DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

The decision of the Swindon First-tier Tribunal dated 03 October 2013 under file reference SC205/13/00801 involves an error on a point of law. The First-tier Tribunal’s decision is set aside. 

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the Appellant’s appeal against the Secretary of State’s decision dated 28 January 2013 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.  

This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the hearing:

(1)	The appeal should be considered at an oral hearing.  

(2)	The new First-tier Tribunal should not involve the tribunal judge or medical member who was previously been involved in considering this appeal on 03 October 2013.

(3)	The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 28 January 2013). 

(4)	If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal office in Cardiff within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).  

(5)	The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 

REASONS FOR DECISION

The background to this appeal
1.	The issue that arose on this appeal before the First-tier Tribunal (“the tribunal”) was whether the Appellant qualified for employment and support allowance (ESA) as part of the conversion process from incapacity benefit. The Appellant suffers from psoriasis and psoriatic arthopathy and last worked in 1995 as a clerical officer for BT. 

2.	On 28 January 2013, following an ATOS medical assessment earlier that month, the Secretary of State decided that the Appellant scored zero points and so did not qualify for ESA, which requires 15 points. The Appellant lodged an appeal, assisted by Ms Davies-Khan from the local CAB. On 3 October 2013, the tribunal dismissed the Appellant’s appeal and confirmed the Secretary of State’s decision. Summary reasons were helpfully provided on the decision notice to the effect that the Appellant had a variable condition but for the majority of the time could manage daily living activities. The Appellant, again with the support of the CAB, appealed again to the Upper Tribunal. 

The First-tier Tribunal’s treatment of regulation 29
3.	There is much to commend in the tribunal’s full statement of reasons. For the most part it is comprehensive, clear and cogent. On this further appeal, the focus has been on the tribunal’s treatment of regulation 29 (exceptional circumstances). The tribunal dealt with regulations 29 and 35 at paragraphs 30-32 of its statement of reasons. Paragraph 32 was solely concerned with regulation 35, except for a mention that “we consider that there is employment which could usefully be found which he could undertake given appropriate help in the workplace”, so is omitted here:

“[30] We have borne the case of Charlton in mind and looked at his former job. There is no evidence of any severe disability, either physical or mental today which would make him a danger to himself or anyone else in the workplace. Again it is a high test, we accept that engaging with the Department in future will be challenging for him but we do not find he will be placed at substantial risk in the workplace. The Appellant refers to the risk of stress to him. We note this, but the Department will have to consider this, and his actual conditions, when assessing him. We note he is computer literate, it may be that working from home most of the time would be a suitable option for him.
	
[31] The main reason for any consideration of regulation 29 or 35 in his case would be because of his physical and mental problems. The condition cannot be so bad that he could not in our view take advantage of any interviews and programmes to support him. The Department will have to note that he is subject to exacerbations due to stress and treat him accordingly. We have considered the case of ML v SSWP [2013] UKUT 171 (AAC). The main risk to him would be the stress and hoop jumping the Department may try to impose which if he does not co-operate may lead to sanctions in his case. The requirements must be reasonable given his problems. We have also looked at the guidance of the Upper Tribunal in [2103] UKUT 0262; [2013] UKUT 174’ CE/4323/2012; CE/3904/2012 and [2013] UKUT 0118.”

The proceedings before the Upper Tribunal
4.	When giving permission to appeal, I commented as follows:

‘1. There are five broad grounds of appeal, as set out on the UT1 application form and explained in more detail in the representative’s letter of 14 November 2013.

2. At present my provisional view is that the first, third, fourth and fifth grounds of appeal are not especially persuasive. I stress that this is an initial view.

3. However, it seems to me there is rather more mileage in the second ground of appeal, relating to the tribunal’s fact-finding and reasoning as regards the potential application of regulation 29 (“exceptional circumstances”). The proper consideration of regulation 29 requires tribunals to follow the procedure set out in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42: see also MB v SSWP (ESA) [2012] UKUT 228 (AAC) and JW v SSWP (ESA) [2011] UKUT 416 (AAC). That procedure requires (a) identification of the specific disease or bodily or mental disablement in issue; (b) consideration of the range of work the claimant might be expected to do; and (c) consideration of whether undertaking that work (including the process of finding work and getting to and from work) would pose a substantial risk to the claimant or any other person.

4. The tribunal in this case dealt with this question principally at paragraph [30]. However, this raises at least three questions. First, is there sufficient particularity in a finding that “he is computer literate, it may be that working from home most of the time would be a suitable option for him”? Second, does not regulation 29 assume travelling to a typical workplace, not home-working? Third, the tribunal comment that the appellant “refers to the risk of stress to him” but does not mention in this context the GP’s evidence that stress was an aggravating factor (see pp.74 and 76).’

