IN THE UPPER TRIBUNAL	Case No.  CE/3916/2012
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Robin C A White

Decision: The decision of the tribunal of 3 August 2012 is not erroneous in law. I dismiss this appeal.

REASONS FOR DECISION
Background and context 
1.	This is an appeal against a decision by a First-tier Tribunal dated 3 August 2012 which comes before me with the permission of a judge of the Upper Tribunal after an oral hearing of the application for permission to appeal. The appeal is not supported by the Secretary of State.
2.	The appellant was in receipt of an employment and support allowance but was required to undergo a limited capability for work assessment. She completed a limited capability for work questionnaire on 14 December 2011 which was received in the Department on 19 December 2011.
3.	The appellant was referred for a medical interview and examination with a healthcare professional, in this case, a registered medical practitioner. This took place on 1 February 2012.
4.	A decision maker then determined that the appellant did not have limited capability for work-related activity from 21 February 2012.
5.	The tribunal on 3 August 2012 decided that the appellant did have limited capability for work applying regulation 29(2) of the Employment and Support Allowance Regulations 2008, but did not have limited capability for work-related activity.
6.	It is against the tribunal’s conclusions on her capability for work-related activity that the appellant has appealed 
7.	The judge of the Upper Tribunal in giving permission to appeal set out the following reasons:
1. [The appellant’s] complaint is that the tribunal erred in law in failing to place her in the “support group”, as having limited capability for work related activity. Her case is not that she falls within any of the descriptors in Schedule 3 (albeit one or two of them are  not all that easy for her), but that regulation 35 should be applied to her.
2. She makes the point that the tribunal had recommended that the DWP did not have to reassess her within 24 months. By the time that period expired she would have retired and thus there seemed litte point in requiring her to go through activities designed to help people who are ill or disabled to be reintegrated in the work force. I do not think that point helps her. The tribunal only made a recommendation (that is all it can make) and there is no guarantee that she will not be reassessed. Secondly, under employment and support allowance, whether a person falls within the support group is relevant not only to determining whether they have to participate in activities designed to promote their reintegration into the workforce, but also has substantive implications for the benefit they receive.
3. Where I consider [the appellant] may have a point (and this is the ground on which permission to appeal is given) is that there was, so far as I can see, no evidence at all before the tribunal of what work related activity [the appellant] might be required to undertake. In the absence of such evidence, the tribunal has made an assumption that it might involve “interviews, retraining or therapy”: … . Insofar as that is an implicit finding of fact about what work related activity will involve, is it not unsupported by evidence?
4. The need to determine accurately what might be involved in work related activity is not an academic question without practical importance. On the tribunal’s findings, [the appellant] is concerned that there might be types of “retraining” or “therapy” which may be beyond her physical limitations: it is simply impossible to tell. On the other hand, it may be that the work related activity which the DWP would actually require would fall short of this, in which case it is conceivable that [the appellant] might be able to manage it. The point is that it is necessary to determine the content of the work related activity, one way or the other, based on evidence. See in this regard also the decision of Judge Jacobs in CE/1750/2012.
8.	CE/1750/2012 is available on the website record of Upper Tribunal decisions as AH v SSWP (ESA) [2013] UKUT 118 (AAC).
Did the tribunal err in law? 
9.	Regulation 35(2) provides:
A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—
(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.  
10.	I note that in AH v SSWP (ESA) [2013] UKUT 118 (AAC) the judge said that there must be some evidence relating to the two elements that are key to applying regulation 35(2). Those elements are (1) the range or type of work-related activity that might be required of a claimant, and (2) the risk to the health of a claimant which this might entail. 
11.	A number of difficulties arise both for decision makers and tribunals in relation to setting out what work-related activity comprises. This is because there is an initial consultation with a personal adviser in the Department at which activities appropriate to all the claimant’s circumstances, including his or her state of health, will be assigned. At the point at which a determination is being made about whether a claimant has limited capability for work-related activity, no such initial consultation has taken place. There will inevitably be a degree of speculation about what those activities might be.
12.	At the very least, work-related activity will involve a consultation with a personal adviser, which I have been told in other cases may be by telephone. I have also been told that there is no problem about a person being accompanied to this consultation by a friend for moral support.
13.	Furthermore, in the case of First-tier Tribunals, there is generally no representative of the Secretary of State present, and so no one who can respond to questions about what might conceivably be appropriate for the appellant. It would further clog up the adjudication system if, every time a tribunal reached the point at which they were required to consider regulation 35(2), there had to be an adjournment with directions for a submission to be prepared on behalf of the Secretary of State.
