Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CE/1305/2014

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 28 November 2013 under reference SC031/13/01111 is SET ASIDE because its making involved an error on a point of law.

The appeal is REMITTED to a freshly composed tribunal for a complete rehearing.

REASONS FOR DECISION

1.    Both the appellant and the Secretary of State agree that the decision should be set aside because the F-tT failed to make the necessary findings of fact and to give sufficient reasons for its decision that the appellant did not satisfy regulation 29(2)(b) of the ESA Regulations 2008.  The appellant’s representative has, however, put arguments to the Upper Tribunal relating to the scope of that provision, in particular the UT decision in GS v Secretary of State for Work and Pensions  [2014] UKUT 16 (AAC) at [17] which need further comment. 

2.    Regulation 29(2)(b) requires the F-tT to determine whether

‘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.    Where regulation 29(2)(b) needs to be considered (as it did in this case), it is necessary to assess the risk to a claimant’s (or another person’s) health of being found not to have limited capability for work.  Plainly, this provision contains an element of futurity, as did its predecessor regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995. 

4.    This means that care must be taken when seeking to apply section 12(8)(b) of the Social Security Act 1998 which prohibits a Tribunal from considering circumstances that did not obtain at the date of decision.  It is trite law that evidence post-dating a decision may cast light on circumstances existing at the date of decision.  An obvious example is an x-ray taken after the date of decision showing that an person had significant arthritic changes in their joints.  These will not have occurred overnight, and the evidence may well lead the Tribunal to conclude that those changes existed at the relevant date.  (Whether the changes had the functional effect that is argued is another matter.)

5.    In the context of regulation 29(2)(b), the reasoning must be adapted.  In GS v Secretary of State for Work and Pensions at [16] and [17] Upper Tribunal Judge Mark explained it like this: -

16. ‘In this case, therefore, the job of the Tribunal was to assess in that way, as at the date of the decision, the risk to the claimant’s health of her being found not to have limited capability for work. As pointed out repeatedly, this does not prevent tribunals from having regard to evidence coming into existence after the date of the decision, or of events after the decision under appeal, so long as it is relevant to the prognosis at that date.  Thus, in R(DLA) 3/01, the actual rate of recovery of a claimant from a health problem was held to be relevant to the question whether as at the date of the decision the claimant was likely to satisfy the relevant conditions for benefit for 6 months after the date of decision. 

17. So too, in the present case, the Tribunal needed to assess whether there was a deterioration in the claimant’s health following the decision, the extent of the deterioration and the extent to which it was as a result of her being found not to have limited capability for work…’

The remainder of this paragraph is cited later.

6.    So, for example, if it is argued that there was a substantial risk of x because of y at the date of decision, and at a later date that risk materialises, that materialisation may help the Tribunal to decide whether there was in fact a risk of it happening; and if it happened just as predicted, the risk may be thought to have been substantial.

7.    The Tribunal will, of course, have to work out whether x happened because of y, or for some other reason.  The medical expectations of a particular condition and medical evidence provided by the parties will provide a starting point.  For example, the claimant may say that there was a substantial risk of a nervous breakdown if he was found not to have limited capability for work.  If, following the decision, he has a breakdown, it may or may not have been attributable to y.  It may have occurred for an unrelated reason, such as the claimant’s spouse leaving him.  On the other hand, if the Tribunal accepts that there was a risk of a breakdown and the breakdown occurs with no other sensible explanation, the Tribunal may conclude that the claimant was right:  there was a risk from the decision and it was substantial.  The breakdown after the decision shows that the forecast was a good one, and if the effect was significant, it was substantial.

8.    The risk must arise by reason of the specific disease or bodily or mental disablement from which the appellant suffers and it must arise from the claimant being found not to have limited capability for work.  The connection between the risk and the decision is decided by the Court of Appeal in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42.  Charlton concerned regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995, which was the predecessor of regulation 29(2)(b). 

27 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 of Appeal confirmed in Charlton that the same principles were to be applied to both regulations.  It would be idle to suggest that this was not the case.   

