PD v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Regulation 29) [2014] UKUT 148 (AAC)

UKUT-AAC
PD v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Regulation 29)
[2014] UKUT 148 (AAC) · 2014-03-31
[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. ” He preferred that conclusion to the alternative being put forward, which was that the type of work fell to be determined by reference to what would have been set out in the hypothetical jobseeker’s agreement. In so concluding he observed at [47]:[47]“This conclusion is consistent with the practical application of these regulations. 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. It is quite impossible for the decision-maker to identify actual positions of employment or the nature of the duties and location of any job which the claimant might undertake, not least because the decision-maker may often be based in Belfast , or elsewhere, and can have no possible means of discovering employment circumstances throughout the country. 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. ”12. It can be seen from the two passages I have quoted at some length that there are two aims being pursued in Charlton – the assessment of risk (because the descriptors do not do so) and the limitation of the field of enquiry for practical administrative reasons, meaning that the assessment of risk is carried out on a basis that is less than complete.13. In the present case, the tribunal had identified the type of work it considered the claimant could do and was satisfied that this would not lead to a substantial risk to his health. Principally so far as the journey to work was concerned, but also for an initial period at work, the conclusion reached was, however, dependent on the involvement of a third party.14. Speaking generally, there are several different potential third parties. A claimant may have friends or family who are in a position to assist (or they may not). It is conceivable that help could be provided through a scheme such as the DWP’s “Access to Work” scheme (see https://www.gov.uk/access-to-work/eligibility , accessed on 28 March 2014), though the position is not entirely clear on the criteria as they presently stand. It is conceivable that an individual employer in a particular line of work might provide transport (but it is accepted by both sides that nothing in the Equality Act 2010 would require him to do so as a reasonable adjustment in response to the claimant’s disability).15. As noted, Charlton expressly mandates consideration of risk in the context of the journey to work. The decision implies that there may be persons whose condition is such that the journey to work could cause significant risk to health when the work itself would not but who have failed to amass 15 points. That is a scenario I am finding hard to imagine so far as physical elements are concerned: perhaps where a serious allergy was present - but even then, one would expect the same difficulties to present themselves at work unless the workplace was in a controlled environment. Far more likely in my judgment to have been in the contemplation of the Court of Appeal is the person whose mental health problems cause difficulties with the journey to work.16. Faced with a claimant who is unable to get to a familiar place unless accompanied, how is the tribunal to apply regulation 29? Given that the inability to get to a familiar place unless accompanied caries 9 points, rather than the necessary 15 to get to the threshold, it is clear that the legislative intention is not that such an inability, without more, is to be equated to having limited capability for work. The tribunal may wish to explore types of work which the person could do from home. Even if the traditional fields for such activity have declined, information technology must bring with it a number of such opportunities for some people. But if such work is not appropriate to the particular claimant, the tribunal will have to conduct the assessment of risk, which is the primary purpose of regulation 29, as best it can in relation to the sort of range of work mandated by Charlton , outside the home. If someone has been found to be unable to do something, I find it hard to see how it might be possible to hold that there would be no substantial risk to their health on an assumption that they were effectively made to do that which had been found to be impossible for them (i.e. go to work unaccompanied), though I do not intend to lay that down as a proposition of law. Far more likely is it that what is required is an evaluation of their circumstances when making the hypothetical journey, in particular in relation to being accompanied, in order to see whether the conditions could be satisfied which would alleviate or avoid the risk to health.17. This is consistent with the nature of evaluating risk. Regulation 29 operates as something of a safety valve, protecting individuals from substantial risk to their health that would otherwise arise. Save in the relatively rare cases where the risk is to others rather than the claimant, the focus accordingly is on an individual claimant and on the risk to that claimant, albeit, as regards type of work, subject to the limitation imposed by Charlton on the degree of digging down required. If one were to ask a doctor about the risk to his or her patient, perhaps particularly in the field of mental health, one would expect that view to take into account surrounding circumstances. It would be an artificial exercise to try to assess risk on an assumption that support which was in fact being provided