IN THE UPPER TRIBUNAL	Case No.  CE/3453/2013
ADMINISTRATIVE APPEALS CHAMBER

Before 			Mr Justice Charles
				Upper Tribunal Judge Warren
				Upper Tribunal Judge Rowland

Decision:  

The decision of the First-tier Tribunal is set aside and the appeal is remitted to a differently constituted panel who must re-decide it in accordance with the guidance given in this decision

REASONS FOR DECISION

1.	This is an appeal, brought by the claimant with permission granted by Upper Tribunal Judge Jacobs, against a decision of the First-tier Tribunal dated 10 April 2013, allowing in part an appeal by the claimant against a decision of the Secretary of State dated 21 November 2011 to terminate her award of incapacity benefit with effect from 16 December 2011 because it did not qualify for conversion to an award of employment and support allowance.  The First-tier Tribunal held that the award did qualify for conversion to an award of employment and support allowance but, although the First-tier Tribunal found the claimant to have limited capability for work, it was not satisfied that she had limited capability for work-related activity.

2.	It is submitted by the claimant that the First-tier Tribunal erred in its approach to regulation 35(2) of the Employment and Support Allowance Regulations 2008 (SI 2008/794) (hereinafter “the 2008 Regulations”).  The Chamber President of the Administrative Appeals Chamber of the Upper Tribunal directed that the appeal be heard by a three-judge panel because differing views on the approach to regulation 35(2) had been expressed by judges of the Upper Tribunal. 

The legislation

3.	In order that the issues in the case may properly be understood, it is necessary to describe the legislative background in some detail and to set out some of the provisions in full.

4.	Employment and support allowance was introduced by Part 1 of the Welfare Reform Act 2007 (hereinafter “the 2007 Act”) to replace incapacity benefit, severe disablement allowance and income support insofar as it was payable to claimants incapable of work.  The legislation provides in section 1(2) for both a contributory allowance and an income-related allowance. By section 1(3)(a), it is a “basic condition” of entitlement to employment and support allowance that the claimant “has limited capability for work”.  Section 1(4) provides –

 “(4) For the purposes of this Part, a person has limited capability for work if:
    (a)	his capability for work is limited by his physical or mental condition, and
    (b)	the limitation is such that it is not reasonable to require him to work.”

5.	Under sections 2 and 4, an element of the calculation of the amount of the allowance to which a person is entitled may be either the support component or the work-related activity component.  The support component is the higher of the two components and entitlement to it depends on the claimant having “limited capability for work-related activity”.  Section 2(5) is in terms similar to section 1(4) and provides –

 “(5)  For the purposes of this Part, a person has limited capability for work-related activity if— 
    (a)	his capability for work-related activity is limited by his physical or mental condition, and 
    (b)	the limitation is such that it is not reasonable to require him to undertake such activity.”

6.	By virtue of section 20(4), a person in respect of whom it has been determined that he or she has, or is to be treated as having, limited capability for work-related activity is said to be “a member of the support group”.  Section 1A provides that the period of entitlement to the contributory allowance is limited to 365 days, not counting days in which the claimant is a member of the support group.  Where a claimant is a member of the support group, the contributory allowance may be paid indefinitely.

7.	Sections 8 and 9 are in very similar terms to each other and make provision for, respectively, determining whether a person has limited capability for work and determining whether a person has limited capability for work-related activity.  In particular, section 9(1) provides –

“9.–(1)  For the purposes of this Part, whether a person's capability for work-related activity is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to undertake such activity shall be determined in accordance with regulations. 

Those sections are supplemented by paragraphs 1 and 9 of Schedule 2, which are again in very similar terms to each other and apply in relation to, respectively, limited capability for work and limited capability for work-related activity.  Paragraph 9 provides –

“9.  Regulations may make provision—
    (a)	for a person to be treated in prescribed circumstances as having, or as not having, limited capability for work-related activity;
    (b)	for the question of whether a person has limited capability for work-related activity to be determined notwithstanding that he is for the time being treated by virtue of regulations under sub-paragraph (a) as having limited capability for work-related activity;
    (c)	for the question of whether a person has limited capability for work-related activity to be determined afresh in prescribed circumstances.”

Section 10 provides for reports on the operation of regulations under sections 8 and 9 to be laid before Parliament annually for the first five years after those sections came into force.

8.	Whether a claimant has limited capability for work-related activity is important not just in terms of the amount of employment and support allowance payable or the length of time for which a contributory allowance may be paid but also for the purpose of determining whether entitlement to employment and support allowance may be made conditional on the claimant taking part in assessments, interviews and work-related activity.  The thinking behind the legislation is that most of those who have limited capability for work can be encouraged back to work and, accordingly, sections 11, 12 and 13 provide that regulations may make provision for claimants to be required to take part in, respectively, work-focused health-related assessments, work-focused interviews and work-related activity, unless the claimants have limited capability for work-related activity.  Each of those sections provides that the regulations may secure that “the appropriate consequence” follows if a person fails to comply with the regulations and does not, within a prescribed period, show good cause for the failure.  

9.	Section 13(7) provides that –

  “(7)  In this Part, “work-related activity”, in relation to a person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so.”

Notwithstanding section 1(4)(b) subsection (8) of section 13, inserted by section 55 of the Welfare Reform Act 2012 with effect from 3 December 2012 (and therefore after the date material to the present case), provides that –

 “(8)  The reference to activity in subsection (7) includes work experience or a work placement”.

10.	Section 14 provides for regulations to be made in respect of action plans in connection with work-focused interviews and section 15(1) provides –

“15.–(1)  In prescribed circumstances, the Secretary of State may by direction given to a person subject to a requirement imposed under section 13(1) provide that the activity specified in the direction is—
    (a)	to be the only activity which, in the person's case, is to be regarded as being work-related activity; or
    (b)	to be regarded, in the person's case, as not being work-related activity.
  
Since section 13(1) provides only for regulation making powers, the requirement to which section 15(1) refers is a requirement made in the regulations.

11.	Section 16 provides that the conducting of work-focused interviews, the provision of documents under section 14 and the giving, varying or revoking of directions under section 15 may be contracted out and it also enables regulations to provide that functions under regulations made under sections 11 to 15 may be contracted out, except insofar as they relate to making decisions as to whether a person has failed to comply with a direction, has shown good cause for having complied with a direction or should have his or her employment and support allowance reduced in consequence of a failure to comply with a direction.  Where functions are contracted out, the body carrying out the functions is known in Departmental jargon as a “provider”.  The functions that may not be contracted out include those in respect of which there is a right of appeal to the First-tier Tribunal, by virtue of section 12 of the Social Security Act 1998.  There is no right of appeal against decisions simply requiring a person to take part in a work-focused interview or to engage in work-related activity.  It is only when a sanction is imposed for breach of such a requirement that a right of appeal arises.

12.	The regulation-making powers mentioned above are exercised in the 2008 Regulations and in the Employment and Support Allowance (Work-Related Activity) Regulations 2011 (SI 2011/1349) (hereinafter “the 2011 Regulations”).  Parts 5 and 6 of the 2008 Regulations make provision for deciding whether a person has, or is to be treated as having, respectively, limited capability for work and limited capability for work-related activity.  Part 8 of the 2008 Regulations and Parts 2 and 3 of the 2011 Regulations make provision in relation to conditionality, mostly in exercise of the powers conferred by sections 11 to 16.

13.	In Part 5 of the 2008 Regulations, regulation 19 and Schedule 2 provide for a work capability assessment under which a claimant’s ability to carry out 17 “activities” is assessed and points are scored depending upon which of the descriptors in column 2 of Schedule 2 are satisfied.  A person who scores 15 points is determined to have limited capability for work.  Several regulations provide for a person to be treated as having limited capability for work and, in particular, regulation 29(2)(b) provides –

“29.–(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)	…; 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.”

Paragraph (2) has been made subject to a new paragraph (3) with effect from 28 January 2013, but that amendment does not affect the issues raised in this appeal.

14.	In Part 6 of the 2008 Regulations, regulation 34(1) and (2) provides –

“34.–(1)  For the purposes of Part 1 of the Act, where, by reason of a claimant’s physical or mental condition, at least one of the descriptors set out in Schedule 3 applies to the claimant, the claimant’s capability for work-related activity will be limited and the limitation will be such that it is not reasonable to require that claimant to undertake such activity. 
  (2) A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.”

We need set out only Activity 13 of Schedule 3 and its descriptor, as they were in force at the time material to this appeal –

“Activity	Descriptor	
13. Coping with social engagement, due to cognitive impairment or mental disorder.	Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual.	

15.	Regulation 35, made under paragraph 9 of Schedule 2 to the 2007 Act, provided at the material time –

  “35.–(1)  A claimant is to be treated as having limited capability for work-related activity if— 
    (a)	the claimant is terminally ill; 
    (b)	the claimant is— 
    (i)	receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or 
    (ii)	recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or 
    (c)	in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity. 
  (2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if— 
    (a)	the claimant 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.”

Subparagraph (1)(b) was replaced with effect from 28 January 2013 but that amendment is not relevant to the issues arising in this case.

16.	Originally, Part 8 of the 2008 Regulations provided for both work-focused health-related assessments and work-focused interviews and also for the consequences of failing to comply with requirements to take part in such assessments or interviews.  However, regulations 47 to 53, in respect of work-focused health-related assessments, were revoked by the 2011 Regulations with effect from 1 June 2011.  Regulations 54 to 61, as amended by the 2011 Regulations, make provision for work-focused interviews.  Regulation 62 provides that the functions of the Secretary of State under regulations 54(1), 56(1) and (2), 57(1)(b) and (c), 59(1) and (3) and 60 may be contacted out.  

17.	Regulations 3 to 8 of the 2011 Regulations are of more direct relevance to this appeal.  They make provision for work-related activity and provided at the time material to this appeal –

3.–(1)  The Secretary of State may require a person who satisfies the requirements in paragraph (2) to undertake work-related activity as a condition of continuing to be entitled to the full amount of employment and support allowance payable to that person. 
  (2) The requirements referred to in paragraph (1) are that the person— 
    (a)	is required to take part in, or has taken part in, one or more work-focused interviews pursuant to regulation 54 of the ESA Regulations; 
    (b)	is not a lone parent who is responsible for and a member of the same household as a child under the age of 5; 
    (c)	is not entitled to a carer's allowance; and 
    (d)	is not entitled to a carer premium under paragraph 8 of Schedule 4 to the ESA Regulations. 
  (3) A requirement to undertake work-related activity ceases to have effect if the person becomes a member of the support group. 
  (4) A requirement imposed under paragraph (1)— 
    (a)	must be reasonable in the view of the Secretary of State, having regard to the person's circumstances; and 
    (b)	may not require the person to— 
    (i)	apply for a job or undertake work, whether as an employee or otherwise; or 
    (ii)	undergo medical treatment. 
  (5) A person who is a lone parent and in any week is responsible for and a member of the same household as a child under the age of 13, may only be required to undertake work-related activity under paragraph (1) during the child's normal school hours. 

