Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Case No.  CE/4153/2013

ADMINISTRATIVE APPEALS CHAMBER

 

 

 

 

 

Appellant: Ms Gadissie Beru

Respondent: The Secretary of State for Work and Pensions

 

 

 

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

UPPER TRIBUNAL JUDGE ROWLAND

 

 

 

 

 

 

 

 

 

 

ON APPEAL FROM:

 

Tribunal: First-Tier Tribunal (Social Entitlement Chamber)

Case No: SC186/13/02292

Venue: Bristol

Hearing date: 13 August 2013

 

IN THE UPPER TRIBUNAL Case No.  CE/4153/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 13 August 2013 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided.

 

 

REASONS FOR DECISION

 

1. The claimant appeals, with my permission, against a decision of the First-tier Tribunal dated 13 August 2013, whereby it allowed her appeal against a decision of the Secretary of State to supersede and terminate an award of employment and support allowance on the ground that the claimant no longer had limited capability for work.  The First-tier Tribunal concluded that she did have limited capability for work under regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 (SI 2008/794) but that she did not have limited capability for work-related activity.

 

2. The claimant’s appeal was initially opposed by the Secretary of State but was then stayed to await the decision of the three-judge panel in IM v Secretary of State for Work and Pensions [2014] UKUT 412 (AAC), in the light of which the appeal is now supported.

 

3. The only ground upon which it might have been found that the claimant had limited capability for work-related activity was under regulation 35(2).  The Secretary of State concedes that this was a case where it was not obvious that that provision could not apply and where the First-tier Tribunal needed to consider what type of work-related activity the claimant might be required to do in order to be able to decide whether “there would be a substantial risk to the mental or physical health of [the claimant] if [she] were found not to have limited capability for work-related activity”.  I agree, but I do so because, despite the care it obviously took in making its decision, the First-tier Tribunal has not adequately considered the risk of the claimant being required to engage in unsuitable work-related activity.

 

4. In relation to regulation 29(2)(b), the First-tier Tribunal said –

 

“28. The Tribunal has found that the appellant has a serious mental health condition and has difficulty engaging in social contact with people she is not familiar with.  While it was unable to award more than 6 points on the evidence, it was satisfied by the information from the GP that the Appellant would find it extremely stressful to attend the Job Centre and to carry out the requirements of a jobseeker’s agreement.  On this basis it found that she would be unlikely to cope if she was required to look for work and that there would be a substantial risk of her serious mental health problems becoming even worse.”

 

5. However, in relation to regulation 35(2), it said –

 

“31. The Tribunal found that the Respondent will act reasonably when requesting the Appellant to take part in work-related activity and will take into account the Appellant’s mental health when deciding what activity it is appropriate to require her to undertake.  Work-related activity is intended to support a person in becoming well enough to work and should be of benefit to them.”

 

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 the 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.

 

 

 

Mark Rowland

23 April 2015