Upper Tribunal (Administrative Appeals Chamber)

 

 

IN THE UPPER TRIBUNAL Appeal No.  CE/1882/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge PA Gray

 

The decision of the Upper Tribunal is to allow the appeal.  The decision of the Port Talbot Tribunal made on 1 November 2012 under number SC 156/12/03380 was made in error of law.  under section 12 (2) (a) and (b) (ii) Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be referred by a fresh tribunal in accordance with the following directions.

 

Directions

 

1. The case will be relisted as an oral hearing before a freshly constituted First-Tier Tribunal. The submissions of the Secretary of State in this appeal should form part of the tribunal bundle together with this decision and my decision in the case of MT-vSSWP for the benefit of that tribunal.
2. The appellant is to file any additional evidence within 28 days of the date of the issue of this decision; that is not to suggest further evidence is expected.  In order to be of relevance the evidence must shed light on how matters stood at the date of the original decision under appeal, 31 March 2012.

 

 

In this case following my grant of permission to appeal both parties indicated that they would be content if I remitted the case for a further hearing by a fresh first-tier tribunal without giving reasons. I had in my granting permission directed the Secretary of State to file a further submission as to the types of Work Related Activity that the appellant would be required to undertake, and the extent of any regime in terms of time and regularity, should she remain in the Work-Related Activity Group.  The contents of that submission lead me to the view that I need to give some reasons for my decision.

 

 

REASONS FOR DECISION

 

1.               This matter concerned an award of Employment and Support Allowance to the appellant, following a decision made by the Secretary of State on 31 March 2012 that, although she continued to be accepted as having Limited Capability for Work she did not have Limited Capability for Work Related Activities.  She had previously been in receipt of Incapacity Benefit, and this decision was the final part of the conversion process in her case. The appellant had been examined by a health care professional, a registered nurse, on 4 January 2012.  The report and the accompanying scoresheet indicated that she scored only nine points under the schedule 2 activity number 2, concerning her ability in standing and sitting, which was insufficient for an award of any type to be made; additionally the healthcare professional considered the relevant non-functional descriptor regulation 29, and found it not to be applicable. A decision maker, however, looking at all the evidence on 31 March 2012 found that regulation 29 was satisfied. There may be an error in the Secretary of State's response to the FTT, in that it stated that the decision maker found the appellant to have scored "at least 15 points from the appropriate descriptors", nonetheless the decision goes on to find that regulation 29 (2) (b) was applicable, although none of the schedule 3 descriptors applied, and regulation 35 (2) (b) was not satisfied, so she was placed in the Work-Related Activity Group.

2.               A finding under regulation 35 (2) (b) is to the effect that there would not be a substantial risk to the mental or physical health of any person if she was found capable of work related activity.

3.               The decision of 31 March was the subject of an appeal.  The First-Tier Tribunal heard the appeal on 1 November 2012, and confirmed the decision of the Secretary of State. 

 

The decision under appeal

 

4.               The only issue at the FTT was whether regulation 35 (2) (b) was satisfied. It reads as follows:

 

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 reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person is the claimant were found not to have limited capability for work related activity.

 

 

5.               Regulation 34 (1) relates to the satisfaction of one of the descriptors in schedule 3 of the ESA regulations, which demonstrates limited capability for work related activity, and confirms entry into the support group.

6.               The appellant was not represented at the FTT. In fact she had declined the opportunity to attend a hearing, where she might have been able to explain the effect of her ill-health upon her daily life. It is possible that she rejected that option because of some of the problems that she has explained she suffers from in her form ESA 50. She said that she had problems coping with social situations, ticking the "no" box about meeting people without feeling too anxious or scared, in respect of both people she knew and people she did not know. She said "I hate having to meet people whether I know them or not".  The FTT considered whether or not to adjourn for an oral hearing, but decided that they had sufficient information before them to make an informed fair and just decision.

7.               The FTT’s findings of fact seem to be based upon the health care professional’s report, part of which reported the appellant's remarks to the nurse.  The findings deal with physical matters, and on the whole explain sufficiently why none of the schedule 3 activities dealing with physical problems applied to the appellant, but there appears to have been no active consideration of the descriptors in that schedule which deal with mental health problems, particularly in relation to dealings with other people. The only remark concerning the appellant's mental health problems was "whilst she suffers from depression its impact was not so severe as to result in any of the mental health descriptors applied to her." That is not an adequate reason without it being underpinned by findings of fact.  As I have said that was the only reference to mental health problems; there was no fact finding as to their impact upon her function at all.

 

The regulation 35 considerations

8.               The conclusion of the tribunal was that regulation 35 did not apply, but neither was there any indication as to what considerations the tribunal had given to what work-related activities might be demanded of the appellant, nor did they explain why the non-functional descriptor did not apply. It was not enough to rely on the finding that none of the mental health descriptors in schedule 3 applied to her; if any of them had the tribunal would not have been considering the non-functional descriptor at all. Accordingly more reasoning than this was required.