4.–(1)  The circumstances in paragraph (2) are the circumstances prescribed for the purposes of section 15(1)(a) of the Act. 
  (2) The circumstances referred to in paragraph (1) are that— 
    (a)	the person has been identified by the Secretary of State as having a barrier to work and in the view of the Secretary of State has refused to address that barrier; and 
    (b)	the Secretary of State considers that the activity specified in the direction given under section 15(1) of the Act is a prerequisite to the person's ability to obtain or remain in work. 

5.–(1)  The Secretary of State must notify a person of a requirement to undertake work-related activity by including the requirement in a written action plan given to the person. 
  (2) The action plan must specify— 
    (a)	the work-related activity which the person is required to undertake; and 
    (b)	any other information that the Secretary of State considers appropriate. 

6.  The Secretary of State may determine that a requirement as to the time at or by which work-related activity is to be undertaken is not to apply, or is to be treated as not having applied, if in the view of the Secretary of State it would be, or would have been, unreasonable to require the person to undertake the activity at or by that time. 

7.–(1)  A person may request reconsideration of an action plan. 
  (2) On receipt of a request the Secretary of State must reconsider the action plan. 
  (3) A decision of the Secretary of State following a request must be in writing and given to the person. 

8.–(1)  A person who is required to undertake work-related activity but fails to do so must show good cause for the failure within 5 working days of the date on which the Secretary of State gives notice of the failure. 
  (2) The Secretary of State must determine whether a person who is required to undertake work-related activity has failed to do so and, if so, whether the person has shown good cause for the failure. 
  (3) In deciding whether a person has shown good cause for the failure, the Secretary of State must take account of all the circumstances of the case including in particular the person’s physical or mental health or condition.”

Regulation 8(3) has since been revoked.  Regulation 9 provides that any of the Secretary of State’s functions under regulations 3, 5, 6 or 7 may be contracted out.  

18.	Regulation 63 of the 2008 Regulations, as amended by the 2011 Regulations, then provides for the reduction of employment and support allowance as a sanction for failing, without showing good cause, to comply with a requirement to take part in a work-focused interview or to undertake work-related activity.

19.	The 2007 Act came into force for new claimants on 27 October 2008.  Schedule 4 enables regulations to be made to provide for the transition to the new allowance of those entitled to the benefits being replaced.  The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No.2) Regulations 2010 (SI 2010/1907), which came into force on 1 October 2010, make provision for the conversion of awards of the old benefits into awards of the new allowance, provided that the claimant has, or may be treated as having, limited capability for work as determined under the 2008 Regulations.  If the award does not qualify for conversion, it is simply terminated.  

Pausing there

20.	Before turning to the authorities and arguments we think it is helpful to pause to make some general comments.

21.	First, even under the original version of Schedule 2 to the 2008 Regulations, the test for limited capability for work was generally more stringent than the test for incapacity for work under earlier legislation.  Both Schedule 2 and Schedule 3 to the 2008 Regulations were, for most claimants, made even more stringent from 28 March 2011.  It is therefore not surprising that a substantial proportion of awards of the former benefits do not qualify for conversion and that a greater proportion of employment and support allowance cases generally have turned on regulations 29(2)(b) and 35(2).  Moreover, as being found to have limited capability for work-related activity has become more important for claimants – because now it affects not only the amount of benefit to which they might be entitled but also whether they must engage in work-related activity (which is itself becoming more rigorous) and, if they are entitled to the contributory allowance, the period for which that allowance is payable – an increasing number of claimants rely on regulation 35(2) in their appeals.  Experience shows that the most contentious cases are those where claimants suffer from a significant degree of mental ill health.

22.	Secondly, it is apparent that the 2007 Act is directed to the individual claimant, defines limited capability for work and limited capability for work-related activity and then prescribes that the approach to be taken by the person deciding whether a particular claimant has limited capability for work, limited capability for work-related activity (as so defined) is to be determined in the way set out by the Secretary of State in the Regulations.  Those Regulations also set out the consequences and potential consequences for a claimant of the decisions made, including the decision on whether or not he has limited capability for work-related activity.

23.	Regulation 35 is clearly intended to be a safety net to avoid some claimants facing the consequences or potential consequences of a conclusion that applying the points system based on functional tests a claimant is found not to have limited capability for work-related activity.  So far as relevant here, regulation 35(2)) is based on the existence of a risk arising from those consequences. Some of the possible consequences of being found not to have limited capability for work-related activity are founded on decisions that have to be made by the Secretary of State and others on decisions made by providers.

24.	So the application of regulation 35(2) involves a risk assessment at the time or times that a decision under it falls to be made. As it has to be applied before the next stage of the process begins for a person found not to have limited capability for work-related activity the analysis of and decision on whether the defined risk exists involves the making of predictions of the likelihood of the claimant facing the possible consequences and of the possible results of him doing so.  This process and so the making of the predictions it involves have to take place before the relevant claimant faces the relevant consequences.  

25.	That process, and the predictions it involves, has to be made first by the Departmental decision-maker on behalf of the Secretary of State and later, if there is an appeal, by the First-tier Tribunal. 

26.	Inevitably, an aspect of the decision making at that stage is an assessment of what will happen at and as a result of that claimant’s work-focused interview.  Possible results are that the claimant will be required by a provider to undertake one or more work-related activities (and so an activity which makes it more likely that the person will obtain or remain in wok or be able to do so – see section 13(7)). Any such requirement must be reasonable and can be limited pursuant to section 15(1)(a) to a defined activity if the Secretary of State concludes that the claimant has a barrier to work which he has refused to address and the specified activity is a prerequisite to the person’s ability to obtain work.  A claimant who does not undertake the specified work-related activity will face a reduction in his employment and support allowance unless he can show good cause for his failure (see regulations 3 to 8 of the 2011 Regulations).  The range of work related activities is potentially wide but to fit with the definition in section 13(7) and regulation 4 of the 2011 Regulations it must be something that addresses the barrier of that claimant to work and makes it more likely that he will obtain or remain in work.

27.	Both the Departmental decision-maker and the First-tier Tribunal must act fairly in applying regulation 35(2) and to do that they must reach their decisions on a properly informed analysis of the relevant factors. Inevitably that will involve them considering the impact of the possible consequences of the claimant attending a work-related interview and so of him being required by a provider to undertake a work-related activity as a result.

28.	Equally, the decision-maker at the work-focused interview and a provider deciding what work-related activity a claimant should be required to do must act fairly and so reach a decision on a properly informed basis. 

29.	The primary point on this appeal is the amount and detail of the information the regulation 35(2) decision-makers should have of the possible results of the work-focused interview.

30.	Relevant to that point and a fair approach to decision making under regulation 35(2) on a properly informed basis is the amount of information that the decision-maker at the work-focused interview or the provider will have of the factors taken into account and the reasoning of the decision-maker who has made a decision under regulations 34 and 35 of the 2008 Regulations.  This is because that information will inform him or her at that later stage of the evidence and reasoning of the earlier decision making relating to the disabilities and capabilities of the claimant and why regulation 35(2) was not applied.  Clearly the more that later decision-maker knows about the earlier decisions that have resulted in  the work-focused interview the more likely it is that he will not make a decision that causes the risk set out in regulation 35(2) to arise or materialise.  

31.	Accordingly, fairness would be promoted by the Secretary of State operating a “joined up” decision making process in which such information is provided to the work-related activity decision-maker.  

32.	But we are concerned with what evidence and factors should be taken into account at the earlier stage when regulation 35(2) has to be applied and have to do so in the light of the present system and practice of the Secretary of State relating to the provision of information between decision-makers. 

The facts of the present case

33.	On 1 July 2002 the claimant, who lives in Wolverhampton and is now aged 60 but was then aged 48, became entitled to incapacity benefit on the basis that she was incapable of work.  On a date in 2011 not revealed in the papers before us, she was notified that the “conversion phase” had begun for her.  It is not entirely clear whether she was never sent the standard questionnaire or did not receive it or did not return it or returned it but then it was lost but, in any event, when her case was referred for scrutiny by a healthcare professional, a registered medical practitioner, he considered that there was insufficient evidence before him and so the claimant was required to attend a work capability assessment.  This was also carried out by a registered medical practitioner on 16 August 2011.  It was recorded that the claimant suffered from anxiety and depression, high cholesterol and an ankle problem but she was not taking any medication except statins in relation to her high cholesterol, had not been referred for specialist treatment in connection with her mental health and the healthcare professional’s mental state examination.  The healthcare professional was of the view that the claimant did not score any points under the work capability assessment and that regulation 29 of the 2008 Regulations did not apply to her and the Secretary of State adopted that view and so decided on 21 November 2011 that the claimant’s award of incapacity benefit did not qualify for conversion to an award of employment and support allowance and should simply be terminated with effect from 16 December 2011.

34.	The claimant appealed on 18 January 2012.  No point was taken on her appeal being late, but the appeal was struck out in May 2012 because she had failed to respond to an enquiry from the First-tier Tribunal as to whether she wished to continue with her appeal.  It has been observed in other cases that those who suffer from depression may be more likely than others to fail to comply with time limits and other directions.  In any event, in this case the claimant’s appeal was reinstated when she became represented by Mr Tim Butcher of Wolverhampton Welfare Rights Service.  Mr Butcher made a written submission to the First-tier Tribunal, arguing that the claimant satisfied descriptors 9(b), 13(a), 15(c) and 16(c) from Schedule 2 and, consistently, only the descriptor for Activity 11 in Schedule 3 (which is the same as descriptor 13(a) of Schedule 2).  In the alternative, he relied on regulations 29(2)(b) and 35(2).  He represented the claimant at the hearing.  She herself attended the hearing and gave evidence.  

