IN THE UPPER TRIBUNAL	Case No.  CE/2291/2014
ADMINISTRATIVE APPEALS CHAMBER

Decision:	The decision of the First-tier Tribunal made on 24 February 2014 at Leeds under reference SC007/13/2014 involved an error of law and is set aside.

		The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.  

		This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

Subject to any later directions by a district tribunal judge of the First‑tier Tribunal, the Upper Tribunal directs as follows:

	(1)	The new hearing will be an oral hearing.  It will take place before a completely differently constituted tribunal to that which considered the appeal on 24 February 2014.  

	(2)	The appellant is reminded that the tribunal can only deal with his situation as it was down to 5 June 2013 (the date of the original decision of the Secretary of State under appeal) and cannot deal with any changes after that date.

	(3)	If the appellant has any further evidence that he wishes to put before the tribunal that is relevant to his health conditions in June 2013, this should be sent to the relevant Office of her Majesty’s Courts and Tribunals Service within one month of the date this decision is issued.

	(4)	The First‑tier Tribunal should have regard to the points made in this decision of the Upper Tribunal.  

REASONS FOR DECISION

The background 

1.	The appellant was born on 26 September 1956.  He has health difficulties including depression, tinnitus, asthma and musculoskeletal problems.  He was awarded employment and support allowance from and including 1 February 2013.  On 25 February 2013 he completed, at the request of the respondent, a standard form known as form ESA50.  In so doing he provided information as to his health problems and how he believed they impacted upon his ability to perform various tasks and functions.  Thereafter, on 26 April 2013, he was examined by a health care professional (HCP), on this occasion a registered physiotherapist, and a report of that date was produced.  

2.	On 5 June 2013, largely it seems in reliance upon the information contained within the report prepared by the HCP, a decision maker acting on behalf of the respondent decided to supersede the decision awarding employment and support allowance such that there was no entitlement from and including 5 June 2013.  The decision maker concluded that the appellant did not score any points under Schedule 2 to the Employment and Support Allowance Regulations 2008 and that he did not meet the requirements of regulation 29 of those Regulations.

3.	The appellant appealed to the First‑tier Tribunal (F‑tT).  The F-tT had the benefit of documentary evidence including those documents referred to above, a brief letter written by the appellant’s GP and dated 27 February 2013, a submission and supplementary submission provided by the respondent and a written submission lodged on behalf of the appellant by his representative Mr A Lewis.  However, Mr Lewis was not in attendance at the hearing. The respondent was not represented. The F‑tT heard oral evidence from the appellant.  It maintained a helpful and legible record of proceedings which records that evidence.  

4.	The F‑tT dismissed the appellant’s appeal but concluded that he did score 6 points under descriptor 16(c) which is concerned with the ability to cope with social contact with someone unfamiliar to a claimant.  However, the F‑tT concluded he scored no other points and that he did not meet the requirements of regulation 29.  

5.	The Ft‑t has subsequently produced its statement of reasons for decision (statement of reasons).  

The appeal to the Upper Tribunal

6.	The appellant, through his representative, applied for permission to appeal to the Upper Tribunal.  It was contended, in the grounds of appeal, that the F‑tT had erred in its treatment of the issues relating to regulation 29.  I granted permission to appeal because I thought it arguable the F‑tT had failed to give adequate reasons for its conclusion that the appellant did not meet the requirements of regulation 29(2)(b) of the 2008 Regulations, that it had had insufficient regard to its finding that he met the requirements of descriptor 16(c) when considering regulation 29 and that it had taken into account an irrelevant factor when addressing regulation 29, namely, that many people who suffer from depression will benefit from being in a workplace.  

7.	Mr D Kendall who now represents the respondent in this appeal to the Upper Tribunal supports the appeal for the reasons set out in the grant of permission.  He invites me to set aside the decision of the F‑tT and to remit to a differently constituted tribunal.  He indicates his consent to the issuing of a decision, to that effect, without reasons.  The appellant’s representative does not object to that suggested course of action, makes no further comments and also consents to the issuing of a decision without reasons.  

Discussion

8.	Although both parties have consented to a decision without reasons I think it is appropriate for me to give some brief reasons why I have concluded that the F‑tT erred in law.  

9.	The F‑tT considered various activities and descriptors relied upon by the appellant.  Having done that, and having decided he scored the 6 points referred to above, it turned its attention to regulation 29.  It said this:

	“	46.	The Tribunal also considered Regulation 29 of the Employment and Support Allowance Regulations 2008.  The Tribunal finds that the appellant does not suffer from a specific bodily or mental disablement by reason of which there would be a substantial risk to her (sic) mental or physical health if she (sic) were not found to have limited capability for work. 

		47.	The appellant said he would turn a job down because he feels he hasn’t got a future, he doesn’t know what help he wants.

		48.	The Tribunal has considered the case of Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42.  It has made the decision that the appellant suffers from a mental condition which does not, of itself, cause such functional limitation as to justify a total score warranting a finding of limited capability for work.  It has further decided that because of the disablement there would not be a substantial risk to the mental or physical health of any person if the appellant were found capable of work having regard to the nature of the relevant work and workplace for the appellant.  The appellant has not worked for many years.  He was a welder.  His GP has encouraged him to get out more and to integrate with people.  It is medically proven that many people suffering from depression will benefit from being in the work place, which increases their contact with people and decreases their isolation.  The Tribunal finds that the appellant may well be such a person.  It finds that there are a variety of jobs, perhaps with some retraining, which he would be capable of undertaking.”

10.	The F‑tT has provided a careful and well structured statement of reasons but there are difficulties with the above passage.  