 

The appeal to the Upper Tribunal

9.               The appellant sought to help to appeal the FTT decision, and has been represented by a charity, "Catch Up Ltd".  Ms Thomason from that charity made a submission in which her first point was that there had been no explanation either from the FTT all the DWP decision maker what aspects of her condition warranted the application of regulation 29 (2) (b), and in particular it was not explained why regulation 29 as opposed to regulation 35 was applicable "therefore, we do not appear to have information to challenge.".  The representative asks for an explanation as to why she was considered at risk if found not to have limited capability for work, but not limited capability for work related activity.  This is an important point in view of the comments made by Upper Tribunal Judge Jacobs in ML-v-SSWP[ 2013]0174(AAC).  He said at paragraph 15 in respect of the need for information as to what work related activities would involve:

 

… "it must be possible to give sufficient indication of what is involved in order to allow claimant to provide evidence and argument, and to allow tribunal to make a decision. The decision whether or not a claimant satisfies the conditions of the support group….. the existence of a statutory right of appeal requires that it must be effective. It cannot be effective without the necessary information to claimants to participate in the appeal and for the tribunal to make a decision.. "

 

10.           In my directions on granting permission to appeal I asked the Secretary of State to provide information as to what work-related activities were likely to be expected of the appellant.  I did not think that this would prove to be a problem; after all the decision maker has already decided that there would be substantial risk to the health of the appellant or another person if she were to be found capable of work, but that there would not be a similar risk in finding her capable of work-related activities. In making that distinction the Secretary of State's decision maker must have had an idea of the sort of work related activities that she might be asked to engage in. Without that it seems to me that the decision could not have been made, or it least it could not really be described as a decision, that being a conclusion which is arrived at following some evaluation of evidence.

11.           The importance of this decision is in its effect on the appellant, who, if found capable of work-related activities is subject to the sanction regime which applies where a decision maker decides that there has been a failure to comply with a direction to engage in work related activities- whatever they may be.

12.           I accept that it may be hard to make the distinction between the sort of activities which are involved for those seeking work and those who must engage in work related activities.  That seems to me to be more problematic as these groups are homogenised within the umbrella of the work programme.  I have heard about schemes which do not distinguish between those in the WRAG and those who are exempt from work related activities.

13.           The recent submission of the Secretary of State says that work-related activities could include a CV writing, confidence building course, basic skills, participate in basic literacy or numeracy courses, participating in English language training, work experience, mandatory work placements for community benefit, and that the list is not exhaustive. It is explained that there are "other activities claimants may be required to undertake which would be discussed with the advisor to ensure it is flexible and tailored to individual circumstances." I accept that, and the engagement and discussion between the claimant and an adviser about this would generally be considered a very positive thing, however there may be disagreement between claimant and adviser as to the capacities of the claimant, and where an acceptable view to both cannot be reached, the issue may be resolved by a sanction decision. The method by which a decision maker decides upon whether the work-related activity that a claimant is directed to undertake is reasonable is, in the absence of some basis of what is expected by way of work-related activities, opaque. I explained in MT-v-vSSWP at paragraphs 24 and 25 why this matters:

24. Any claimant may, if they wish, engage in work related activities. In most cases it will be to the benefit of a claimant to discuss ways to improve their chances of ultimately obtaining employment and often participation in activities which reflect expectations at work will be helpful to establish the extent to which a person can cope with those expectations or where their limitations lie. These issues may then be addressed. Difficulties may arise, however, where there is disagreement between the claimant and the adviser as to what activities they may safely be able to engage in, and at that stage there is no dispute resolution mechanism. The disagreement could end with a claimant being sanctioned. Only at that stage would there be the prospect of an appeal to establish whether there had been reasonable cause for any refusal to engage in work-related activities. From 3 December 2012 the sanction is 100% of the personal allowance, currently £71.70 a week, leaving the claimant only with the work-related component of £28.45 a week.  The sanction continues for each week that there is non-compliance with the requirement, and there is an additional fixed term of between one and four weeks depending upon whether there has been a previous sanction.  If the claimant chose to pursue a work-related activity about which they felt uncomfortable to avoid the threat of sanction, there may be a risk to health.

 

25. Regulation 35 provides protection to an unusually vulnerable claimant against those circumstances occurring.  Within that protective cloak a claimant can agree to engage in certain activities but cannot be compelled to do so; conditionality does not apply. I would emphasise that this issue relates to a very small group of vulnerable people, essentially comprising those with significant mental health problems or learning difficulties. They are those who are the least likely to be able to challenge any sanctions.

 

 

14.           I do not need to go into detail about this appellant’s medical conditions. It is enough to explain that she suffered from mental health problems which led to her having difficulties getting around unaccompanied, and which, the FTT found as a fact, led her to behave "occasionally in an unreasonable manner when in the presence of other people". It was the nature of her mental health issues which put her into a potentially vulnerable position, making consideration of the non-functional descriptor essential.