14.	Where appeals are made to tribunals and regulation 35 might well be in issue, these difficulties would be obviated if the submission to the tribunal provided some examples of typical types of work-related activity. That would give tribunals something beyond speculation to work with. If it was plainly the case that the appellant could undertake some of those activities safely, then the conditions in regulation 35(2) would not be met. If the examples were carefully considered, I suspect the circumstances presented by most claimants could be judged without the need for either speculation or an adjournment.
15.	This is what the Secretary of State has said to me on this issue:
4.3 … . I would highlight the point that there are no specific descriptors in regulations that describe what WRA a claimant may be required to undertake. This allows a flexible approach to be taken when considering what WRA a claimant might be capable of undertaking.
4.4 When drawing up the action plan with the claimant, the adviser takes into account the claimant’s circumstances including physical or mental health and any learning or cognitive issues, to ensure requirements are reasonable and appropriate for that individual and help overcome a specific barrier to moving closer to employment—work related activities could include:
•	CV writing
•	confidence building course
•	basic skills
•	participate in basic literacy or numeracy courses
•	participating in English language training
•	work experience
•	mandatory work placements for community benefit.
4.5 This list is not exhaustive; there are other activities claimants may be required to undertake which would be discussed with the advisor to ensure it is flexible and tailored to an individual’s circumstances. Flexibility is essential in tailoring the right support for each claimant and this would need to be maintained as what works for one claimant may not be suitable for another. Judge Jacobs in CE/3261/2012 paragraph 15 acknowledged that it was not possible to say in advance what precisely would be expected of any particular claimant in relation to what WRA they might be able to undertake. The Judge also accepted in his decision CE/1750/2012 at paragraph 31 that the nature of the claimant’s disabilities would determine evidence needed for a Tribunal to decide whether or not they satisfied the criteria in regulation 35(2).
16.	Plainly at the very least a claimant required to undertake work-related activity must have a consultation with a personal adviser in the Department. But the test cannot be that regulation 35(2) will only be satisfied where a person lacks the capability to have such a consultation. There must be very few people (such as those with very significant mental health problems) for whom this minimal requirement would present a substantial risk to their health or that of others.
17.	I have seen some submissions which get close to adopting the position set out in the previous paragraph. Nor can it be right simply to assert that a personal adviser would never require activity beyond the capability of the claimant, and that in some cases very little activity would be required. It does seem to me that there must be some illustrative examples of what work-related activity involves. If a claimant can show that they could not safely undertake any of those activities which might well be appropriate to them, then it seems to me that they will have satisfied regulation 35.
18.	Where no evidence is available, then I see nothing inappropriate in a tribunal indicating some typical examples of work-related activity that are within their knowledge and showing that a claimant can safely undertake those activities.
19.	Indeed this appears to be the position adopted by the Secretary of State in this appeal:
4.5 … . It is my contention that in this particular case the evidence within the appeal bundle and the claimant’s verbal evidence were sufficient and specific enough for the Tribunal to make the decision that the claimant did not satisfy the criteria for regulation 35(2). 
20.	In her final observations to me, the appellant takes issue with much of what the Secretary of State says. In particular, she argues that a decision under regulation 35(2) should not be based on assumptions but on particular activities which might be regarded as appropriate to her.
21.	I have not found this an easy decision to make. Even taking the examples which are now put before me by the Secretary of State of typical work-related activity, it is plain that most of them would be unlikely to be appropriate for this appellant. Some are patently inappropriate, such as basic skills courses, literacy and numeracy courses and English language training. 
22.	However, I do not consider that the illustrative examples used by the tribunal are inappropriate or far-fetched. The tribunal’s findings of fact indicate that the appellant can attend and participate in a tribunal hearing, can sit for limited periods, and can write. Typical work-related activity such as interviews or retraining (perhaps with a view to some sort of part-time work from home) might well involve these things and could be accomplished without substantial risk to the appellant’s health. No issue arises relating to risks to the health of anyone else.
23.	In all the circumstances of this case, I have concluded that the tribunal was left with no realistic option but to speculate on the sort of work-related activities that might be required. Their speculation has generated sensible examples and they have concluded that these can safely be undertaken by the appellant.
24.	There is therefore no error of law in the tribunal’s decision, and I dismiss this appeal.

Signed on the original 	Robin C A White
on 9 August 2013 	Judge of the Upper Tribunal