11.	In this context, the F‑tT did find that the appellant had mental health difficulties of a sufficient degree to enable him to score 6 points under descriptor 16(c) which is concerned with the ability to cope with social engagement.  It is right to say that that finding did not enable the appellant to score 15 points, and thus qualify under the points scoring route so as to establish limited capability for work.  The F‑tT effectively says this at paragraph 48 of its statement of reasons which is quoted above.  However, that was not the end of the matter or, at least, should not have been.  The mere fact that a claimant does not score 15 points either on the basis of one descriptor or an accumulation of descriptors does not mean, of itself, that he does not meet the requirements of regulation 29(2)(b).  Indeed, the recognition of mental health difficulties, and certainly though by ne means exclusively those sufficient to enable a claimant to score some points under the descriptors, is a relevant consideration when assessing whether the risk envisaged under regulation 29(2)(b) is or is not established.  Accordingly, it was incumbent upon the F‑tT to give weight to its conclusion regarding mental health difficulties and its conclusion regarding the scoring of 6 points when conducting its overall assessment as to whether regulation 29 was or was not met.  The F‑tT has not done that here. That does, in my judgment, of itself, amount to an error of law.

12.	Further, the F‑tT appeared to give quite substantial weight to its view that many people suffering from depression benefit from being in a workplace and that this appellant may well be such a person.

13.	The first point to make about that is that the F‑tT did not explain its apparent conclusion that this appellant might well be a person who would benefit from being in the workplace.  It seems to me that something like that cannot just be assumed and that, whilst some might benefit from being in a workplace, others may not and others may suffer, in terms of their mental health, as a result of it.  So the F‑tT failed to give sufficient reasons for that conclusion.  More fundamentally, the F‑tT appeared to lose sight of the fact that its task was to assess risk, within the context of regulation 29(2)(b) rather than benefit.  In CH v Secretary of State for Work and Pensions (ESA) [2014] UKUT 0011 (AAC) the Upper Tribunal, when talking about regulation 29(2)(b) said this:

	“	10.	As to the nature of the provision, it is concerned with risk, not benefit.  The tribunal should have investigated and considered what risk, if any, would be involved in finding the claimant to be fit for work.  Any benefit, assuming that it could properly be proved, might be relevant as evidence on risk or the lack of it, but that is all.  The issue is risk.  If a substantial risk is established, the provision applies.  And it applies even if it is accompanied by some chance of improvement in the claimant’s condition.  It is not permissible to ignore that risk or to decide that it is a price worth paying for that eventual benefit.”

14.	The way the tribunal has expressed itself makes it seem as if it has either lost sight of the fact that it is assessing risk and only risk or that it has decided any such risk is a price worth paying for the benefit it has sought to identify.  

15.	The Upper Tribunal in CH went on to say:

	“	13.	The fact that regulation 29(2)(b) has to be applied as at the time of the Secretary of State’s decision imposes a practical limit on the scope of the factors that a tribunal may properly take into account.  I am not going to try to define precisely what that scope is.  It will depend on the evidence available and the circumstances of the case.  But whatever the scope, the ultimate or longer‑term benefit that a claimant might derive from work is beyond it.  Leaving aside the evidential difficulties of proving what benefits might accrue in the longer term, the tribunal should not take account of such remote matters.  It should concern itself with the more immediate effects of finding that the claimant was capable of work.”

16.	Here, in the context of its regulation 29 assessment, the F‑tT appeared to look forward to a future possibility of the applicant deriving a benefit from being in a workplace.  In that sense it appeared to focus on a benefit which may accrue in the longer term whilst losing sight of the fact that it was required to assess matters, essentially the degree of risk, as at the date of decision. The F-tT did, therefore, again, err in law. I have seen many recent decisions where a tribunal has referred to the benefit of working and has seemingly attached much weight to it when assessing risk under regulation 29(2)(b) so it is important that tribunals do keep in mind, in this context, what is said in CH. 

17.	The F‑tT did embark upon the exercise of considering what type or range of work the appellant might reasonably be expected to undertake.  It was right to do that. However, it did not say very much about it.  It did note that he had worked as a welder, seemingly many years ago and it concluded there would be a variety of jobs which he would be capable of undertaking though he might need some retraining.  It did not, however, elaborate on the “variety of jobs” it thought he might be capable of undertaking.  It is not apparent whether, for example, it had in mind welding jobs, clerical jobs or other types of employment.  It did not (and this is related to the first error of law referred to above) factor in the mental health difficulties as a potentially limiting factor to that range of work.  That part of a regulation 29 consideration can often be undertaken quite briefly but, here, the F‑tT was too brief with the effect that it failed to adequately explain, with any degree of particularity at all, what the type or range of work it felt he would be capable of undertaking was.  

18.	It does follow, therefore, despite the F‑tT clearly approaching its task with diligence, that it erred in a number of ways when considering regulation 29.  This does mean that its decision has to be set aside.  

19.	It seems to me it is not appropriate for me to re‑make the decision myself.  I am not urged to do so by either party.  There are further facts to be found and, in light of that, it is much more appropriate for the decision to be re‑made by the F‑tT as an expert fact‑finding body.  The new F‑tT will, of course, have to consider matters entirely afresh, so that it will have to consider the descriptors in Schedule 2 as well as regulation 29 and will have to consider the case under any other potentially relevant provisions such as Schedule 3 and regulation 35, and will have to reach entirely new findings of fact.  

Conclusion

20.	In light of the above, I conclude that the decision of the First‑tier Tribunal involved the making of an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).  The case must be remitted (sent back) for rehearing by a new tribunal subject to the directions above (section 12(2)(b)(i)).  The new tribunal will not be bound by the decision of the previous tribunal and should consider all matters afresh.

			(Signed on the original)    
							M R Hemingway
							Judge of the Upper Tribunal 

			Dated:				9 December 2014