“35.-(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 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 not to have limited capability for work-related activity.” (a) the claimant suffers from some specific disease or bodily or mental disablement; and (b) 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 not to have limited capability for work-related activity.”
“I acknowledge the conceptual difficulties raised by the application of regulation 35(2), given the existing authorities, in foreign cases such as this. The Secretary of State’s proposed solution has the benefit of levelling, to an extent, the playing field. It reduces the chances of different reg. 35(2) outcomes solely by reason of a person’s country of residence. If an appellant does not object, the First-tier Tribunal ought to adopt the course suggested by the Secretary of State. If the appellant does object, the Tribunal will need to decide for itself how to proceed taking into account the reasons for the objection and any submissions of the Secretary of State.”
“Determination of limited capability for work 19. —(1) For the purposes of Part 1 of the [WRA], whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part. (2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities. (3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least— (a) 15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule; (b) 15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or (c) 15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule…”
“For the purposes of Part 1 of the [WRA], where, by reason of a claimant’s physical or mental condition, at least one of the descriptors set out in Schedule 3 applies to the claimant, the claimant’s capability for work-related activity will be limited and the limitation will be such that it is not reasonable to require that claimant to undertake such activity.”
“12 Work-focused interviews (1) Regulations may make provision for or in connection with imposing on a person who is— (a) entitled to an employment and support allowance, and (b) not a member of the support group…….., a requirement to take part in one or more work-focused interviews as a condition of continuing to be entitled to the full amount payable to him in respect of the allowance apart from the regulations. (7) In this section, “work-focused interview” means an interview by the Secretary of State conducted for such purposes connected with getting the person interviewed into work, or keeping him in work, as may be prescribed.”
“13 Work-related activity (1) Regulations may make provision for or in connection with imposing on a person who is subject to a requirement imposed under section 12(1) a requirement to undertake work-related activity in accordance with regulations as a condition of continuing to be entitled to the full amount payable to him in respect of an employment and support allowance apart from the regulations. (7) In this Part, “work-related activity”, in relation to a person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so.”
“(8)The reference to activity in subsection (7) includes work experience or a work placement.”
“Requirement to undertake work-related activity 3.—(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.”
“47…..He argues that, as was decided in ML, he cannot say in advance what a particular claimant might be required to do and so, if there is any work-related activity that a claimant can reasonably do, regulation 35(2) cannot apply. In Miss Olley’s [his counsel’s] skeleton argument, she says: “53. The reason is that the Secretary of State is not, as at the date of the decision on LCWRA, in a position to know the specific WRA that would be required of the particular claimant. That level of detail will only become known once the provisions of the statutory framework have been worked through and an action plan arrived at under regulation 5 of the WRA Regulations. This is the case whether the claimant's contact is with the Job Centre Plus or a Work Programme provider. “53. The reason is that the Secretary of State is not, as at the date of the decision on LCWRA, in a position to know the specific WRA that would be required of the particular claimant. That level of detail will only become known once the provisions of the statutory framework have been worked through and an action plan arrived at under regulation 5 of the WRA Regulations. This is the case whether the claimant's contact is with the Job Centre Plus or a Work Programme provider. 54. In addition to that point, which is a point of principle with reference to the statutory framework, the decision-maker who has never met the claimant may be based in, say, Glasgow, and therefore have no idea what WRA is available in, for example, Plymouth and therefore simply cannot give specific evidence of what may eventually be required by way of WRA as set out in an action plan reached in conjunction with a personal adviser at the JCP or a Work Programme provider.”
“6. The difficulty highlighted in IM is that, because the results of work capability assessments are not routinely passed to providers who determine what work-related activity a claimant should be required to do, there may a risk of a provider requiring a person with, say, mental health problems to perform unsuitable work-related activity, due to the provider’s ignorance of those problems or their extent. This difficulty is liable to be exacerbated if, as in both IM and the present case, the claimant is, or is likely to be, unable to engage in social contact with the provider and so explain her difficulties herself. 7. Thus, in the present case, the First-tier Tribunal’s finding that “the Respondent will … take into account the Appellant’s mental health” appears unwarranted or, at best, not supported by adequate reasoning. If there was a significant risk of the claimant being required to engage in work-related activity that would be as stressful as being required “to attend a Job Centre and to carry out the requirements of a jobseeker’s agreement”, which the First-tier Tribunal had found would give rise to a substantial risk to her mental health, the First-tier Tribunal would have been required to find that regulation 35(2) was satisfied in the claimant’s case.”