9.    Judge Mark’s remarks in paragraph 17 of GS v Secretary of State for Work and Pensions are, in my opinion, in conflict with Charlton and cannot be sustained.  Those remarks hark back to Judge Mark’s opinion in IJ v Secretary of State for Work and Pensions [2010] UKUT 408 (AAC) at [10] and [11].  For ease of reference, I recite these paragraphs in full: 

[17 – GS] So too, in the present case, the Tribunal needed to assess whether there was a deterioration in the claimant’s health following the decision, the extent of the deterioration and the extent to which it was as a result of her being found not to have ltd capability for work. This includes the stress from an appeal, successful or otherwise, the stress of dealing with the Jobcentre and possible interviews, the prospects of employment, and the ways in which it is said that the claimant’s mental health can be kept stabilised bearing in mind, if the evidence is accepted, that it appears to have deteriorated even without seeking or obtaining work and without both the pressures of work and the additional pressures on daily life if she did spend part of it working…’

[10–IG] Further, the test is not limited to whether there would be a substantial risk to the claimant from any work he may undertake.  The test is as to the risk as a result of being found capable of work.  If he was found capable of work, he would lose his incapacity benefit, and would very possibly need to seek work and apply for jobseeker’s allowance.  That would involve his attending interviews, and going through all the other steps that would be needed to obtain and keep jobseeker’s allowance.  In the present economic climate, a claimant who is 62 years old with mental health problems, and who has not worked since the early 1990’s is unlikely to find work quickly and would very possibly never find it.  His GP’s assessment that it is inconceivable that he would ever be able to earn his living may be right.  The tribunal would then have to determine how this change from his being in receipt of incapacity benefit would affect the claimant’s mental health, looking not at some work he may do, but at the effect on his mental health of fruitless and repeated interviews and the possibly hopeless pursuit of jobs until he reached retirement age.  These factors were not considered by the tribunal, and indeed they did not elicit the information necessary to enable them to be considered, such as whether he had in fact applied for jobseeker’s allowance and if not, how he was coping or would cope.”

10   It does not appear to me that the ability of this claimant to cope, possibly with considerable difficulty, with his present lifestyle, leads to the conclusion that he would cope with all the additional difficulties and changes required as a result of being found capable of work.

10. To show why these paragraphs are not correct, we must look at the two questions the Court of Appeal posed in Charlton for Tribunals to consider in relation to regulation 29(2)(b) and its reasoning.

30  ‘When a claimant has failed those tests, regulation 29(2)(b) requires, firstly, a decision whether the person suffers from some specific disease or bodily or mental disablement, which does not of itself cause such functional limitation as to justify a total score sufficient to warrant a finding of incapability. If he does suffer from such a condition, then a second decision is required as to whether by reason 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 capable of work.

/…

33.  Once it is appreciated that regulation 29(2)(b) applies only when a claimant's functional abilities in the performance of everyday tasks have been established, it becomes clear that the risk to be assessed must arise as a consequence of work the claimant would be found capable of undertaking, but for regulation 29(2)(b). Were it not so, there would be no statutory purpose in requiring a claimant to have undergone an assessment before consideration of the effects of any disease or disablement on his or others' safety.

34.  Regulation 29(2)(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. [italics added]

35.  The Commissioner was correct to construe Regulation 27(b) as requiring a causative link....The descriptors specified in the Schedule test a claimant's functional limitations, both physical and mental, not the risks to which they might give rise. It is Regulation 27(b) which raises the question of whether a substantial risk arises from disease or disablement. But despite what I perceive to be an error in making a comparison which is not justified by the regulation, in the end the Commissioner does (in § 49) ask and answer the correct question posed by the regulation, namely whether a substantial risk should be foreseen in the light of the work the claimant might be expected to perform in the workplace in which he might be expected to be. This gives rise to the second issue in the appeal: how the decision-maker is to identify the nature of claimant's work and workplace.

38.  The answer to this submission lies in the purpose of Regulation 27(b), that is to assess risk at work. In order to determine whether there is any health risk at work or in the workplace it is necessary to make some assessment of the type of work for which the claimant is suitable. The doctor, the decision-maker and, if there is an appeal, the Tribunal, should be able to elicit sufficient information for that purpose. The extent to which it is necessary for a decision-maker to particularise the nature of the work a claimant might undertake is likely to depend upon the claimant's background, experience and the type of disease or disablement in question. It is not possible and certainly not sensible to be more prescriptive. The most important consideration is to remember that the purpose of the enquiry is to assess risk to the claimant and to others arising from the work of which he is capable. No greater identification of the type of work is necessary other than that which is dictated by the need to assess risk arising from work or the workplace.

39.  The correct approach has been identified by Deputy Commissioner Paines in CIB/360/2007:-

"17. The degree of detail in which [the consequences of a finding that the claimant is capable of work] will need to be thought through will depend on the circumstances of the case… A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant's background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).

18. Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial."

40.  Unfortunately, that approach has not found favour with other commissioners. Commissioner Jacobs in CIB/0026/2004 and Commissioner Parker in CSIB/33/04 adopted an approach which required the decision-maker to consider the work which would be defined in a Jobseeker's Agreement should the claimant have made a claim to Jobseeker's Allowance.

