IN THE UPPER TRIBUNAL	Case No.  CE/4904/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier tribunal dated 3 September 2013 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided.

REASONS FOR DECISION

1.	This is an appeal, bought by the claimant with my permission, against a decision of the First-tier Tribunal dated 3 September 2013, whereby it dismissed the claimant’s appeal against a decision of the Secretary of State dated 9 December 2012 superseding and terminating an award of employment and support allowance on the ground that the claimant did not have limited capability for work.  The Secretary of State had not awarded any points on the work capability assessment but the First-tier Tribunal awarded nine points on the ground that the claimant was “unable to get to a specified place with which she was familiar without being accompanied by another person” (see descriptor 15(b) in Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI 2008/794)).  However, it dealt with regulation 29 of those Regulations summarily, simply saying –

“30.	Regulation 29 was not satisfied.  There would not be a substantial risk to the mental or physical health of any person if the Appellant was found capable of work or work-related activity.”

2.	At the material time – the subsequent amendment merely makes paragraph (2) subject to a new paragraph (3) – regulation 29(1) and (2)(b) provided –

“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.”

3.	In her application on the claimant’s behalf for permission to appeal, Ms Jo Silcox of Harrow Law Centre raised two issues.  The first was concerned with the First-tier Tribunal’s finding that the claimant did not satisfy any descriptors in respect of social functioning.  The case was initially stayed to await the decision in JC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 352 (AAC) and I then refused permission to appeal on that ground.  However, I granted permission on the other ground, saying –

“…, in the light of the First-tier Tribunal’s finding that the claimant was unable to get to a specified place with which she was familiar without being accompanied by another person, it is arguable that the First-tier Tribunal failed to give adequate reasons for its decision that regulation 29 of the Employment and Support Allowance Regulations 2008 (SI 2008/794) did not apply.  On the other hand, in the light of PD v Secretary of State for Work and Pensions (ESA) [2014] UKUT 148 (AAC), the availability of someone who would accompany the claimant might be relevant.”

4.	The Secretary of State concedes that the First-tier Tribunal did not give adequate reasons for its decision in respect of regulation 29.  In a case where regulation 29 was clearly not raised on the evidence, the bald statement that the conditions of the regulation were not satisfied might be sufficient but, given the finding that the claimant satisfied the terms of descriptor 15(b) due, presumably (see regulation 19(5)(b)), to her depression and anxiety, it seems to me that it was necessary to explain why there would not be a risk of her mental health deteriorating if she were required to go to work, which would inevitably be a risk if she were found not to have limited capability for work and might require her to get to work unaccompanied.  Descriptor 15(b) may be one of the few descriptors that almost inevitably raises the question whether regulation 29 applies if no other descriptor applies so as to take the claimant’s score up to 15 points, although it obviously does not necessarily follow from a finding that descriptor 15(b) applies that regulation 29 also does so.

5.	As to my observation about PD, the Ms Sue Suttenstall on behalf of the Secretary of state submits that, although the evidence before the First-tier Tribunal showed that there clearly were people who accompanied the claimant to appointments and on the occasions when she attended college, “the First-tier Tribunal not only failed to address the issue of the practicalities of the claimant being able to be accompanied to the workplace but also whether this help could be maintained”.  I agree, but would add that, if there was a risk of the help not being available or not being maintained, it would be necessary to consider whether that might give rise to a substantial risk to the claimant’s health through, for instance, increased anxiety.  What was said in IM v Secretary of State for Work and Pensions (ESA) [2014] UKUT 412 (AAC) at [110] in the context of the risk of being found not to have limited capability for work-related activity applies equally to the risk of being found not to have limited capability for work: “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.”  

6.	I therefore allow this appeal and remit the case to the First-tier Tribunal.  My allowing this appeal should not be taken as an expression of a view as to the decision that the First-tier Tribunal should reach.  All issues will be at large before the First-tier Tribunal, so that it will not be bound to find either that descriptor 15(b) was satisfied or that no other descriptor was satisfied.  I acknowledge that the First-tier Tribunal will have the difficult task of considering what the claimant’s condition was over two years ago.  Hopefully, the claimant will have gained more confidence by now and, if so, the First-tier Tribunal will have not to allow itself to put too much weight on that fact.  

Mark Rowland
2 March 2015