IN THE UPPER TRIBUNAL 	Appeal No: CE/282/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright 

DECISION 

	The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Birmingham on 19.08.11 under reference 024/10/11892 involved an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.     

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 at an oral hearing.

(2)	The appellant is reminded that the tribunal can only deal with her situation as it was down to 29.07.10 and not any changes after that date.

(3)	If the appellant has any further evidence that she wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Birmingham Appeals Service Centre within one month of the date this decision is issued.

(4)	The First-tier Tribunal should have regard to the points made below.

REASONS FOR DECISION 

1.	This is an appeal by the claimant from a decision of the Birmingham First-tier Tribunal (SEC) dated 19.08.11. I will refer to this from now on as “the tribunal” and the claimant as “the appellant”. The tribunal dismissed the appellant’s appeal from the Secretary of State for Work and Pension’s decision of 29.07.10. The Secretary of State’s decision of that date had superseded the appellant’s award of employment and support allowance (“ESA”) on the basis that the appellant did not have limited capability for work and was not to be treated as having limited capability for work.

2.	The easiest way to describe the background to this appeal and the issues arising on the appeal to the Upper Tribunal is to set out in full two sets of directions I made in the course of the appeal.  The first, dated 9 November 2012 and granting an oral hearing of the appeal, said this:-

1.	Permission to appeal was granted by District Tribunal Judge Thomas on 30.12.11.  Upper Tribunal Judge Wikeley then made observations, and gave directions, on the appeal on 5.03.12.  There has since been an exchange of submissions between the Secretary of State and the appellant’s representative.  The former said nothing about an oral hearing; the latter asked for an oral hearing “of the novel issue raised in this case”.
 
2.	Judge Wikeley has passed the appeal to me for consideration.

3.	I grant the request for an oral hearing.  I do so partly because a novel issue may be involved, but also because I am, I confess, not clear (a) whether the original argument is still being maintained, and (b) what the precise focus of that original argument is.  The oral hearing will thus hopefully allow clarity to be brought to that argument, and will also allow the Upper Tribunal to hear and decide all relevant arguments.

4.	Permission to appeal was sought on the grounds that “[t]he Tribunal has failed to consider a key point in our submission and we submit it erred in failing to give full reasons. This case raises an important question of law regarding the application of regulation 29 of the Employment and Support Allowance Regulations 2008….as the [appellant] had her job open to her this would be material to the “type and range of work” she might be considered for within the remit of the exemption at regulation 29 when considered within the limits imposed by the Court [of Appeal] in Charlton…At the core of our submission lay the question as to whether the scheme would require someone expected to make a  recovery from a given procedure (and indeed evidenced to have since done so) to seek different work during that recovery”.  I note, in passing, that it is not entirely clear from this whether the alleged failure to give reasons related solely to the important question of law or more generally.     

5.	Judge Thomas granted permission to appeal. He did not do so by way of any express reference to the grounds of appeal; though he did say that the application raised issues which were more appropriate for the consideration of    the Upper Tribunal.  He went on to set out that it was submitted on behalf of the appellant that “the Tribunal failed to consider the effect of Regulation 29 (ESA Regulations) insofar as the Appellant had returned to her old job as a cleaner following a hospital procedure and, as she had a job open to her, this would be material to the “type and range of work” she might be considered for within the remit of the exemption at regulation 29 when considered within the limits imposed by the court in Charlton…., the main question being whether the scheme would require someone expected to make a recovery from a given procedure (and evidenced to have since done so) to seek different work during that recovery”.    Again, it is not clear whether Judge Thomas was granting permission to appeal also on the ground of some wider and more general alleged failure to provide reasons for the decision.

6.	The appellant’s representative then submitted a UT1 form to the Upper Tribunal in January 2012. In that he completed section E on the form Reasons for appealing and, seemingly, limited the alleged error of law to whether an appellant “should effectively be compelled to give up that employment” on being found not to have limited capability for work.  