35.	In a very carefully reasoned decision, the First-tier Tribunal found that the claimant satisfied descriptors 13(b) (“cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions for the majority of the time”) and 16(c) (“engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual”) of Schedule 2 and that she therefore scored the 15 points necessary for it to be found that she had limited capability for work.   However, it followed that it did not find the descriptor for Activity 11 in Schedule 3 to be satisfied and it therefore considered whether regulation 35(2) applied.  It said –

“24.	Had we not found sufficient Schedule 2 descriptor points applied in relation to limited capability for work, we might well have found Regulation 29(2)(b) applied so as to require [the claimant] to be treated as having limited capability for work. The Tribunal cannot take into account circumstances not obtaining at the time of the decision appealed against, but it can consider evidence of matters occurring after the time of the decision appealed against if, in the opinion of the Tribunal, it assists in determining the circumstances at the time of the decision appealed against. The evidence of the downturn in [the claimant's] mental health after the adverse medical assessment indicated that she has somewhat fragile mental health, but it was probable that if was not only the adverse decision relating to her, but also difficulties with [her daughter's] claim, that were weighing on her mind. We did think that the evidence indicated that [the claimant] might not have coped well with the rigours of attending the Jobcentre to sign on, applying for jobs and jobseeking and/or with travelling to and from a place of work to carry out what would probably be routine light manual or unskilled work. The subsequent evidence indicated a possibility of increasing paranoia and anxiety such as could be described as a substantial risk to her health if she were found not to have limited capability for work.

25.	However, in the context of Regulation 35, we had to imagine how she would cope with the 'rigours' of work-related activity, not the rigours of jobseeking and working. She would have to go to the Jobcentre for work- focused assessment and engage, on a compulsory basis, with pathways into work appropriate to her disability, under the guidance of a disability adviser at the Jobcentre. For example, they might encourage her to continue to do her paper round or expand it. That is very different from signing on fortnightly, completing and logging jobsearch activity, and looking for and pursuing work as happens if the claimant is found not to have limited capability for work. In our view she was capable of doing work-related activity without substantial risk to her own health in the form of increasing paranoia or anxiety or from any other cause. In our experience from evidence given in other tribunals, the work-related activity is fairly low key and consists of not very regular meetings, sometimes conducted by phone. [The claimant] is evidently capable of using a phone and attending meetings. She does so for her daughter. The stress she experiences relates more to persuading [her daughter] and the consequences for [her daughter] of failing to attend, not so much in relation to [the claimant’s] own difficulties. She can do a paper round and is entrusted with money.

26.	At the hearing Mr Butler [sic] seemed to argue that there would be a risk to [the claimant’s daughter’s] health if [the claimant] were found not to have limited capability for work-related activity. He referred to the wording of the regulation "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 case, the argument appeared to be, the "any other person" was [the claimant’s daughter]. The argument was difficult to follow but we thought was to the effect that increased stress for [the claimant] impacted on [her daughter’s] own health and in particular impaired her ability to comply with the requirements of her own claim to attend meetings for work-related activity. We did not agree with this argument. We did not consider any substantial risk to [the claimant’s] own health would result from her being found not to have limited capability for work-related activity for the reasons already explained. We could not find that any adverse consequences flowed for [her daughter] in [the claimant] having to attend work-focused interviews from time to time consistent with being in work-related activity group or in carrying out work-related activity on a compulsory basis. The adverse health consequences to [the claimant] from the decision appealed against were, at least in part, because she had been found not to have limited capability for work not because she had been found not to have limited capability for work-related activity. It seemed more arguable that there were health consequences to [the claimant] of [her daughter] being in work-related activity group, as it resulted in more stress for [the claimant] by reason of having to persuade her reluctant daughter to attend meetings and avoid sanctions, but that was an argument for the application of regulation 35 in relation to the claimant’s daughter’s] claim not [the claimant’s].

27.	We therefore disagreed with Mr Butler’s [sic] submission that [the claimant] should be in the support group.”

The claimant’s appeal was therefore allowed to the extent of finding her to have limited capability for work so that her award of incapacity benefit qualified for conversion to an award of employment and support allowance, but it was found that she did not have limited capability for work-related activity.  

36.	She sought permission to appeal on the basis that: “During the lifetime of this appeal what constitutes work-related activity has altered; the work programme has been introduced.”  Reference was made to ML v Secretary of State for Work and Pensions (ESA) [2013] UKUT 174 (AAC); [2013] AACR 33 and it was submitted that the First-tier Tribunal had been provided with insufficient evidence about work-related activity.  It was also argued that, since the First-tier Tribunal had found descriptor 16(c) of Schedule 2 to be satisfied (“engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual”), it was inconsistent to find that the claimant could cope with work-related activity.  The First-tier Tribunal refused permission to appeal but Upper Tribunal Judge Jacobs granted permission on both grounds.

37.	The Secretary of State resisted the appeal in his written submission, but he said that he was considering whether to appeal against the decision of the Upper Tribunal in MT v Secretary of State for Work and Pensions (ESA) [2013] UKUT 545 (AAC), which he submitted was inconsistent with other decisions, and he invited the Upper Tribunal to stay the present appeal until any appeal had been determined.  In the event, he did submit an application for permission to appeal against MT but the Chamber President directed that the present case be heard by a three-judge panel in the light of the apparent conflict in the decisions of the Upper Tribunal and the Secretary of State agreed that his application for permission to appeal should be stayed instead.  The claimant submitted that this was not an appropriate case in which to decide the points of principle that arise but the Chamber President decided that, notwithstanding changes to the legislation and practice in late 2012, the points of principle were not affected.  In the claimant’s skeleton argument, it was submitted that MT was correctly decided.

Upper Tribunal case law

38.	Before considering MT, it is necessary to look at earlier decisions on regulation 35(2).

39.	In AH v Secretary of State for Work and Pensions (ESA) [2013] UKUT 118 (AAC); [2013] AACR 32, Upper Tribunal Judge Jacobs considered how far the approach to a forerunner of regulation 29(2)(b) taken in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42, reported as R(IB) 2/09, could be applied to regulation 35(2) and, adapting the Court’s approach, said at paragraph 26 –

“The decision-maker must assess the range or type of work-related activity which a claimant is capable of performing and might be expected to undertake sufficiently to assess the risk to health either to himself or to others.”

He then said –

“27.	The evidence is the key to applying that paragraph. It consists of two elements and there must be appropriate evidence relevant to each element. The elements are the nature of the work-related activity and the claimant’s health. 

28.	The evidence on the work-related activity can only come from the Secretary of State.  …”

40.	Judge Jacobs returned to this issue a month later in ML v Secretary of State for Work and Pensions (ESA) [2013] UKUT 174 (AAC); [2013] AACR 33, where he said –

“14.	…  Regulations 29 and 35 use similar wording, but they do so for different purposes.  The claimant’s condition is a constant for both provisions. But the activities to which the provisions apply differ. The former is concerned with the risk of work; the latter is concerned with the risk of work-related activity. There is no reason why the former should automatically be determinative of the latter. This will depend on: (i) the nature of the claimant’s condition; (ii) its effects; and (iii) the nature of the work-related activity. It may be that the condition will give rise to the same risk whether the claimant undertakes work or work-related activity. Or it may give rise to different risks. Or it may give rise to risk in respect of one but not the other. 

15.	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. The decision whether or not a claimant satisfies the conditions for the support group carries the right of appeal to the First-tier Tribunal under section 12 of the Social Security Act 1998. It is not one of those decisions that are excluded from the right of appeal. The existence of a statutory right of appeal requires that it must be effective. It cannot be effective without the necessary information for claimants to participate in the appeal and for the tribunal to make a decision. 

16.	In this case, there was sufficient information for the tribunal to make a decision. Whatever work-related activity may involve, Mrs L should be able to undertake it. She is able to travel and even to drive herself short distances. She was able to attend and endure an interview and examination with the health care professional, which lasted for 51 minutes. She is able to attend to her own basic needs, to manage short trips, and to attend to her business in shops, her bank and the post office. I accept the Secretary of State’s submission to that effect.

17.	Although Mrs L had not put her case in quite this way, it would be fair to state it like this. The tribunal has accepted that I am not able to sustain sufficient activity to be capable of work and my condition is not going to improve, so what is the point of making me undertake activity to prepare me for work of which I will never be capable? The answer is that the law is not structured in that way. There are claimants who are not capable of work and never will be capable of work but whose condition and disabilities are not such that they can satisfy the conditions for the support group. To put it another way, the support group is not for those who will never be capable of work. It is for a narrower category. That may explain why, by Mrs L’s report, her Jobcentre Plus adviser has not asked her to undertake any work-related activity.”

41.	In MN v Secretary of State for Work and Pensions (ESA) [2013] UKUT 262 (AAC); [2014] AACR 6, Upper Tribunal Judge Wright said that –

“16.	… it may well be that in most cases a general indication of what is involved in work-related activity may suffice to meet the Charlton/AH test of “the range or type of work-related activity which [the appellant] is capable of performing and might be expected to undertake” so as to allow the First-tier Tribunal to assess (a) whether the appellant is capable of performing those activities, and (b) if he is, any risks associated with his so doing. However, in particular cases more specific information may be required. For example, what might be thought of as a standard work-related activity of attending an interview at a Jobcentre might not be an activity that a severely agoraphobic and anxious person who has scored 15 points under descriptors 15(b) and 16(c) of Schedule 2 to the ESA Regulations is capable of undertaking, and more tailored work-related activity may be needed.”

Judge Wright also made the point that, where regulation 35(2) is directly raised by an appeal, rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) requires the Secretary of State to provide in his response to an appeal the grounds on which he concludes that the claimant does not fall within the scope of the regulation.

42.	In AK v Secretary of State for Work and Pensions (ESA) [2013] UKUT 435 (AAC), Upper Tribunal Judge  White referred to AH and said –

“11.	A number of difficulties arise both for decision makers and tribunals in relation to setting out what work-related activity comprises. This is because there is an initial consultation with a personal adviser in the Department at which activities appropriate to all the claimant’s circumstances, including his or her state of health, will be assigned. At the point at which a determination is being made about whether a claimant has limited capability for work-related activity, no such initial consultation has taken place. There will inevitably be a degree of speculation about what those activities might be.

12.	At the very least, work-related activity will involve a consultation with a personal adviser, which I have been told in other cases may be by telephone. I have also been told that there is no problem about a person being accompanied to this consultation by a friend for moral support.

13.	Furthermore, in the case of First-tier Tribunals, there is generally no representative of the Secretary of State present, and so no-one who can respond to questions about what might conceivably be appropriate for the appellant. It would further clog up the adjudication system if, every time a tribunal reached the point at which they were required to consider regulation 35(2), there had to be an adjournment with directions for a submission to be prepared on behalf of the Secretary of State.

