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Neutral Citation Number:	2011 UKUT 317 AAC
Reported Number:
File Number:	CE 52 2011
Appellant:	Secretary of State for Work and Pensions
Respondent:	PT
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	28/07/2011
Date Added:	13/09/2011
Main Category:	Employment and support allowance
Main Subcategory:	Work-Related Activity Assessment (WRAA): general
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2012] AACR 17. Employment and support allowance – linked claim – whether assessment necessary for award of work-related activity component The claimant was in receipt of income-related employment and support allowance (ESA), and following a work capability assessment was awarded the work-related activity component (WRAC), but did not qualify for the support component. That entitlement came to an end when he started full-time employment on 16 March 2010. The employment ended on 24 March 2010 and he made a new claim for ESA with effect from 25 March 2010 and provided medical evidence from that date. He was awarded ESA from that date on the basis of regulation 145(1) and (2) of the Employment and Support Allowance Regulations 2008 (the ESA Regulations), which provides that any period of limited capability for work which is separated from another such period by not more than 12 weeks is to be treated as a continuation of the earlier period. However, in accordance with departmental guidance and advice, he was awarded the rate not including the WRAC because, having started a new “assessment phase”, he did not meet the condition for the WRAC in section 4(5)(a) of the Welfare Reform Act 2007 that the assessment phase has ended and was unable to qualify until he had had another work capability assessment. The claimant appealed. The First-tier Tribunal decided that, contrary to the Secretary of State’s view, regulation 149 of the Employment and Support Allowance Regulations 2008 had the effect that qualification for the WRAC resumed on the first day of the new period of ESA entitlement and that the claimant qualified for the WRAC from and including 25 March 2010. The Secretary of State appealed to the Upper Tribunal. Held, dismissing the appeal, that: 1. the provisions of regulations 148 to 150 were rendered irrelevant in the circumstances of the present case by regulation 7(1)(b) of the ESA Regulations, which applied precisely to the circumstances of the present case and provides that, where a period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 145(1) or (2), section 4(5)(a) of the Act does not apply. The effect of regulation 7(1)(b) in the present case was that as from 25 March 2010 the claimant qualified for the WRAC if the conditions in section 4(5)(b) and (c) were met, without any need to consider the assessment phase condition in section 4(5)(a) (paragraphs 11 and 12); 2. the claimant satisfied section 4(5)(b) on its correct construction. That sub-paragraph sets out the condition that the claimant does not have limited capability for work-related activity and the natural and obvious meaning of the words of section 4(4)(b) and 4(5)(b) is that together the two provisions exhaust all possibilities in relation to limited capability for work-related activity. Providing that paragraph (a) on the ending of the assessment phase is satisfied or does not apply, either a claimant has limited capability for work-related activity, in which case section 4(4)(b) applies, or has not, in which case section 4(5)(b) applies, and considering the provisions in context made no difference of substance (paragraphs 15 and 16); 3. the tribunal came to the only possible legal conclusion on the facts, although not by reference to the correct legal basis. The claimant qualified for the WRAC from 25 March 2010 under section 4(5) of the 2007 Act because paragraph (a) was not applicable, he satisfied paragraph (b) and there were no other conditions prescribed under paragraph (c) (paragraph 18).
Decision(s) to Download:	[2012] AACR 17bv.doc [2012] AACR 17ws.doc