IN THE UPPER TRIBUNAL	Case No.  CE/3848/2012
ADMINISTRATIVE APPEALS CHAMBER

BEFORE UPPER TRIBUNAL JUDGE WARD

Attendances:

For the Appellant:		Mr Tom Tabori, Counsel, instructed through the Free Representation Unit

For the Respondent:	Mr Steven Cooper, Solicitor

Decision: The appeal is allowed.  The decision of the First‑tier Tribunal sitting at Colwyn Bay on 24 May 2012 under reference SC195/12/00274 involved the making of an error of law and is set aside.  The appeal is remitted to a differently constituted panel of the First‑tier Tribunal for rehearing in accordance with this decision.

REASONS FOR DECISION

1. Claimants for employment and support allowance (“ESA”) who in the work capability assessment fail to score sufficient points to be judged to have limited capability for work may nonetheless be treated as having limited capability for work where regulation 29 of the Employment and Support Allowance Regulations 2008/794 (“the Regulations”) so provides.  The present appeal concerns the impact of that regulation on persons who by reason of mental ill‑health have an impaired ability to get to places, such as a hypothetical workplace.  

2. The case is the lead one for a small number of Upper Tribunal cases raising the point and it is not an issue I have found altogether straightforward.  I am grateful to Mr Tabori and Mr Cooper for their submissions.  

3. Regulation 29, as it stood at the date of the DWP’s decision in this case (16 January 2012), provided as follows:

	“29.— Exceptional circumstances

	(1) A claimant who does not have limited capability for work as determined in 	accordance with the limited capability for work assessment is to be treated as 	having limited capability for work if paragraph (2) applies to the claimant.

	(2) This paragraph applies if—
	(a) the claimant is suffering from a life threatening disease in relation to 	which—
	(i) there is medical evidence that the disease is uncontrollable, or 	uncontrolled, by a recognised therapeutic procedure; and
	(ii) in the case of a disease that is uncontrolled, there is a reasonable cause 	for it not to be controlled by a recognised therapeutic procedure; or
	(b) the claimant suffers from some specific disease or bodily or mental 	disablement and, 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.”

4. Amendments have been made to regulation 29, most recently by SI 2013/2536 with effect from 29 October 2013, but the point raised in the present decision remains relevant.  

5. The claimant’s appeal to the First‑tier Tribunal had been dealt with on the papers.   His written evidence indicated that he had been left with severe panic attacks and depression following a stroke some 10 years previously.  He said that severe anxiety stopped him from communicating with others, he was unable to go shopping due to his anxiety and when meeting new people felt anxious and felt like he needed to get away from them.  He had told the health care professional (among other matters) that he needed to be accompanied by someone to appointments because of his anxiety and hardly ever left the house because of his panic attacks.  He was however able to visit his mother most days, his wife taking him in the car, and would sometimes accompany his wife shopping but without going into the shop.  He had already been receiving Paroxetine, an antidepressant, before the date of the DWP’s decision.  Shortly afterwards Pregabalin, medication specifically for anxiety, was added.  

6. Activity 15 of Schedule 2 of the Regulations as it then stood provided as follows:

“15. Getting about.	15	(a)	Cannot get to any specified place with which the claimant is familiar.	15	
		(b)	Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person.	9	
		(c)	Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person.	6	
		(d)	None of the above apply.	0”	

The decision‑maker concluded that the claimant attracted 6 points under that activity.  On appeal the tribunal awarded 9 points, as it accepted that he was unable to get to a specified place with which he was familiar without being accompanied by another person.

7. Though not the central point of the present case, both parties seek to challenge that conclusion and for reasons I deal with briefly below, both are unsuccessful.

8. Thus it was that, having awarded the claimant only 9 points, but having accepted that he could only get to a familiar place if accompanied, the tribunal turned to regulation 29.  It did so with evident care, referring in some detail to Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42, to which I return below.  It looked at the consequences of a finding that he did not have limited capability for work under two headings.  One consequence was that he would need to attend a Jobcentre every two weeks and comply with the other conditions likely to be required under a jobseeker’s agreement.  The tribunal’s conclusion was that “if he was accompanied, he would not have significant difficulty coping.”  The other aspect the tribunal examined with some care was the type of work the claimant could be expected to do.  In relation to this:

	“The tribunal decided that [the claimant] would not be able to work in a 	position based on contact with members of the public but once he got to know 	fellow employees he could relate to them well.  He would need to be driven to 	work but, once he got used to his place of work and fellow employees, he 	could remain at a workplace on his own.  Therefore, the tribunal found that he 	would be able safely to perform work such as static night‑time security work 	involving little public contact and so he was not to be treated as having limited 	capability for work under regulation 29 of the ESA Regulations.”