41.  Mr Drabble, on behalf of the claimant, supported that approach. He based that submission upon what he asserted to be the link between entitlement to Incapacity Benefit and entitlement to Jobseeker's Allowance. He drew attention to Regulation 17A. Under that Regulation:-

"A person should be treated as capable of work throughout any period in respect of which he claims a Jobseeker's Allowance, notwithstanding that it has been determined that…he is or is to be treated as incapable of work under Regulation…27 if…

(b) he is able to show that he has a reasonable prospect of obtaining employment."

42.  It is unnecessary to divert the proper focus of this issue by an elaboration of the provisions in relation to Jobseeker's Allowance. It is sufficient to point out that entitlement to a Jobseeker's Allowance pursuant to the Jobseeker's Act 1995 and to the Jobseeker's Allowance Regulations 1996, requires a Jobseeker's Agreement to be made with the claimant providing the yardstick as to what is expected of the claimant in terms of his obligation actively to seek work. The contents of the Jobseeker's Agreement (pursuant to Regulation 31 of the Jobseeker's Allowance Regulations 1996) requires there to be any restrictions on the location or type of employment and a description of the type of employment which the claimant is seeking.

43.  In my judgment the link which Mr Drabble seeks to establish is far too fragile to bear the weight which his argument imposes. There is no warrant within the wording or context of Regulation 27(b) for requiring a decision-maker to embark upon the almost impossible and certainly impractical task of imagining what hypothetical agreement might have been made should the claimant have applied for Jobseeker's Allowance

44. There are a number of reasons why a hypothetical Jobseeker's Agreement is not an appropriate guide to entitlement to incapacity benefit. A Jobseeker's Agreement sets out the minimum requirements as to the type of work for which a claimant must be available in order to retain entitlement to a Jobseeker's Allowance. In assessing risks arising from work or the workplace pursuant to Regulation 27(b) the decision-maker is not limited to the minimum requirements which might be specified in a Jobseeker's Agreement. The requirements in a Jobseeker's Agreement will include those restrictions upon availability sought by a claimant to Jobseeker's Allowance and considered reasonable by the Secretary of State. The decision-maker would have to imagine the terms of future hypothetical negotiations between the claimant and a Job Centre. For the purposes of Regulation 27(b) there is no basis for limiting the analysis of risk arising from work by reference to restrictions which might be suggested by a claimant and regarded to be reasonable by the Secretary of State.

11. It is noted that the Court of Appeal in Charlton thought it possible, although probably rare, that the very finding of capability for work might cause a significant deterioration in a claimant’s health.  Apart from that rarity, the Court of Appeal states firmly that the risk to be assessed must arise as a consequence of work the claimant would be found capable of undertaking, but for regulation 29.  

12. In MB v Secretary of State for Work and Pensions (ESA) [2012] UKUT 228 (AAC) with which I respectfully agree, Judge Jacobs stated that Charlton

‘decided that the trigger for the risk had to be found in the work the claimant would be undertaking.  It had to arise from (i) the decision that the claimant had capability for work; (ii) the work that the claimant might do; or (iii) travelling to and from work.  (i) will be rare.

13. In MB the risk argued before the Tribunal was that if B, a drug addict, had to work, it would put more money in his pocket which he would spend on drugs.  Judge Jacobs rejected this argument:

‘That is not a risk that arises from the work.  The work is merely the circumstance that gives rise to it.’

14  Charlton and MB v Secretary of State for Work and Pensions establish that there must be a causal link between the risk and the work (or travel to and from work) the claimant would be found capable of undertaking, but for regulation 29(2)(b).  The Court of Appeal shows that the links in that causal chain are short.  There is no hint in Charlton that a risk arising from some circumstance short of work, the workplace and getting to and from work, that is to be considered.

15  Tribunals are not dealing with an open-ended inquiry into whether, for example, a claimant who is found not to have limited capability for work would go on to apply for Jobseeker’s Allowance, let alone with what would be required of him in his JSA agreement. 

16  Policy and practical concerns consistent with the narrow focus under the Social Security (Incapacity for Work) (General) Regulations 1995 and ESA Regulations underpin the Court of Appeal’s decision.  These are apparent from paragraph [47] of Charlton; and although the Court of Appeal’s remarks in paragraph 47 are directed at how to establish a range of work that the claimant may do, its remarks are in my view equally applicable to the causation issue.

