IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER	Case Nos.  CE/3994/2012
CE/2390/2013	

Before Upper Tribunal Judge Rowland

The First Claimant was represented by her husband.

The Second Claimant was represented by Ms Rachel Ingleby of Kirklees Benefits Advice Service.

The Secretary of State was represented by Mr David Blundell of counsel, instructed by the Solicitor to the Department for Work and Pensions

Decisions:  	In CE/3994/2012, the claimant’s appeals are allowed.  The decisions of the First-tier Tribunal are set aside.  I substitute decisions to the effect that the claimant’s appeal against a decision of the Secretary of State notified to her on 4 January 2012 be admitted and that her appeal against a decision made on 30 April 2012 should not be struck out.  Those appeals therefore remain to be determined by the First-tier Tribunal.  Subject to any further direction by the First-tier Tribunal, the Secretary of State is directed to make a further submission to the First-tier Tribunal in respect of the appeals within one month of this decision being sent to him, enclosing the relevant healthcare professionals’ reports and such other documents as are relevant.

	In CE/2390/2013, the claimant’s appeal is allowed to the extent that it is held that the First-tier Tribunal erred in law.  However, the First-tier Tribunal’s decision is not set aside.

REASONS FOR DECISIONS

Introduction

1.	Part 1 of the Welfare Reform Act 2007 (“the 2007 Act”) makes provision for employment and support allowance, which is payable by virtue of section 1 to those who have limited capability for work and satisfy certain other conditions.  Under section 1(2), it may be payable on a contributory basis or an income-related basis.  This case is concerned with entitlement to the contributory allowance, which is payable if the claimant satisfies the national insurance contribution conditions set out in paragraphs 1 and 2 of Schedule 1, as well as the “basic conditions” set out in section 1(3).  It used to be possible to claim a contributory allowance on the basis of satisfying the condition relating to youth set out in paragraph 3 of Schedule 1 but new claims on that basis have not been permitted since 1 May 2012 (see section 1(3A), inserted by section 53 of the Welfare Reform Act 2012 – “the 2012 Act”).  

2,	By section 2, read with regulation 67(2) and (3) of, and paragraphs 1(a), 12 and 13 of Schedule 4 to, the Employment and Support Allowance Regulations 2008 (SI 2008/794), as amended (“the 2008 Regulations”), the current amount of a contributory allowance is £71.70 pw during the assessment phase and thereafter either £100.15 pw, if the claimant is entitled to “the work-related activity component”, because he or she has limited capability for work, or £110.10 pw, if the claimant is entitled to “the support component” because he or she not only has limited capability for work but also has limited capability for work-related activity.  By regulation 4 of the 2008 Regulations, the assessment phase lasts for 13 weeks or until a determination is made as to whether the claimant has limited capability for work.  During the assessment phase, a claimant is generally deemed to have limited capability for work.  Section 24(4) of the 2007 Act provides that –

“For the purposes of this Part, a person is a member of the support group if he is a person in respect of whom it is determined that he has, or is to be treated as having, limited capability for work-related activity.”

Those who have limited capability for work but not for work-related activity are described administratively as members of the “work-related activity group”, but that is not a statutory term.  Provision is made in sections 8 and 9 of the 2007 Act and in the 2008 Regulations for the determination of the questions whether a person ahs limited capability for work or limited capability for work-related activity.  It is not necessary for the purposes of these appeals to consider those terms further.

3.	Initially, contributory employment and support allowance was payable for as long as the claimant continued to have limited capability for work and satisfy the other basic conditions.  However, with effect from 1 May 2012, sections 51 and 52 of the 2012 Act inserted two new sections into Part 1 of the 2007 Act.  These are sections 1A and 1B, which provide –

Duration of contributory allowance
  1A.–(1) The period for which a person is entitled to a contributory allowance by virtue of the first and second conditions set out in Part 1 of Schedule 1 shall not exceed, in the aggregate, the relevant maximum number of days in any period for which his entitlement is established by reference (under the second condition set out in Part 1 of Schedule 1) to the same two tax years.
  (2)	In subsection (1) the “relevant maximum number of days” is—
    (a)	365 days, or
    (b)	if the Secretary of State by order specifies a greater number of days, that number of days.
  (3)	The fact that a person's entitlement to a contributory allowance has ceased as a result of subsection (1) does not prevent his being entitled to a further such allowance if—
    (a)	he satisfies the first and second conditions set out in Part 1 of Schedule 1, and
    (b)	the two tax years by reference to which he satisfies the second condition include at least one year which is later than the second of the two years by reference to which (under the second condition) his previous entitlement was established.
  (4)	The period for which a person is entitled to a contributory allowance by virtue of the third condition set out in Part 1 of Schedule 1 (youth) shall not exceed—
    (a)	365 days, or
    (b)	if the Secretary of State by order specifies a greater number of days, that number of days.
  (5)	In calculating for the purposes of subsection (1) or (4) the length of the period for which a person is entitled to a contributory allowance, the following are not to be counted—
    (a)	days in which the person is a member of the support group,
    (b)	days not falling within paragraph (a) in respect of which the person is entitled to the support component referred to in section 2(1)(b), and
    (c)	days in the assessment phase, where the days immediately following that phase fall within paragraph (a) or (b).
  (6)	In calculating for the purposes of subsection (1) or (4) the length of the period for which a person is entitled to a contributory allowance, days occurring before the coming into force of this section are to be counted (as well as those occurring afterwards).”

Further entitlement after time-limiting
  1B.–(1)Where a person's entitlement to a contributory allowance has ceased as a result of section 1A (1) or (4) but—
    (a)	the person has not at any subsequent time ceased to have (or to be treated as having) limited capability for work,
    (b)	the person satisfies the basic conditions, and
    (c)	the person has (or is treated as having) limited capability for work-related activity,
the claimant is entitled to an employment and support allowance by virtue of this section.”
  (2)	An employment and support allowance entitlement to which is based on this section is to be regarded as a contributory allowance for the purposes of this Part.”