“It was unlikely [because she lived in Spain] that she would be required to undertake any work-related activity other than perhaps an occasional telephone call from the respondent’s Department. The Tribunal noted the points awarded by the respondent and concluded that none of the activities which gave rise to those points would restrict the appellant in terms of work related activities because those activities would have to take into account the limitations recognised by the respondent…. The Tribunal also concluded that in view of the fact the [doctor] had spoken to the appellant as well as examined her that his opinion could be accepted in terms of Regulation 35 because he had indicated that Regulation 29 applied to her.”
“In the light of [the appellant’s] accepted problems coping with change, getting about outside, coping with social situations, and her behaviour with other people, and given the Upper Tribunal’s decision in IM –v- SSWP[2014] UKUT 412 (AAC) , it is well arguable the tribunal erred materially in law in (a) not identifying what work related activity [the appellant] might have been required to undergo in Spain and (b) not explaining adequately how she could safely undertake such activities.”
“I do not consider the response of the Secretary of State to be complete. This is because it fails to provide any evidence of what the notional work-related activity which [the appellant] would have been expected to undertake in April 2013 would have amounted to. Nor does it address and explain how [the appellant] would have safely undertaken such activities notwithstanding her difficulties coping with change, going out on her own, engaging socially with strangers and behaving appropriately with other people….. In such a situation the Secretary of State “can be expected to make a more focused submission as to why regulation 35(2) does not apply given the accepted disablement of the claimant”: per paragraph 113 of IM. In the context of my determining whether it would be appropriate for me to remit this appeal to another First-tier Tribunal to be decided, when it seems most unlikely that the appellant would attend any hearing before the First-tier Tribunal, I consider both of the above need to be provided to the Upper Tribunal. That is (i) the notional work–related activity [the appellant] would have to judged as being required to undertake in April 2013, and (ii) a focused argument explaining why so doing would not have given rise to a substantial risk to her or another person’s health notwithstanding the significant mental health problems accepted and identified….. I also remind the Secretary of State of paragraph 115 of IM, where the three judge panel said: “115…where the present practice of the Secretary of State has the effect that the relevant predictions cannot be made with sufficient certainty, the underlying purpose of regulation 35(2) is best served and promoted by a finding that regulation 35(2) applies rather than by leaving the vulnerable claimant to take the risk of a decision that causes the regulation 35(2) risk to materialise or would do so if not successfully challenged.”
“this is the list that would have been provided to the Tribunal if it had not pre-dated IM, and would have given them an idea of the kind of provision available.”
“However, were the claimant to actually live in Newcastle, or anywhere else in the UK, this is not the list that would have been used. There was a two year prognosis....which means that the claimant would be seen by the work coach as part of the Jobcentre Plus Offer. This is a series of interventions that are carried out by adopting a flexible approach to supporting claimant’s individual needs. The Jobcentre Plus Offer consists of four elements: Core interventions which must be undertaken, Flexible interventions, the frequency and duration of which is decided by the Advisor, Access to flexible menu of back to work support, and Access to Flexible Support Fund. This is not available as a list of activities, but being largely discretionary, and not involving visits to external training providers, can take place in Job Centres or by telephone as appropriate…… Were the claimant to be required to undertake work-related activity at the jobcentre, this could be done at home to obviate the need to go outdoors unaccompanied, or meet with people with whom she might behave inappropriately. Although the claimant would not be able to undertake the majority of the activities on the list aimed at who are closer to the labour market, she would be able to undertake some of the activities. Activities as highlighted in bold on the list. While the most demanding would be attending health and well-being workshops at the providers’ premises, one of the least demanding items on the list is referral to Richmond Fellowship for claimants with mental health or learning difficulties for bespoke guidance and action planning and activity support. This is clearly something that could be planned with the claimant’s functional restrictions in mind.”
