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Neutral Citation Number:	2013 UKUT 118 AAC
Reported Number:
File Number:	CE 1750 2012
Appellant:	AH
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	05/03/2013
Date Added:	03/04/2013
Main Category:	Employment and support allowance
Main Subcategory:	WRAA Schedule 3 prescribed activities
Secondary Category:	Employment and support allowance
Secondary Subcategory:	effect of work
Notes:	Reported as [2013] AACR 32. Work-related activity – Schedule 3 Activity 1 – approach to repeatability and reasonable timescale Regulation 35(2) – proper approach – need for sufficient evidential base As part of the conversion process from incapacity benefit to employment and support allowance (ESA), the appellant submitted a questionnaire to say he was unable to walk 50 metres because of pain and fatigue. His GP’s report confirmed, among other things, that the appellant had problems in mobilising. A health care professional interviewed and examined the appellant and confirmed he was unable to mobilise for more than 100 metres or to remain at a work station for more than an hour. The Secretary of State decided that the appellant was entitled to ESA because he had limited capability for work but that he did not have limited capability for work-related activity. Following an unsuccessful appeal the appellant’s representative applied for permission to appeal to the Upper Tribunal (UT) on the grounds that the F-tT had misapplied Activity 1 of Schedule 3 to the ESA Regulations and that the appellant satisfied regulation 35(2) because he had chronic fatigue syndrome. In granting permission the district tribunal judge asked the UT for guidance about the interpretation of particular words for the purposes of Descriptor 1 of Schedule 3 to the ESA Regulations and whether the meaning of the words was the same within Schedule 2 and Schedule 3. Held, allowing the appeal, that: 1. the words “repeatedly”, “significant discomfort or exhaustion” and “reasonable timescale” were normal words in everyday use. There was no reason why these words should have a different meaning in Schedule 3. The purpose of Schedule 3 was to identify those claimants who were not required to take part in work-related activity by reference to the nature and extent of their disabilities (not by reference to work-related activity itself). The effect of coming within Schedule 3 might differ from that of coming within Schedule 2 but the criteria for classifying claimants was the same. It was not for the UT to provide a more specific content to the law than the language used in the legislation. The key to applying the words within Activity 1 lay in making findings of fact relevant to them which were as specific as the evidence allowed. The F-tT’s decision erred in law as it failed to make findings of fact on the terms of the Activity in sufficient detail to show whether or not it applied (paragraphs 18 to 22); 2. the approach of the Court of Appeal in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42, reported as R(IB) 2/09 was approved. Applying that reasoning to regulation 35(2) required the decision maker to have assessed the range or type of work-related activity which a claimant was capable of performing and might be expected to undertake. There must be appropriate evidence relevant to each of the two elements: (i) the nature of the work-related activity (which must be provided by the Secretary of State for Work and Pensions) and (ii) the claimant’s health. The nature of the claimant’s disabilities would have determined the nature of the evidence required in order to decide whether regulation 35(2) applied. There were two broad possibilities: either general information was sufficient or evidence on the specific nature of the activity to be undertaken by the appellant was required. In this case specific evidence (not general information) was required and in its absence the F-tT’s decision that regulation 35(2) did not apply was not soundly based (paragraphs 24 to 32). The UT set aside the decision of the F-tT and remitted the case to a differently constituted panel for rehearing in accordance with its directions. Editor’s note: this is a companion decision to ML v Secretary of State for Work and Pensions (ESA) [2013] UKUT 174 (AAC); [2013] AACR 33
Decision(s) to Download:	[2013] AACR 32bv.doc