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Neutral Citation Number:	2015 UKUT 445 AAC
Reported Number:
File Number:	CE 3086 2014
Appellant:	(1) AT, (2) VC
Respondent:	Secretary of State for Work and Pensions (ESA)
Judge/Commissioner:	Judge K Markus QC
Date Of Decision:	07/08/2015
Date Added:	21/08/2015
Main Category:	Employment and support allowance
Main Subcategory:	Post 28.3.11. WCA activity 7: understanding communication
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2016] AACR 8. Work capability assessment – activity 7 understanding communication – not necessary to be unable to understand by both verbal and non-verbal means The two appellants AT and VC were respectively deaf and visually impaired. Each appealed against the First-tier Tribunal’s (F-tT) decision as to whether they satisfied the descriptors under activity 7 in either Schedule 2 or Schedule 3 to the Employment and Support Allowance Regulations 2008. The issue before the Upper Tribunal (UT) was the construction of activity 7 in both Schedules 2 and 3 prior to the amendments introduced on 28 January 2013, and in particular whether a claimant must be unable to understand, or have difficulty in understanding, communication by both verbal and non-verbal means in order to satisfy the relevant descriptors, or whether only one of those means was sufficient. It was submitted on behalf of the Secretary of State that the policy intent was and is that a person should qualify if either they meet the verbal descriptors alone, or the non-verbal descriptors alone, or both. Held, allowing the appeals, that: 1. the terms “verbal” and “non-verbal” were confusing because both forms of understanding in activity 7 relate to verbal communications in that the activity was about understanding words, whether written or spoken. It appeared that in activity 7 “verbal” was used to mean “spoken” and “non-verbal” was used to mean “written” (paragraph 37); 2. as the words of activity 7 in both Schedules 2 and 3 were ambiguous the judge considered the legislative history from which it was clear that the legislative intention since ESA was introduced had been that, in order to qualify under a relevant descriptor, a claimant need be impaired in either hearing or vision (but not both) or, as amended, in understanding either spoken or written communication (but not both) (paragraphs 43 to 45 and 48); 3. the F-tT had failed to make adequate findings of fact to support its conclusion that AT had sufficient understanding by way of lip reading. In the other case the F-tT had misdirected itself as to the interpretation of activity 7 and, as a result, wrongly concluded that VC did not have limited capability for work-related activity (paragraphs 63 to 68 and 69 to 70). The judge set aside the decision of the F-tT in the case of AT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with her directions. In the other case she re-made the decision of the F-tT to the effect that VC had limited capability for work and limited capability for work-related activity.
Decision(s) to Download:	[2016] AACR 8ws.doc