“3. In his response of24 June 2015 the Secretary of State states that because [KC] had a prognosis of two years (i.e. the HCP had said that a return to work was not likely for at least 2 years), the “IM local work provider lists”, if I can call them that, would not have applied to her if she was in Great Britain. Instead she would have been seen by a job coach as part of the Jobcentre Plus Offer. 4. The latter is a separate category of people potentially subject to regulation 35(2), and is a new category as far as the Upper Tribunal is concerned. It did not feature, as far as I can tell, before the three judge panel in IM. It may have its basis in Memo DMG 17/15 dating from June of this year or it may have been a category before then. The statutory basis, if there is one, for this category of people is not explained. From DMG 17/15 and another case before the Upper Tribunal, it would seem that the threshold for not going down the “IM local work provider lists” route is if the claimant has a prognosis of 12 months or more. Ignoring claimants elsewhere in the EU (such as [KC]) for the moment, that threshold and the different context to the reg 35(2) risk assessment test to that addressed in IM is likely to affect a very substantial number of people to whom regulation 35(2) may apply. Given this, it seems at the least a little odd that it is introduced by way of a side reference in this appeal. 5. An explanation for the last point may be that Jobcentre Plus Offer route was not in place at the time of the decision under appeal in this case, that being8 April 2013 , and also was not in place at the relevant decision date in IM. However, the Secretary of State’s latest submission proceeds on the basis that it was. Is this the case and if so why was this important information not revealed in IM? 6. The Secretary of State’s argument that the Jobcentre Plus Offer route does not apply to [KC] (or all others getting contributory ESA elsewhere in the EU) seems to me to be misconceived. My previous directions sought details of the IM like work provider work-related activities for those elsewhere in the EU simply because I was not aware that a different set of activities to those considered in IM might apply to those in Great Britain. The logic of the Secretary of State’s argument, however, arguably must be for [KC] to be placed as near as is possible to the position of an equivalent person in Newcastle or elsewhere in Great Britain. If so, that must mean a person subject to the Jobcentre Plus Offer, if it was in place in April 2013 for ESA claimants found to satisfy Schedule 2 or regulation 29 for 12 or more months. 7. If [KC] would have been subject to the Jobcentre Plus Offer had she been living in, say, Newcastle in April 2013, then consistent with IM far more detail than has so far been given needs to be provided by the Secretary of State as to: (i) the detail of the activities she might have been expected to undertake in April 2013 under the Jobcentre Plus Offer; (ii) the least and most demanding activities she may have been expected to undertake; and, (iii) why regulation 35(2) would not apply notwithstanding her accepted disablement as identified by her Schedule 2 points score? Why this detail is needed is because (per para. [110] of IM) “where there turns out to be a serious argument in relation to regulation 35 [as in KC’s] case], the provision of the basic information about the more demanding types of work-related activity would enable the First-tier Tribunal to make the necessary predictions by reference to possible outcomes for the particular claimant”. 8. The information so far provided does not allow the First-tier Tribunal (or the Upper Tribunal if it was to remake the decision) to carry out this predictive exercise. The Secretary of State’s case seems to be akin to arguing that this route is so flexible that no substantial harm will ever arise. Would that not then mean, however, that no-one with a prognosis of 12 months or more could ever satisfy regulation 35(2) regardless of how severely limited their (mental) functioning was under Schedule 2? And would that not be contrary to the purpose of regulation 35(2): per para, [85] of IM? Putting this point another way, does regulation 35(2) not arguably require there to be work-related activity that may give rise to a substantial risk to health, and therefore do the activities not need to bear some relationship to work and so cannot be such that regulation 35(2) can never apply? 9. The Jobcentre Plus Offer elements although referred to by their headings give no detail of what they may entail. Given IM and the need for the First-tier Tribunal (or Upper Tribunal) to make predictions as to risk to health, that detail must be provided (if such elements would have applied to [KC] in April 2013). What is also needed is an accurate explanation of the structure within the DWP and Jobcentre Plus in April 2013 as to how [KC] would have been referred to a “work coach” and the systems, if there were such, in place that would have informed that coach of [KC]’s health problems and restrictions on functioning as shown by her Schedule 2 score. 10. On the other hand if the Jobcentre Plus Offer route would not have applied in April 2013 (because it then did not exist as an option), then the lists of work-related activity provided by providers put forward in the latest submission of the Secretary of State would seem also to be deficient. Firstly, it is unclear if this is a complete list of work-related activities ranging from the least to most onerous. It seems it may not be because what are highlighted as being activities [KC] could safely undertake seem to be the headings for all the activities that then follow, yet it is accepted that there are some of the activities she could not have done. Second, and relatedly, the lists do not identify the least and most onerous activities [KC] might have been expected to undertake in or shortly after April 2013. Third, it is not clear that these are lists of activities which were in place in April 2013. Fourth, there is no proper analysis of how [KC] with her limitations of functions (especially mental functions) as revealed by her points score on page 65 would safely be able to undertake work-related activity. For example, if she cannot get anywhere unfamiliar on her own, how would she get to a work-provider’s premises in Newcastle safely? A further issue arises as to why the Secretary of State downgraded the activity 17 assessment made by the HCP from 17(b) to 17(c), i.e. what was the evidential basis for it not being frequent episodes? 11. All of the above points must be addressed in a detailed further submission from the Secretary State, including the following: (i) from when did the Jobcentre Plus Offer route apply in respect of regulation 35(2) work-related activity to ESA claimants with a prognosis of 12 months or more?; (ii) if this did apply in April 2013, the issues raised and evidence sought in paragraphs 7 and 8 need to be addressed and the evidence provided, and it needs to be explained why this important evidence was not put forward in IM; (iii) or if the Jobcentre Plus Offer route of work-related activity was not in fact available in April 2013, the issues raised and evidence sought in paragraph 9 need to be addressed and the evidence provided.”