7.	Two issues arise from this.

(i)	Firstly, and more prosaically, ignoring for the moment what has variously been termed the “important” or “novel” question of law, was permission sought and granted for a more general “reasons” challenge to the tribunal’s decision.  My preliminary view, at present, is that it was not save except in relation to the adequacy of the tribunals reasons for finding regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 not being met.

(ii)	Secondly, just what is the focus of the “important” or “novel” argument? I return to discuss this later. 

8.	Judge Wikeley, as I have said, gave directions on the appeal on 5.03.12. In doing so he observed that “the issue about the application of regulation 29 “exceptional” circumstances provision in a situation where a claimant has a job to go back to, as they have an ongoing employment contract, is plainly an arguable point”.  He continued “I assume the argument (in part at least) is that if the claimant does not qualify for benefit (ESA) under the “exceptional circumstances” provision, then the person might effectively be compelled to take any work in the absence of any other source of income?”.   That question of Judge Wikeley remains unanswered.
9.	The parties have since then exchanged submissions. The Secretary of State’s submission does not address what I will call the “forced to give up the existing job” point.  Rather, he looks at the fact that the appellant’s job was still open to her and says that that is an irrelevant consideration, but does so, as I understand it, on the basis that this was a job she could be expected to do (see paragraph 10 of his submission on page 121).  If I may say so, I think that this may betray a similar confusion to mine on the part of the Secretary of State as to the exact nature of the appellant’s argument on regulation 29.
  
10.	The appellant’s response to the submission of the Secretary of State equally, as far as I can see, does not address the “forced to give up the existing job” point.  Instead, it, too, seems to argue that the relevance of the existing job lies in the appellant’s ability to carry it out without substantial risk, rather than whether she might be forced to give it up.  But that does not seem to be the focus of the original ground on which permission to appeal was granted. And if that is right, does that mean that the original argument is no longer being pursued?

11.	As the Court of Appeal noted in Charlton –v- SSWP [2009] EWCA Civ 42; R(IB)2/09, the correct interpretation of what is now regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 lies in the context that it only arises once a person has been found capable of work (or, now, not to have limited capability for work) (see Charlton at para. [29]). It is an additional and not a substitute test of incapability (para. [32]). “[T]he claimant may be deemed incapable despite the fact that he is capable of performing those everyday tasks which, but for Regulation 27(b), would demonstrate the he is capable of work. Once it is appreciated that Regulation 27(b) applies only when a claimant’s functional abilities in the performance of everyday tasks have been established, it becomes clear that the risk to be assessed must arise as a consequence of work the claimant would be found capable of undertaking, but for Regulation 27” (paras. 32] and [33]

12.	That, equally, I would suggest, must be the starting point for the application of regulation 29(2)(b) here. 

13.	But what arguments does the appellant seek to make about the application of regulation 29(2)(b) (other, perhaps, than an argument that the tribunal did not reason out adequately the jobs she was capable of doing without substantial risk to herself (I do not think any argument is being made of a risks to others))?  

(i)	Is it limited to saying, as the latest submission on behalf of the appellant seems to be saying, that the tribunal ought to have had regard to the existing cleaning job as part of the Charlton assessment of the range of jobs the appellant was capable of doing before assessing the risks in the appellant doing those jobs?
 
(ii)	If that is the argument, then in what sense was the cleaning job relevant in the regulation 29(2)(b) assessment (e.g. as a job the appellant was capable of doing, one she was not capable of doing  (but how would this fit with the quotes from Charlton above), or as one she was capable of doing but not without substantial risk)?         

(iii)	Moreover, what has become of what I have termed the “forced to give up the existing job” argument? 

(iv)	If that argument is still being pursued, in what sense is the potential risk of losing the existing job (if that is the argument being made)   relevant to regulation 29(2)(b)? In other words, if a claimant has been found “fit for work” (as in this case), in what sense does the loss of her existing job fall to be taken into consideration within the wording of regulation 29(2)(b)?  Is it the potential loss of the job that gives rise to the substantial risk, and, if so, (a) how does that arise by “reason of such disease or disablement”, and (b) what was the substantial risk to the appellant’s health caused by the potential loss of the job?                