9. No criticism is made of the tribunal’s analysis on this point save for its reliance on work which the claimant would need to be driven to and, initially, helped to remain at.  The tribunal made no findings as to whether and how such help could be provided.   

10. It is common ground (and was in any event stated by the Court of Appeal) that the decision in Charlton, though on the predecessor legislation relating to incapacity benefit, is equally applicable to regulation 29.  Moses LJ, giving the judgment of the Court, explained at [33] that the regulation was concerned with the assessment of a risk which arose as a consequence of work the claimant would be found capable of undertaking but for the impact of the regulation.  Passing over a scenario which Moses LJ regarded as “probably rare”, he indicated at [34] that “the determination must be made in the context of the journey to or from work or in the workplace itself.”  (Charlton was not however a case in which the question of the journey to work specifically arose.)  That the provision is concerned with risk (and not with whether there is a longer-term claimed therapeutic advantage) was emphasised by Judge Jacobs in CH v Secretary of State for Work and Pensions (ESA) [2014] UKUT 011 (AAC).

11. The main issue in Charlton was to decide on the correct approach to the type of work for the purposes of the regulation.  At [38], Moses LJ answered it as follows:

	“The answer to this submission lies in the purpose of Regulation 27(b), that is 	to assess risk at work. In order to determine whether there is any health risk at 	work or in the workplace it is necessary to make some assessment of the type 	of work for which the claimant is suitable. The doctor, the decision-maker and, 	if there is an appeal, the Tribunal, should be able to elicit sufficient information 	for that purpose. The extent to which it is necessary for a decision-maker to 	particularise the nature of the work a claimant might undertake is likely to 	depend upon the claimant's background, experience and the type of disease 	or disablement in question. It is not possible and certainly not sensible to be 	more prescriptive. The most important consideration is to remember that the 	purpose of the enquiry is to assess risk to the claimant and to others arising 	from the work of which he is capable. No greater identification of the type of 	work is necessary other than that which is dictated by the need to assess risk 	arising from work or the workplace.”

He preferred that conclusion to the alternative being put forward, which was that the type of work fell to be determined by reference to what would have been set out in the hypothetical jobseeker’s agreement.  In so concluding he observed at [47]:

	“This conclusion is consistent with the practical application of these 	regulations. Any interpretation must bear in mind that the regulations are 	designed to provide a fair and effective system for assessing entitlement to 	incapacity benefit and to allied benefits when a claimant has passed the 	Personal Capability Assessment. It would not be possible to achieve the aim 	of those regulations were the decision-maker to be required to make findings 	of the particularity for which the claimant contends. The decision-maker, it 	must be recalled, will be provided only with the report of the doctor based 	upon the doctor's interview with the claimant and the claimant's completion of 	the questionnaire. It is quite impossible for the decision-maker to identify 	actual positions of employment or the nature of the duties and location of any 	job which the claimant might undertake, not least because the decision-maker 	may often be based in Belfast, or elsewhere, and can have no possible means 	of discovering employment circumstances throughout the country. The 	conclusion which requires no more than that the decision-maker or Tribunal 	assess the range of work of which the claimant is capable for the purposes of 	assessing risk to health has the merit of achieving the objective of the 	regulations.” 

12. It can be seen from the two passages I have quoted at some length that there are two aims being pursued in Charlton – the assessment of risk (because the descriptors do not do so) and the limitation of the field of enquiry for practical administrative reasons, meaning that the assessment of risk is carried out on a basis that is less than complete.

13. In the present case, the tribunal had identified the type of work it considered the claimant could do and was satisfied that this would not lead to a substantial risk to his health.  Principally so far as the journey to work was concerned, but also for an initial period at work, the conclusion reached was, however, dependent on the involvement of a third party.  

