IN THE UPPER TRIBUNAL	Upper Tribunal case No.  CE/3711/2014
ADMINISTRATIVE APPEALS CHAMBER

Before:	Mr E Mitchell, Judge of the Upper Tribunal

Decision:  The decision of the First-tier Tribunal (4th March 2014, Newcastle, file reference SC 229/13/01061) involved the making of an error on a point of law. The decision is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and REMITTED to the First-tier Tribunal for re-determination. Directions for the re-determination are at the end of these reasons. 

REASONS FOR DECISION

Background

1. The appellant Mr B now resides in the Republic of Ireland. At the date of the ESA conversion decision referred to below he was resident in Spain. The Secretary of State has not argued that Mr B’s residence makes any difference to his entitlement to contributory Employment & Support Allowance (ESA). Having previously been entitled to incapacity benefit, Mr B went through the ESA conversion process.

2. The Secretary of State’s conversion decision of 26th October 2012 involved a finding that Mr B had limited capability for work but did not have limited capability for work-related activity. That meant Mr B satisfied the entitlement conditions for contributory ESA with the work-related component but not the conditions for the support component.

3. The parties do not dispute that, as a person entitled to contributory ESA with the work-related activity component, Mr B’s entitlement would cease 365 days after he first received contributory ESA (section 1A of the Welfare Reform Act 2007, inserted by section 51 of the Welfare Reform Act 2012 with effect from 1st May 2012). However, that result would be avoided were Mr B entitled to ESA with the support component. Days in which a person is a member of the support group do not count towards the 365 day limit (section 1A(5) of the 2007 Act). 

4. The Secretary of State’s conversion decision letter, dated 2nd November 2012, informed Mr B he had been placed in the work-related activity group which meant “taking part in activities to help you move into work”. However, it went on to state “as you are living outside the UK, you will not be able to benefit from any of the extra support being offered to help you move into work”. The letter also explained the 365 day rule. 

5. Mr B appealed to the First-tier Tribunal. His appeal letter implies he thought ESA payments stopped in November 2013 because he failed to attend a work-related activity interview of the sort he had read about on the internet. Mr B also supplied medical evidence about a back problem. 

6. Mr B did not request a hearing of his appeal and it was decided on the papers by the First-tier Tribunal. The Tribunal was located in Newcastle-upon-Tyne simply because the DWP international pension centre, who administered Mr B’s award, were based there. 

7. The Tribunal refused Mr B’s appeal. It decided that none of the support group descriptors applied and I do not need to dwell on that. The Tribunal also considered whether Mr B was to be treated as having limited capability for work-related activity under regulation 35(2) of the ESA Regulations. 

8. Regulation 35(2) applies where:

“(a) the claimant suffers from some specific disease or bodily or mental disablement; and

(b) by reason 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”.

9. A finding that a claimant does not have that limited capability results in him/her joining the work-related activity group and being subject to work-related activity requirements. Accordingly, applying regulation 35(2) includes evaluating the health-related risks for the claimant of work-related activity (in this case, no one argues anyone else’s health is relevant).

10. The First-tier Tribunal found that work-related activity was, for Mr B, a hypothetical consideration. By that it meant he would not be required to do any work-related activity while he remained resident abroad. 

11. Towards the beginning of the Tribunal’s statement of reasons, it said the reg. 35(2) issue was whether a person was “unable” to perform work-related activity. Later, the Tribunal identified what it considered to be typical work-related activities, namely “cv writing, basic skills or confidence building courses” and “travelling to a work programme and meeting with others”. The Tribunal concluded by finding that there would not be a “substantial risk of harm to the mental or physical health of any person” if Mr B were “asked to participate in work-related activity”. The evidence relied on was Mr B’s ability to attend medical appointments.

12. Mr B applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal. He argued the Tribunal wrongly relied on his ability to attend medical appointments. He said could only attend those with the support of family members. The Tribunal refused permission to appeal. 

Proceedings before the Upper Tribunal

13. I granted Mr B permission to appeal and, in doing so, made the following observations:

“4. The Tribunal’s statement of reasons says that regulation 35(2) applies where a person is “unable” to engage in work-related activity (paragraph 6). That is not the correct test… 
5. Further, did Mr [B] have a fair opportunity to put forward a case in relation to regulation 35? Arguably, he did not because the Department’s original appeal submission did not include any information about regulation 35, nor did the additional submission at p.109 of the appeal bundle. The only place in which it features within the appeal bundle is at p. 77 (repeated at p.1D of the original submission), which is a report of internal medical advice for the Department’s decision maker. This says “there is no evidence a NFD is appropriate” but only a person with intimate knowledge of the welfare benefits system would understand what that meant [non-functional descriptor].  
6. Finally, did the Tribunal make an error of law when identifying the work-related activity reference points for its application of regulation 35(2)? The Tribunal seems to have thought that Mr [B] would not be required to do any work-related activity. It said “as the appellant is resident outside the UK this is a hypothetical consideration”. Despite that, it went on to identify certain types of work-related activity to which it subjected the regulation 35 analysis. 
7. I think the Tribunal probably decided that regulation 35(2) did not apply because the relevant risk would be absent were Mr [B] to perform the work-related activities identified by the Tribunal (although as I have pointed out there is some doubt as to whether it identified the correct wording of the regulations).  
8. So the Tribunal identified certain work-related activities. However, it is not clear why these particular activities were selected. Does this accord with the decision of a three-judge panel of the Upper Tribunal in IM v Secretary of State [2014] UKUT 0412 (AAC)? In that decision, the Upper Tribunal identified when it was open to the First-tier Tribunal to use its own knowledge to identify the work-related activity which a person might be required to do and in relation to which the regulation 35(2) risk assessment was to be carried out:
“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.”
9. In this case, the Secretary of State did not supply that evidence (as noted above, the Department’s submission was silent as regards regulation 35). The Tribunal did not explain why it selected the work-related activities on which it relied. Has it demonstrated that it relied on up-to-date and complete knowledge when selecting those work-related activities against which it assessed risk?
10. Alternatively, the Tribunal may have relied on its factual assumption that Mr [B], being resident in the Republic of Ireland, would not in practice be required to do any work-related activity. Without work-related activity, there could be no linked risk to health. If the Tribunal did take that approach and assuming the factual assumption was correct, was it a lawful application of regulation 35(2)? It is an approach which would deny the benefit of regulation 35(2) to all those resident outside Great Britain. As well as the potentially discriminatory effects of this approach, does it conflict with paragraph 85 of the Upper Tribunal’s decision in IM. There the Upper Tribunal seemingly agrees with single-judge decisions that suggest an individual for whom any form of work-related activity would involve the relevant risk to health (so that no work-related activity could reasonably be required) satisfies regulation 35(2)…”
14. In response, the Secretary of State indicated his support for the appeal. I will summarise the main points in the representative’s written submission:

(a) he confirmed “there are no arrangements to provide work-related activities  in countries outside the UK”;

(b) the reg. 35(2) test should have been applied on a hypothetical basis: “what could happen if a claimant were required to undertake work-related activity, not what would happen”. 

(c) “the FtT had no evidence of any work-related activity nor what the SSWP considered the claimant capable of, whether that was a hypothetical test or not. Thus it is likely that the FtT erred in its failure to comply with IM”;

(d) as I understand it, the representative did not dispute that an individual whose disability was such that s/he could not reasonably be required to do any work-related activity would satisfy regulation 35(2); 

(e) the representative thought Mr B probably did not have a fair opportunity to put forward a case in relation to reg. 35(2).

15. The Secretary of State suggested that the Upper Tribunal set aside the First-tier Tribunal’s decision and remit to the First-tier Tribunal for re-determination. The problem with that was it left hanging in the air the question of what work-related activity should be used in applying reg. 35(2). IM expects the First-tier Tribunal to have information about the work-related activity that a person might be required to do in a particular geographical area (para. 118 of the decision in IM). 

16. I issued further case management directions requiring the Secretary of State to provide a further written submission addressing (a) what hypothetical work-related activity he thinks should be incorporated in the reg. 35(2) test in a foreign case such as this, and (b) whether that approach is followed by DWP decision makers in cases where there is an issue as to the application of reg. 35 of the ESA Regulations 2008 to a claimant resident outside Great Britain.

17. In response, the Secretary of State’s submitted:

“Where the claimant lives outside the UK and elects to have a paper hearing (as in this case) the hearing is almost always going to take place in Newcastle. However if the claimant chooses to attend in person they can choose a venue suitable to them. Thus, in such cases the relevant WRA evidence will be from the Newcastle area, or the area in which the tribunal was that the claimant attended”. 

18. The submission also said “it is envisaged that the hypothetical approach and the use of the WRA lists that I have detailed in this submission will be the approach that DWP decision makers take in such cases”.

19. Mr B has not objected to the hypothetical approach to regulation 35(2) proposed by the Secretary of State. Neither party asked the Upper Tribunal to hold a hearing before deciding this appeal. 

Conclusion

20. I decide that the decision of the First-tier Tribunal involved it making an error on a point of law. Mr B did not have a fair opportunity to put forward a case in relation to regulation 35(2) because he was unaware of the type of work-related activity by reference to which regulation 35(2) would be applied.

21. I set aside the Tribunal’s decision and remit to the First-tier Tribunal for re-determination.

22. I acknowledge the conceptual difficulties raised by the application of regulation 35(2), given the existing authorities, in foreign cases such as this. The Secretary of State’s proposed solution has the benefit of levelling, to an extent, the playing field. It reduces the chances of different reg. 35(2) outcomes solely by reason of a person’s country of residence. If an appellant does not object, the First-tier Tribunal ought to adopt the course suggested by the Secretary of State. If the appellant does object, the Tribunal will need to decide for itself how to proceed taking into account the reasons for the objection and any submissions of the Secretary of State. 

Directions

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, I direct as follows:

(1)	The First-tier Tribunal must entirely re-determine Mr B’s appeal.
(2)	The members of the Tribunal whose decision I have set aside must not form part of the Tribunal that re-determines Mr B’s appeal. 
(3)	If Mr B wants the First-tier Tribunal to hold a hearing before re-determining his appeal, he must inform the First-tier Tribunal within one month of the date of this decision.
(4)	If Mr B objects to the First-tier Tribunal applying regulation 35(2) of the ESA Regulations by reference to the types of work-related activity set out in Annex 1 to the Secretary of State’s written submission of 6th May 2015, he must set out his objections in writing, to be received by the Tribunal within one month of the date of this decision.
(5)	Mr B is reminded that the law prevents the First-tier Tribunal from taking into account circumstances not obtaining at 26th October 2012, when the decision under appeal was taken.

				(Signed on the Original)
								E Mitchell
								Judge of the Upper Tribunal 
                                                                                                22nd September 2015