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Neutral Citation Number:	2014 UKUT 176 AAC
Reported Number:
File Number:	CSE 17 2014
Appellant:	CM
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge E. A. L. Bano
Date Of Decision:	21/03/2014
Date Added:	14/05/2014
Main Category:	Employment and support allowance
Main Subcategory:	Regulation 35
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 9. Employment and support allowance – regulation 35(2) – relevance of action plan records for claimant previously placed in work-related activity group The claimant had a history of mental illness and was receiving daily occupational therapy in a psychiatric hospital. In February 2012, following a detailed assessment by a healthcare professional (HCP), she was awarded employment and support allowance (ESA) and placed in the work-related activity group (WRAG). The claimant was re-assessed in January 2013 and again placed in the WRAG on scrutiny, but without consideration of regulation 35(2) of the Employment and Support Allowance Regulations 2008. She appealed against that decision. The claimant’s representative obtained her WRA action plan records. The records showed that attending work-focused interviews had contributed towards the claimant’s attempted suicide and that her employment adviser had told her to continue with her hospital treatment and to appeal against the decision to place her in the WRAG. The F-tT rejected her appeal, deciding that regulation 35(2) did not apply as the claimant was able to participate in occupational therapy at the hospital, and that the adviser’s advice to appeal “was simply an adminicle of evidence to be considered along with the rest of the evidence of the appeal”. The issue before the Upper Tribunal (UT) was whether the F-tT had erred in law by treating work-focused interviews as if they were work-related activity and in using the claimant’s hospital treatment as the basis for finding that engaging in work-related activity would not place the claimant at substantial risk. The appeal was opposed by the Secretary of State. Held, allowing the appeal, that: 1. the argument that the F-tT was entitled to find that work-related activity posed no substantial risk of harm to the claimant on the basis of similarities between therapeutic occupational therapy in a hospital and ESA work-related activity was rejected. A crucial consideration in this context was the regime of sanctions underpinning work-related activity: MT v Secretary of State for Work and Pensions (ESA) [2013] UKUT 545 (AAC). Any possible benefit to a claimant from engaging in work-related activity was irrelevant: CH v Secretary of State for Work and Pensions (ESA) [2014] UKUT 11 (AAC) (paragraphs 8 to 9); 2. the F-tT erred in not having adequate regard to the action plan records and the report of the healthcare professional who examined the claimant. It was clear from the claimant’s letter of appeal that she had come to regard the requirements of the work-related activity group as harmful, and the employment adviser’s notes suggested that the pressure on the claimant of attending work-focused interviews had contributed to another suicide attempt (paragraphs 10 to 11). The judge re-made the F-tT’s decision, confirming the claimant’s entitlement to be placed in the support group rather than the WRAG.
Decision(s) to Download:	[2015] AACR 9ws.doc