Part I of the Welfare Reform Act 2007 (as the 2011 Regulations were) were required to be referred by the Secretary of State to the Social Security Advisory Committee (“SSAC”) under sections 170(5)(aia) and 172(1)(b) of the Social Security Administration Act 1992, unless section 172(3) or section 173 applied: there is no indication that either did and in any event the referral was made.  The SSAC’s functions include, by section 170(1)(a), “to give…advice and assistance to the Secretary of State in connection with the discharge of his functions under the relevant enactments.”  Membership of the SSAC is provided for by schedule 5 to the 1992 Act:  one member is to be appointed after consultation with organisations representative of employers and one after such consultation with organisations representative of employees.  The SSAC is required to include at least one person with experience of work among, and of the needs of, the chronically sick and disabled.  Section 170(4) provides that “The Secretary of State shall furnish the Committee with such information as the Committee may reasonably require for the proper discharge of its functions.”  By section 174(1), the SSAC was required to consider the proposals and to make a report to the Secretary of State containing such recommendations with regard to the subject-matter of the proposals as the Committee thought appropriate.  By sub-section (2) the Secretary of State was required to lay with the regulations or draft regulations a copy of the SSAC’s report and a statement showing –

 

“(a) the extent (if any) to which he has (in framing the regulations) given   effect to the Committee’s recommendations; and

 

(b) in so far as effect has not been given to them, his reasons why not.”

 

45. Given the statutory requirement such material be laid before the Houses of Parliament I am in no doubt that it is admissible for the purposes of ascertaining the legislative intention.  The SSAC’s report does not materially touch upon descriptor 2 – and nor therefore did the Secretary of State’s response need to.

 

46. However, giving rise to a potential additional complication is the material referred to the SSAC by the DWP by letter dated 13 August 2010.  This consisted of:

 

(a) a further explanatory memorandum (in this decision the “Memorandum to the SSAC”);

(b) an impact assessment;

(c) draft regulations;

(d) a so-called Keeling schedule i.e. the text of the old and proposed new version of the Regulations set out more or less side by side; and

(e) weblinks to the Review and the March 2010 Technical Review.

 

47. The Memorandum to the SSAC was one of the documents which were the subject of a footnote to the Explanatory Memorandum to the statutory instrument (and therefore also a potential guide to the legislative intention.)  As to the activity in question, it provided (at para 2.8) (emphasis in original):

 

“The changes to Schedules 2 and 3 – Lower Limb- remove the descriptors “to remain seated” and “to remain standing” for 10 minutes, replacing them with a requirement to “remain at a workstation”, either seated or standing, for 30 minutes and more than an hour.  This more accurately reflects the varying requirements of the modern work place. The changes also account for the range of adaptable chairs available.”

 

48. The Memorandum to the SSAC was clearly intended by the DWP to be a significant document for, as its letter of 13 August 2010 noted:

 

“We recognise that this consultation is solely focused on the proposed changes to the regulations as set out in this Explanatory Memorandum…” (underlining in original, italics added).

 

49. Anyone who has been faced with the task of summarising complex provisions of social security law will have sympathy with the compiler of the Memorandum to the SSAC.  However, on any view, the paragraph quoted in [47] is undeniably difficult.  Although the paragraph said it was addressing schedules 2 and 3, in fact the descriptors it goes on to talk about did not appear in schedule 3 before or after the change.  The words appearing in quotation marks do not appear as such in schedule 2 and thus those words must be taken as summaries of, rather than quotations from, the descriptors to which they relate.  Nor was it entirely accurate to say that the 10 minute descriptors were replaced by a requirement to remain at a work station for 30 minutes or 1 hour, because there were also existing descriptors about inability to stand and inability to sit for 30 minutes and because, whereas an inability to stand (or sit) for 10 minutes had attracted 15 points, the new 30 minute descriptor only attracted 9, thus making the difference between reaching the 15 point threshold and not doing so.  I also very much doubt whether the changes – which after all had not been introduced at this point – could “account for” (i.e. give a reason for, or explanation of) the range of adaptable chairs available.

