NS v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Regulation 29) [2014] UKUT 115 (AAC)

UKUT-AAC
NS v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Regulation 29)
[2014] UKUT 115 (AAC) · 2014-03-14
[1]The issue raised in this appeal is when a tribunal is obliged to consider the application of regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008, which provides (as in force at the date of the decision under appeal, which is 14 March 2012): Exceptional circumstances(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.(2) This paragraph applies if— (a) … (b) 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. The context[2]The appellant, who was born on 20 January 1958, had been in receipt of incapacity benefit credits from 12 June 2008. The time came for her entitlement to incapacity benefit credits to be considered for conversion to an award of an employment and support allowance.[3]The appellant completed a limited capability for work questionnaire (Form ESA50) on 1 December 2011. She referred to having hypertension, dizzy spells, an ankle problem, carpal tunnel syndrome, and arthritis. She reported difficulties moving around and using steps, standing and sitting, manual dexterity, communicating with people and other people communicating with her, and controlling her bowels and bladder.[4]In relation to the mental cognitive and intellectual functions, the appellant reported difficulties learning how to do tasks, awareness of danger, initiating actions, coping with change, going out, and coping with social situations.[5]The appellant was referred for a medical examination and report. This took place on 11 January 2012 with a healthcare professional, in this case a doctor. The medical conditions are listed as right shoulder pain, neck pain, left ankle pain, carpal tunnel syndrome (both), back pain, and hypertension. In the personalised summary statement, the doctor observes that the appellant does not have a history of a mental health problem. [1] The doctor scored the appellant no points under the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008.[6]The decision maker, however, scored the appellant six points under descriptor (d) in Activity 1 (mobilising) on the grounds that “she may have difficulty mobilising more than 200 metres.”[7]On 14 March 2012 a decision maker decided that the appellant could not be treated as having limited capability for work and that the existing entitlement to incapacity benefit credits did not qualify for conversion to an employment and support allowance. Accordingly, her existing entitlement would cease with effect from 11 April 2012.[8]On 17 March 2012 the appellant appealed against the decision on the grounds that she should score more points. In her appeal letter she referred to significant problems flowing from her arthritis and severe depression. She listed her medication.[9]The decision was reconsidered on 31 May 2012 but it was not changed.[10]On 11 July 2012 the appellant sent in a written submission, which again referred to her arthritis and depression. She said her arthritis was under the management of a hospital consultant. She attached the following documents to this submission: · A letter dated 27 April 2012 from a consultant rheumatologist · An appointment letter for an ultrasound investigation dated 7 June 2012 · An outpatient appointment letter for an appointment on 9 June 2012 for electromyography and nerve conduction studies · A letter dated 12 March 2012 from her GP · A repeat prescription form dated 11 July 2012 (This includes a prescription for Sertraline, which is, I understand, a drug used to treat significant depression and anxiety)[11]The decision was again reconsidered in August 2012 but was not changed.[12]The appellant sent in a further letter on 3 September 2012 providing an update on her medical condition. She attached to this letter: · A letter dated 8 August 2012 from a consultant rheumatologist · A hospital prescription for co-codamol · A letter dated 27 April 2012 for an appointment on 7 August 2012 with the rheumatology team · Hospital pathology details dated 7 August 2012 · A repeat prescription form dated 20 August 2012 · Some notes and appointment cards · An appointment letter dated 9 August 2012 · A hospital prescription for certain medication[13]The decision maker once again reconsidered the decision but once again did not change it.[14]Further medical letters and notes were submitted in December 2012.[15]The appeal first came before a tribunal on 7 January 2013. The appellant attended with a friend. The proceedings were adjourned because of the need for an Arabic interpreter. A direction was made that an interpreter speaking Classic Arabic be provided for the adjourned hearing.[16]The appellant submitted further evidence on 11 January 2013. The decision was yet again reconsidered, but no change was made.[17]The appeal came before the tribunal on 4 March 2013. An interpreter was present. The appellant attended with a friend, but was not represented. The Secretary of State was not represented. There is a helpful record of the proceedings.[18]There appears to have been some slight difficulties because of the dialect spoken, which is noted on the record of proceedings. But I can see from the tribunal’s record of proceedings that the hearing went ahead apparently without further difficulty.[19]The outcome of the appeal was that the decision of the Secretary of State was confirmed. There appears to have been a variation in the underlying basis of the decision, since the decision notice says that no points were scored under the Schedule 2 descriptors (the decision maker had awarded six points under Activity 1(d)). A statement of reasons was subsequently provided.