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2013 UKUT 553 AAC CE 698 2013 Post 28.3.11. Reg. 35(2) Need for evidence from Secretary of State as to proposed work related act

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Joined: 09/03/2008

IN THE UPPER TRIBUNAL                                                                 Case No.CE/698/2013<



Before Judge Mark


Decision:  1. The appeal is allowed.   I set aside the decision of the tribunal and I remit the case to be reheard by a new tribunal in accordance with the directions below.





  1. This is an appeal with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 7 November 2012 upholding a decision of a decision maker that while the claimant had limited capability for work, she did not have limited capability for work-related activity and was not therefore entitled to the support component of ESA.    


  1. The claimant suffers from mental health problems.  The decision maker decided that she had limited capability for work but not for work-related activity.  She did not satisfy any of the descriptors in Schedule 3 to the Employment and Support Allowance Regulations 2008 (the 2008 Regulations) and the issue before the tribunal was whether by reason of the claimant’s mental health problems, applying regulation 35 of the 2008 Regulations, there would be a substantial risk to the claimant’s mental or physical health if she were found not to have limited capability for work-related activity.  There is no suggestion in this case of any risk to anybody else.


  1. The difficulty faced by the tribunal was that although the Secretary of State had determined over a year previously, on 6 October 2011 that the claimant did not have limited capacity for work-related activity, and although the claimant does not seem to have appealed until the end of March 2012, there is not a shred of evidence from the Secretary of State as to what work-related activity the claimant is expected to undertake, or indeed if she is expected to undertake any work-related activity.  Instead the Secretary of State’s submissions to the tribunal were concerned only in the most general terms with the provisions of regulations 34 and 35 of and Schedule 3 to the 2008 Regulations.


  1. Faced with this the tribunal considered at length what work-related activity was, and its purpose, by reference to regulations 54 to 57 of the 2008 Regulations, and concluded that it did not consider that to take part in such activity was arduous, demanding or intrusive, or invasive of a claimant’s privacy or in any way disproportionately troublesome or bothersome, especially having regard to the provisions in regulation 57 that enable the interview to take place at the claimant’s home or by telephone.  It also referred to regulations 3 to 6 of the Employment and Support Allowance (Work Related Activity) Regulations 2011 (the 2011 Regulations) which authorised the Secretary of State to require a person such as the claimant to undertake specific, reasonable work-related activity, set out the circumstances in which directions can be given about work-related activity, provides for a duty on the part of the Secretary of State to notify a person of a requirement to undertake work-related activity in a written action plan, and to disapply a requirement in relation to a work-related activity when it would be unreasonable to require a person to undertake it.


  1. At p.16 of the file is a letter from the claimant in which she states that the pressure and fear of being expected to attend work related issues was extremely disturbing for her and was affecting her efforts to get back to a normal life.  At p.28 she states that she avoids answering the door or the phone unless she knows who the caller is.  At pp.33-34 she states that her anxiety is easily aroused when trying to cope with changes and is increased when meeting people even if she knows them.


  1. By a direction dated 1 August 2012, a tribunal ordered that if it was asserted by the Secretary of State that the claimant satisfied regulation 29(2)(b) of the 2008 Regulations (which relates to the claimant being at substantial risk if found not to have limited capability for work) the Secretary of State should make written submissions as to this and his position in relation to regulation 35.  The submissions of the Secretary of State in response, received on 8 August and 11 September 2012, simply referred back to paragraph 3 of the original submission and to the view of the approved disability analyst (a registered nurse) that she should remain in the support group.  This said nothing that had not already been said and was not an appropriate response to this direction.


  1. The claimant (understandably in view of her agoraphobia) had elected not to attend a hearing and the matter was dealt with on the papers by the tribunal on 7 November 2012.  It simply found that there was not “any basis upon which to consider that there would be any (let alone a substantial) risk to anyone’s health, including that of the Appellant herself, by the making of any requirement of her to attend Work Related Focussed interviews and undertake reasonable Work Related Activity appropriate to her circumstances and needs, and having already found that she did not have limited capability for work related activity, it therefore declined to invoke the provisions of Regulation 35.”


  1. In coming to that decision, the tribunal made no reference to the claimant’s stated fears and problems, which I have set out at paragraph 5 above or to the advice of the approved disability analyst at p.70 that the claimed level of disability is consistent with the evidence before her.  It also did not have before it, despite the earlier direction of the tribunal on 1 August 2012, any proper response from the Secretary of State.