was not.18. To the extent that the twin aims in Charlton of assessing risk and promoting administrative convenience create a tension when it comes to assessing the impact of the journey to work, I prefer to give weight to the more accurate assessment of risk to the individual. I have commented at paragraph 7 of RB v Secretary of State for Work and Pensions (ESA) [2012] UKUT 431 (AAC) on how the tightening of the descriptors makes regulation 29 all the more likely to be relevant. That is true both in relation to the change of the descriptors between incapacity benefit (with which Charlton was concerned) and ESA and then by the various subsequent amendments to the ESA descriptors themselves.19. Mr Tabori referred me to various pre‑legislative materials in order to urge upon me the inappropriateness of an interpretation of regulation 29 which might have the effect of taking the third party out of the labour market such as, he submits, one allowing the availability of lifts to be taken into account. The potential sources of third party help (see [14]) are such that it would not necessarily involve removing from the labour market someone who might otherwise be in it. In any event, it is to the Act, Regulations and caselaw that I must look and I can find nothing in them which supports Mr Tabori’s submission on this aspect.20. In MT v Secretary of State for Work and Pensions (ESA) [2013] UKUT 545 (AAC) , Judge Gray had to deal with the not dissimilar question of whether regulation 35(2)(b), which imposes a similar test to regulation 29 but in relation to the ability to participate in “work related activity” fell to be examined taking into account the possibility of the claimant in that case taking a third party with her to work‑related activities. At paragraph 34 she observed:
“ I do need to deal however with the observation of the FTT in its statement of reasons that the appellant could take another person with her to any work- related activities. It may be that the Secretary of State would be facilitative in any matter which helped a claimant engage so as to improve their ultimate prospects of retaining work. I do not know. Whether or not that is so, is not relevant. As a matter of law any work-related activity which could only be accomplished because of the presence of another person must be looked upon as not being an activity that the claimant can carry out. The issue under regulation 35 (2) (b) as to whether 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-related activity cannot be assessed as if the claimant under consideration had somebody else by their side. There will be claimants who have a need for the personal reassurance of another person, but who do not have anybody available to perform that role. Even if they did, it would not be reasonable for such an assessment to be made on the basis of reliance on another’s goodwill. Legal tests cannot depend upon that. Where an appellant who is found to have limited capability for work-related activities another person, and it may (or may not, I do not know) be possible for them to do so, but the capacity to engage only with that assistance cannot be part of the test of capability. 21. To the extent that the passage quoted is saying that it is incorrect to conduct the assessment required by regulation 35 “as if” a third party were present, I respectfully agree, if by that is meant without consideration of whether the third party’s presence would be made out in fact. It is possible to read Judge Gray’s remarks as going further than that, notably where she writes “as a matter of law any work‑related activity which could only be accomplished because of the presence of another person must be looked upon as not being an activity that the claimant can carry out”
. That, with respect, seems to be asking what I regard as the wrong question. The issue, it seems to me, is not whether or not it counts as the claimant doing the activity, but about the risks which ensue if he or she does. 22. Accordingly, my starting point is that where there is appropriate evidence (as to which see below) third party help could be taken into account. 23. There are undeniably going to be practical difficulties for the DWP in arguing that a person with 9 points for descriptor 15(b) can nonetheless, by being accompanied, get to work, and for tribunals in adjudicating on the issue. The Charlton exercise does not require consideration of actual positions of employment or the location of any job a claimant might undertake. Common experience of giving or receiving a lift from someone suggests that the availability of a person to accompany someone may in practice be highly dependent on practical factors: How far? What time of day? Same time each day or varying? All of those are questions which might arise if the question had to be asked in the context of an actual job, but, as Charlton makes clear, it does not. It may be difficult to get clear evidence about whether someone would be available to help when the circumstances are hypothetical. 24. Then there may be the question of the availability of a car to consider: it is not unusual to come across people whose ability to get out of their domestic setting is much greater in the private realm of a vehicle belonging to them or to a trusted person than it is when public transport has to be relied upon. Some people will live in places where public transport is unlikely to be a practical solution anyway. Where a car is needed, it will not necessarily be available, particularly if it is sometimes used by others. 