[20]The appeal now comes before me with my permission. The grounds of appeal[21]The appellant’s grounds of appeal are essentially a rerun of her arguments before the tribunal. They consist of a detailed commentary on the tribunal’s statement of reasons, but amount to little more than disagreement with many of the tribunal’s conclusions.[22]The appellant also appended a selection of medical appointment letters and doctor’s letters, some of which had already been put in evidence, although some post-dated the tribunal hearing. Some were much older dating back to 2006.[23]In giving permission to appeal limited to the issue of the proper application of regulation 29, I had this to say: 4. Where a tribunal embarks upon an enquiry as to whether there are circumstances falling within regulation 29, it is arguable that more detail than is provided in this case is required in order to show that the regulation does not apply to the appellant. 5. I can see no error of law in relation to the tribunal’s consideration of the application of the activities and descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008. Accordingly, I have limited the permission to appeal to the issue identified above.[24]Since the appellant had submitted a fair amount of medical evidence which post-dated the date of the decision under appeal (that is, 14 March 2012), I added a postscript to my grant of permission to appeal in the following terms: One of the grounds the appellant has put forward is that the tribunal “only considered old evidence”. The appellant has continued to supply new medical evidence which she argues shows that her condition is getting significantly worse. I would point out that the appeal against the decision dated 14 March 2012 cannot consider any deterioration in health after that date: s.12(8)(b) of the Social Security Act 1998 precludes this. The proper course of action where there is a worsening of the health of a person is for a fresh claim to be made. If the appellant has not yet made a fresh claim, it may be in her interests to do so as soon as possible. Did the tribunal err in law?[25]The Secretary of State does not support this appeal, and mounts a spirited defence of the tribunal’s passing consideration of the application of regulation 29. The appellant has not filed any observations in response to the Secretary of State’s submission.[26]This is all the tribunal had to say on regulation 29: 32. The Tribunal did not award the appellant any points under the descriptors. Also, Regulation 29 does not apply as the Tribunal was not satisfied that there was a substantial risk to the appellant or to any person if he [sic] were not found to have limited capability for work.[27]The core of the Secretary of State’s submission to me is as follows: 10. … I submit that it was not erroneous for the First-tier Tribunal simply to state that Regulation 29 was not applicable. The First-tier Tribunal should not be faulted for merely stating in one line at the end of the statement of reasons that it was not applicable in the circumstances. There is no suggestion in the appeal papers that the claimant had raised Regulation 29 as an issue. Nor is there any evidence to suggest that there would be a substantial risk to the physical or mental health of any person if the claimant was found not to have limited capability for work. The First-tier Tribunal was therefore not bound to consider the application of Regulation 29. I submit that it was reasonable in all the circumstances for the First-tier Tribunal to put one brief line referring to regulation 29 as a concluding sentence for the sake of completeness.[28]The Secretary of State cites four cases in support of the position taken in the paragraph I have just quoted.[29]CSE/223/2013 was a case in which there was a corresponding brief statement dismissing the application of regulation 29. I quote paragraph 6 of that decision: I note from the statement of reasons that the tribunal was not asked to consider whether the claimant satisfied the terms of regulation 29(2)(b). Nor was the regulation mentioned in any form in the representative’s grounds of appeal to the Upper Tribunal. I note that the representative did not respond to Judge Bano’s direction of 7 June 2013 nor to the Secretary of State’s further submission of 17 June 2013. The tribunal addressed the issue in the following terms:
“The Tribunal thereafter considered whether regulation 29 would apply to the Appellant but concluded that it did not.”
For my part, I consider [the brief statement] indicates that the tribunal considered whether there was evidence of sufficient quality that would lead it, of its own volition, to formally address the regulation and associated authorities. I consider it reasonable to infer that the tribunal took the decision that such evidence had not been presented and therefore did not require to proceed to elicit further evidence nor make appropriate findings in fact to deal with the regulation. It is of course not mandatory that the regulation be addressed whenever a claimant does not score sufficient points on the assessment. As Upper Tribunal Judge May QC (formerly Commissioner) held in CSIB/8/97, there referring to regulation 27 of the Social Security (Incapacity for Work) General Regulations 1995:
“no duty on a tribunal to address this regulation unless it is clear to them on the evidence before them that any of the exceptions set out therein is in issue.”
