Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Upper Tribunal case No.  CE/2147/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Mr E Mitchell, Judge of the Upper Tribunal

 

Hearing: 26^th March 2015, Cardiff Civil Justice Centre (with subsequent further written submissions)

 

Attendances:  Mr G Brooks, South Wales Benefit Service, for the appellant

Mr H James, solicitor, for the respondent

 

 

Decision:  The decision of the First-tier Tribunal (25^th November 2013, Cardiff, file reference SC 188/13/04798) involved the making of an error on a 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 First-tier Tribunal for rehearing. Directions for the rehearing are at the end of this decision.

 

REASONS FOR DECISION

 

Background

 

1. Mrs C had been entitled to incapacity benefit. As part of the Employment & Support Allowance (ESA) conversion process, Mrs C attended a medical examination conducted by a healthcare professional (HCP). The purpose of the examination was to assist the Secretary of State in applying the Work Capability Assessment (WCA). The WCA is used to determine whether a person has limited capability for work; at least 15 WCA points are required.

 

2. The HCP’s opinion was that Mrs C merited no WCA points. The Secretary of State agreed and decided that Mrs C did not have limited capability for work and her award of incapacity benefit did not quality for conversion to ESA.

 

3. Mrs C appealed to the First-tier Tribunal.

 

4. Mrs C’s representative’s written submission argued she ought to be awarded in excess of 15 points under the mobilising, standing/sitting and continence WCA activity areas.

 

5. The Tribunal concluded that Mrs C merited 6 points for her mobilising difficulties and 6 points for her standing / sitting difficulties. Accordingly, she remained beneath the 15 point threshold.

 

6. I will set out the Tribunal’s reasoning in relation to the standing / sitting WCA activity area:

 

“Mrs [C] could most of the time remain at a work station standing unassisted by another person if free to move around or sit in an adjustable chair for more than 30 minutes but not more than 60 minutes before needing to move away to avoid significant discomfort or exhaustion. In view of her sitting at the assessment and at the hearing (when her condition was no better) and her medical conditions the Tribunal applied descriptor 2(c) – 6 points.”

 

7. The Tribunal relied, therefore, on the way Mrs C sat at the HCP assessment and the hearing. The HCP report said “client was able to sit on a chair with a back for 38 minutes” and “unable to fully straighten left knee”. The Tribunal’s findings of fact include “she had sat for 38 minutes at the assessment and for rather more than that at the hearing with left leg straight”.

 

8. I granted Mrs C permission to appeal to the Upper Tribunal. Her representative’s grounds of appeal were (1) insufficient findings of fact about her ability to mobilise without needing to stop to avoid significant discomfort or exhaustion were made, and (2) given Mrs C “always sits with her left leg supported in an elevated, straight position” her “symptoms would not allow her to work at the ‘workstation’ referred to in the test” so that the tribunal “misunderstood the legislation and erred in law”.

 

The issue and the arguments

 

9. The Secretary of State supported the appeal in relation to ground 1 (insufficient findings of fact) but not initially in relation to ground 2. At this stage, I concentrate on ground 2.

 

10.  A basic condition for ESA is that a person has “limited capability for work” (section 1 of the Welfare Reform Act 2007 (“2007 Act”)). And section 1(4) provides that “a person has limited capability for work if (a) his capability for work is limited by his physical or mental condition, and (b) the limitation is such that it is not reasonable to require him to work”.

 

11. Section 8(1) of the 2007 Act provides that “for the purposes of this Part, whether a person’s capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations”. Section 8(2) requires these determinations to be “on the basis of” an assessment “by reference to the extent to which a person with some specific disease or bodily or mental disablement is capable or incapable of performing prescribed activities”.

 

12. The Employment and Support Allowance Regulations 2008 (“the ESA Regulations”) name this assessment the Work Capability Assessment (WCA). Contained in Schedule 2 to the ESA Regulations, at the relevant time the WCA included a standing / sitting activity whose descriptors included 2(b) as follows:

 

“cannot, for the majority of the time, remain at a work station, either:

 

(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”.

 

13. That attracts 9 points. Descriptor 2(c) is similarly worded except the time-limit there is 60 minutes.

 

14. The Secretary of State’s written submission argued that the Tribunal properly applied these descriptors. The Tribunal directed itself to the requirement to assess sitting ability as if the person were sitting in an adjustable chair and rationally concluded that, in such a chair, Mrs C’s sitting ability was such that descriptor 2(b) did not apply although 2(c) did.

 

15. In written reply and at the hearing Mrs C’s representative argued the Secretary of State had overlooked that part of the descriptor which refers to the person remaining “at the workstation”. Mrs C could not do this in any meaningful sense since her disability meant she had to sit with her leg straightened and elevated.

 

16. At the hearing, Mr James for the Secretary of State did not dispute that descriptors 2(b) and 2(c) presupposed an ability to stand or sit in such a manner as to perform a job of work at the workstation. However, an application was made for the opportunity to put in further written submissions about the potential relevance of Upper Tribunal Judge Wright’s decision in JS v Secretary of State [2014] UKUT 428 (AAC) which addressed the relationship between regulation 29 of the ESA Regulations and employers’ duties to make reasonable adjustments under the Equality Act 2010. That submission argued that, in the light of the decision in JS, “it is simply not necessary to take account of the [Equality Act] as Reg 29…allows for sufficient regard to be paid to actual steps that may reasonably be taken to reduce health”.

 

17. Regulation 29 has been amended since the relevant time for the decision in JS but, in any event, the Secretary of State’s submission did not explain why he argued JS was relevant to the interpretation of the WCA descriptors. Regulation 29 applies where a person does not score sufficient WCA points and it involves an analysis of the health-related risks of an individual doing work (Charlton v Secretary of State [2009] EWCA Civ 42; R(IB) 2/09).