 

50. How, then, should one approach the reference to remaining at a workstation “either seated or standing”.  Certainly it is noting, indeed emphasising, that if a person can remain at a workstation either by one means or the other s/he will not get the points.  As to whether it is contemplating also the ability to remain at a workstation by a combination of the two, the most favourable view of it that can be taken is that, by its silence on the issue, it is ambiguous.  If anything, the emphasis on “or”, in the context of saying that two tests have been merged into one, in my view rather tends to imply that the test can be satisfied in one way or the other rather than both, but for reasons below, that may not make any difference to the outcome in this case.

 

51. Let us assume for a moment, but without deciding, that the Memorandum to the SSAC did fail to put the true effect of the proposed change to the SSAC.  The riposte that the Memorandum to the SSAC was not the only document submitted can be answered by saying that (a) it was the changes “as set out in [the Memorandum to the SSAC)] that were being consulted upon and (b) that in any event, the true intention was no more evident from the draft regulations, while the intention of the Review could only be discerned by consulting two documents to which links had been provided and working out the position arrived at when the two were taken together.  I note that in Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623 (reported as R(IB)3/03) the Court of Appeal observed of the SSAC that:

 

“The Committee’s staff consists only of a small permanent secretariat. The Committee members in practice are accustomed, and expect, to rely on the information and assistance provided by officials of the Department in relation to the detail and intended effects of any proposal the Department puts before them.”

 

The SSAC is not a party to these proceedings and I am not in a position to know whether or not the position above holds good more than 10 years later but for present purposes assume, but without making a finding, that it does.

 

52. What followed was consultation by the SSAC on the proposals, to which interested organisations and individuals responded.  The proposals covered a wide range of matters.  Questions had arisen, for example, as to how to reflect the needs of people with fluctuating conditions and as to whether the “support group” should be extended to people receiving chemotherapy, as well as concerning the appropriateness of a wide variety of descriptors.  In due course the SSAC made its report to the Secretary of State under section 174(1).  The SSAC identified a number of “general concerns” about the work capability assessment before turning to “key proposed changes”.  It set out its position on these, including on a significant number of the descriptors, but was silent on those relating to activity 2.  In its recommendations, it supported a small number of specific changes, including those necessary to ensure that where limited capability for work-related activity was demonstrated under schedule 3, limited capability for work (under schedule 2) would also be demonstrated.  Its recommendation 7.3 was that:

 

“We recommend that the Department does not proceed with the remaining proposed changes to the descriptors until these have been reconsidered in the light of the findings of the independent review of the WCA and the experience of the trial of the migration of IB customers to ESA.”

 

(The “independent review” was one of a series undertaken by, initially, Professor Harrington, an occupational health expert, pursuant to section 10 of the Welfare Reform Act 2007.)

 

53. The SSAC’s report was duly laid before Parliament along with the statement required by section 174(2).  In relation to recommendation 7.3, the Respondent’s position was as follows:

 

“As discussed above, it would not be appropriate to delay beginning the process of implementing these recommendations until after both the current Independent Review and the trials of IB/IS reassessment have concluded.  The Work Capability Assessment is an organic policy and the Government is fully committed to a process of ongoing review and improvement in the light of both experience and structured evaluation.  In this context, the Government must be free to implement changes, where they consider them to improve the assessment, without always awaiting the next stage of review.”

 

54. It is in my view clear from this that even if one assumes that the SSAC was entitled to rely on information and assistance provided by the DWP and on the view I take that that information and assistance was on this point at best wholly ambiguous if not tending towards being misleading, the unfortunate presentation of the point would have made absolutely no difference.  Even if the policy intention had been picked up by the SSAC and consulted upon, and if responses opposing the change had been received and fed into the SSAC’s report, the Government’s response, which was a generic one affirming its right to implement changes to the Work Capability Assessment at that point, would have extended to the changes to the descriptors under Activity 2 also, along with all the other proposed changes to descriptors.