I therefore find no error in law has been demonstrated in this regard.[30]I would observe at this point that it would seem that CSE/223/2013 was a case in which there was a representative, at least in relation to the proceedings before the Upper Tribunal, who did not take the point.[31]CSE/27/2013 is a decision of the same Upper Tribunal judge a day after the decision in CSE/223/2013. In CSE/27/2013, the appellant was represented by an welfare rights worker, who did not raise the issue of the application of regulation 29. The Upper Tribunal judge had this to say: Having listened to the recording of the hearing it is clear that the claimant did not contend that regulation 29(2)(b) be applied to him. … . Unless evidence had been presented to the tribunal which would have led it, in fulfilling its inquisitorial function, to address the regulation and the relevant authorities and to make appropriate findings of fact, I consider the brief comments made in … the Statement of Reasons are sufficient. The tribunal is, in my judgment, merely recording that it did not, in a formal sense require to address this regulation. The tribunal raised the issue of its own volition and should not be faulted for so doing. It is not mandatory to address regulation 29 whenever the claimant does not meet the threshold to satisfy the assessment. As Judge May QC (then Commissioner) stated with regard to regulation 27 of the Social Security (Incapacity for Work) General Regulations 1995 in CSIB/8/97:
“There is in my view no duty on a tribunal to address this regulation unless it is clear to them on the evidence before them that any of the exceptions set out therein is in issue.”
Accordingly, no error in law arises. Nor for that matter would one have arisen had the tribunal made no mention of the regulation when one considers the totality of the facts found.[32]A similar approach is adopted in CSE/37/2013, a decision of a different judge of the Upper Tribunal, in a case where there was a representative, but the point had not been taken until permission to appeal to the Upper Tribunal was sought.[33]I have also had cited to me a decision of Judge Wikeley, but that decision is not decisive one way or the other since Judge Wikeley says: 11. … . However, what is required very much depends on the circumstances of the case.[34]Judge Wikeley also observes at paragraph 13, after referring to the statement of Commissioner May (as he then was) in CSIB/8/97 quoted above: … in CSIB/389/1998 Mr Commissioner May QC stated that “if a claimant is represented, as was the position here, by a welfare rights officer employed by a responsible local authority” then the tribunal is entitled to rely upon such a representative taking up an issue such as the possible explanation of this rule.[35]I have not had cited to me RB v Secretary of State for Work and Pensions (ESA) [2012] UKUT 431 (AAC) in which Judge Ward set aside a decision of a First-tier Tribunal which contain a brief dismissal of the application of regulation 29. Judge Ward considered that the matter of the inapplicability of regulation 29 was not self-evident, and commented: 7. It is an obvious point but nonetheless worth making that the more onerous the points-based regime becomes, the more cases are likely to require attention to be given to the terms of regulation 29, to which correct application by decision makers and tribunals of Charlton will be vital.[36]There are three pertinent decisions of Judge Gray which warrant consideration.[37]In PC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 1 (AAC) Judge Gray observed: 8. As to regulation 29 it is not necessary for a FTT to consider regulation 29 as a matter of routine. It is not always disclosed upon the papers or by the oral evidence as being of potential applicability, but where the FTT considers it, and the judge says that they did in this case, it must be properly dealt with bearing in mind the criteria set out in the case of Charlton-v- SSWP [2009]EWCA Civ 42 which are essentially that the tribunal must establish what sort of work the appellant would be expected to do, and assess the level of risk in relation to the likely workplace and the journey to and from work. 9. Where regulation 29 is a clear issue on the papers but the FTT does not consider it that may amount to an error of law, but there will be many cases where it simply does not arise, and the tribunal need not consider it.[38]In SP v Secretary of State for Work and Pensions (ESA) [2014] UKUT 10 (AAC) Judge Gray observed: 11. The Secretary of State considered the [adequacy of the reasons in relation to] regulation 29 … in his submission. It was conceded that the statement of reasons dealt inadequately with the issue, but the submission states that the healthcare professional considered that there was no substantial risk. As to that the evidence is on page 49. The comment by the healthcare professional is no more than a restatement of the statutory test. That is the criticism which I make of the tribunal's treatment. The Secretary of State's submission then puts forward another factual analysis of the evidence, and the point seems to be being made that because there was evidence that might have led the FTT to the conclusion that regulation 29 was not applicable their failure adequately to deal with the issue was immaterial. It is not for me to say what the tribunal could or should have made of the evidence on that point; since the tribunal had considered regulation 29 the appellant was entitled to their view on the matter, and she had the right to know why it was that regulation 29 did not apply to her. As I said at paragraph 