 

Conclusions

 

Sitting at a workstation

 

18. The sitting element of descriptors 2(b) and (c) does not simply assess ability to remain bodily in a chair. If that were the intention, there would have been no need to refer to a person remaining sitting “at a workstation”. This element must add something.

 

19. These descriptors pre-suppose a particular orientation as between the person sitting and the workstation. They refer to a person who remains sitting “at” the workstation. Normally, the reason a person sits at a work station is to do a job of work.

 

20. The physical part of the WCA is not a precisely framed P.E. test. The WCA includes judgemental elements, such as fixing a “reasonable timescale” for assessing ability repeatedly to mobilise under activity 1, as well as elements expressed in very general terms such as in activity 6 which refers to a person having “significant difficulty” conveying a “simple message”. To inhibit the inconsistent outcomes that would harm the integrity of the ESA scheme, there should be some general touchstone for interpreting the WCA. Given that legislation has a purpose, this will be found in the purpose of the ESA legislation.

 

21. ESA is designed for individuals who cannot reasonably be expected to work (see section 1(4) of the 2007 Act as reinforced by the requirement in section 1(2)(f) of the Jobseekers Act 1995 that in order to be entitled to JSA a claimant “does not have limited capability for work”). By virtue of section 8(1) of the 2007 Act, passing the WCA ‘test’ is the only means by which an individual can demonstrate actual limited capability for work. If the test is failed, the legislation presumes the individual will look to Jobseeker’s Allowance for assistance which of course requires the individual to seek work.  

 

22. Where WCA descriptors are not clear-cut, or either general or judgemental in character, the touchstone for their interpretation should be the WCA’s function of identifying those who cannot reasonably be expected to work. Accordingly, it was held by Upper Tribunal Judge Wikeley in AS v Secretary of State [2013] UKUT 587 (AAC) that “the activities and descriptors in Schedule 2 do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work” (paragraph 19).

 

23. I conclude, therefore, that when descriptors 2(b) and 2(c) refer to a person remaining “at a workstation” they refer to the person being orientated towards a workstation, whether sitting or standing, in such a manner that they may fairly be described as capable of performing a job of work. I do not think I need to go any further than this in interpreting the descriptor by, for example, attempting to define a workstation. I can leave it to the good sense of tribunals, using their knowledge of everyday life and their specialist expertise, to apply that test.

 

24. If, therefore, a person needs to sit with a rigidly outstretched leg so that s/he could not fairly be said to be capable of doing a job of work at a workstation, even with the benefits supplied by an adjustable chair, this would not amount to the person remaining sat “at a work station”.

 

25. So far as section 20 of the Equality Act 2010 (reasonable adjustments) is concerned, I see no need for tribunals to try and predict how it might operate in a particular case. Attempting to identify the content of any particular reasonable adjustment divorced from a real world case is very difficult and liable to introduce unnecessary confusion and complexity. The question of what is reasonable is informed by two sets of variables: the characteristics of the disabled person and the entity obliged to make the adjustment. What might be reasonable for a small independent trader could well differ from what is required of a well-resourced multinational corporation.  Instead, tribunals should simply rely on their own knowledge and expertise in applying the descriptors by envisaging the typical workstations and adjustable chairs with which I suspect we are all familiar.

 

26. In conclusion, therefore, the First-tier Tribunal erred in law by failing to address whether Mrs C could fairly be said to have been capable of performing a job of work while remaining sat at a workstation in the light of her evidence that she needed to sit with one leg stretched rigidly out in front of her. I set aside its decision.

 

Mobilising: insufficient findings of fact

 

27. In granting permission to appeal, I made these observations about the Tribunal’s fact-finding in relation to Mrs C’s ability to mobilise:

 

“The Tribunal may have made insufficient findings of fact to explain its conclusion that only 6 points were scored for mobilising. There does appear to be a reasoning vacuum between the evidence considered about mobilising and the conclusion reached. That gap would normally be filled by findings of fact but here the evidence is simply recounted and then the conclusion is stated. The Tribunal evidently found this aspect of the case challenging as is shown by its statement that it was faced with “differing accounts” of [Mrs C’s] walking ability. Nevertheless, that is arguably no justification for failing to sift the evidence and make findings of fact upon which to base its conclusions”.

 

28. The Secretary of State agrees the Tribunal erred in law in that respect and I so find.

 

29. I record my gratitude to both representatives for their assistance at the hearing of this appeal.

 

What happens next?

 

30. The appeal will be remitted to the First-tier Tribunal for reconsideration. That was suggested by the Secretary of State and not disputed by Mrs C. The next Tribunal panel must not, in its reasoning, take into account the decision or findings of fact of the Tribunal whose decision I have set aside. 

 

 

Directions

 

I direct as follows:

 

(1)   An oral rehearing of Mrs C’s appeal against the Secretary of State’s decision of 24^th October 2012 must be held by the First-tier Tribunal. The Tribunal’s membership must not include anyone who was a member of the Tribunal whose decision I have set aside.

(2)   Mrs C is reminded that the law prevents the First-tier Tribunal from taking into account circumstances not obtaining at 24^th October 2012, when the decision under appeal was taken

(3)   Mrs C is encouraged to attend the hearing. If she wishes to put any further written evidence before the First-tier Tribunal, it should be sent to the First-tier Tribunal’s office within one month of the date this Decision is issued.

 

 

 

 

 

 

(Signed on the Original)

E Mitchell

Judge of the Upper Tribunal

30^th November 2015