25. It will, further, be important that any arrangements to enable a person to get to a workplace appear capable of being maintained. 26. Nonetheless, and difficult though it may be, I consider that such a line of argument is open to the Department. There will be cases, for instance where a partner is not working, there is no one else at home who uses the car and where the evidence shows a pattern of the partner driving the claimant to wherever s/he wants or needs to go, that it may be open to a tribunal to infer that such help would similarly be available to get a claimant to the Charlton -mandated hypothetical workplace. If a scheme such as Access to Work were available on a sufficiently reliable basis, it is hard to see why it should not be taken into account. Such are ultimately conclusions of fact and not matters on which I need say more, except to observe that this may be, par excellence, a field in which tribunals can look to the principles of Kerr v Department for Social Development [2004] UKHL 23 ; [2004] 1 WLR 1372 :[62]“62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.[63]If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998 , "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself.” 27. What is difficult in relation to transport is yet harder in relating to accompaniment within the workplace. Such a setup would be highly unusual, even if only to help with the first few days. I did not hear argument on whether that, unlike the provision of transport, could constitute a reasonable adjustment for Equality Act purposes. I leave the general questions about reliance on that Act to be considered in CE/3688/2013, in which an oral hearing is due on 28 April 2014. 28. In my view, therefore, it is open to a tribunal to conclude that the risk to the health of a claimant may be mitigated by the availability of strategies to enable him to get to work, including through the assistance of a third party. Such a conclusion would, though, have to be based on proper, evidence-based findings of fact. 29. The First-tier Tribunal to which this case is being remitted will hear the whole case afresh, so I need not dwell on the Secretary of State’s objection to the award of 9 points. This was based on the tribunal apparently taking into account that anxiety in relation to leaving home “was the only problem identified as getting worse in a letter written by [the claimant] prior to the tribunal’s decision.” I do not accept that this necessarily contravened section 12(8) of the Social Security Act 1998. The letter was written only a couple of months after the decision and is also consistent with the presence of a deteriorating condition at the date of decision. 30. Nor do I accept Mr Tabori’s submission as to why an inability to reach a specified place unaccompanied should carry 15 points. In my view, if one looks at the gradation of the descriptors carrying 6, 9 and 15 points respectively, it is clear that the 15 point descriptor is directed to those who cannot go out, even if accompanied. 31. Mr Tabori invited me to make specific Direction to the First-tier Tribunal , intended to operate on a general level, about the steps needed (he submits, by reason of the Equality Act) to secure evidence from people with the sort of difficulties this claimant has. I am not adjudicating on an Equality Act claim and, on a statutory appeal in a social security matter, have no jurisdiction to do so: see Secretary of State for Work and Pensions v MM and DM [2013] EWCA Civ 1565 at [46]-[47]. 32. However, in considering its powers to go ahead without a hearing under rule 27, a tribunal will doubtless be mindful that an apparent choice for determination on the papers made by a claimant with a condition such as anxiety or agoraphobia may well be conditioned by his illness: it will not need reminding by me here of the range of steps open to it to take. 33. I direct therefore that:(a) the question of whether the claimant satisfies (or is to be treated as satisfying) the work capability assessment is to be looked at by way of a complete re-hearing in accordance with the legislation and this decision;(b) the claimant must, within one month of the date of the letter sending him this Decision notify the First-tier Tribunal whether he seeks an oral hearing of his appeal or is content for it to be decided on the papers. If he wishes to apply for a hearing to be held at his home, he must do so, including supporting evidence from his GP as to the need for it, at the same time. Whether to agree to that application is a matter for the First-tier Tribunal;(c) unless otherwise directed, the claimant or his representative must ensure that any further written evidence is filed with the First-tier Tribunal no less than 21 days before the hearing date;(d) the tribunal will need to make full findings of fact on all points that are put at issue by the appeal. Unless it finds that the claimant reaches the 15 point threshold in any event, this will need to include making findings in relation to regulation 29, including as to the issues surrounding risk, the journey to work and attendance at work identified in the present decision;(e) if the tribunal rejects the claimant’s evidence, it must provide a sufficient explanation why it has done so and must give adequate reasons for its conclusions; and(f) 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 January 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. 34. While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing. 35. 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. C.G. Ward Judge of the Upper Tribunal 31 March 2014

Cited in 7 later judgments