14. Speaking generally, there are several different potential third parties.  A claimant may have friends or family who are in a position to assist (or they may not).  It is conceivable that help could be provided through a scheme such as the DWP’s “Access to Work” scheme (see https://www.gov.uk/access-to-work/eligibility , accessed on 28 March 2014), though the position is not entirely clear on the criteria as they presently stand.  It is conceivable that an individual employer in a particular line of work might provide transport (but it is accepted by both sides that nothing in the Equality Act 2010 would require him to do so as a reasonable adjustment in response to the claimant’s disability).

15. As noted, Charlton expressly mandates consideration of risk in the context of the journey to work.  The decision implies that there may be persons whose condition is such that the journey to work could cause significant risk to health when the work itself would not but who have failed to amass 15 points.  That is a scenario I am finding hard to imagine so far as physical elements are concerned: perhaps where a serious allergy was present - but even then, one would expect the same difficulties to present themselves at work unless the workplace was in a controlled environment.  Far more likely in my judgment to have been in the contemplation of the Court of Appeal is the person whose mental health problems cause difficulties with the journey to work.

16. Faced with a claimant who is unable to get to a familiar place unless accompanied, how is the tribunal to apply regulation 29?  Given that the inability to get to a familiar place unless accompanied caries 9 points, rather than the necessary 15 to get to the threshold, it is clear that the legislative intention is not that such an inability, without more, is to be equated to having limited capability for work.  The tribunal may wish to explore types of work which the person could do from home.  Even if the traditional fields for such activity have declined, information technology must bring with it a number of such opportunities for some people.  But if such work is not appropriate to the particular claimant, the tribunal will have to conduct the assessment of risk, which is the primary purpose of regulation 29, as best it can in relation to the sort of range of work mandated by Charlton, outside the home. If someone has been found to be unable to do something, I find it hard to see how it might be possible to hold that there would be no substantial risk to their health on an assumption that they were effectively made to do that which had been found to be impossible for them (i.e. go to work unaccompanied), though I do not intend to lay that down as a proposition of law.  Far more likely is it that what is required is an evaluation of their circumstances when making the hypothetical journey, in particular in relation to being accompanied, in order to see whether the conditions could be satisfied which would alleviate or avoid the risk to health.

17. This is consistent with the nature of evaluating risk.  Regulation 29 operates as something of a safety valve, protecting individuals from substantial risk to their health that would otherwise arise.  Save in the relatively rare cases where the risk is to others rather than the claimant, the focus accordingly is on an individual claimant and on the risk to that claimant, albeit, as regards type of work, subject to the limitation imposed by Charlton on the degree of digging down required.  If one were to ask a doctor about the risk to his or her patient, perhaps particularly in the field of mental health, one would expect that view to take into account surrounding circumstances.  It would be an artificial exercise to try to assess risk on an assumption that support which was in fact being provided was not.

18. To the extent that the twin aims in Charlton of assessing risk and promoting administrative convenience create a tension when it comes to assessing the impact of the journey to work, I prefer to give weight to the more accurate assessment of risk to the individual.  I have commented at paragraph 7 of RB v Secretary of State for Work and Pensions (ESA) [2012] UKUT 431 (AAC) on how the tightening of the descriptors makes regulation 29 all the more likely to be relevant.  That is true both in relation to the change of the descriptors between incapacity benefit (with which Charlton was concerned) and ESA and then by the various subsequent amendments to the ESA descriptors themselves.

19. Mr Tabori referred me to various pre‑legislative materials in order to urge upon me the inappropriateness of an interpretation of regulation 29 which might have the effect of taking the third party out of the labour market such as, he submits, one allowing the availability of lifts to be taken into account.  The potential sources of third party help (see [14]) are such that it would not necessarily involve removing from the labour market someone who might otherwise be in it. In any event, it is to the Act, Regulations and caselaw that I must look and I can find nothing in them which supports Mr Tabori’s submission on this aspect.

