IN THE UPPER TRIBUNAL	Case No.CE/4305/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and remit the case to be reheard before a new tribunal in accordance with the directions given below. 

REASONS FOR DECISION

1.	This is an appeal with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 19 June 2013.  That decision dismissed the claimant’s appeal from a decision of the Secretary of State dated 25 July 2012 that the claimant did not qualify for conversion of her existing award of income support into an award of employment and support allowance (ESA).
2.	 The claimant has mental health problems and was found by the decision maker and the tribunal to score 12 points on the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008 (the 2008 Regulations).  Those points were awarded on the basis that the claimant could not get to a specified place with which she was unfamiliar without being accompanied by another person (6 points) and that engagement in social contact with someone unfamiliar to her was not possible for the majority of time due to difficulty relating to others or significant distress experienced by the individual (6 points).
3.	This appeal is made on the basis that the tribunal erred in law in its approach to one of the coping with change descriptors (descriptor 14(c)) and in its approach to regulation 29(2)(b) of the 2008 Regulations.   Descriptor 14(c) provides that a claimant scores 6 points if she cannot cope with minor unplanned change (such as the timing of an appointment on the day it is due to occur), to the extent that overall, day to day life is made significantly more difficult.  Regulation 29(2)(b) provides that a person is to be treated as having limited capability for work if she suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.  In this context it is clear that “any person” includes the claimant herself.
4.	In relation to descriptor 14 the tribunal found that the claimant’s mental health condition was mild and was not being treated with medication.  She may become upset if her routine was changed but her condition was not so bad that she could not cope with minor unplanned change to the extent that, overall, day-to-day life was made significantly more difficult.  It therefore awarded no points.
5.	This is challenged on behalf of the claimant on two grounds.  First it is pointed out that it is being partly based on the fact that she was not using medication, yet the evidence showed that she had taken multiple overdoses and that in 2008 one drug, paroxetine, was not prescribed following an overdose and a GP report of 18 October 2011 states that a second drug, citalopram, was stopped as she considered it was making her worse.  That report also confirmed multiple overdoses.  There are also repeated references in the consultation notes at p.82 of the file to the claimant having mental health problems and to her needing help from the Mental Health Team.  This was admittedly some months before the date of the decision, but there is nothing to suggest that her mental health improved in the meantime.  Further, the tribunal appears to have treated her mental health problem only as one of depression despite her own evidence and that of the medical notes at p.83 of the file that in October 2011 she was anxious and paranoid, hearing voices and hallucinating.
6.	I also note from the record of that her partner told the tribunal that the claimant was unable to come to the hearing and would not come even if it was adjourned.  It appears also from that record that there was said to have been no real change in her condition (presumably since the date of the decision, but possibly from some earlier date).  In addition there was evidence that her children were in the care of their father’s parents, apparently because she could not care for them – see the foot of p.78 of the file where she is quoted as saying in 2008 that she could have her children back if she got her mental health sorted out.  She appears to have been leading a very sheltered life, protected by her partner, and there seems to have been no real evidence or inquiry by the tribunal as what unexpected minor changes she had been faced with and how she had responded.  
7.	I am left unclear on what basis the tribunal came to the conclusion that her mental health problems were mild.  If it was on the basis that she was not taking medication, then it was necessary for the tribunal to explain what it made of the explanations that had been given for this, and of the medical and other evidence as to her mental illness, including not only depression, and also of the evidence of anxiety and paranoia.  I am also unclear why, given the very sheltered life the claimant was leading and the steps that seem to have been taken to protect her, the tribunal came to the conclusion that minor unplanned changes, if they occurred, would not make life significantly more difficult for her.  I consider that the tribunal erred in law in failing to give good reasons for its decision and I set the decision aside.  I also note, and the new tribunal may wish to take it into account and enquire into the reasons, that on this appeal her partner is described as her appointee.  If he has formally been appointed as her appointee under regulation 33 of the Social Security (Claims and Payments) Regulations 1987, that would appear to have been on the basis that the claimant was unable to act.  If it is said that the claimant’s mental health has not changed since the date of the decision, it would benefit the new tribunal to have updated medical evidence, and in any event, medical evidence relating to the claimant’s mental health should be sought by the tribunal up to and for a few months after the date of the decision and should not stop, as it does at present, at April 2012, if not sooner.
8.	In relation to regulations 29 and 35, the tribunal stated:
“We followed the guidance in the case of Charlton.  Although [the claimant] has never worked, except for some work experience, we found that there was work she could do.  The work could be unskilled, in a small work environment and, perhaps, with suitable training.  She has no physical problems.  As to the general effect upon her mental health, there is now an understanding that work or work search would not harm a person suffering from depression at a relatively mild level, as we found [the claimant] to be.  On the contrary, purposeful daily activity is more likely to be helpful to this condition.  There was nothing so unusual in [the claimant’s] position that led us to the conclusion that it would be harmful to her. or anybody else’s health if she were found not to have limited capability for work.  Accordingly, neither Regulations 29 nor 35 applied.”
9.	This reasoning is expressly posited on the claimant only suffering from mild depression and is in error of law because, for the reasons already given, the tribunal failed to give adequate reasons for its conclusion that that was all that the claimant suffered from.
10.	If at the new hearing the claimant still fails to score at least 15 points in respect of the Schedule 2 descriptors, the new tribunal will again need to consider whether regulation 29(2)(b) applies on the basis of the findings of fact that it makes.  In this respect, it should bear in mind that Charlton was concerned to consider how a tribunal should assess the type of work that a claimant might do.  The issue before it was how prescriptive the decision maker or tribunal should be in assessing the type of work for which the claimant was suitable.  It held that Deputy Commissioner Paines was correct in CIB/360/2007 in deciding that all that needed to be considered was what range or types of work a claimant was suited for as a matter of training or aptitude and which his disabilities did not render him incapable of performing and then to decide whether, within that range there was work that he could do without the degree without the degree of risk to health envisaged by regulation 27(b) of the incapacity benefit regulations, which was under scrutiny in that case.  It rejected the approach of other Commissioners which required the decision maker to consider the work which would be defined in a Jobseeker’s Agreement should the claimant make a claim for jobseeker’s allowance (see paras 36 to 46 of that decision).  It was not concerned in that case with a claim that there may be some other risk to the health of the claimant from being found not to have limited capacity for work other than risk from having to do work.
11.	In paragraph 34 of his judgment, Moses LJ made it clear that regulation 27(b) may be satisfied where the very finding of capability might create a substantial risk to a claimant’s health or to that of others, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused.  Other examples have arisen in other cases.  In IJ v SSWP, [2010] UKUT 408 (AAC) I stated:

“the test is not limited to whether there would be a substantial risk to the claimant from any work he may undertake.  The test is as to the risk as a result of being found capable of work.  If he was found capable of work, he would lose his incapacity benefit, and would very possibly need to seek work and apply for jobseeker’s allowance.  That would involve his attending interviews, and going through all the other steps that would be needed to obtain and keep jobseeker’s allowance.  In the present economic climate, a claimant who is 62 years old with mental health problems, and who has not worked since the early 1990’s, is unlikely to find work quickly and would very possibly never find it.  His GP’s assessment that it is inconceivable that he would ever be able to earn his living may be right.  The tribunal would then have to determine how this change from his being in receipt of incapacity benefit would affect the claimant’s mental health, looking not at some work he may do, but at the effect on his mental health of fruitless and repeated interviews and the possibly hopeless pursuit of jobs until he reached retirement age.  These factors were not considered by the tribunal, and indeed they did not elicit the information necessary to enable them to be considered, such as whether he had in fact applied for jobseeker’s allowance and if not, how he was coping or would cope.”

12.	As I have pointed out elsewhere, that approach was applied to regulation 29 by Judge Parker in CF v SSWP [2012] UKUT 408, and is in my judgment the proper approach to regulation 29, following the wording of the regulation.  It is also supported by the decision of Mrs. Commissioner Parker, as she then was, in CSIB/719/2006 at paragraph 11 when in considering the risk she said that it “must arise from the broad results of a claimant being found fit for work and is not confined to the risks arising directly from the tasks with a claimant’s job description.”  Most recently it was also cited with approval by Judge White at paragraph 45 of NS v SSWP [2014] UKUT 115 (AAC).
13.	Depending on the findings of the new tribunal as to the mental health of the claimant at the date of the decision, it is possible that it could conclude that her prospects of getting or keeping any employment were slim or non-existent.  In such circumstances there may be no substantial risk to her health from any work which she might theoretically do, but there could still be a substantial risk to her health, whether because of the loss of the income support which she previously enjoyed with nothing to replace it, or because she may damage her health attempting to obtain and retain jobseeker’s allowance.  There is presently a lack of evidence on these issues should they arise and this is something which the claimant’s partner and her representative may wish to address.
14.	If she scores 15 points or more on the descriptors, or if the tribunal considers that regulation 29(2)(b) assists her, the tribunal will then need to consider regulation 35.  To enable it to do this the Secretary of State should provide evidence of what work-related activities the claimant might be asked to undertake.  For the reasons I gave in JS v SSWP [2013] UKUT 635 (AAC), a work-focused interview is not a work-related activity but a precursor to such activities. 
15.	In AP v SSWP, [2014] UKUT 35 (AAC), I reviewed the conflicting authorities as to what evidence was required from the Secretary of State as follows:

“The scope of regulation 35(2) and the evidence required

23.	In order to consider whether, by reason of any disease or bodily or there would be a substantial risk to the mental or physical health of the claimant if she had been found in February 2012 not to have limited capability for work-related activity, it is necessary to consider the effect on her of that finding had it been made.  This necessarily involves consideration of what would have been expected to happen in that event.  