“…this is a troubling approach that fails to have proper regard to the underlying purpose of regulation 35(2) to provide a safety net for vulnerable claimants. It seems to us that a failure to pass on relevant information about an identified risk is contrary to any principles of risk-management, whether the recipient is to be bound by the information or not. ….it would not be surprising if [this] approach……to the application of regulation 35(2) was a significant factor in a vulnerable claimant falling through its safety net and so suffering harm.”
“While he may be able to deal with this on a one off basis to attend a particular appointment, usually while accompanied by another person, he would not be able to sustain this for a long period or be able to undertake many of the other activities that people in the work related activity group are asked to do.”
“if anything did happen that I may need to do e.g. attend a physio appointment or doctor’s appointment my anxieties and emotions would rise and I would work myself and my nerves up to such a level that I would have to increase my medication to deal with this, and an example of this would be I would have to take an extra diazepam and other medication, and by taking this extra medication would only in affect put me in a drug like state, and this would also leave me with long periods of heightened anxieties and stresses to get over the situation that had occurred.”
“It remains the case that both in its supplementary submission and through the presenting officer…., the department has only been able to provide a general list of activities which any person in [MC]’s position might be asked to carry out…….the tribunal does not accept that engaging in all types of work-related activity is likely to heighten [MC]’s anxiety….The tribunal understands…that [the DWP’s policy is that] where, as in this case, an HCP advises that a return to work is unlikely for at least 2 years, a Claimant would not be referred to the Work Programme and be required to undertake work related activity involving attendance at several interviews, training courses or other activities which might involve travelling or interacting with other people. The Tribunals accepts [this statement of policy]…..In considering the list of possible activities under the Work Programme,….MC would in any event be able to manage many of the activities listed….including all 1:1 interventions – training, attendance at job station, work with computers etc…from all of the evidence referred to above, in particular concerning [MC]’s ability to meet and relate confidently with doctors, including doctors not known to him, that at the date in question he was to cope adequately with one to one interactions and was capable of engaging in work-related activities not involving group activities. Under the [above] policy MC will not be required to engage in group activities….the balance of evidence is that taking into account the Department’s policy, [MC’s] mental health will not therefore be placed at substantial risk if found capable of work-related activity.”
“12.3. the FtT should be provided with evidence about all the types of WRA available in the claimant’s area, whether provided by the Secretary of State or Work Programme providers, including the least and most demanding types, together with information about what the claimant might be required to undertake from that list 12.4. this evidence is required in appeal responses about whether the claimant has LCW as well as those about whether they have LCWRA, so that the FtT can consider risk in cases where they find that the claimant has LCW, but does not satisfy any LCWRA descriptor”
“18 Where the issue is whether the claimant has, or should be treated as having, LCWRA, the DM should explain 1. why it is considered that no LCWRA descriptors (limited to those put at issue by the claimant if identified) apply and 2.by reference to the list of types of WRA available in the claimant’s area 2.1 which is the most and least demanding WRA on the list for the particular claimant and 2.2 which types of WRA it is considered that the claimant could be expected to undertake without substantial risk. Note: See paragraphs 30 – 33 for which list to consider, and include in appeal responses. 19 The DM should also consider, where available, evidence of 1. any WfIs attended, or WRA undertaken, and 2. if any, the effect of the WfI or WRA on the claimant’s health since the claimant was placed in the WRAG. This could be by production of the JCP action plan in appeal responses. Information about how the claimant has coped with WfIs and WRA may be relevant when assessing whether any risk to the claimant’s or anyone else’s health is likely, and if so, whether it is substantial.”
