IN THE UPPER TRIBUNAL	Case No.CE/2827/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  1.   The request of the claimant for an oral hearing is refused.

        2.   The appeal is dismissed.

3.	If, as the claimant states, the Secretary of State has now removed her entitlement to ESA, she must appeal that decision to a tribunal, or, if she is now out of time to do so, she can make a fresh application for ESA preferably supported by medical evidence from her GP.  It is not something that I can deal with on the current appeal.  The claimant should urgently obtain assistance and advice from a citizens’ advice bureau or welfare organisation in relation to her current problems and entitlement.

REASONS FOR DECISION

1.	This is an appeal by the claimant with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 3 January 2013 upholding an appeal from a decision of a decision maker dated 3 May 2012 that the claimant’s existing awards did not qualify for conversion into an award of employment and support allowance (ESA).  The tribunal concluded that the claimant qualified for an award of ESA because there would be a substantial risk to her physical health if she were found not to have limited capability for work.  However, it found that there would not be such a risk if she were found not to have limited capability for work-related activity.  It is that latter finding that the claimant appeals.

2.	The claimant has sought an oral hearing so that she can show how she struggles to walk and to see her heavily bandaged legs so that I can see that she is not faking it.  There is no suggestion that the claimant is faking anything.  I accept that she struggles to walk and that she has heavily bandaged legs.  I am, however, only dealing with her appeal from the decision of the tribunal on a point of law.  This appears to me to be a case where the claimant may well benefit from help from a citizens advice bureau or welfare organisation in relation to her current entitlement and I would strongly advise that she seeks such help.

3.	The only point I can consider on this appeal is whether the tribunal made a mistake in law in its decision.  I cannot consider the claimant’s undoubted problems in relation to her benefit being apparently stopped since the tribunal gave its decision.  Further, the tribunal had to decide what the claimant was entitled to in May 2012.  Unless it was something that was the consequence of her condition at that date (and there was no medical evidence to that effect before the tribunal) any deterioration in her condition after that time was not relevant to her entitlement as at 3 May 2012.  For this reason, as well as because it was forbidden to carry out any medical examination, it could not look at her legs as she invited it to do.

4.	The claimant has serious problems with her legs including deep vein thromboses.  The tribunal found that she needed to keep her legs elevated for a reasonable proportion of the day and this would not be possible if she were engaging in the process of job seeking, which would be the outcome if she were found not to have limited capability for work.  It did not, however, consider that she had limited capability for work-related activity because it considered that any activity she may be required to undertake would not occur regularly and would be tailored to her abilities.  It would not therefore pose a substantial risk to her health.

5.	There was no evidence before the tribunal as to what work-related activities the claimant may be required to undertake.  The question had not arisen on the basis of the decision maker’s decision in May 2012 and, as usual, the submissions of the decision maker failed adequately to address the question.  The tribunal found, so far as I can see without any evidence, that the number of compulsory appointments in relation to work-related activity were at most 6 over 6 months.  It also expressed its satisfaction that the DWP would make suitable arrangements for telephone contact or home meetings and that it was reasonable for her condition not to be affected by one appointment a month.  She would not need to travel with any regularity to the jobcentre and she could negotiate her work-related activity with the DWP.  She had the cognitive ability to do this.

6.	Permission to appeal to the Upper Tribunal was given on the basis that the tribunal arguably erred in law by coming to conclusions as to what would be required of the claimant in relation to the activities that might be required of her under regulation 35 of the Employment and Support Allowance Regulations 2008 (the 2008 Regulations) without any evidence from the Secretary of State on the issue and without indicating where their information/evidence came from.

7.	The Secretary of State has responded on this appeal, as so often in these cases, by setting out the approach which an adviser is supposed to take in considering a claimant’s circumstances and the various hypothetical steps which a claimant could be required to take by way of work-related activities.  That approach is unacceptable.  It assumes that relatively unskilled employees at the jobcentre, or whoever else the Secretary of State delegates the task to, can be relied on in every case to ensure that the work-focused interview and any work-related activities can be devised perfectly and without risk to the health of the claimant.

8.	Regulation 35(2) of the 2008 Regulations provides that a claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) (that is does not satisfy any of the descriptors in Schedule 3 to the 2008 Regulations) is to be treated as having limited capability for work-related activity if (a) s/he suffers from some specific disease or bodily or mental disablement and (b) by reasons 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-related activity.