46     ‘… Any interpretation must bear in mind that the regulations are designed to provide a fair and effective system for assessing entitlement to incapacity benefit and to allied benefits when a claimant has passed the Personal Capability Assessment. It would not be possible to achieve the aim of those regulations were the decision-maker to be required to make findings of the particularity for which the claimant contends. The decision-maker, it must be recalled, will be provided only with the report of the doctor based upon the doctor's interview with the claimant and the claimant's completion of the questionnaire…The conclusion which requires no more than that the decision-maker or Tribunal assess the range of work of which the claimant is capable for the purposes of assessing risk to health has the merit of achieving the objective of the regulations.’

17.      Cases in the Upper Tribunal which seek to expand the circumstances in which a claimant might be at risk beyond looking at the work (and travel to and from work) in which the claimant might be engaged but for regulation 29(2)(b) (or beyond the rare exception where the decision itself would cause a substantial risk to health) widen the causational scope of the enquiry in a way that is inconsistent with Charlton and should not be followed.

18.      It is also unnecessary for Tribunals to follow the remarks in GS and IJ because they are obiter.  In IJ, Upper Tribunal Judge Mark identified the underlying, fundamental error of the F-tT to be its failure to make the necessary findings of fact on the range of work to which the claimant was suited so that there could be no decision on the work he could do without substantial risk.  Judge Mark relied on a standard reformulation of the requirements of Charlton in coming to this conclusion. 

“9.  There was, however, no investigation by the tribunal about the claimant’s background to form a view on the range or types of work for which he was both suited as a matter of training or aptitude and which his disabilities did not render him incapable of performing.  As a result there was no decision as to whether within that range there was work he could do without the degree of risk to health envisaged by regulation 27(b).  In making that assessment the tribunal would have to take into account both the risk to the claimant as a result of his mental health problems and also the limits on the work he could do because of them, including any alcohol dependency he was found to have.

19   This was a more than sufficient basis on which to dispose of the case. 

20 In my view, the second part of paragraph 17 of GS and paragraph 10 of IJ do exactly what the Court was at pains to avoid by diverting ‘the proper focus of this issue by an elaboration of the provisions in relation to Jobseeker's Allowance.’  The provision of JSA define not only the minimum requirements as to the type of work which the claimant must be available for, but also the number and nature of steps the claimant is required to take to remain entitled to JSA.  It is fundamental to the reasoning in Charlton that the contents of a hypothetical JSA Agreement did not colour the essential feature of regulation 29(2)(b).  It was necessary to moor the regulation to its bearing of substantial risk connected to work, the workplace, getting to or from it, or (rarely) being told ESA would end. 

21     There are any number of places in Charlton at which the Court of Appeal could have indicated that it intended decision makers to take into consideration the wide range of circumstances set out in IJ and GS.  It would have been very easy for the Court to have added acknowledge the effect of traumas such as getting out of bed in the mornings, travelling to attend interviews fruitlessly, and withstanding adverse economic conditions as relevant, but it did not do so.  Its insistence throughout is (apart from the one rare exception envisaged by the Court) on relevant risks connected with travelling to and from work and being at work. 

What the Tribunal needs to do in the rehearing

22     There must be a complete rehearing of all issues, including regulation 29(2)(b).

23     The F-tT must establish the range of work which the claimant is suited to, and then decide if that work (or the travelling to and from it, or the Secretary of State’s decision itself) is a substantial risk to the claimant’s health or that of another. 

24     The Secretary of State’s evidence rarely contains more than a mention of the claimant’s most recent job in the though the ESA85.  In most cases, the F-tT will have to ask the appellant, if he is present, about his qualifications and work history.  If he is not present, the Tribunal may be able to conclude that the claimant could do unskilled work.  In Charlton at [48] and [49], the Court of Appeal accepted as sufficient Commissioner Williams’ finding that Mr Charlton was capable of performing the kind of work:-

47  "to which a person with no physical limitations, no qualifications, no skills and no experience might be directed (§ 48) and that he could undertake straightforward and unstructured, unskilled work."

24 There was no need for greater specificity, as the Court of Appeal had already explained. 

49.    These findings are challenged by the claimant because they do not specify with any particularity the type of work which the Commissioner had in mind. In my view, for the reasons I have given, the Commissioner was under no obligation to go any further than he did. This claimant had never worked, had no qualifications and no skills, but did not have any physical limitations. Provided the work was supervised and structured, the Commissioner found as a fact that the claimant could undertake that work without substantial risk to himself or to others. That factual assessment cannot be challenged in this appeal. Since the claimant has never worked and has no training it is an understandable and reasoned conclusion. Indeed, I suggest it would have been difficult, if not impossible, for the Commissioner to make any more detailed a finding. The essential conclusion is that he could do some work without risk to himself or to others. Such a conclusion is consistent with the obligation imposed by the Regulation to assess risk to the safety of the claimant and to others arising from work. For those reasons I would dismiss this appeal.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 1 December 2015