“30 The DM should consider whether the claimant should be treated as having LCWRA using the appropriate list of WRA by area. In cases where it is determined that the claimant does not have, and cannot be treated as having, LCW, this will be the list of WRA provided through the Work Programme. 31 Where the claimant is found to have, or is treated as having, LCW, the list to use depends on 1. whether the claimant would in practice be required to undertake WRA (see paragraphs 39 – 40) and 2. when it is considered that the claimant should be referred for a subsequent WCA ……). 32 Where the circumstances in paragraphs 39 – 40 apply, that is, where the claimant would not be required to undertake WRA, the list of WRA provided through the Jobcentre Plus Offer should be used, irrespective of when the claimant would be referred for a subsequent WCA. 33 In cases where the claimant would be required to undertake WRA, and the period before referral for a further WCA is 1. 12 months or less, the list of WRA provided through the Work Programme or 2. more than 12 months, the list for Jobcentre Plus Offer should normally be used. 34 Although the lists do not include information as to when a particular type of WRA became available, the types of WRA on either list have not changed significantly since the requirement for ESA claimants to undertake WRA was introduced on 1.6.11. 35 It should be noted that the Jobcentre Plus Offer list includes 1. WRA where a referral to a provider is required and 2. discretionary WRA. 36 The DM should provide the FtT with examples of the most and least demanding WRA which it is considered the claimant could undertake (see paragraph 37), rather than the whole list. The response to the FtT should explain that it is not practical to produce the whole list due to size constraints. 37 The DM should then consider what types of WRA that the claimant could undertake without risk, and which may be appropriate to help them become work-ready, given any information the DM has about the claimant’s work history and skills. This could be obtained from the ESA claim information, the questionnaire (form ESA50), the HCP report where there was a face-to-face assessment, and any other information which may be available. 38 The DM is not required to consider whether the types of WRA on the list of what is available in the claimant’s area, and that would be appropriate for that claimant, could be provided on the date of the decision, for example due to operational delivery issues. Nor is this necessarily the same as the WRA which the claimant might eventually be required to undertake. 39 Not all claimants who are placed in the WRAG are required to take part in a WfI, or to undertake WRA….. For example, a claimant who is entitled to CA or CP cannot be required to undertake WRA. 40 There may be claimants who could be required to undertake WRA, but for whom it would not be appropriate. For example, a claimant who has a contract of employment, and who is absent from work while recovering from medical treatment, may not be required to attend a WfI1, or to undertake WRA2. This is because the only thing preventing a return to work is the need to recover from the treatment. 41 The DM should disregard the fact that the individual claimant may be exempt from the requirement to undertake WRA, or would not in practice be required to undertake WRA, when considering whether there is a substantial risk if the claimant were found not to have LCWRA. The test is a hypothetical test, and should still be considered accordingly by reference to the lists of what WRA is available.”
“….in light of [paragraphs 58-60] of IM, the Department has been exploring the practical processes by which information from claimants’ [work capability assessments] can be shared with Jobcentre Plus work coaches and Work Programme providers. A process has been trialled involving decision makers specifically recording relevant information from the [work capability assessment] information to assist work coaches in determining [work-related activity]. Following the [work-focused interview], work coaches then add further relevant information and this would be emailed to the appropriate Work Programme provider to assist it to tailor its support to the claimant. [Details are being finalised, and our intention is to roll out this process with work coaches in September 2016 and with Work Programme providers sometime in 2017.]”
“[a]lthough the claimant could not undertake the majority of the activities on the list aimed at claimants who are closer to the labour market, she would be able to undertake some of the activities. activities as highlighted in bold on the list. While the most demanding would be attending health and well-being workshops at the providers’ premises, one of the least demanding items on the list is referral to Richmond Fellowship for claimants with mental health or learning difficulties for bespoke guidance and action planning and activity support.”
“is not strictly required because it does not materially change the meaning of [paragraph 36]. However, now that it has been pointed [out] that there is the potential for a different interpretation, the [Secretary of State] intends to amend the Memo to ensure it is more explicitly accurate in its reflection of the intention in IM.”
“In assessing the risks to the mental health of a claimant from a finding that a claimant does not have limited capability for work-related activity, a tribunal may therefore have to consider the possible effects on a claimant of stress resulting from the element of compulsion which the “conditionality” of work-related activity entails.”