14.	Where appeals are made to tribunals and regulation 35 might well be in issue, these difficulties would be obviated if the submission to the tribunal provided some examples of typical types of work-related activity. That would give tribunals something beyond speculation to work with. If it was plainly the case that the appellant could undertake some of those activities safely, then the conditions in regulation 35(2) would not be met. If the examples were carefully considered, I suspect the circumstances presented by most claimants could be judged without the need for either speculation or an adjournment.

15.	This is what the Secretary of State has said to me on this issue:

‘4.3 … . I would highlight the point that there are no specific descriptors in regulations that describe what WRA a claimant may be required to undertake. This allows a flexible approach to be taken when considering what WRA a claimant might be capable of undertaking.

4.4 When drawing up the action plan with the claimant, the adviser takes into account the claimant’s circumstances including physical or mental health and any learning or cognitive issues, to ensure requirements are reasonable and appropriate for that individual and help overcome a specific barrier to moving closer to employment—work related activities could include:

CV writing
confidence building course
basic skills
participate in basic literacy or numeracy courses
participating in English language training
work experience
mandatory work placements for community benefit.

4.5 This list is not exhaustive; there are other activities claimants may be required to undertake which would be discussed with the advisor to ensure it is flexible and tailored to an individual’s circumstances. Flexibility is essential in tailoring the right support for each claimant and this would need to be maintained as what works for one claimant may not be suitable for another. Judge Jacobs in [ML] paragraph 15 acknowledged that it was not possible to say in advance what precisely would be expected of any particular claimant in relation to what WRA they might be able to undertake. The Judge also accepted in his decision [AH] at paragraph 31 that the nature of the claimant’s disabilities would determine evidence needed for a Tribunal to decide whether or not they satisfied the criteria in regulation 35(2).’

16.	Plainly at the very least a claimant required to undertake work-related activity must have a consultation with a personal adviser in the Department. But the test cannot be that regulation 35(2) will only be satisfied where a person lacks the capability to have such a consultation. There must be very few people (such as those with very significant mental health problems) for whom this minimal requirement would present a substantial risk to their health or that of others.

17.	I have seen some submissions which get close to adopting the position set out in the previous paragraph. Nor can it be right simply to assert that a personal adviser would never require activity beyond the capability of the claimant, and that in some cases very little activity would be required. It does seem to me that there must be some illustrative examples of what work-related activity involves. If a claimant can show that they could not safely undertake any of those activities which might well be appropriate to them, then it seems to me that they will have satisfied regulation 35.

18.	Where no evidence is available, then I see nothing inappropriate in a tribunal indicating some typical examples of work-related activity that are within their knowledge and showing that a claimant can safely undertake those activities.

19.	Indeed this appears to be the position adopted by the Secretary of State in this appeal:

‘4.5 … . It is my contention that in this particular case the evidence within the appeal bundle and the claimant’s verbal evidence were sufficient and specific enough for the Tribunal to make the decision that the claimant did not satisfy the criteria for regulation 35(2).’ 

20.	In her final observations to me, the appellant takes issue with much of what the Secretary of State says. In particular, she argues that a decision under regulation 35(2) should not be based on assumptions but on particular activities which might be regarded as appropriate to her.

21.	I have not found this an easy decision to make. Even taking the examples which are now put before me by the Secretary of State of typical work-related activity, it is plain that most of them would be unlikely to be appropriate for this appellant. Some are patently inappropriate, such as basic skills courses, literacy and numeracy courses and English language training. 

22.	However, I do not consider that the illustrative examples used by the tribunal are inappropriate or far-fetched. The tribunal’s findings of fact indicate that the appellant can attend and participate in a tribunal hearing, can sit for limited periods, and can write. Typical work-related activity such as interviews or retraining (perhaps with a view to some sort of part-time work from home) might well involve these things and could be accomplished without substantial risk to the appellant’s health. No issue arises relating to risks to the health of anyone else.

23.	In all the circumstances of this case, I have concluded that the tribunal was left with no realistic option but to speculate on the sort of work-related activities that might be required. Their speculation has generated sensible examples and they have concluded that these can safely be undertaken by the appellant.

24.	There is therefore no error of law in the tribunal’s decision, and I dismiss this appeal.

43.	However, in MT, Upper Tribunal Judge Gray disagreed with that approach.  She referred to AK and said –

15.	…  [AK] was a case in which the FTT took a similar, some might say pragmatic approach, assuming that work-related activity might involve "interviews, retraining or therapy". In that case the Deputy Upper Tribunal Judge was of the view that it was not inappropriate for the FTT to indicate some typical examples of work-related activity that were within their knowledge, and if they found that an appellant could safely undertake those activities then they would not fall within the provisions of regulation 35(2). 

16.	I am not convinced that is the appropriate approach. It seems to me to be looking at matters from the wrong end of the telescope.   Even if there are aspects of work-related activity at the lower end of the scale, for example a telephone interview, that an appellant would be likely to be able to engage in without there being any substantial risk to their health (or that of others) that is insufficient to conclude that regulation 35(2)(b) is not satisfied because the actual work-related activities which an appellant will be required to engage in may be of a very different order. …”

44.	Judge Gray then suggested that the reason that specific evidence as to what work-related activity might be suitable for a claimant could not be put before the First-tier Tribunal was that the work-focused health-related assessments required by regulations made under section 11 of the 2008 had been abolished.  Those assessments had, she said, been carried out by healthcare professionals at the same time as work capability assessments and so were available to those carrying out work-focused interviews.  She then said –

“23.	Any claimant may, if they wish, engage in work related activities. In most cases it will be to the benefit of a claimant to discuss ways to improve their chances of ultimately obtaining employment and often participation in activities which reflect expectations at work will be helpful to establish the extent to which a person can cope with those expectations or where their limitations lie. These issues may then be addressed.   Difficulties may arise, however, where there is disagreement between the claimant and the adviser as to what activities they may safely be able to engage in, and at that stage there is no dispute resolution mechanism. The disagreement could end with a claimant being sanctioned. Only at that stage would there be the prospect of an appeal to establish whether there had been reasonable cause for any refusal to engage in work-related activities. From 3 December 2012 the sanction is 100% of the personal allowance, currently £71.70 a week, leaving the claimant only with the work-related component of £28.45 a week.  The sanction continues for each week that there is non-compliance with the requirement, and there is an additional fixed term of between one and four weeks depending upon whether there has been a previous sanction.  If the claimant chose to pursue a work-related activity about which they felt uncomfortable to avoid the threat of sanction, there may be a risk to health.   

24.	Regulation 35 provides protection to an unusually vulnerable claimant against those circumstances occurring.  Within that protective cloak a claimant can agree to engage in certain activities but cannot be compelled to do so; conditionality does not apply. I would emphasise that this issue relates to a very small group of vulnerable people, essentially comprising those with significant mental health problems or learning difficulties. They are those who are the least likely to be able to challenge any sanctions.

What if, as in this case, the information is not before the FTT? 

25.	Was this FTT able to make an assumption as to what work-related activities would be required of this appellant?  

26.	My answer to that question, and therefore the crux of my decision in this appeal, is no.  The identification of certain limited activities in which the appellant may be able to engage and the use of those findings to found a decision that regulation 35(2) is not satisfied creates a situation whereby because the appellant is judged to be capable of carrying out some work related activities they are put into a position where there may be an assumption by an adviser that they could carry out any work related activity that was directed, with the consequent sanction risk.  That seems to me to perpetuate the mischief that regulation 35 is there to alleviate.  The requirement within the regulations that the work-related activity be "reasonable" does not cure the defect, because the issue of reasonableness is for the adviser, and there is no direct challenge to that judgement.

27.	In this case and in general, what is to be done if the FTT is faced with the problem of either no information or generalised information such as that set out in the Secretary of State's submission in [AK]?  The FTT may yet be able to fairly and justly deal with the appeal without adjourning for case specific information, an approach that would if replicated in sufficient numbers prolong the process to the detriment of appellants and cause logistical difficulties both for the DWP and HMCTS.”

45.	The solution Judge Gray suggested was that, in the absence of specific evidence of what the specific claimant would be required to do by way of engagement in work-related activity, either the First-tier Tribunal should find that regulation 35(2) applied and leave it to the Secretary of State to supersede the decision if suitable work-related activity were subsequently identified or, alternatively, the First-tier Tribunal should state what work-related activities would not result in a substantial risk to the health of the claimant, which she expected would be applied by the Secretary of State unless and until he superseded the decision. 

The arguments

46.	Arguing in support of the approach taken in MT, Mr Manville referred us to a number of documents describing the practical difficulties faced by claimants in relation to work-related activity and, in particular, the risk of claimants with mental health problems being required to engage in work-related activity that is detrimental to their health.  In relation to the present claimant, it is for instance argued that her documented paranoia may lead her not fully to engage with advisers and therefore to fail to reveal to them the full extent of her difficulties.  It is also stated that her paranoia displays itself in her feeling that her telephone conversations are being listened to, which might have a bearing on the reasonableness of expecting her to use a telephone as a means of engaging in work-related activity.

47.	The Secretary of State submits that AH, ML, MN and, implicitly, AK are all correctly decided and that the approach taken in those cases necessarily flows from the Court of Appeal’s decision in Charlton.  He argues that, as was decided in ML, he cannot say in advance what a particular claimant might be required to do and so, if there is any work-related activity that a claimant can reasonably do, regulation 35(2) cannot apply.  In Ms Olley’s skeleton argument, she says –

“53.	The reason is that the Secretary of State is not, as at the date of the decision on LCWRA, in a position to know the specific WRA that would be required of the particular claimant. That level of detail will only become known once the provisions of the statutory framework have been worked through and an action plan arrived at under regulation 5 of the WRA Regulations. This is the case whether the claimant's contact is with the Job Centre Plus or a Work Programme provider.

54.	In addition to that point, which is a point of principle with reference to the statutory framework, the decision maker who has never met the claimant may be based in, say, Glasgow, and therefore have no idea what WRA is available in, for example, Plymouth and therefore simply cannot give specific evidence of what may eventually be required by way of WRA as set out in an action plan reached in conjunction with a personal adviser at the JCP or a Work Programme provider.

55.	To require a greater level of specificity in relation to LCWRA at the decision making stage than that envisaged by Judge Jacobs in AH, would be to ignore the clear way in which the legislation is crafted, as follows.

56.	The first stage is for a WFI to take place between the claimant and the personal adviser. Initially this will be with a personal adviser from the JCP; however, some claimants will be referred onto a Work Programme provider where appropriate taking into account the claimant's prognosis.

