IN THE UPPER TRIBUNAL                                 Case No  CE/3001/2014

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Leeds on 25 February 2014 under reference SC007/13/05414 involved the making of an error on a point 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 9 of the Reasons.

REASONS FOR DECISION

1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. I have set the tribunal’s decision aside, because in considering that the requirements of reg 29 of the Employment and Support Allowance Regulations 2008 were not met, the tribunal indicated that “The health problems which he has could, in the Tribunal’s view, reasonably be accommodated by an employer complying with his statutory duties.  In the light of these considerations the Tribunal was not persuaded that Regulation 29(2)(b) is made out.”  (The claimant’s health problems, so far as relevant, were diverticular disease and some mental health problems.)

3. Following an oral hearing in Leeds  on 27 November 2014 I gave permission to appeal, identifying non-exhaustively five possible grounds.  The first was:

            “1. Did the tribunal err in relation to reg 29(2)(b) by taking into account        the actions of “an employer complying with his statutory duties”?  See , in relation to the form of the regulation prior to its amendment, subject   to transitional provisions, from 28 January 2013, JS v Secretary of             State for Work and Pensions (ESA) [2014] UKUT 0428.  The words             quoted would seem to be an intended reference to the Equality Act 2010, which is not necessarily any more relevant under the post 2013         amendment than it was before.”

4. The amendment effected to regulation 29 is to the effect that “paragraph (2)(b) [of reg 29] does not apply where the risk could be reduced by a significant amount by – (a) reasonable adjustments being made in the claimant’s workplace.”

5. The Secretary of State submitted, in support of the appeal, that:

            “In JS v SSWP (ESA) [2014] UKUT 0428(AAC) Judge Wright held   that:

                        ● it is not sufficient for the First-tier Tribunal (FtT) to assume that                  because the Equality Act 2010 will require an employer not to               discriminate against and make reasonable adjustments in the                  work place to accommodate a disabled person, there will be no              risk arising from the person being found fit for work;

                        ● the assessment of risk under regulation 29(2)(b) of the ESA                      Regs 2008 however does not require or involve the SSWP or                    FtT in making an assessment as to whether employers would              owe a duty under the Equality Act to make reasonable                                   adjustments in respect of the individual claimant (specifically                                   disagreeing with Judge Mark in JB v SSWP (ESA) [2013] UKUT                  0518 AAC.)

            3. In practical terms, this means that in assessing reg 29 risk, SSWP           must make a claimant specific risk assessment – including what steps       could reasonably and realistically be taken on the facts of the specific case to avoid substantial risk – but that this does not require evidence        of what a potential employer would or might so by way of reasonable             adjustments in compliance with his Equality Act duties.”

6. I consider that this concession is properly made. I do not need to deal with any other error on a point of law that the tribunal may have made.

7. I have read  the points the claimant has made in reply, which do not take issue with what the Secretary of State has said.  He does say that his health has got worse latterly: if that is so, he may wish to consider making a further claim for employment and support allowance as developments after the date of the DWP’s decision in the present case (8 May 2013) cannot be taken into account.

8. The claimant asks for a further oral hearing, taking the view that he can better put his points across face to face than on paper.  That hearing will best be conducted by the First-tier Tribunal, where the panel also includes a doctor, rather than comprising a judge sitting alone.

9. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against  – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.  It will need to make sufficient findings of fact, including (a) as to the claimant’s mental health and (b) with some specificity about the  consequences of the claimant’s diverticular disease, in terms of frequency, predictability or otherwise and urgency of visits to the toilet, and of blood loss (and any physical or – not least in view of any mental health difficulties it may find- psychological effects) to enable it to consider properly the regulation 29 issue.

10. I have noticed that the claimant has asked for an oral hearing in private.  Although tribunal hearings usually involve some element of personal matters, they are usually held in public as there is a legitimate public interest in having the opportunity to see how courts and tribunals work.  However, it may be reassuring for the claimant to know that it is very uncommon for anyone unconnected with the case to attend.  That will probably be the same in relation to this case, too, but it would be open to him to apply to the judge at the next First-tier Tribunal hearing if a formal ruling is sought and the application would be considered.

11. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)                                                                    

C.G.Ward

Judge of the Upper Tribunal

23 February 2015