KB v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Regulation 35) [2015] UKUT 179 (AAC)

UKUT-AAC
KB v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Regulation 35)
[2015] UKUT 179 (AAC) · 2015-04-10
[1]The Secretary of State’s representative has expressed the view that the decision of the tribunal involved the making of an error on a point of law and has agreed to a rehearing. The claimant, by making this appeal, has done the same. 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]The claimant has a diagnosis of recurrent depression and personality disorder. Her appeal was against the DWP’s decision dated 21 September 2012 that she had limited capability for work, but not limited capability for work-related activity. She did not request an oral hearing and the First-tier Tribunal determined on the papers to uphold the DWP’s decision, holding that none of the Schedule 3 descriptors were satisfied and that the claimant did not meet the requirements of regulation 35 of the Employment and Support Allowance Regulations 2008, which provided at the material time that:
“(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if— (a) the claimant suffers from some specific disease or bodily or mental disablement; and (b) 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-related activity.”
[3]Most of the challenges to the tribunal’s decision were in respect of disputes of fact and permission to appeal on those was refused. I did however give permission to appeal limited to two issues, the first of which was the tribunal’s reliance on an assumption in relation to work-related activity that:
“It was reasonable to expect the JobCentre to take on board the fact that [the claimant] suffers from mental health problems and for them to tailor work related activity in this knowledge.”
[4]This case, along with others, was stayed for some time, while the correct approach for tribunals to adopt in reg 35 cases was worked out in other appeals. In due course a decision was given by a three judge panel in IM v SSWP (ESA) [2014] UKUT 412 (AAC) . Although that was of course after the tribunal’s decision which is presently under appeal, it nonetheless declares what the correct approach must be taken to have been. In the light of IM , it is clear the tribunal’s decision fell short. The Secretary of State submits, correctly in my view, that the First-tier Tribunal had no evidence before it of the types of work-related activity available in the claimant’s area at the relevant time or of what work-related activity the Secretary of State considered the claimant capable of undertaking without substantial risk to her or anybody else’s health. Nor was it a case in which it was obvious that there was no evidence of the substantial risk required to satisfy regulation 35. It follows that it was not open to the tribunal to deal with the matter, as it did, by the reliance it placed on the passage cited at [3] above.[5]What makes this case somewhat unusual in legal terms is that the claimant has an underlying entitlement to carer’s allowance, that is to say, she would be paid it but for the operation of the regulations concerned with overlapping benefits. This necessitates consideration of regulation 3 of the Employment and Support Allowance (Work-Related Activity) Regulations 2011/1349, which provided at the material time:
“(1) The Secretary of State may require a person who satisfies the requirements in paragraph (2) to undertake work-related activity as a condition of continuing to be entitled to the full amount of employment and support allowance payable to that person. (2) The requirements referred to in paragraph (1) are that the person— (a) is required to take part in, or has taken part in, one or more work- focused interviews pursuant to regulation 54 of the ESA Regulations; (b) is not a lone parent who is responsible for and a member of the same household as a child under the age of 5; (c) is not entitled to a carer's allowance; and (d) is not entitled to a carer premium under paragraph 8 of Schedule 4 to the ESA Regulations. (3) A requirement to undertake work-related activity ceases to have effect if the person becomes a member of the support group. (4) A requirement imposed under paragraph (1)— (a) must be reasonable in the view of the Secretary of State, having regard to the person's circumstances; and (b) may not require the person to— (i) apply for a job or undertake work, whether as an employee or otherwise; or (ii) undergo medical treatment. (5) A person who is a lone parent and in any week is responsible for and a member of the same household as a child under the age of 13, may only be required to undertake work-related activity under paragraph (1) during the child's normal school hours.”