57.	As noted above, the WFI involves a discussion in relation to what barriers to reentering the work place exist and what steps, if any, the claimant could take to

 overcome those barriers. The claimant's individual circumstances will also be discussed in order to ensure that the WRA is as flexible and tailored as possible. The adviser will also have local knowledge of the specific WRA which is available in the claimant's area.

58.	Crucially, unless and until that WFI has taken place, the Secretary of State's discretion to impose WRA does not arise. If the Secretary of State (or Work Programme provider exercising powers delegated by the Secretary of State) does exercise his discretion to impose WRA, then that is limited by Regulation 3 of the WRA Regulations to what is reasonable having regard to the claimant's circumstances.

59.	Furthermore, under s13(8) [sic, s.13(7) was meant] of the 2007 Act the WRA in question must make it more likely that the person will obtain or remain in work or will be able to do so. It is entirely possible that there will be no WRA which could bring the claimant closer to the workplace. Or, it may be that for a particular reason WRA is not appropriate and in such cases it would not be reasonable to impose it (see paragraph 10 of the Secretary of State's submission of 21st January 2014). Equally the Secretary of State might not impose WRA because the claimant is actually only on ESA because they are recovering from an operation/health condition and do not qualify for statutory sick pay. In such circumstances, they must claim ESA but they are actually still employed and it would be a nonsense for them to undertake WRA.

60.	Whilst it is accepted that decision makers should give an indication of the types or range of WRA that the claimant might be able to undertake without risk to himself or others, it is denied that such an indication is binding on the Jobcentre Plus adviser or Work Programme Provider. As discussed above, the decision maker at the LCWRA decision-making stage simply cannot know what specific WRA would be appropriate. Parliament has decided that the statutory scheme should be flexible to enable the varying and often changing circumstances of the claimant to be taken into account as appropriate.

61.	The judgment of the Court of Appeal in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 (also reported as R(IB) 2/09) supports this approach. The Court of Appeal expressly disapproved (see paragraphs 36-44) an approach which required the decision maker to consider the work which would be defined in a Jobseeker's Agreement (which it is submitted is analogous to an action plan).”

48.	The Secretary of State also submits that there is no obligation on him to provide information about work-related activity to the First-tier Tribunal in a case like the present where the appeal was against a finding that the claimant did not even have limited capability for work.  He also argues that the mere fact that the claimant satisfies descriptor 16(c) in Schedule 2 cannot have the effect that regulation 35(2) must apply.

49.	The acceptance by the Secretary of State that AH was correctly decided leads inevitably to the questions (a) what information is now taken into account by Departmental decision-makers and is now provided to First-tier Tribunals to comply with AH and in particular the passages cited in paragraph 39 above and (b) what information would have been provided in this case had the practice been introduced at the material time.  

50.	The Secretary of State’s argument and the fact that regulation 35(2) is clearly intended to be a safety net to avoid the risk set out therein also lead to the further questions (c) whether there were ways in which, after it had been determined that a claimant did not have limited capability for work-related activity, providers could arrange for that issue to be reconsidered in the light of further information gained from contact with the claimant and (d) whether information gained by a healthcare professional carrying out a work capability assessment was passed on to providers and what if any other information about the decision making process under regulation 35(2) of the Departmental decision-maker or the First-tier Tribunal was passed on to providers.

51.	Counsel was not able to answer those questions at the hearing and so we received further written submissions.  

52.	In answer to question (a) – about the information provided to the First-tier Tribunal – the response was that there are no standard templates but that guidance was being produced.  We were not told when that guidance was likely to be in place or what it was likely to contain.  We acknowledge that guidance can take some time to formulate and the position is complicated by the difference of views expressed by Upper Tribunal Judges, but it would have been helpful to have had more information on how the Secretary of State proposed to apply this central part of his argument and so what he considers to be “appropriate evidence relevant to each of the elements (described in AH)” that should be taken into account first by the Departmental decision-maker and then the First-tier Tribunal.

53.	However, answering question (b), seeking the information that would have been provided in relation to the present claimant to the First-tier Tribunal applying AH and so on the Secretary of State’s argument the correct approach is summarised thus –

“8.	Working on the basis, as found by the FtT, that the Appellant had difficulties in relation to descriptors 13 and 16 of Schedule 2 of the Employment and Support Allowance Regulations 2008 (the "2008 Regulations") namely, difficulty initiating and completing personal actions (planning, organisation, problem solving, prioritising or switching tasks), and difficulty coping with social engagement due to cognitive impairment or mental disorder, and bearing in mind, as evident from the ESA85:
    a, 	her capacity to maintain a part time job delivering newspapers; and
    b. 	the fact that she was able to leave the house to do shopping and other business; and
    c. 	was able to mix with other people most days despite feeling low
the Department's view is that the Appellant would be capable of attending a work focused interview (WFI) to discuss her situation and what sort of WRA she could undertake and what adjustments might be reasonable in her case. In addition, the Appellant would be capable of undertaking training courses that were available online or on an individual or small group basis, for example relating to confidence building, without substantial risk to her health, or the health of others.

9.	The above is of course based on the hypothetical analysis for the purpose of applying Regulation 35, as set out by Judge Jacobs in NS v SSWP (ESA) [2014] UKUT 149 (AAC), and it should be noted that this may or may not be the WRA that is later required of the claimant following detailed discussions which will take place between the claimant and the personal adviser or the WPP. The personal adviser or Work Programme Provider (WPP) will collect more information and gain a greater understanding about the claimant's particular circumstances and condition, they will also have an awareness of what provision is available locally, they are therefore best placed to make the assessment as to what WRA is appropriate in the claimant's particular circumstances, as provided for by the legislation.”

54.	It is also submitted that the claimant would not have been regarded as eligible for the work programme had the Secretary of State found that she had limited capability for work on the grounds that the First-tier Tribunal did, because the First-tier Tribunal recommended on its decision notice that the claimant should not be reassessed for 12 months and so the claimant would not have qualified for referral to the work programme unless she had volunteered.

55.	This is an approach that does not seek to identify what work-related activity would or might be available to the particular claimant and so in that sense one that seeks to predict what consequences that claimant will be likely to or may face by reference to a prediction of what would be decided after the work-focused interview.  Indeed the point that the examples of the types of work-related activity taken into account may or may not be what the claimant is required to do and there is no evidence or assessment relating to or concerning whether those types of activity are available in the claimant’s area or of other types of work-related activity that she might be required to undertake.  

56.	In reply, Mr Manville says that he is not aware of participation in on-line training courses or individual or small group sessions in fact being offered in Wolverhampton and he was unsure whether or not the claimant had a computer.  He also questioned how a personal adviser would know what the First-tier Tribunal’s findings or, indeed, the Secretary of State’s findings were.  He further argued that the Secretary of State’s reliance on what had been found in the ESA85 (the healthcare professional’s report) was inappropriate because the First-tier Tribunal had implicitly rejected it in its statement of reasons.

57.	In answer to question (c) – about routes out of work-related activity – we were told that a claimant could ask a provider to exercise the powers under regulations 6 and 7 of the 2011 Regulations and it was then submitted by the Secretary of State that –

“20.	In addition, if the claimant’s health deteriorated to such an extent that they consider they should be in the Support Group, the appropriate action for the claimant or their representative to take is to apply for supersession.  In the meantime, the claimant can take advantage of the options set out above.”

58.	In answer to question (d) – about the information provided to a personal advisor or work programme provider following a work capability assessment – we were told that the information includes an indication whether the claimant has a disability or is vulnerable but that “the specific details of the nature of a claimant’s disability or information about whether they belong to a disadvantaged group is classified as sensitive personal data” and it would be breach of accreditation for it to be disclosed through the system used for referring information.  Following Professor Malcolm Harrington’s 2011 review of the operation of sections 8 and 9 of the 2007 Act, carried out for the purposes of a report under section 10 of the Act, the decision-maker’s reasons for finding a person not to have limited capability for work are now shared with personal advisers at Jobcentre plus. Doctor Paul Litchfield recommended extending this to work programme providers in his 2013 review and the Government has accepted the recommendation but only subject to further work as to implementation.  That work is not yet complete. 

59.	Therefore, as Mr Manville submits, the short answer to question (d) is that none of the findings made by a healthcare professional on a work capability assessment or of the reasoning of the decision-maker or the First-tier Tribunal on appeal on the application of regulation 35(2) is currently passed to a work programme provider; they effectively start afresh, save that they are alerted without particulars of a vulnerability

60.	In our view, this is a troubling approach that fails to pay proper regard to the underlying purpose of regulation 35(2) to provide a safety net for vulnerable claimants.  It seems to us that a failure to pass on relevant information about an identified risk is contrary to any principles of risk-management, whether the recipient is to be bound by the information or not.

61.	We are also troubled that the information provided to us about routes out of the work programme makes reference to a claimant’s right to apply for a supersession of a decision that he does not have limited capability for work but makes no reference to the Secretary of State’s power to supersede such a decision on his own initiative or to the possibility of a provider inviting the Secretary of State to exercise that power.  Relying on an unrepresented claimant to make an application for supersession – or even an application for a decision under regulation 6 of the 2011 Regulations or a request for reconsideration of an action plan – when he or she is so mentally ill that serious consideration needs to be given to whether he or she should be in the support group, seems at best optimistic even if claimants are informed of their right to make such applications or requests.  Mr Manville stated that there is a financial disincentive for providers to suggest that a claimant be removed from the work programme.  We do not need to decide whether that is so.  However we observe that one of the features of the way the legislation is administered is that, once a decision under regulation 35(2) is made adversely to a claimant, it does not appear to be considered necessary for the issue to be kept under review until the next work capability assessment is carried out and there is apparently no administrative procedure allowing a provider to refer a case to the Secretary of State for reconsideration on his own initiative.

62.	We also observe that it would not be surprising if the approach described in the last two paragraphs to the application of regulation 35(2) was a significant factor in a vulnerable claimant falling through its safety net and so suffering harm.   

Discussion

63.	In the light of the arguments, it is necessary for us to go back to the beginning and consider the language of regulation 35(2) and the Court of Appeal’s decision in Charlton, which is of course binding on us and is relied upon in most of the decisions we have mentioned and also by the Secretary of State in this appeal.

64. 	The issue raised by regulation 35(2) is 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”.  

65.	As was pointed out in R. v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, “substantial” is a word that means different things in different contexts.  However, it was in our view correctly common ground before us that a “substantial risk” in this context means a risk:

 “that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case” 

(this borrows the words used by Lord Nicholls of Birkenhead in Re H and others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 585 when considering the meaning of the words “likely to suffer significant harm” in section 31(2)(a) of the Children Act 1989).      