5.	Mr Mick Hampton, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports the appeal from the decision of the FTT on the regulation 29 point. In summary, he argues as follows. 

6.	First, the tribunal made no real findings as to the claimant’s previous employment or any type of employment he could do. Second, the tribunal did not adequately address the evidence before it as to the risks posed by increased stress. Third, the tribunal’s analysis elided issues under regulations 29 and 35. Fourth, Mr Hampton argues that Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 (reported as R(IB) 2/09), in his words, “does not envisage home-working per se to be something to consider when looking at the range of jobs a tribunal might be looking at”. He accordingly suggests that the appeal is allowed, the tribunal’s decision set aside and the matter is remitted (or sent back) for re-hearing to a new tribunal. 

7.	I agree with Mr Hampton and Ms Davies-Khan that the tribunal erred in its treatment of regulation 29 and its application to the facts of this case. As Mr Hampton notes, there are jobs which allow for some home-working. This practice is more common in today’s post-Fordist economy than it used to be but it is still not the norm. Typically it is a matter which is entirely subject to the discretion (or whim) of the employer. The fact that the Court of Appeal in Charlton held that the statutory test has to be applied “in the context of the journey to or from work or in the workplace itself” (at paragraph [34] per Moses LJ, emphasis added) is in itself instructive. 

8.	To say that a claimant cannot take advantage of regulation 29(2)(b) because they could always be able to do a job working from home would simply be to deprive the statutory provision of any real purpose for large numbers of claimants. Such an interpretation would defeat the statutory purpose of providing a degree of protection for exceptionally vulnerable individuals, especially for those suffering from mental health problems. The tribunal therefore went wrong in law by relying on the possible prospect of a job with home-working.

9.	My interpretation of regulation 29 is confirmed by a statutory amendment to regulation 29 which by coincidence took effect on the very day that the Secretary of State’s decision was taken in the present case. As from 28 January 2013, regulation 29(2)(b) does not apply where the risk “could be reduced by a significant amount by … reasonable adjustments being made in the claimant’s workplace” (regulation 29(3)(a)), as inserted by the Employment and Support Allowance (Amendment) Regulations 2012 (SI 2012/3096), regulation 3(6)). The ESA legislation does not define what is meant by the “claimant’s workplace”, but it seems to me the language used is consistent with the Court of Appeal’s understanding in Charlton, which envisages the claimant travelling from home to a workplace.

10.	This usage is also consistent with the meaning associated with “workplace” in other statutory contexts. Two examples will suffice. First, in revenue law, a workplace “in relation to an employment, means a place at which the employee’s attendance is necessary in the performance of the duties of the employment” (Income Tax (Earnings and Pensions) Act 2003, section 339(1)). Second, under health and safety legislation, a “workplace” means any premises or part of premises which are not domestic premises and are made available to a person as a place of work (Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004), regulation 2(1)).

11.	Last but not least, the construction advanced above is implicit in the reasoning of Judge Ward in PD v Secretary of State for Work and Pensions (ESA) [2014] UKUT 0148 (AAC). Judge Ward identified the central issue in that appeal as being the impact of regulation 29 “on persons who by reason of mental ill‑health have an impaired ability to get to places, such as a hypothetical workplace” (at paragraph 1). If claimants could not avail themselves of regulation 29 simply because they could get a home-working job, then the whole premise of Judge Ward’s analysis was flawed. I do not accept that it was.

12.	I therefore conclude that the tribunal’s decision involves an error of law because of its failure to consider regulation 29 properly. Because of that error of law, I do not need to resolve the other grounds of appeal further.

What happens next: the new First-tier Tribunal
13.	There will need to be a fresh hearing of the appeal before a new tribunal. Although I am setting aside the tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the Appellant is entitled to ESA. That is a matter for the good judgement of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact.  

14.	In doing so, unfortunately the new FTT will have to focus on the Appellant’s circumstances as they were in January 2013, and not the position as at the date of the new tribunal hearing, more than 18 months later. This is because the new FTT must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). 

15.	The new tribunal should also bear in mind that this appeal is a complete re-hearing of the Appellant’s original appeal. So, for example, if they conclude that the Appellant scores 15 points or more on the Schedule 2 descriptors, they need not address regulation 29.

Conclusion
16.	I conclude that the decision of the First-tier Tribunal involves an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).  The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)).  My decision is also as set out above.  

Signed on the original			Nicholas Wikeley
on 22 May 2014				Judge of the Upper Tribunal