Decision Summary Information

Back to Results | Search Again | Most Recent Decisions

Neutral Citation Number:	2013 UKUT 262 AAC
Reported Number:
File Number:	CE 3477 2012
Appellant:	MN
Respondent:	Secretary of State for Work and Pensions (ESA)
Judge/Commissioner:	Judge S. Wright
Date Of Decision:	22/05/2013
Date Added:	03/07/2013
Main Category:	Employment and support allowance
Main Subcategory:	Regulation 35
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	evidence
Notes:	Reported as [2014] AACR 6. Employment and support allowance – regulation 35(2) – proper approach – need for sufficient evidential base Tribunal practice and procedure – rule 24 of the First-tier Tribunal Procedure Rules On 10 November 2011 the Secretary of State converted the appellant’s award of incapacity benefit (IB) to employment and support allowance (ESA) with the work-related activity component. This was on the basis that the appellant was recovering from in-patient treatment and should therefore be treated as having limited capability for work. The appellant appealed to the First-tier Tribunal (F-tT) on the grounds, among others, that there were legal issues about the validity of the conversion and she should fall within regulation 35(2)(b) of the Employment and Support Allowance Regulations 2008 as she was still receiving regular medical care. The appeal papers submitted by the Department for Work and Pensions (DWP) failed to include a copy of the Secretary of State’s actual decision and no explanation was given about the legal basis for the decision in the Secretary of State’s written appeal response. The F-tT dismissed the appellant’s appeal on the basis that she failed to satisfy any of the descriptors in Schedule 3 to the ESA Regulations. Permission to appeal was granted by a judge of the Upper Tribunal (UT). The Secretary of State’s representative accepted there had been errors in the F-tT’s decision; it failed to address all the grounds of the appeal and in the absence of the original decision it was unclear why the appellant had been treated as having limited capability for work. Held, allowing the appeal, that: 1. it was unsatisfactory that the basis for the 10 November 2011 decision was not made clear in the appeal bundle and that on appeal to the Upper Tribunal the Secretary of State’s representative had to speculate as to its basis (which seemed to be regulation 25 of the ESA Regulations). As the actual decision was not included in the appeal bundle, the legislative basis for the decision ought to have been explained in the written appeal response (paragraph 7); 2. the F-tT erred in law by failing to explain the reasons why the appellant’s IB could be converted to ESA but this provided no grounds for setting its decision aside, as the appellant’s concerns could be addressed by the Upper Tribunal, and in any event the legal issues about the validity of conversion notices had been considered and rejected by the UT in JM v Secretary of State for Work and Pensions (ESA) [2013] UKUT 234 (AAC); [2014] AACR 5,(paragraphs 10 to 11); 3. the F-tT materially erred in law by failing to give adequate reasons for its decision under regulation 35(2)(b) of the ESA Regulations that there would have been no substantial risk to the appellant or to others if she were to engage in work-related activity. It failed to focus on the appellant’s medical condition at the date of the November 2011 decision under appeal to it or to explain adequately how and why the evidence it obtained was relevant to that date. It also failed to identify the range or type of work-related activity which the appellant was capable of performing and might be expected to undertake sufficiently to allow for an assessment of the risk to health either to herself or to others (AH v Secretary of State for Work and Pensions (ESA) [2013] UKUT 118 (AAC); [2013] AACR 32). This last error was fundamental because without establishing the range of work-related activity there was nothing against which to assess the regulation 35(2) risk (paragraphs 12 to 13); 4. the Secretary of State’s failure to provide evidence about what work-related activity the appellant was capable of engaging in contributed to the F-tT’s errors. Subject to a slight caveat, the decision in ML v Secretary of State for Work and Pensions (ESA) [2013] UKUT 174 (AAC); [2013] AACR 33 was followed: the Secretary of State must provide sufficient information about work-related activity to enable a claimant to present a case and for a tribunal to make a decision in order for the statutory right of appeal to be effective. That information might vary, however, depending on the facts of individual cases: for example, a severely agoraphobic and anxious person might not be capable of attending at a Jobcentre for an interview and might need more tailored work-related activity (paragraphs 14 to 16); 5. moreover, the Secretary of State was required by rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 to explain in writing why the appellant failed to come within regulation 35(2) of the ESA Regulations, as she had raised this as an issue on her appeal. His failure to do so was a serious breach of the Tribunal Procedure Rules. In this case that ought to have led him to (a) set out the range and type of work-related activity the appellant was capable of performing and might have been expected to undertake in November 2001, and (b) explain why on the evidence, some three weeks after her operation, there would be no substantial risk to the appellant’s (or another’s) health if she were found not to have limited capability for work- related activity. To this extent ML v Secretary of State for Work and Pensions (ESA) [2013] UKUT 174 (AAC); [2013] AACR 33 had to be modified (paragraphs 17 to 19 and 21); 6. this did not amount to an unusual or onerous burden given that the Secretary of State had already made an affirmative decision that regulation 35(2) was not met and so must have addressed these matters in coming to this decision. Sections 2(3)(b) and 4(5)(b) of the Welfare Reform Act 2007 required such an affirmative decision to be made in deciding that a claimant was entitled to the work-related activity component of ESA (Secretary of State for Work and Pensions v PT (ESA) [2011] UKUT 317 (AAC); [2012] AACR 17 addressing a different context) (paragraph 20); 7. in the absence of the required information from the Secretary of State the F-tT had faced a choice. It could have adjourned the hearing, to allow the Secretary of State an opportunity to provide the information, but, having chosen to proceed, the F-tT had to determine the relevant issues arising from regulation 35(2) (paragraph 22); The Upper Tribunal set aside the decision of the First-tier Tribunal and remitted the appeal to a differently constituted tribunal to be decided in accordance with its Directions.
Decision(s) to Download:	[2014] AACR 6bv.doc