66.	The harm is identified by regulation 35(2)(b) with the result that it applies only where, by reason of “some specific disease or bodily or mental disablement” from which the claimant is suffering, 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.    

67.	Regulation 35(2) also identifies the relevant cause of that harm and the trigger of the risk that having regard to its nature and gravity cannot sensibly be ignored.  That trigger is that the person is found not to have limited capability for work-related activity.  As we have mentioned earlier this finding gives rise to a progression of consequences and possible consequences starting with a work-focused interview, followed by its result, followed by possible sanctions.

68.	As pointed out in AH, it is therefore clear that the application of regulation 35(2) involves a consideration of both its elements and thus whether that progression of possible consequences might by reason of the claimant’s disease or disablement result in that substantial risk.

69.	The first stage is to consider the impact of the work-focused interview.  The next is to consider its possible results.

70.	Its result could be that the Secretary of State or the provider applying the 2011 Regulations decides that it would not be reasonable to require the claimant to undertake a work-related activity, or that he should not be required to do so for the reasons set out in paragraph 59 of the Secretary of State’s skeleton argument.

71.	If it was known that that would be the result of the work-focused interview in a given case it is likely that this would greatly reduce the chances that the risk specified in regulation 35(2) would exist in that case. But at the decision making stage under regulation 35(2) this cannot usually be known and can only be predicted.

72.	Equally, the result of the work-focused interview could be that the claimant was required to undertake work-related activity pursuant to an action plan.  The purpose of a work-related activity is defined but there is no list of what is and what is not work-related activity and further what is available may vary from area to area.  Again this result cannot usually be known at the time the regulation 35(2) decision is made and so can only be predicted. 

73.	The difficulty relating to the identification of the work-related activity that a claimant may be required to do leads into the disagreement that has arisen between Upper Tribunal judges, which is whether a claimant fails to satisfy regulation 35(2) if there is any work-related activity in which he or she could engage without a substantial risk to anyone’s health, even if engaging in other work-related activity would give rise to such a risk and it is not known whether the work-related activity that it is thought he could do without such risk arising is available in his area or to him and no assessment has been made of the actual range of work-related activity that the claimant might be required to undertake.   

74.	If the result of the work-focused interview is that the claimant is required to undertake work-related activity, the next stage in the trigger to the risk is the impact of either carrying it out or challenging it.  Either could lead to the risk set out in regulation 35(2) being satisfied.

75.	All this shows that the regulation 35(2) decision-maker must do some “crystal ball gazing” to assess the outcomes of the work-focused interview that are to be taken into account in the given case.  The underlying problem being that the work-focused interview comes later in the application of the statutory scheme and the decisions made on what work-related activity a claimant should be required to undertake are taken by different a decision-maker. 

76.	The Secretary of State’s argument is based heavily on the two stage approach to adjudication that he has established, which he submits is required by the legislation and is also required, or at least permitted, by Charlton.  We do not agree.

77.	First, the fact that the regulation 35(2) decision necessarily comes first in most cases, and so what the claimant will actually be required to undertake in the future cannot be known when it is made, does not indicate that predictions should not be made in applying this safety net provision to a particular claimant.  Rather, the very nature of this safety net and its place in the legislation is a powerful indicator that predictions specific to the claimant should be made to protect vulnerable claimants.  

78.	In our view the Secretary of State reads more into Charlton than is warranted and his argument shows that he is putting a limited and we consider incorrect interpretation on AH.

79.	We accept that Charlton sets out a general approach to the assessment of a risk that can be applied by analogy but it is nonetheless relevant to consider the factual background against which the Court of Appeal gave its decision applying that approach.

80.	The appeal to the Court of Appeal in that case was brought by the claimant against a decision of a Social Security Commissioner who had set aside a decision of an appeal tribunal to the effect that there would not be a substantial risk to the mental or physical health of any person if the claimant were found capable of work but had then substituted his own decision to the same effect.  The claimant suffered from alcohol dependency syndrome.  He had not scored any points under the physical health descriptors in the predecessor of a work capability assessment but the appeal tribunal had awarded him five points in respect of mental health descriptors (when nine would have been necessary for a finding of incapacity for work).  The Commissioner therefore had to consider whether the forerunner of regulation 29(2)(b) of the 2008 Regulations (“Regulation 27(b)”) applied.  However, the only risk to any person’s health that the Commissioner found was the risk that would arise due to carelessness on the claimant’s part.  There had been evidence of a minor fire at the claimant’s home, caused by his carelessness.  In relation to the risk to the claimant himself if he were found not to be incapable of work, the Commissioner considered that there was “no significant evidence to suggest that C is any more at risk from accidents while at work than if he continues his existing lifestyle”.  In relation to the risk to others, he first rejected the possibility that the claimant would work in any caring activity and then said –

"More probable, as I have suggested, is a context of straightforward and structured unskilled work. I also take into account the description of C that arises from the Personal Capability Assessment. In such a context, there is a risk of incidents caused by C's carelessness. I assess the risk to others from such carelessness, while undoubtedly present, is not likely to be substantial in the kind of work setting that C might be expected to enter. Indeed, as with the risk to himself, it may be that the risk he presents to others in a work setting is less than the risk to others that he presents in a domestic context. The one example of an incident of carelessness at home is potentially less of a risk in a work setting – where there will be management structures and fire and similar safety features in place – than at home. In my view, it has not been established that the risk to others presented by C if he [were] found capable of work is probably a substantial risk."

81.	Moses LJ, with whom the other members of the Court agreed, questioned the Commissioner’s “apparent search for evidence of a greater risk at work than from his existing lifestyle generally” but considered any such error to be immaterial since the Commissioner had ultimately asked himself the correct question.  

82.	Moses LJ then considered the issue that is of more relevance to the present case.  He said –

“36.	Regulation 27(b) requires the decision-maker to assess risk in the context of the work or workplaces in which the claimant might find himself. The controversy between the claimant and the Secretary of State relates to the extent to which the decision-maker must identify the type of work which the claimant would perform on the hypothesis that he had been found capable of work. 

37.	The claimant contends that a decision-maker must identify what he describes as "actual positions of employment" and must concentrate upon the job that the claimant will undertake, the nature of its duties and its location. Without such analysis a decision-maker will, so he contends, be unable properly to assess risk to safety both to himself and to others. The Commissioner's identification of the type of work the claimant might be expected to undertake is too vague and too broad. 

38.	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. 

39.	The correct approach has been identified by Deputy Commissioner Paines in CIB/360/2007:- 

‘17. The degree of detail in which [the consequences of a finding that the claimant is capable of work] will need to be thought through will depend on the circumstances of the case… A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant's background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).

18. Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial.’

40.	Unfortunately, that approach has not found favour with other commissioners. Commissioner Jacobs in CIB/26/2004 and Commissioner Parker in CSIB/33/04 adopted an approach which required the decision-maker to consider the work which would be defined in a Jobseeker's Agreement should the claimant have made a claim to Jobseeker's Allowance.

41.	Mr Drabble, on behalf of the claimant, supported that approach. He based that submission upon what he asserted to be the link between entitlement to Incapacity Benefit and entitlement to Jobseeker's Allowance. He drew attention to Regulation 17A. Under that Regulation:- 

‘A person should be treated as capable of work throughout any period in respect of which he claims a Jobseeker's Allowance, notwithstanding that it has been determined that…he is or is to be treated as incapable of work under Regulation…27 if…
    (b) 	he is able to show that he has a reasonable prospect of obtaining employment.’

42.	It is unnecessary to divert the proper focus of this issue by an elaboration of the provisions in relation to Jobseeker's Allowance. It is sufficient to point out that entitlement to a Jobseeker's Allowance pursuant to the Jobseeker's Act 1995 and to the Jobseeker's Allowance Regulations 1996, requires a Jobseeker's Agreement to be made with the claimant providing the yardstick as to what is expected of the claimant in terms of his obligation actively to seek work. The contents of the Jobseeker's Agreement (pursuant to Regulation 31 of the Jobseeker's Allowance Regulations 1996) requires there to be any restrictions on the location or type of employment and a description of the type of employment which the claimant is seeking. 

43.	In my judgement the link which Mr Drabble seeks to establish is far too fragile to bear the weight which his argument imposes. There is no warrant within the wording or context of Regulation 27(b) for requiring a decision-maker to embark upon the almost impossible and certainly impractical task of imagining what hypothetical agreement might have been made should the claimant have applied for Jobseeker's Allowance.”
.	
83.	The general approach endorsed and applied by the Court of Appeal has regard to practicalities and focuses on the purpose of the provision.  Importantly (and transposing the risk trigger to this case), Moses LJ expressly endorses at paragraph 39 the point that the degree of detail in which the identification of the consequences of being found not to have limited capability for work-related activity will need to be thought through will depend on the circumstances of the case and at paragraph 38 Moses LJ indicates that the extent of the identification is limited and dictated by the need to assess the risk.  This accords with what he said at paragraph [46], namely  that “the essential question is whether there is an adequate range of work which the claimant could undertake without creating a substantial risk to himself or to others.”

84.	Applying that approach, the Court of Appeal’s decision in Charlton is, we would respectfully suggest, unsurprising in the circumstances of that case.  Identifying "actual positions of employment" with the precision suggested was plainly not only impractical but also unnecessary where the claimant had claimed there to be a substantial risk in only vague terms and there was clearly a broad category of work that he could reasonably be expected to seek.  It was unnecessary to consider restrictions that the claimant might have imposed on his availability for employment for reasons other than substantial risks to anyone’s health.  An appreciation that the question whether a claimant could work without substantial risks to the health of himself or others was relevant both to incapacity benefit and jobseeker’s allowance and might need to be answered in the same way by decision-makers dealing with both benefits if a claimant was not to be left without entitlement to either benefit may have been a reason for Commissioners referring to jobseeker’s agreements in incapacity benefit decisions (see, more recently, SI v Secretary of State for Work and Pensions (ESA) [2014] UKUT 308 (AAC) at paragraph 57), but it was only ever going to be in the most marginal case that there would have been any risk of a claimant falling between the two benefits.  Mr Charlton does not appear to have been able to explain why considering what might have been contained in a jobseeker’s agreement would have better enabled the Commissioner in his particular case to answer the statutory question whether there would be a substantial risk to a person’s physical or mental health if he were to be found capable of work.  Thus, for instance, it appears not to have been suggested that a jobseeker’s agreement might realistically have required Mr Charlton to seek work beyond the broad type of work identified by the Commissioner as being work he could reasonably be expected to do without a substantial risk to anyone’s health. This is reflected in the formulation of the “essential question” at the end of paragraph [46].  However, it is apparent that that will not be the only essential question that arises in other cases, because Moses LJ had also said – 

“34.	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. Apart from that, probably rare, situation, the determination must be made in the context of the journey to or from work or in the workplace itself.”