(v)	Or was/is some wider vires argument or human rights non-compliant argument being made about regulation 29(2)(b) in this context? 

14.	All of these points may need to be addressed, if only to be discarded if they are not being pursued or were never being made in the first place, before the Upper Tribunal gives its decision on this appeal.

15.	Given the ambiguity in the appellant’s arguments to date, it would assist if her representatives could file a short submission (no more than one typed side of A4 paper) with the Upper Tribunal that explains succinctly and clearly, and with regard to the points made above, precisely how the appellant’s cleaning job was relevant to the application to her of regulation 29(2)(b) as at the date the decision was made (29.07.10). 

A further submission was then made on behalf of the appellant on 15 January 2013 which led me to issue the following on 16 January 2013:-

I gave directions on this appeal, setting it down for an oral hearing and asking for a further submission from the appellant’s representative, on 9.11.12.

After an extension of time granted by a Registrar of the Upper Tribunal on 21.12.12, the further submissions were filed with the Upper Tribunal by the appellant’s representative on 15.01.13.  In those submissions the representative suggests he may not be able to make good what I have rather cumbersomely termed the “forced to give up the existing job” argument and asks in the light of that if an oral hearing is needed.

In my judgment the oral hearing on the 7th of March 2013 should remain in place with both parties attending. I say this for a number of reasons. Firstly, the “forced to give up the existing job” argument has not been abandoned.  Secondly, that argument was an issue raised by the appeal to the Upper Tribunal sufficient to warrant permission to appeal being given and so ought to be ruled on by the Upper Tribunal. Thirdly, the Secretary of State has not had the opportunity to consider and make submissions on the validity or otherwise of this argument (certainly as set out in the directions of 9.11.12).  Fourthly, Upper Tribunal Jacobs’s reasoning in MB –v- SSWP (ESA) [2012] UKUT 228 (AAC) may be relevant to this argument.  Fifthly, the appellant’s (new) representative raises separate and additional arguments at the end of the submissions/letter of 14.01.13 which are now best addressed at the hearing on 7.03.13.
                         
3.	The oral hearing therefore went ahead on 7 March 2013. The appellant was represented by Mr Poole, a welfare rights officer, and the Secretary of State by Mr Cooper, solicitor. I am grateful to them both for their helpful and realistic submissions. 

4.	Prior to the hearing Mr Poole sent in a further written submission in which he sought to rely on Upper Tribunal Judge Williams’ decision in CJ –v- SSWP (ESA) [2012] UKUT 201 AAC on “hospital in-patient” in  regulation 25 of the Employment and Support Allowance Regulations 2008 (the “ESA Regs”) as the basis for an argument that the tribunal had erred in law in not properly considering the application of the said regulation 25. Given the late notice of this argument (which placed Mr Cooper in some difficulty) and the fact that the tribunal’s decision was to be set aside on another ground, I declined to rule on this argument. In fairness to the tribunal I should say that there was little or no evidence of regulation 25 of the ESA Regs being in issue before it and the appellant was represented before it by an experienced welfare rights worker from the Birmingham Tribunals Unit. However, the argument can, of course, be raised as an issue to be decided by the First-tier Tribunal that now has to re-decide this appeal.

5.	Similar considerations also apply to the arguments made by Mr Poole in respect of descriptors 5(c) and 6(d) and (f) of Schedule 2 to the ESA Regs (that, relevantly, being the version of Schedule 2 in place prior to 28.03.11).  Whatever the merits of the argument that the tribunal did not properly address the appellant’s ability to use a pen or pencil with her right hand or do up/undo small buttons on a blouse (and these arguments may have some merit given the appellant was only able to scribble her name but was not able to write out a shopping list and only ever wore clothes without buttons (page 88)), these arguments would only be material to setting aside the tribunal’s decision if the tribunal also erred in law when considering descriptor 5(c) in Schedule 2 to the ESA Regs (because the maximum award  that could have been allocated under activity 6 was 9 points). In other words, could the appellant score 6 points elsewhere in Schedule 2? Here that argument focuses on descriptor 5(c) in the said Schedule 2.    

