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Neutral Citation Number:	2014 UKUT 5 AAC
Reported Number:
File Number:	CE 2928 2013
Appellant:	AE
Respondent:	Secretary for Work and Pensions (ESA)
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	09/01/2014
Date Added:	14/01/2014
Main Category:	Employment and support allowance
Main Subcategory:	Regulation 35
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2014] AACR 23. Regulation 35 – whether a First-tier Tribunal may reconsider capability for work on appeal against refusal to include in support group As part of the conversion process from incapacity benefit (IB) to employment and support allowance (ESA) the appellant completed a questionnaire and was examined and interviewed by a health care professional. The Secretary of State decided that the appellant satisfied regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 and treated her as having limited capability for work. The appellant’s award of IB was converted to an award of ESA on that basis. It was argued before the First-tier Tribunal (F tT) that the appellant had limited capability for work-related activity as she satisfied the ten descriptors in Schedule 3 to the 2008 Regulations or should be treated as so doing under regulation 35(2). The F-tT not only dismissed the appeal but also changed the basis of the claimant’s entitlement from regulation 29 to an assessment under Schedule 2. The following issues were before the Upper Tribunal (UT): whether there was a separate decision on work-related activity which the appellant could challenge (without putting her capability for work at issue); whether the F-tT was properly limited to consideration of the Schedule 3 issue; whether the F-tT should have warned the appellant of its intention to consider her case under Schedule 2 and whether she should have been allowed the opportunity to withdraw her appeal. Held, dismissing the appeal, that: 1. a tribunal that deals with an appeal against a decision that the claimant was capable of work-related activity was entitled and may be required to consider the claimant’s capability for work, even though the Secretary of State had decided this issue in the claimant’s favour (paragraph 3); 2. the F-tT had jurisdiction to hear an appeal against the conversion decision (paragraphs 8 to 10); 3. the decision under appeal was the whole of the conversion decision, not just the part that related to work-related activity (paragraphs 11 to 16); 4. the F-tT had to deal with the capability for work issue, given the appellant’s grounds of appeal and, in any event, her capability for work was part of the decision under appeal. Whether it was appropriate for a claimant to be warned depended on the circumstances but in this case the tribunal was entitled to proceed, as the appellant’s solicitors understood the legislation and had advised the claimant accordingly (paragraphs 17 to 27); 5. the appellant could not have withdrawn from her appeal the issue of her capability for work (paragraphs 28 to 31).
Decision(s) to Download:	[2014] AACR 23bv.doc