85.	An equivalent approach to that taken by the Court of Appeal in Charlton can be taken where regulation 35(2) is in issue and the Secretary of State or the First-tier Tribunal is satisfied that neither a work-focused interview nor any of the types of work-related activity that any claimant could be required to do would give rise to a substantial risk to the mental or physical health of any person if the claimant were to be required to engage in them.  There is no need in such a case to decide what particular work-related activity the particular claimant would in fact be required to do.  Nor, obviously, is there any difficulty in a case where it is accepted that, even though the claimant does not meet the terms of any of the descriptors in Schedule 3 to the 2008 Regulations, the claimant could not carry out any form of work-related activity without there being a substantial risk to someone’s health.  (We agree with Judge Jacobs in NS v Secretary of State for Work and Pensions (ESA) [2014] UKUT 149 (AAC) and Upper Tribunal Judge Bano in CMcC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 176 (AAC) that, where there is no work-related activity in which the claimant could engage without a substantial risk to someone’s health, the fact that the Secretary of State could not reasonably require the claimant to engage in work-related activity under regulation 3 of the 2011 does not mean that the condition of regulation 35(2) is not met.  That would undermine the purpose of regulation 35(2).)  

86.	But we do not agree that Charlton founds directly or by analogy the argument that in other circumstances – i.e., cases where a claimant could safely be required to engage in some forms of work-related activity but not others – the regulation 35(2) decision-maker does not have to consider what work-related activities the particular claimant might be required to undertake and the consequences of him being required to do so.  This is because the purpose of the regulation is to provide a safety net for a particular claimant by recognising that in the case of some claimants (and probably a limited number of them) (a) if they are found not to have limited capability for work-related activity and so have to engage in the next stage of the system this could cause harm to the mental or physical health of that claimant or others, and (b) that the risk cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.  

87.	Accordingly, the regulation is directed to the vulnerable and to preventing such harm being caused to them or by them to others by treating them as not having the capability for work-related activity and so putting them in the support group and exempting them from having to undergo a work-focused interview and being the subject of a requirement to undertake work-related activity.

88.	If the regulation 35(2) risk materialises it is plainly serious and so Parliament must have intended that this safety net was applied before a work-focused interview took place with appropriately detailed scrutiny of the position of the individual claimant.
   
89.	So, returning to the general approach approved and applied in Charlton, to fulfil the underlying purpose of regulation 35(2) and thus the need to assess the regulation 35(2) risk the decision-maker on its application has to provide himself with, or be provided with, sufficient information to enable him to properly assess whether the particular vulnerable claimant should be protected by the regulation 35(2) safety net.

90.	To do that, it is necessary to make predictions about the consequences for the individual claimant if he is found not to have limited capability for work-related activity.

91.	This reflects the general approach to fair and so properly  informed decision making about the assessment of a risk that we have referred to earlier without reference to the authorities in this area.

92.	As we have indicated, difficulty arises in cases where it is accepted that there would be a substantial risk to someone’s health if the claimant were to be required to engage in some forms of work-related activity but not others. So it is helpful to address what the approach of the regulation 35(2) decision-maker should be in such cases,   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 depends in such cases on taking a view on what work-related activity that particular claimant would or might be required to do.  

93.	It is clear that regulation 35(2) has to be considered and applied before the work-focused interview takes place. Yet the Secretary of State argues that because the question what any particular claimant could reasonably be required to do is not to be determined until the work-focused interview has taken place, what he would or might be required to do at that later stage can and should only be considered  and taken into account by the regulation 35(2) decision-maker by reference to what any claimant might be required to do and thus he should not speculate or make assumptions about what the particular claimant would or might be required to do.  . 

94.	In support of his approach the Secretary of State submits that it cannot be presumed that he or a provider will act unreasonably in requiring, under regulation 3 of the 2011 Regulations, a claimant to undertake work-related activity.  We accept that, but it does not follow that at the regulation 35(2) stage it should be presumed that the work-related activity decision-maker would never make a decision that would trigger the regulation 35(2) risk.  Were that to be presumed, all the regulation 35(2) decision-maker would have to consider is the impact of attending the work-focused interview.  Like Upper Tribunal Judge White in AK we do not accept that – and, indeed, it was not submitted to us that – regulation 35(2) will only be engaged and satisfied by reference to being required to take part in and taking part in a work-focused interview.  

95.	In any event, it would be inconsistent with the pragmatic approach taken in Charlton to ignore the risk that an inappropriate decision that triggers the regulation 35(2) risk might be made following the work-focused interview.  This is particularly so when the system and practice that the Secretary of State has devised for administering the legislation clearly fails to minimize the risk of a mistake being made in the decision on work-related activity, whether due to ignorance of material facts that have emerged in carrying out the work capability assessment or when making the regulation 35(2) decision or simply because a different view is taken of the risks involved.

96.	It is one thing for the Secretary of State to presume when making a decision under regulation 35(2) that his decision-maker or a provider will take a similar view of the case when regulation 3 is being applied, particularly if such risk as there would be to a person’s health if the claimant were to be required to engage in work-related activity was fairly obvious.  Even so, the fact that he has not made provision for the evidence upon which the regulation 35(2) decision was made and its reasoning to be provided to the later decision-maker greatly increases the risk that he will not reach the same conclusion and so undermines the presumption.

97.	It is another thing to expect the First-Tier Tribunal, having reversed a decision of the Secretary of State to the effect that a claimant does not even have limited capability for work, to presume that the Secretary of State or a provider will share its view of the case when regulation 3 comes to be applied.  Particularly where the possible risk is to the claimant’s mental health, the risk may not be obvious and, where the Secretary of State has failed to appreciate the risk following a work capability assessment, the fact that the risk is not obvious will have been well illustrated.  The First-tier Tribunal will have applied a reasoning process based on evidence and experience and if asked will have provided a statement of reasons.  So far as we are aware there is no procedure in place to ensure that the work-related activity decision-maker is provided with information about the evidence relied on by, and the reasoning of, the First-tier Tribunal or gets a copy of such a statement of reasons.  

98.	The risk of the regulation 35(2) risk materialising might be greatly reduced if a healthcare professional were required to give advice as to whether there was a substantial risk in relation to specific types of work-related activity, rather than work-related activity in general, and if this and the views of the regulation 35(2) decision-maker on it were shared with the person making the work-related activity decision under regulation 3 of the 2011 Regulations.  (If there were then an appeal, it could perhaps be arranged that the First-tier Tribunal making a decision under regulation 35(2) would record on its decision notice findings (and perhaps brief reasons) as to any forms to work-related activity that he or she considered would give rise to a substantial risk to someone’s health if the claimant were to engage in them and then for those findings could be passed to the person making the decision under regulation 3.)

99.	The risk might be eliminated altogether if the practice was for a decision-maker making the decision under regulation 3 to make a decision in conformity with findings made by a decision-maker or the First-tier Tribunal when making a decision under regulation 35(2).  (Section 17(2) of the Social Security Act 1998 carries the clear implication that a finding of fact embodied in a decision is binding for the purposes of another decision only if regulations so provide, so that it could only be guaranteed that a decision under regulation 3 would be made in conformity with a decision under regulation 35(2) (at least to the extent of not making a decision less favourable to a claimant) if the Secretary of State were to make that a matter of practice.)  But it seems to us that such a practice would probably be inappropriate because of the possibility that information derived from a work-focused interview or subsequent contact with a claimant might suggest either that the findings lying behind the regulation 35(2) decision were based on a mistake or error or have simply ceased to be valid through a change of circumstances and it would be cumbersome to require the regulation 35(2) decision to be revised or superseded if a new decision would be to the same effect even though on different findings.  (Of course, if the new information was such as to require it to be determined that regulation 35(2) was satisfied, then there should be a revision or supersession.)

100.	As we have already mentioned, it is for the Secretary of State to decide how the legislation is to be administered but, because regulation 35(2) is concerned with assessing risk in the real world having regard to whether the administrative process creates or eliminates relevant risks, the way the legislation is administered has a considerable bearing on how that provision is to be applied.  

101.	In our view the absence of any system for ensuring that relevant information obtained, and findings made, in the course of carrying out a work capability assessment and applying regulation 35(2) and the reasoning behind the decision made on regulation 35(2) are made available to a person considering whether a requirement to engage in work-related activity should be imposed on the claimant effectively destroys the Secretary of State’s argument that only generalised information about some types of work-related activity need be taken into account by the regulation 35(2) decision-maker when considering the possible consequences of a particular claimant being found not to have limited capability for work-related activity.  The purpose underlying regulation 35(2) requires that those applying it make predictions about the consequences to the particular claimant of him being found not to have limited capability for work-related activity.  In a few cases, the risks of an inappropriate requirement to engage in work-related activity being imposed will be too great to be ignored.  

Information to be provided to the First-tier Tribunal

102.	The evidence that must be supplied to the First-tier Tribunal is determined by the factual issues that may arise.  The Departmental decision-maker should have regard to the same factors as the First-tier Tribunal and so should often have obtained and considered the evidence that should be provided to the First-tier Tribunal.  However, there are many cases such as the present where, on the Secretary of State’s view of the facts, the claimant does not even have limited capability for work and therefore it is unnecessary for him to consider whether the claimant has limited capability for work-related activity.  He argues that it would be disproportionate to require him to make a submission in respect of regulation 35(2) whenever there is an appeal against a decision that a claimant does not have limited capability for work even though, of course, the question whether the claimant has, or should be treated as having, limited capability for work will inevitably arise if the claimant is successful in his or her challenge to the original decision.

103.	It is therefore useful to focus on what information is actually needed by the First-tier Tribunal in order to make a decision under regulation 35(2).  It is also important to remember that the purpose of a response to an appeal in this sort of case, where a claimant is often unrepresented, is as much to tell the claimant what the potential issues are as to provide information to the First-tier Tribunal.

104.	It will be apparent from what we have said above that, at least while the legislation is administered in the current fashion, the First-tier Tribunal needs to know not only what the least demanding types of work-related activity are but also what the most demanding types are in the area where the claimant lives.  As Judge Jacobs pointed out in AH, that information can come only from the Secretary of State. 