24.	That is a matter as to which the Secretary of State ought to have provided some evidence.  The scope of the evidence required must depend on the facts of the case.  In some cases, it will be apparent that there is no such risk and no point is taken as to it.  Where a claimant has mental health problems and there is clearly an issue as to the risk for the tribunal to consider if it accepts her evidence, then in my judgment the Secretary of State has a duty to the tribunal under regulation 2(4) of the Tribunal Procedure (First-tier Tribunal) (SEC) Regulations 2008 to provide evidence to the tribunal as to what steps would have been taken at the time and subsequently if the decision of the decision maker had been that the claimant qualified for ESA but did not have limited capability for work-related activity.

25.	I appreciate that ahead of the decision of the tribunal, at least where the original decision was, as here, that the claimant did not have limited capability for work, the Secretary of State could not know exactly what the tribunal might find.  Nevertheless, the psychotherapist’s report was sent to the tribunal by letter of 26 October 2012 and was presumably copied to the decision maker shortly thereafter, and many months before the hearing.  No attempt was made to reply to it or to provide any evidence in relation to regulation 35(2).  In particular, there was no attempt to provide any evidence as to the steps that the Secretary of State considered would have been appropriate to deal with the claimant’s perceived need for coping skills and support networks or as to the quality and qualifications of the personnel who would be dealing with her.  Nor was any indication given whether she would have been dealt with throughout by one person or, if not, how many people would have been involved in contact with her, or in what circumstances and where that would have happened following a decision in February 2012.

26.	There is no automatic requirement that a claimant who is found not to have limited capability for work-related activity should attend a work-focused interview and then undertake work-related activities of any kind.  It is, of course, possible that the Secretary of State, or those acting for him, could have decided that, on the basis of the evidence, it was not appropriate, if the claimant was found to have limited capability for work to require the claimant to attend any work-focused interview or to become engaged in any work-related activity until there was further expert mental health evidence that that was appropriate.  That is a matter as to which the Secretary of State could have adduced evidence.  It is also possible that as at February 2012, no such discretion was ever exercised and there was a policy of immediately summoning claimants for such interviews followed by a ritual of work-related activities which did not take adequate account of their mental health problems.

27.	In AH v SSWP, [2013] UKUT 118 (AAC), Judge Jacobs held that, except in a case where only general evidence would be enough, the tribunal needed specific evidence of the type of activity that the claimant might be expected to undertake.  In ML v SSWP, [2013] UKUT 174, he observed at paragraph 15 that 

“Despite having dealt with numerous cases involving the support group, I still have no idea of what work-related activities involves beyond the general formulaic statements such as those I have quoted from the Secretary of State’s argument.  I accept that it is not possible to say in advance what precisely would be expected of any particular claimant.  However, it must be possible to give a sufficient indication of what is involved in order to allow a claimant to provide evidence and argument, and to allow a tribunal to make a decision.”

28.	These decisions of Judge Jacobs were given in March and April 2013, before the hearing under appeal.  Yet in the present case, not even general formulaic statements have been provided.  Even in CE/3468/2012, upon which the Secretary of State now relies, Judge White stated that there must be some identification of the type of work-related activity which the claimant could safely undertake, and that that may be no more than an initial consultation over the phone, although, as I pointed out in JS v SSWP, [[2013] UKUT 635 (AAC), the initial work-focused interview is not a work-related activity.

29.	I also note that while the Secretary of State has sought to rely on Judge White’s decision and on another decision which follows it, he has failed to draw attention to the decision of Judge Gray in MT v SSWP, [2013] UKUT 545, which expressly disagrees with the decision of Judge White, for what is to me the very good reason that the work-related activity which the claimant could safely engage in may not be the same as the work-related activity which he or she would have been required to engage in if found not to have limited capability for work-related activity.   The ability of an employee at a jobcentre accurately to assess at what would probably be a very short interview what is right for a claimant with serious mental health problems must also be open to question.  In assessing the effect of an adverse finding the tribunal must take into account not some theoretical possibility but the likely result based on evidence of what would happen or have happened at the relevant time.

30.	Judge Gray also points out that the tribunal must look at the position as it was at the date of the decision and at the work-related activities which this claimant might have been required to undertake following a decision to that effect.  That must plainly be right.  The tribunal cannot be concerned with the claimant’s ability to deal with work-related activity at the date of the hearing, in this case 15 months later by which time a claimant’s mental condition could have changed significantly.”
16.	On this basis, to enable the tribunal properly to consider the application of regulation 35 if the claimant is found by the new tribunal to have limited capability for work, the Secretary of State should provide to the tribunal evidence of the work-related activities which this claimant might have been required to undertake at, or rather following, the date of the decision had that decision been that she was to be treated as having limited capability for work but not for work-related activity.  He should identify specific activities and not rely on the formulaic statements decried by Judge Jacobs.

(signed)		Michael Mark
			Judge of the Upper Tribunal

			23 May 2014