8 of CE/3043/2013 " As to regulation 29 it is not necessary for a FTT to consider regulation 29 as a matter of routine. It is not always disclosed upon the papers or by the oral evidence as being of potential applicability, but where the FTT considers it, and the judge says that they did in this case, it must be properly dealt with bearing in mind the criteria set out in the case of Charlton-v- SSWP [2009] EWCA Civ 42 which are essentially that the tribunal must establish what sort of work the appellant would be expected to do, and assess the level of risk in relation to the likely workplace and the journey to and from work. " 12. If there is nothing at all to raise that regulation in the papers it may be that any error of law in dealing with it is not, in those circumstances, material. That is not, however, the position in this case. … .[39]Finally, in DB v Secretary of State for Work and Pensions (ESA) [2014] UKUT 41 (AAC) , Judge Gray observed:10. … .Although the GP’s evidence was not particularly informative as to function, it did make the general point that the GP felt the appellant to be unable to work, albeit that that does not mean that he was applying WCA criteria. It also indicated that a further hip replacement was awaited, and in view of that, and of the possible interaction of conditions, including that set out in the conclusions of the ECG, it seems to me that regulation 29 required specific consideration. The observations of the representative in respect of possible deterioration of the hip seemed to me to be pertinent in that context.11. I do not feel that this decision is sustainable. The matter requires remission for a further hearing where facts will be found as to the appellants physical capability to carry out the various descriptor tasks on a reliable and repetitive basis, and if insufficient points are scored, then the question of whether there would be a substantial risk to his health (risk to the health of others would not seem to be a feature) if he were found not to have limited capability to work arises. The test in Charlton [ 2009] EWCA Civ 42 requires consideration of any risk in the context of the sort of work that the appellant might be expected to look for and the journey to and from work. Whilst regulation 29(2)(b) is more frequently applicable to those with mental health problems than physical problems, it may have applicability where a physical condition results in problems with exertion, or limits exercise tolerance significantly. These may be issues which it is difficult to adapt for within the workplace.[40]I take the last sentence to be a possible reference to regulation 29(3) which was added with effect from 28 January 2013 by the Employment and Support Allowance (Amendment) Regulations 2012 (SI 2012/3096). It provides: (3) Paragraph (2)(b) does not apply where the risks could be reduced by a significant amount by—(a) reasonable adjustments being made in the claimant’s workplace; or(b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.[41]What is the effect of all these authorities? It seems to me that they are all saying that whether regulation 29(2)(b) requires to be considered depends on all the circumstances of the case. In so far as CSE/223/2013 and CSE/27/2013 may be saying otherwise, I disagree with them.[42]The Secretary of State’s submissions to tribunals frequently makes passing reference to regulation 29, though seldom addresses it in any detail. If there has been a medical examination and report, that always refers to the applicability of exceptional circumstances, though, as Judge Gray pointed out in SP v Secretary of State for Work and Pensions, that takes the form of a restatement of the statutory test. It is an assertion since there are no supporting reasons. Very occasionally there are some supporting reasons in the healthcare professional’s report. They may be enough to bring consideration of regulation 29(2)(b) into play.[43]Sometimes the terms of the decision under appeal, or the reconsideration of it, assert that regulation 29(2)(b) does not apply.[44]This is, of course, not entirely satisfactory. It places an additional burden on tribunals to decide when regulation 29(2)(b) is in issue and when they need to provide reasons for its not applying to a particular claimant.[45]It must also be remembered that regulation 29(2)(b) is not just about whether there is any work or type of work which a claimant can do without substantial risk to the mental or physical health of any person. It is about whether a substantial risk would arise from a claimant’s being found not to have limited capability for work. In IJ v Secretary of State for Work and Pensions (ESA) [2010] UKUT 408 (AAC) Judge Mark observed: 10. 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.[46]It will seldom be the case that the documents before a tribunal provide much detail about a claimant’s educational and training background, which may well be relevant to issues raised by a full consideration of regulation 29(2)(b).[47]There will be some cases in which a tribunal need say nothing about regulation 29(2)(b). I give one clear example. Where a claimant is represented, claims only problems with physical functions, is found to score no points under Part 1 of Schedule 2 to the Employment and Support Allowance Regulations 2008, and where the representative does not put regulation 29(2)(b) in issue, a tribunal can safely leave out any mention of regulation 29(2)(b). However, in such a case a wise tribunal would seek confirmation from the representative that no issue is raised under regulation 29(2)(b) if they were to find that no points are scored under the Part 1 descriptors.