9.	“Any person” in this context includes the claimant herself.  If the Secretary of State were able to say simply that this is the ideal picture and the tribunal must assume that all will be well, as his representative seeks to say on this appeal, it is difficult to see how there could ever be a substantial risk to a claimant’s health if found not to have limited capability for work-related activity.  As I pointed out in JS v SSWP [2013] UKUT 635, there are cases where a claimant cannot properly be required to have a work-focused interview or to carry out work-related activities because these are designed to get a person back to work, but for health reasons the claimant has been found permanently unable to work.  In any event the provisions for these interviews and activities state that the Secretary of State may require the claimant to attend the work-focused interview and carry out the activities.  It is a discretionary power and it is open to those exercising those functions to decide that there should not even be an interview, or, if one is held, to conclude that it would not be appropriate to require a claimant to undertake any work-related activity.

10.	The real question is what is likely to happen at the relevant jobcentre in the case of the claimant in question.  While it is true that the decision maker cannot provide evidence as to what will be decided in the case of the claimant who is appealing, at least where there has initially been a finding that he or she does not have limited capability for work, I can see no reason why the decision maker cannot provide evidence as to what would have happened immediately following the date of the decision on the basis of the actual practice in that area at that time with claimants with similar problems.  This is particularly needed with claimants with mental health problems when in many cases DWP staff are unlikely to have the expertise or time to assess such problems adequately.  The appropriate time for providing such evidence may be after the tribunal has decided if the claimant has limited capacity for work, as that evidence can then be based on the facts found by the tribunal and the whole of the evidence before the tribunal.

11.	In the present case, the tribunal was right to look to assess the actual impact on the claimant of being found not to have limited capability for work-related activity.  In the absence of any proper submissions from the decision maker on the point, it seems to me that it could rely on its own knowledge, if adequate, provided that it told the claimant what that knowledge was and gave her an opportunity of commenting on it, possibly allowing her an adjournment to deal with it if it was not something that she could be expected to deal with immediately.  It is not clear from either the statement of reasons or the record of the proceedings that this was done.

12.	However, it is also the case that the risk to the claimant’s health if found not to have limited capability for work arose because it found that if she sought a job she would compromise her ability to comply with medical advice to keep her legs elevated for a reasonable proportion of the day.  There was no evidence that the claimant would not be able to attend an interview and do at least some very limited activities, if required, and still keep her legs elevated for as long as needed.

13.	For an adviser to require the claimant to disregard medical advice designed to protect her from further deep vein thromboses would be plainly and obviously wrong, and it appears to me that the tribunal in the present case was entitled to conclude that this would not happen.

14.	I further take note that if I were to set aside this decision and look at the claimant’s own evidence of what did happen, that evidence was that the adviser took one look at her and decided that there were no work-related activities that she should be required to undertake and that she should have been placed in the support group.  While that was nearly a year after the date of the decision in May 2012, I see no reason to suppose that there would have been a different approach at that time.  As a result it appears clear that there was no substantial risk to the health of the claimant if she was found not to have limited capability for work-related activity.

15.	One of the problems in this and many other cases, illustrated by the apparent approach of the adviser at the jobcentre, is that there are many people with health problems such that they are not fit for work and are not fit to undertake most if not all work-related activities, yet they do not fall within the very limited categories of those whom the 2008 Regulations provide do not have limited capability for work-related activity.  Section 2(5) of the Welfare Reform Act provides that a person has limited capability for work-related activity if (a) his capability for work-related activity is limited by is physical or mental condition; and (b) the limitation is such that it is not reasonable to require him to undertake such activity.  By section (1) of that Act, however, whether it is not reasonable to require a person to undertake such activity is to be determined in accordance with regulations.  The 2008 Regulations make provision as to how the question is to be determined, and result in some cases where it is not, in ordinary language, reasonable to require somebody to undertake work-related activity falling outside the scope of the Regulations.  If a person does fall outside the scope of regulation 34 and Schedule 3, then if, on the evidence, in practice that person will not, or cannot, be required to do anything because it would be unreasonable to require him or her to do that thing, then it becomes very difficult to see how their physical health can be put at risk by being found not to have limited capability for work-related activity.  The claimant’s mental health is not in issue here.

(signed)		Michael Mark
			Judge of the Upper Tribunal

			4 February 2014