6.	However, I do not consider the tribunal erred in law in its approach to or reasoning on descriptor 5(c) in Schedule 2.  This descriptor concerns the ability to pick up and move (from a seated position) with the upper body and arms a light but bulky object, such as an empty cardboard box. The appellant’s evidence on this to the tribunal was that she would pick up the box in her left hand and she could have moved it (page 89).  Further in its reasons the tribunal said that the appellant had confirmed that she could move “a cardboard box with both hands” (paragraph 13 of statement of reasons).  That was based on what the appellant had told the tribunal and I can see no proper basis for interfering with its view of her evidence.  Further, I do not consider any misdirection of law is revealed by the tribunal only using the word “move” rather than “pick up and move” in its statement of reasons.  Consideration of the rest of the statement of reasons shows the tribunal was well aware that the test involved picking up and then moving; indeed its questioning of the appellant shown on page 89 makes plain it was focused on the appellant’s ability to pick up (and then move) an object.   
                                            
7.	Just like regulation 25 of the ESA Regs, it will, however, be open to the appellant to argue her case again on descriptors 6(d) and (f) and 5(c) before the tribunal to which this appeal is being remitted, and given my comments above that tribunal may wish to examine with especial care the appellant’s ability to meet descriptors 6(d) and (f) as at the end of July 2010.

8.	That then leaves regulation 29(2)(b) of the ESA Regs, which provides that a claimant shall be treated as having limited capability for work if she:

“suffers from some specific disease or bodily or mental disablement and, 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”.                                

9.	I consider that the tribunal materially erred in law in relation to regulation 29(2)(b) of the ESA Regs but not in relation to the “forced to give up her existing job” argument. In my judgment the critical issue about the existing job was that the appellant was not able to return to it at the date of the decision under appeal (though she had returned to it by the time of the appeal hearing in August 2011). It is the tribunal’s failure to explore why she was unable to return to her job at the relevant time in assessing the Charlton “range and type of jobs” she was then capable of doing that amounts to a material error of law.

10.	The decision under appeal to the tribunal is dated 29.07.10. That provides the focus in time as to when the regulation 29(2)(b) substantial risk stood to be assessed.   At that point in time it was some 3 weeks afters after the appellant had had a day operation to release her right golfer’s elbow and for carpal tunnel decompression on her right wrist/arm (see pages 65-67, 82 and operation date of 7.07.10 given on page 85).   The appellant, importantly, is right handed. In her evidence to the tribunal the appellant said the operation was not a success.  The advice given after the operation was that she was to engage in no heavy lifting for three weeks and she was to be reviewed by the hospital in three weeks time (page 67).    She was also at that time employed by the West Midlands Police Force as a cleaner. However the evidence was that she was unable to carry out that job at the time of the decision.

11.	A submission was made to the tribunal that the type and range of work the appellant was capable of doing was heavily restricted as she was 3 weeks and one day after surgery (page 90).  The “type and range of work” comes from Charlton –v- SSWP [2009] EWCA Civ 42; R(IB)2/09 at paragraphs 38 and 39: 
38.	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."
  
12.	Of course, as is made clear earlier in Charlton, the starting point for the application of regulation 29(2)(b) of the ESA Regs is that the person is capable of work, or does not have limited capability for work, (i.e. he or she has failed to score 15 points under Schedule 2 to the ESA Regs); with regulation 29(2)(b) then looking at the type or range of work the person is capable of performing so as to assess risk.