 

55. The position may be distinguished from that in Howker.  In that case, the SSAC had requested information regarding certain proposed changes so as to enable it to decide whether or not to require them to be the subject of a formal reference, on which the SSAC would in due course report.  Under a convention operated at the time, the DWP referred proposed amendments informally to the SSAC, together with an indicator as to whether each item was technical, neutral, adverse or beneficial.  “Neutral” connoted (to summarise) that no one would lose or gain, whereas “adverse” mean existing claimants would lose money in future: for the full discussion see Howker at [13].  The effect of one change (“proposal 26”) was described as adverse but that of the change disputed in Howker (“regulation 27”) was described, wrongly, as neutral, when it, too, should have been described as “adverse”.  The SSAC did not require a formal reference of the regulation 27 proposal.  In relation to proposal 26, which had been described as “adverse”, however, the SSAC decided to require a formal reference, a decision which caused the Department not to proceed with that proposal: Howker [16].  At [37], the Court of Appeal held:

“Where, as in the present case, the Secretary of State through his officials has misled the Committee by information which is obviously incorrect if comparison is made between the old regulation 27 and the new regulation 27, and thereby procured the Committee’s agreement to no reference, and where,   as the Commissioner has found, the provision of the correct information would have led to a reference (or the withdrawal of the new regulation 27), and the Secretary of State proceeds to make the new regulation 27, it is manifest, to my mind, that the procedure intended by Parliament for the making of regulations has not been observed. That is so whether or not the officials acted innocently. There is nothing in the statutory provisions to suggest that Parliament would have intended so defective a procedure adopted by the Secretary of State, when matters were entirely under his control, to result in a valid regulation.”

Whatever may be said about the shortcomings in the relevant paragraph of the Memorandum to the SSAC, I do not consider that it went as far as being “obviously incorrect”.  But a further ground of distinction, and in my view the key one, is that there were findings in Howker that the outcome would have been different but for the deficiency in the information provided, whereas in the present case it is clear that the outcome would have been exactly the same.

 

56. I therefore conclude that such shortcomings as there were in the presentation of the change to the descriptors in activity 2 were not such as to invalidate the change.

 

57. In conclusion, it seems to me that an argument based on informed interpretation, if relying on a committee report, needs to be based on its final form and to take into account other material which Parliament must be taken as having had in mind when approving the legislation.  In the light of the totality of the material before me, I accept that the mischief at which the legislation was aimed, on this aspect, included ensuring that people who could remain at a workstation for the requisite period by combining sitting and standing would not get points.  Seen against that background, the ambiguity in the use of the “either … or” construction in the descriptors in activity 2 between 2011 and 2013 would fall to be resolved in accordance with Judge Wikeley’s obiter views in MT.  The Tribunal of Commissioners in MM did not have the advantage that I have now had, through oral submissions and subsequent written submissions, of comprehensive examination of the background materials leading up to the making of the Regulations.  In those circumstances, while I have applied a test of whether there is a “compelling reason” to depart from the decision in MM, I have concluded that there is.  With the benefit of those fuller submissions (which it appears were not made in MC or MT either) I conclude that a person who can remain at a workstation by a combination of sitting and standing for the requisite period is not entitled to points. 

 

58. The original drafting ambiguity has led to a surprisingly wide, and time-consuming, range of issues in the present case.  It does not promote the accessibility of legislation that this sort of exercise has had to be gone through. It is by no means the first time that the Upper Tribunal or its predecessors have had to grapple with ambiguities of this type in relation to the Work Capability Assessment and its predecessors and close attention to avoiding them at the drafting stage can only assist the Department, claimants and tribunals alike.

 

59. I direct therefore that the appeal be remitted to the First-tier Tribunal for consideration by a wholly differently constituted panel in accordance with the legislation and this decision, including, in relation to activity 2, the conclusion reached in [57].  The tribunal will need to make full findings of fact on all points that are put at issue by the appeal, including relevant descriptors and regulation 29.  The tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on 18 September 2012- see section 12(8)(b) of the Social Security Act 1998 - but may have regard to subsequent evidence or subsequent events for the purpose of drawing inferences as to the circumstances obtaining at that time: R (DLA) 2/01 and 3/01.

 

60. While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing.

 

61. The decision on the re-hearing is a matter for the First-tier Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.

 

(Signed on the Original) 

C G Ward

Judge of the Upper Tribunal

 

Dated: 6 November 2015