15.           The task of the FTT is a difficult one, and made the moreso by the absence from the Secretary of State of critical evidence as to specific matters upon which findings must be made.  Experience tells me, and no doubt FTT judges, that the adjourning for such information is generally a futile exercise.  What is to be done, as the FTT will not want to adjourn and prolong the case where another way is possible?  In MT-SSWP cited above I put forward two approaches which if adopted would allow fair decision making where there was insufficient evidence of what work related activities were in contemplation; I felt that either was preferable to an FTT simply putting forward work related activities they had heard about in the assumption that a claimant would only be asked to participate in those, and nothing more onerous.  In fact the submissions of the Secretary of State to the Upper Tribunal indicate that the range of potential work related activities is very wide, and includes since 3/12/12 mandatory work placements.  My suggested approaches in that case were as follows:

 

 

What if, as in this case, the information is not before the FTT?

 

16.           Was this FTT able to make an assumption as to what work-related activities would be required of this appellant? 

 

17.           My answer to that question, and therefore the crux of my decision in this appeal, is no.  The identification of certain limited activities in which the appellant may be able to engage and the use of those findings to found a decision that regulation 35 (2) is not satisfied creates a situation whereby because the appellant is judged to be capable of carrying out some work related activities they are put into a position where there may be an assumption by an adviser that they could carry out any work related activity that was directed, with the consequent sanction risk.  That seems to me to perpetuate the mischief that regulation 35 is there to alleviate.  The requirement within the regulations that the work-related activity be "reasonable" does not cure the defect, because the issue of reasonableness is for the adviser, and there is no direct challenge to that judgement.

 

18.           In this case and in general, what is to be done if the FTT is faced with the problem of either no information or generalised information such as that set out in the Secretary of State's submission in CE/3916/2012?  The FTT may yet be able to fairly and justly deal with the appeal without adjourning for case specific information, an approach that would if replicated in sufficient numbers prolong the process to the detriment of appellants and cause logistical difficulties both for the DWP and HMCTS.

 

 

Is there a solution for the FTT?

 

19.           The options seem to me to be twofold. Each will result in subtly different legal outcomes.

 

20.           The FTT could make a decision that in the absence of specific evidence of what would be required of this particular appellant by way of engagement in work related activity the Secretary of State has not shown that, at the date of the decision and appeal, they did not have limited capability for work-related activities.  The provisions of regulation 35 (2) (b) then apply.  The Secretary of State could supersede that decision under regulation 6 (2) of the Social Security and Child Support Decisions and Appeals Regulations 1999, the grounds being either a change of circumstances under 6 (2) (a) (i) or error of material fact, 6 (2) (c) (i), or, after a three-month period under regulation 35 (5) of the Employment and Support Allowance Regulations. Either decision would provoke an appeal, in which an issue will again be as to what work-related activities can be accomplished without substantial risk.  Under rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 the Secretary of State must in that appeal set out his opposition to the appellant's case, stating the grounds. (MN v Secretary of State for Work and Pensions [2013] UKUT 262 (AAC)

 

21.           There are advantages in this approach for appellants over that of adjourning.  The current legal proceedings are concluded, generally of itself a relief. If the Secretary of State decides to supersede there is the protection of the appeals process, but he may not choose to supersede the tribunal decision; the way through to engagement in work related activities may be negotiated with the skills and good sense of an adviser without the element of compulsion that can cause considerable stress, particularly to those who must have significant functional impairment having been already found to have limited capability for work. In the words of Lords Neuberger and Toulson delivering the judgement of the court in R on the application of Reilly and another -v- Secretary Of State for Work and Pensions 2013 UKSC 68 at paragraph 64, (in the context of those without any limitations as to their capacity to work)  "For the individual, the discontinuance or threat of discontinuance of jobseeker’s allowance may self-evidently cause significant misery and suffering" 

 

22.           The alternative is really the obverse of that, and deals with what I see as the problem which may arise from the approach set out in CE/3916/2012.  The tribunal could make a decision stating in terms what work-related activities would not result in a substantial risk to the health of the appellant, also stating that more onerous commitments would be likely to result in substantial risk to the health of the appellant, or where relevant, of any other person. That differs from the decision of the FTT in this case, where the basis of their finding was that the appellant would only be asked to perform non-onerous activities, and that she could do. Would that decision, with such ‘conditional’ findings, bind the Secretary of State? It would be tribunal decision that contained specific findings of fact which the Secretary of State would need to make a fresh decision to overcome. This would be a supersession decision as above, and would carry rights of appeal; once again there would be an onus on the Secretary of State to provide information as set out previously. For practical purposes following the appeal I would envisage a tribunal decision framed in those terms as carrying weight in the same way that, I understand, occurs where on appeal to a FTT the decision is that there is not limited capability for work, but some points are scored.  The findings of the FTT in relation to specific descriptors being applicable are taken into account by the job centre in the drafting of the job seeker's agreement and in relation to the expectation to apply for specific jobs.  It would seem reasonable for the findings of a tribunal as to which work-related activities or types of work-related activity an appellant could be expected to engage in without a substantial risk to their health or the health of others to be similarly acknowledged.

 

23.           I remit the appeal to the fresh FTT with that guidance.  The fact that the appellant has succeeded at this stage is no indication as to the final outcome.

 

 

 

 

 

 

(Signed on the original) PA Gray

 

Judge of the Upper Tribunal

 

5 November 2013