13.	In this appeal there was, in my judgment, one critical piece of relevant evidence that the tribunal erred in law in not exploring, namely why the appellant was unable to return to work again as a cleaner for the police force. On any analysis that was the type of job the appellant was as a matter of her aptitudes and training capable of performing. However, she was not performing it at the date of the decision under appeal to the tribunal. Why she was not performing it is unclear. It is unclear because the tribunal did not explore this issue. But the reasons why the appellant was not then performing the job were plainly relevant to the Charlton risk assessment. For example, and these are no more than examples, if the appellant was not then doing the job because the police had in place a temporary cleaner whose contract still had a month to run and they did not want to have the appellant back at the same time, that may have little or nothing relevant to say about risk in terms of the appellant carrying out such a job. On then other hand, if the police had made its own assessment and found that the appellant needed until, say, the end of August 2010 before she could safely work as a cleaner then that would have been very relevant to regulation 29(2)(b) risk assessment. That may then have ruled out dexterous manual work as relevant work and would have needed the tribunal to look elsewhere for work the appellant was suited both as a matter of training and aptitude.

14.	It is in this sense, and only in this sense, that on this case the appellant’s job being held open for her was relevant.  I have no doubt, as Mr Cooper argued, that the tribunal had the Charlton test to the forefront of its mind. However, it was the reasoned out application of that test which was lacking here. Given the evidence that the appellant could not do her regular job, I do not consider it was sufficient for the tribunal to say it “did not accept that there was not an adequate range of work which [the appellant] could undertake without creating a substantial risk to herself or others”. The evidence about the existing job gave rise to an inference that the appellant may not have been able at the time to do the job(s) for which she was suited and for that reason required further investigation.

15.	I do not accept, however, that the potential loss of the appellant’s job with the police force if she was forced to look for other work she was suited to do by reason of being found capable of work has any other relevance under regulation 29(2)(b) of the ESA Regs, at least on the facts of this case (and, I would imagine, on the facts of most cases).  As I understand the argument here – and in fairness to Mr Poole he was neither the author of the argument nor did he press it with any real vigour at the hearing before me – it is that the potential loss of a job a person already has (with its source of income and status the job gives a person) is a “risk” that regulation 29(2)(b) covers.  I do not see this.  

16.	For a start the risk –  per Charlton -  relates to jobs a person is suited to do and is capable of doing: see, also, MB –v- SSWP (ESA) [2012] UKUT 228 (AAC).  If a person for the moment can no longer do his or her existing job without substantial risk but is able and is suited to do another type of job without risk then regulation 29(2)(b) of the ESA Regs is not met. To this extent regulation 29(2)(b) of the ESA Regs does not preclude the “forced to give up the existing job” consequence, nor does anything else in the statutory scheme governing employment and support allowance. However, given the tribunal’s failure to investigate adequately whether there was any substantial risk to the appellant from her carrying out her cleaning job for the police at the end of July 2010, it is impossible at this stage to make any meaningful assessment of whether the appellant couldn’t safely do that job but could another job and thus may have been forced to give up her existing job.       

17.	Secondly, even if there is a realistic potential scenario where a person may lose his or her existing job which they are not then capable of doing safely but there are other jobs to which they are suited and which they can do safely (and, I emphasise, that this is not established on the facts here and I find it difficult to envisage concrete scenarios where such a circumstance may realistically arise, which makes the analysis here somewhat speculative and tentative), the relevant question that still has to be asked is whether because of the person’s specific disease or bodily or mental disablement there would  be a substantial risk to her (or another’s) physical or mental health if she were found capable of work. On the face of it that requires that there is an evidenced substantial risk to health caused by the person’s disease or bodily or mental disablement.    Save perhaps for the rare case where a person with mental health problems would have those problems exacerbated by having to give up special tailored, supported employment that he cannot safely for the moment do (and even in this case it is very difficult to see what other employment he would be suited to and which he could do safely), the potential loss of employment, it seems to me, would too remote to count. I am mindful, also, that there was no evidence put before the tribunal showing any risk to health of the appellant arsing from the potential loss of her job.                                                                                                                                                            

18.	It is for all these reasons that the tribunal’s decision dated 19.08.11 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law as set out above and once it has properly considered all the relevant evidence.                                                        

 (Signed) S. M. Wright
Judge of the Upper Tribunal
                                                                                                          
Dated 7th June 2013