[48]There will be some cases in which a tribunal must address regulation 29(2)(b). Clearly, if it is put in issue by a claimant, it must be fully and properly addressed. This will not require repetition of the findings of fact made in respect of the descriptors in Schedule 2, but that will be the obvious starting point for the explanation of why regulation 29(2)(b) does or does not apply.[49]In cases in which the descriptors relating to mental, cognitive and intellectual functions are in issue, it is more likely that regulation 29(2)(b) will be relevant. After all, in cases which come before the tribunal, more often than not the claimant’s GP has issued a certificate that the claimant is incapable of work (though I accept that the GP may not be making that judgment against the Schedule 2 assessment). If the GP has submitted a letter in support of the claimant’s appeal, that will often indicate why the GP considers that the claimant is incapable of work.[50]I would agree with the observation of Judge Ward in RB v Secretary of State for Work and Pensions (ESA), which I have quoted in paragraph 35 above, that the more narrowly focused the descriptors become, the more likely it is that the safety net provision of regulation 29(2)(b) will be in issue.[51]I do not consider that the level of detail required for proper reasons on the application of regulation 29(2)(b) is high. The more obvious it is that regulation 29(2)(b) does not apply, the easier it should be to give reasons why that is so.[52]What is frequently missing from brief statements that regulation 29(2)(b) does not apply is the addition of a statement as to why it does not apply. This is exemplified by the statement in the appeal before me, where the tribunal said: Regulation 29 does not apply as the Tribunal was not satisfied that there was a substantial risk to the appellant or to any person if he were not found to have limited capability for work.[53]What is needed is for that sentence to end in a comma and to be followed by the word “because” and then a phrase or two explaining why regulation 29(2)(b) does not apply. After all, if the tribunal has done a proper job in considering regulation 29(2)(b) they must have considered why the regulation did not apply. Otherwise, this is a mere formulaic response to the issue. A tribunal which embarks upon a consideration of regulation 29(2)(b) must do a proper job of considering it.[54]However, that is rather to jump the gun. Was this a case in which the tribunal was required to consider regulation 29(2)(b) and to give reasons at the level I recommend in order to avoid erring in law?[55]The appellant was 54 at the date of the decision on the conversion process from entitlement to incapacity credits to entitlement to an employment and support allowance. She was unrepresented. She was suffering from progressive arthritis and what her GP describes as “acute depression”, as well as some other ailments. There was evidence of ongoing hospital investigations in relation to her arthritis at or around the time of the decision under appeal, and suggestions that it was getting worse.[56]The appellant’s own assessment of the effects of her conditions is markedly at odds with the conclusions the tribunal reached. The tribunal concluded that the decision maker had wrongly assigned points on the mobilising descriptor. Furthermore regulation 29 is addressed in the Secretary of State’s submission to the tribunal (see para.5.5 of that submission).[57]In my view, this was not a case in which a bare statement that regulation 29(2)(b) did not apply without any reasons for that conclusion was adequate. The tribunal, which had disagreed fundamentally with the appellant about the effects of her condition on her, needed to give reasons for its conclusion on the application of regulation 29(2)(b). It did not do so. In failing to do so, it erred in law. I set their decision aside for this reason. I remit the appeal for determination at an oral hearing before a differently constituted tribunal. What the new tribunal must do[58]The effect of my setting aside the tribunal’s decision is that the whole of their decision is set aside. The new tribunal must consider the application of the descriptors in Schedule 2. If they conclude that the appellant does not have limited capability for work by reason of her score under Schedule 2, the new tribunal must then consider the application of regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008. A cautionary word for the appellant[59]The appellant must not assume that, because I have set aside the decision of the original tribunal, she will necessarily win at the fresh hearing of her appeal. Everything is now once again in the hands of the First-tier Tribunal. The appellant might win or she might lose.[60]I remind the appellant that the new tribunal will be concerned with her health and the effects of her health on her daily life as at the date of the decision under appeal, which is 14 March 2012. Section 12(8)b) of the Social Security Act 1998 prohibits a tribunal from considering a change in circumstances after that date. The proper response to a worsening of a person’s health is to make a fresh claim which will be determined in the light of the claimant’s health and its effect on her daily life as at the date of the decision on that fresh claim. I have already made this point to the appellant in giving permission to appeal, but I repeat it here. Signed on the original Robin C A White on 14 March 2014 Judge of the Upper Tribunal [1] Which does not appear to be correct.

Cited in 5 later judgments