  1. On this appeal too, the representative of the Secretary of State has been concerned to emphasise the flexible approach adopted by advisers when preparing an action plan and in determining what work-related activity might be required.  It is submitted that the nature of the claimant’s disabilities would determine what evidence was needed for a tribunal to determine whether or not the criteria of regulation 35(2) were satisfied and reference was made to two decisions of Judge Jacobs.  In ML v SSWP, [2013] UKUT 174 (AAC), he stated at paragraph 15 that despite having dealt with numerous cases involving the support group he still had no idea of what work-related activities involves beyond the general.  He accepted that it was not possible to say in advance what precisely would be expected of any particular claimant but that it must be possible to give a sufficient indication of what was involved to allow a claimant to provide evidence and argument and allow a tribunal to make a decision.  The statutory right of appeal cannot be effective, he pointed out, without the necessary information for claimants to participate in the appeal and for the tribunal to make a decision.


  1. That was a case where it only became apparent as a result of the tribunal’s decision that the claimant was entitled to ESA at all.  In this case the decision maker had decided over a year earlier that the claimant was entitled to ESA.  There had been a gap of over 5 months before the claimant appealed and a further 8 months until the final hearing.  It is inconceivable, if the Secretary of State was properly carrying out his statutory functions, that in that time no consideration had been given as to what, if any, work-related activity was appropriate in the case of this claimant.  That was the evidence which the Secretary of State should have supplied in response to the direction of 1 August 2012.  It would defeat the entire appeals system in relation to this aspect of ESA if he were entitled to say, as he has sought to do in this case, that, in effect, regulation 35 could be wholly disregarded in relation to the effect of work-related activities because the Secretary of State could be relied on only to require activities the claimant could reasonably manage.  The whole point of the appeals system is to enable a claimant to have the issue whether the Secretary of State has got it right determined judicially.


  1. As pointed out by Judge Jacobs in AH v SSWP, [2013] UKUT 118 (AAC), at paragraph 31, to which the Secretary of State has also referred on this appeal, there are cases where it is apparent that regulation 35(2) cannot apply.  But as he also pointed out, there are other cases where the tribunal will need evidence on the specific nature of the activity that the claimant will have to undertake.  Given the mental problems the claimant suffers from and in the light of all the evidence including that referred to above, this is plainly a case where proper evidence directed to the activities which this claimant was being, or would be, required to undertake had to be provided by the Secretary of State.  The tribunal was in error of law in basing a decision in favour of the Secretary of State on assumptions which were necessary because of his failure in breach of his duty to the tribunal, to provide the necessary information.  This is particularly the case when the claimant is unrepresented, unable to attend a hearing, and mentally ill.


  1. That duty arose both because of the direction of 1 August 2012 and because of his general duty under regulation 2(4) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 (the Procedure Rules) to help the tribunal to further the overriding objective and to co-operate with the tribunal generally.  This must include stating what has been decided in relation to work-related activities and producing a copy of the written action plan prepared in accordance with regulation 5 of the 2011 Regulations or explaining why it cannot be provided – for example because it has been decided that it would not be appropriate at present for the claimant to engage in a work-focussed interview or work-related activities. 


  1. In addition the Secretary of State has a duty under rule 24(4) of those Rules to provide to the tribunal copies of all documents relevant to the case in the decision maker’s possession.  That should include any documents relating to possible work-related activities which the claimant may be required to carry out.  I appreciate that responsibility for considering work-related activities may rest elsewhere than with the decision maker but when, as here, regulation 35(2) is clearly in issue, I do not see how the decision maker can properly have come to a decision relating to it without considering the proposed approach to work-related activities.


  1. By failing to require the Secretary of State to provide the necessary information and documents, and then proceeding in their absence, the tribunal was in error of law and I set aside its decision and remit the matter to be reheard by a new tribunal.  Before the matter is reheard, a tribunal judge should issue clear directions for the Secretary of State to provide a witness statement explaining what was decided and when as to whether and if so when the claimant should be required to attend a work-focussed interview or work-focussed interviews and as to how and where such interviews should be conducted and as to what, if any, other work-related activities the claimant has been or may be required to undertake.  The direction should also require the production of the written action plan and other relevant documents or that their absence should be explained if they do not exist.  If the directions are not properly complied with, the tribunal judge should consider whether it is appropriate in dealing fairly and justly with the matter to issue an unless order, pursuant to regulation 8 of the Procedure Rules.



(signed)                     Michael Mark

                                    Judge of the Upper Tribunal


                                    8 November 2013