105.	As indicated above, we accept the Secretary of State’s submission that, on an appeal in which regulation 35(2) is in issue, he cannot be expected to anticipate exactly what work-related activity a particular claimant would in fact be required to do.  This is axiomatic 

106.	But what the Secretary of State can and should provide is evidence of the types of work-related activity available in each area and by reference thereto what the particular claimant may be required to undertake and those which he  considers it would be reasonable for the provider to require the claimant to undertake.  The First-tier Tribunal would then be in a position to assess the relevant risks.

107.	We understand that the types of work-related activity available may vary from provider to provider, but it should not be beyond the wit of the Department and providers to produce and maintain a list, perhaps for each of the regions into which the First-tier Tribunal is organised, of what is available in each area within the region.  The relevant information could then be included in submissions in individual cases.  The First-tier Tribunal would be able to assess the evidential force of such a submission.

108.	We do not accept the Secretary of State’s submission that it would be disproportionate to provide such evidence where there is an appeal against a decision to the effect that the claimant does not even have limited capability for work.  As is acknowledged, if such an appeal is allowed, it will inevitably be necessary to consider whether the claimant has limited capability for work-related activity.  We accept the Secretary of State’s argument that the First-tier Tribunal could in principle either adjourn or effectively remit the case to the Secretary of State to determine the new issue (see R(IS) 2/08).  However, that would be an unnecessary complication in the overwhelming majority of cases, inevitably producing both delay and expense.  The First-tier Tribunal ought to be enabled to deal fairly with the new issue straightaway.  It usually does deal with that issue now.  It will be aware of the Schedule 3 descriptors and regulation 35 and it can often rely on its own knowledge of work-related activity.  However, its knowledge may be incomplete or out-of-date, as is alleged in the present case, and, anyway, it is unfair on claimants, particularly those who choose to have their cases determined on paper, for the First-tier Tribunal to address an issue about which the claimants will generally have been unaware and upon which they will have therefore not had an opportunity to comment.  This can result in appeals to the Upper Tribunal being allowed even though a claimant’s ultimate prospects of success may be fairly low.

109.	In our view, it would not be difficult for the Secretary of State to make a submission explaining the law and to provide information about types of work-related activity.  In practice, if the Secretary of State considers that a claimant does not have limited capability for work, he will also consider that the claimant does not have limited capability for work-related activity.  In the submission it would generally be sufficient to refer only to Schedule 3 and regulation 35; it will not be necessary to explain why the Secretary of State does not consider those provisions to be satisfied because that will be implicit in his response to the main issue on the appeal.  In relation to Schedule 3, it could be stated that none of the descriptors relating to the first 14 of the activities in Schedule 3 will be satisfied unless the claimant has scored 15 points under any of descriptors 1(a), 2(a), 3(a), 4(a), 5(a), 6(a), 7(a), 9(a), 11(a), 12(a), 13(a), 14(a), 16(a) and 17(a) in Schedule 2.  It would then be necessary to set out only the descriptors relating to activities 15 and 16 together with regulation 35 and a list of the types of work-related activity available in the relevant area.

110.	The issue under regulation 35(2) is not whether the claimant could carry out all forms of work-related activity or even whether he or she might inappropriately be sanctioned.  Satisfaction of regulation 35(2) requires a substantial risk to health to be identified (in the sense of a risk that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case).  Being unable to carry out an activity does not necessarily imply that there will be a substantial risk to anyone’s health if the claimant is required to engage in the activity.  Nor does the risk of being sanctioned.  Therefore, it may be fairly obvious in most cases that the claimant does not have any realistic argument under regulation 35 and indeed, if made aware of the issues, the claimant may often accept that that is so.  But where there turns out to be a serious argument in relation to regulation 35, the provision of the basic information about the more demanding types of work-related activity would enable the First-tier Tribunal to make the necessary predictions by reference to possible outcomes for the particular claimant.  

111.	In some cases the First-tier Tribunal may be able to conclude that the regulation 35(2) risk does not exist because it is sufficiently obvious that the claimant will not be required to do anything by the work-related activity decision-maker that will cause such a risk to materialise.  That will certainly be so where the First-tier Tribunal is satisfied that none of the types of work-related activity available in the relevant area would give rise to a substantial risk to anyone’s health if the claimant were required to undertake it.

112.	However, we suspect that the present failure to pass on information to the work-related activity decision-maker will mean that in some other cases the First-tier Tribunal will be unable to make predictions with sufficient confidence to conclude that the regulation 35(2) risk does not exist and so will be entitled to decide that if the claimant engaging in any of the forms of work-related activity that might be imposed on a claimant in the relevant area would give rise to the regulation 35(2) risk the claimant must be treated as having limited capability for work-related activity.

113.	The position may be slightly different where the Secretary of State accepts that the claimant does have limited capability for work for two reasons.  First, the Secretary of State can be expected to make a more focused submission as to why regulation 35(2) does not apply given the accepted disablement of the claimant.  Secondly, in at least some of those cases a work-focused interview will have been carried out and the provider may have considered whether the claimant should be required to carry out work-related activity before the appeal is heard by the First-tier Tribunal.  Information about the outcome of such consideration of the claimant’s case is likely to be relevant to the First-tier Tribunal and reduce the element of prediction required and so ought to be provided to the first-tier tribunal where possible.  Thus, in CMcC, Judge Bano was able to take account of an employment adviser’s abandonment of any meaningful form of work-related activity out of concern for the claimant’s health as a reason for finding that regulation 35(2) should have been found to apply in her case.  In other cases, the effect of evidence may be to show that the provider is well aware of the claimant’s state of health and is unlikely to overlook risks.  This suggests that the provision of information should be a two-way process.   It should be remembered that s 12(8)(b) of the Social Security Act 1998 applies to the application of such evidence and so it should only be taken into account so far as it is relevant to the position at the time of the decision of the Secretary of State. 

Conclusion on the main issue

114.	For the reasons we have given, we consider that, if the First-tier Tribunal were able to be confident that concerns it had about the risk to a person’s health if the claimant were required to engage in certain forms of work-related activity would be transmitted to a provider, it might be less inclined to find that there would be a substantial risk to the mental or physical health of any person if it were to find the claimant not to have limited capability for work-related activity.   

115.	However, in our view, where the present practice of the Secretary of State has the effect that the relevant predictions cannot be made with sufficient certainty, the underlying purpose of regulation 35(2) is best served and promoted by a finding that regulation 35(2) applies rather than by leaving the vulnerable claimant to take the risk of a decision that causes the regulation 35(2) risk to materialise or would do so if not successfully challenged.

116.	A finding that there is some work-related activity in which a claimant could engage without a substantial risk to someone’s health is not by itself a sufficient ground for finding that there would not be risk to someone’s health if the claimant were found not to have limited capability for work-related activity.  That is because it does not wholly answer the statutory question.  

117.	If the Secretary of State fails to provide the evidence we have said should be provided, the First-tier Tribunal is entitled to use its own knowledge, if it is confident that it is up-to-date and complete as to the more demanding types of work-related activity, or it may adjourn to obtain the necessary evidence or it may decide that it can properly determine the case one way or the other without the evidence.  It depends on the circumstances and, in particular, on how vulnerable the claimant is.

118.	Thus, to the extent that they differ, we broadly prefer the approach of Judge Gray in MT to that of Judge White in AK.  However we do not agree with Judge Gray that the Secretary of State is obliged to provide evidence as to what the claimant would be required to do by way of engagement in work-related activity; our view is that he is merely required to provide evidence as to work-related activity that is available in the relevant area and therefore what the claimant might be required to do.

The present case

119.	In relation to the claimant’s first ground of appeal, we accept that, for the reasons we have given above, the Secretary of State ought to have provided evidence of the types of work-related activity that were available in Wolverhampton.  In the absence of such evidence, the First-tier Tribunal used its own knowledge.  It was entitled to find that the claimant would have been able to engage in the types of work-related activity it considered but, for the reasons given above, it was not enough to find that there were some types of work-related activity in which the claimant could have engaged.  The question arises whether the First-tier Tribunal’s knowledge was incomplete and whether there were other types of work-related activity in which the claimant might have been required to engage and which would have given rise to a substantial risk to her mental health.

120.	We accept the Secretary of State’s submission that, had the claimant been found by the Secretary of State at the time of his decision to have limited capability for work, she would not have been required to engage in work-related activity under the work programme.  Moreover, the Secretary of State may well be right in submitting that the claimant could have engaged in the types of activities that he has now identified.  However, we agree with the claimant that that list too appears to be incomplete.  It is inappropriate to base the list on the First-tier Tribunal’s findings if those would not in fact have been passed to a decision-maker deciding what work-related activities the claimant should be required to engage in.  

121.	We are therefore satisfied that the First-tier Tribunal’s decision is erroneous in law because it proceeded without the proper evidence having been provided by the Secretary of State and we have not been satisfied by the Secretary of State that its reliance on personal knowledge was an adequate substitute.

122.	However, we reject the claimant’s second ground of appeal, which is that the finding that engagement in social contact with someone unfamiliar to her was not possible for the majority of the time was inconsistent with a finding that she did not have limited capability for work-related activity.  It is plainly relevant that to satisfy the descriptor in Schedule 3 engagement in social contact must always be precluded.  Work-related activity could be arranged so as to take account of fluctuations in a person’s ability to engage in social contact and regulations 6 and 7 of the 2011 Regulations might be especially relevant.  Whether the 2011 Regulations might be applied without the relevant decision-maker appreciating the claimant’s difficulties with social engagement and whether that might give rise to a substantial risk to her mental health are questions that might arise, but it is not inevitable that the answer should be “yes” to either of them.

123.	Since the Secretary of State has not provided us with the evidence necessary to determine this case, it must be remitted to the First-tier Tribunal.  Subject to any further direction by the First-tier Tribunal, we direct the Secretary of State to make, within one month of this decision being sent to him, a further submission to the First-tier Tribunal setting out the all the various types of work-related activity that a claimant living in Wolverhampton in November 2011 might have been required to do, identifying with reasons any that it is submitted this claimant would not realistically have been expected to do.  The claimant will then, with her representatives, be able to decide whether she wishes to continue with her appeal.  

Mr Justice Charles
President of the UT(AAC)

Nicholas Warren
President of the FtT(GRC)	

Mark Rowland
Judge of the Upper Tribunal		

15 September 2014
(Signed on the original)