[6]From this it may be seen that a person who is “entitled to a carer’s allowance” is excluded from the categories of people who can be legally required to undertake work-related activity in any event, as are the other categories of people referred to in sub-paragraphs (b) and (d) of para (2).[7]If they cannot be required to undertake work-related activity anyway, does that mean there would be no harm to them if they were not found to have limited capability for work-related activity?[8]Similar issues may also arise where it is the Secretary of State’s view that there is no reasonable requirement for work-related activity which he could impose, having regard to the person’s circumstances: see reg 3(4).[9]By Directions dated 22 May 2014 I gave both parties the opportunity to respond on the significance of the underlying entitlement to carer’s allowance. Neither party did so. By Directions dated 24 September 2014 Upper Tribunal Judge Parker gave a further opportunity for submissions, to address the decision in IM (which had by then been issued) and raised again the implications for reg 35(2) of the underlying entitlement to carer’s allowance. On 18 December 2014 the Secretary of State responded, addressing only the IM point and the claimant has indicated she has nothing further to add. I am therefore addressing the carer’s allowance point without the benefit of argument.[10]In IM , the panel set out at length the legal framework applicable to work-related activity, which I do not repeat here. Suffice it to note that as indicated at [8] of IM :
“Whether a claimant has limited capability for work-related activity is important not just in terms of the amount of employment and support allowance payable or the length of time for which a contributory allowance may be paid but also for the purpose of determining whether entitlement to employment and support allowance may be made conditional on the claimant taking part in assessments, interviews and work-related activity.”
[11]Regulation 35 is, in general, about the assessment of risk to an individual, for the reasons explained by the panel in IM . For that reason, the decision required evidence to be provided of the sort of work-related activity that was available in a person’s area at the relevant time and in which it was thought s/he could engage without risk to health.[12]Regulation 35, though, is concerned with the calibration of a person’s disability for purposes such as those referred to in [10], by reference to the possible consequences if work-related activity were to be imposed. That that is the nature and purpose of reg 35 is implicit in the comments of the panel at [85] of IM that:
“We agree with Judge Jacobs in NS v Secretary of State for Work and Pensions (ESA) [2014] UKUT 149 (AAC) and Upper Tribunal Judge Bano in CMcC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 176 (AAC) that, where there is no work-related activity in which the claimant could engage without a substantial risk to someone’s health, the fact that the Secretary of State could not reasonably require the claimant to engage in work-related activity under regulation 3 of the 2011 [Regulations] does not mean that the condition of regulation 35(2) is not met. That would undermine the purpose of regulation 35(2).”
From that it is clear that the legal impossibility of imposing work-related activity does not prevent consideration for the purposes of reg 35(2) of what risks would ensue if a requirement for work-related activity nonetheless hypothetically were to be imposed. In the cases cited in IM, the legal impossibility arose because of reg 3(4)(b). I see no reason to differentiate the situation of those on whom it is not possible to impose work-related activity because they are entitled to carer’s allowance, nor indeed because they fall within the categories in sub-paragraphs (b) or (d) of paragraph (2) of that regulation and, as noted, the Secretary of State has not attempted to persuade me that there is. It follows that while evidence in accordance with IM still needs to be provided, what is required of the tribunal to which this case is remitted is to conduct a thought experiment as to what the consequences for this claimant would be if such work-related activity were to be required of her (even though it legally cannot be).[13]The other point on which I gave person to appeal was whether the tribunal erred, in its conclusion that:
“It may be that [the claimant] needs to be accompanied to an appointment but it was clear from the papers before the Tribunal that she had support which could facilitate this if necessary. It did seem however from the papers that [the claimant] could get about on her own at times.”
In arguing that the tribunal’s decision on this point should be upheld, the Secretary of State sought to rely on the decisions of Upper Tribunal Judge White in CE/226/2013 at [36] and [37] and of Upper Tribunal Judge Parker in CSE/79/2013 at [15] and [16]. I consider that my decision on the equivalent provision of reg 29 in PD v SSWP (ESA) [2014] UKUT 1048 (AAC) at [21] also tends to support the tribunal’s decision in this respect. Against that, there is other authority supporting the contrary position: see MT v SSWP (ESA) [2013] UKUT 545 (AAC) at [34] (Judge Gray).[14]The issue may or may not arise when the case is remitted, depending on the tribunal’s findings and its conclusions as to whether or not reg 35(2) would be met irrespective of this issue. Because the appeal has effectively been conceded on the reg 35(2) point this aspect has not received argument and it is unfair to impose upon the claimant , who is not professionally represented, the burden and delay of providing additional submissions on these cases when the issue may prove to be hypothetical anyway. In those circumstances it seems appropriate, if the issue does prove to arise, to leave it to the First-tier Tribunal to address these divergent authorities in accordance with normal approaches to such a situation. The point is discussed in general terms in the Supplement to Social Security Legislation 2014/15 at 2.075.[15]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.[16]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 10 April 2015

Cited in 2 later judgments