20. In MT v Secretary of State for Work and Pensions (ESA) [2013] UKUT 0545 (AAC), Judge Gray had to deal with the not dissimilar question of whether regulation 35(2)(b), which imposes a similar test to regulation 29 but in relation to the ability to participate in “work related activity” fell to be examined taking into account the possibility of the claimant in that case taking a third party with her to work‑related activities.  At paragraph 34 she observed:

	“I do need to deal however with the observation of the FTT in its statement of 	reasons that the appellant could take another person with her to any work-	related activities.   It may be that the Secretary of State would be facilitative in 	any matter which helped a claimant engage so as to improve their ultimate 	prospects of retaining work.  I do not know.  Whether or not that is so, is not 	relevant.  As a matter of law any work-related activity which could only be 	accomplished because of the presence of another person must be looked 	upon as not being an activity that the claimant can carry out.  The issue under 	regulation 35 (2) (b) as to whether 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 cannot be assessed as if the 	claimant under consideration had somebody else by their side. There will be 	claimants who have a need for the personal reassurance of another person, 	but who do not have anybody available to perform that role. Even if they did, it 	would not be reasonable for such an assessment to be made on the basis of 	reliance on another’s goodwill.   Legal tests cannot depend upon that.  Where 	an appellant who is found to have limited capability for work-related activities 	another person, and it may (or may not, I do not know) be possible for them to 	do so, but the capacity to engage only with that assistance cannot be part of 	the test of capability.  

21. To the extent that the passage quoted is saying that it is incorrect to conduct the assessment required by regulation 35 “as if” a third party were present, I respectfully agree, if by that is meant without consideration of whether the third party’s presence would be made out in fact.  It is possible to read Judge Gray’s remarks as going further than that, notably where she writes “as a matter of law any work‑related activity which could only be accomplished because of the presence of another person must be looked upon as not being an activity that the claimant can carry out”.  That, with respect, seems to be asking what I regard as the wrong question.  The issue, it seems to me, is not whether or not it counts as the claimant doing the activity, but about the risks which ensue if he or she does.  

22. Accordingly, my starting point is that where there is appropriate evidence (as to which see below) third party help could be taken into account.  

23. There are undeniably going to be practical difficulties for the DWP in arguing that a person with 9 points for descriptor 15(b) can nonetheless, by being accompanied, get to work, and for tribunals in adjudicating on the issue.  The Charlton exercise does not require consideration of actual positions of employment or the location of any job a claimant might undertake.  Common experience of giving or receiving a lift from someone suggests that the availability of a person to accompany someone may in practice be highly dependent on practical factors: How far? What time of day? Same time each day or varying?  All of those are questions which might arise if the question had to be asked in the context of an actual job, but, as Charlton makes clear, it does not.  It may be difficult to get clear evidence about whether someone would be available to help when the circumstances are hypothetical.

24. Then there may be the question of the availability of a car to consider: it is not unusual to come across people whose ability to get out of their domestic setting is much greater in the private realm of a vehicle belonging to them or to a trusted person than it is when public transport has to be relied upon. Some people will live in places where public transport is unlikely to be a practical solution anyway.  Where a car is needed, it will not necessarily be available, particularly if it is sometimes used by others.

25. It will, further, be important that any arrangements to enable a person to get to a workplace appear capable of being maintained.

26. Nonetheless, and difficult though it may be, I consider that such a line of argument is open to the Department.  There will be cases, for instance where a partner is not working, there is no one else at home who uses the car and where the evidence shows a pattern of the partner driving the claimant to wherever s/he wants or needs to go, that it may be open to a tribunal to infer that such help would similarly be available to get a claimant to the Charlton-mandated hypothetical workplace.  If a scheme such as Access to Work were available on a sufficiently reliable basis, it is hard to see why it should not be taken into account.  Such are ultimately conclusions of fact and not matters on which I need say more, except to observe that this may be, par excellence, a field in which tribunals can look to the principles of Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372:

	“62. What emerges from all this is a co-operative process of investigation in 	which both the claimant and the department play their part. The department is 	the one which knows what questions it needs to ask and what information it 	needs to have in order to determine whether the conditions of entitlement 	have been met. The claimant is the one who generally speaking can and must 	supply that information. But where the information is available to the 	department rather than the claimant, then the department must take the 	necessary steps to enable it to be traced. 
	63. If that sensible approach is taken, it will rarely be necessary to resort to 	concepts taken from adversarial litigation such as the burden of proof. The 	first question will be whether each partner in the process has played their part. 	If there is still ignorance about a relevant matter then generally speaking it 	should be determined against the one who has not done all they reasonably 	could to discover it. As Mr Commissioner Henty put it in decision 	CIS/5321/1998, "a claimant must to the best of his or her ability give such 	information to the AO as he reasonably can, in default of which a contrary 	inference can always be drawn." The same should apply to information which 	the department can reasonably be expected to discover for itself.” 

27. What is difficult in relation to transport is yet harder in relating to accompaniment within the workplace.  Such a setup would be highly unusual, even if only to help with the first few days.  I did not hear argument on whether that, unlike the provision of transport, could constitute a reasonable adjustment for Equality Act purposes.  I leave the general questions about reliance on that Act to be considered in CE/3688/2013, in which an oral hearing is due on 28 April 2014.

28. In my view, therefore, it is open to a tribunal to conclude that the risk to the health of a claimant may be mitigated by the availability of strategies to enable him to get to work, including through the assistance of a third party.  Such a conclusion would, though, have to be based on proper, evidence-based findings of fact.

29. The First-tier Tribunal to which this case is being remitted will hear the whole case afresh, so I need not dwell on the Secretary of State’s objection to the award of 9 points.  This was based on the tribunal apparently taking into account that anxiety in relation to leaving home  “was the only problem identified as getting worse in a letter written by [the claimant] prior to the tribunal’s decision.”  I do not accept that this necessarily contravened section 12(8) of the Social Security Act 1998.  The letter was written only a couple of months after the decision and is also consistent with the presence of a deteriorating condition at the date of decision.

30. Nor do I accept Mr Tabori’s submission as to why an inability to reach a specified place unaccompanied should carry 15 points.  In my view, if one looks at the gradation of the descriptors carrying 6, 9 and 15 points respectively, it is clear that the 15 point descriptor is directed to those who cannot go out, even if accompanied.

31. Mr Tabori invited me to make specific Direction to the First-tier Tribunal , intended to operate on a general level, about the steps needed (he submits, by reason of the Equality Act) to secure evidence from people with the sort of difficulties this claimant has.  I am not adjudicating on an Equality Act claim and, on a statutory appeal in a social security matter, have no jurisdiction to do so: see Secretary of State for Work and Pensions v MM and DM [2013] EWCA Civ 1565 at [46]-[47]. 

32. However, in considering its powers to go ahead without a hearing under rule 27, a tribunal will doubtless be mindful that an apparent choice for determination on the papers made by a claimant with a condition such as anxiety or agoraphobia may well be conditioned by his illness: it will not need reminding by me here of the range of steps open to it to take.

33. I direct therefore that:

	(a) the question of whether the claimant satisfies (or is to be treated as 	satisfying) the work capability assessment is to be looked at by way of a 	complete re-hearing in accordance with the legislation and this decision; 

	(b) the claimant must, within one month of the date of the letter sending him 	this Decision notify the First-tier Tribunal whether he seeks an oral hearing of 	his appeal or is content for it to be decided on the papers.  If he wishes to 	apply for a hearing to be held at his home, he must do so, including 	supporting evidence from his GP as to the need for it, at the same time.  	Whether to agree to that application is a matter for the First-tier Tribunal;

	(c) unless otherwise directed, the claimant or his representative must ensure 	that any further written evidence is filed with the First-tier Tribunal no less than 	21 days before the hearing date; 

	(d) the tribunal will need to make full findings of fact on all points that are put 	at issue by the appeal. Unless it finds that the claimant reaches the 15 point 	threshold in any event, this will need to include making findings in relation to 	regulation 29, including as to the issues surrounding risk, the journey to work 	and attendance at work identified in the present decision;

	(e) if the tribunal rejects the claimant’s evidence, it must provide a sufficient 	explanation why it has done so and must give adequate reasons for its 	conclusions; and 

	(f) the tribunal must not take account of circumstances that were not obtaining 	at the time of the decision under appeal, which was taken on 18 January 	2012- see section 12(8)(b) of the Social Security Act 1998 - but may have 	regard to subsequent evidence or subsequent events for the purpose of 	drawing inferences as to the circumstances obtaining at that time: R (DLA) 	2/01 and 3/01.

34. While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing. 

35. The decision on the re-hearing is a matter for the First-tier Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.

C.G. Ward
Judge of the Upper Tribunal
31 March 2014