4.	No order having been made under section 1A(2)(b) or (4)(b), the effect of section 1A(1) is to limit entitlement to contributory employment and support allowance to a period of 365 days, not counting any of the days mentioned in subsection (5), in any one period of entitlement.  Importantly, subsection (5)(a) refers to “days in which the person is a member of the support group”.  It is relevant to the calculation of the 365 days that regulation 145(1) of the 2008 Regulations provides that –

“Any period of limited capability for work which is separated from another such period by not more than 12 weeks is to be treated as a continuation of the earlier period.”

5.	Due to subsection (5) and regulation 145(1), the calculation of the period of 365 days is not always straightforward.  However, there is no difficulty when a claimant has been continuously entitled to the contributory allowance and has never been assessed as having limited capability for work-related activity.  Entitlement ceases after 365 days.

6.	The two principal questions raised by these appeals are whether there is any right of appeal against such an ending of entitlement and, if so, whether the claimant is entitled to raise in that appeal the question whether he or she has limited capability for work-related activity.

The facts in the first claimant’s appeal – CE/3994/2012

7.	The claimant had been entitled to contributory employment and support allowance since 4 February 2010 and so had already been in receipt of it for more than 365 days when the new legislation came into force on 1 May 2012.  It seems that her first work capability assessment had resulted in her being found on 23 April 2010 not to have limited capability for work but that she successfully appealed against that decision and, on 18 March 2011, the First-tier Tribunal decided that she did have limited capability for work because she scored 6 points under each of descriptors 1(e), 2(f) and 3(c) in Schedule 2 to the 2008 Regulations.  A further decision as to her entitlement had been notified to her on 4 January 2012, when she was told that she had been placed in the work-related activity group with effect from 31 December 2011, although in fact she was already in that group in consequence of the First-tier Tribunal’s decision.

8.	The claimant was first alerted to the new legislation by a letter dated 13 October 2011, in which she was told about what was then the Welfare Reform Bill and that, if approved by Parliament, it would become law by spring 2012.  The letter then said –

“We’re writing to you because, if the change becomes law, it could affect your benefit.  You currently get contribution based Employment and Support Allowance, and you’re in the work-related activity group.  The government want to limit how long you could get this, to a maximum of 12 months.”

She was told that she need not do anything then and that she would be written to again if the change affected her.

9.	On 9 March 2012, the day after the Bill received Royal assent and became the 2012 Act, the claimant was sent a letter by Jobcentre Plus stating –

“We wrote to you some time ago to explain that the government was proposing to limit how long people in the work related activity group can get contribution-based Employment and Support Allowance to a maximum of 365 days.

We now expect that this proposal will take effect on 30 April 2012.  This means that we expect your contribution-based Employment and Support Allowance to end on 30/04/12.  This is because you will have received 365 days contribution-based Employment and Support Allowance which will be the maximum number of days you can receive this benefit for unless you are placed in the Support Group.  We may have taken previous Employment and Support Allowance awards into account when we calculated the day your contribution-based Employment and Support Allowance ends.”

10.	On 2 April 2012, the claimant’s husband replied to that letter, saying –

“… in your letter it states that contributions will continue for those in the ‘Support Group’.  This is the first time that we have heard of this group and would like to know the criteria for being placed in this group.  My wife attended her ‘work related’ interview at the job centre last week and when I asked the question about the support group the adviser didn’t know what the criteria was and suggested that I respond to your letter for further information.”

He also asked for a copy of the medical assessment report that had led to the decision notified on 4 January 2012.

11.	It appears that he was sent a copy of ‘A guide to ESA – The Work Capability Assessment’, leaflet ESA 214 but was not sent a copy of the medical report.  In any event, on 26 April 2012, he wrote to say that his wife wished to be considered for the support group and that, in the light of that guidance leaflet, she thought she was entitled to be included in that group.  That letter was received by Jobcentre Plus on 1 May 2012.  Subsequently, the claimant completed a formal notice of appeal form and submitted it to Jobcentre Plus with further arguments (which suggest that he had not in fact understood the criteria for inclusion in the support group) and evidence.  (At that time, appeals had to be sent to the decision-maker rather than directly to the First-tier Tribunal.)  The documents were treated as being both an appeal received on 1 May 2012 against the decision notified on 4 January 2012 and as an appeal against the decision, apparently issued on 30 April 2012, finally ending the award of employment and support allowance with effect from 1 May 2012.  

12.	On 9 July 2012, following a further assessment, it was again decided that the claimant had limited capability for work but not for work-related activity.  I am not sure what triggered that assessment. 

13.	Two days later, Jobcentre Plus submitted the appeals to the First-tier Tribunal, arguing that the appeal against the decision notified on 4 January 2012 should not be admitted because it was out of time and that the appeal against the decision to terminate entitlement to employment and support allowance from 1 May 2012 should be struck out under rule 8(2)(c) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) because it had no prospects of success unless the appeal against the decision notified on 4 January 2012 was admitted.

14.	On 16 July 2012, a district judge issued directions stating, in effect, that the only appealable decision was that notified on 4 January 2012 and seeking an explanation for the delay in appealing against that decision.  She did not have before her the earlier correspondence mentioned above.  The claimant’s husband replied on 27 July 2012, stating that –

“… at no time has my wife been appealing against a decision dated 4th January 2012 to be placed in the Work Related Activity Group.  Why would she when she was already placed in this group and had been for a period of two years.”

However, he enclosed, among other documents, a copy of his letter dated 2 April 2012.

15.	In the light of that response and notwithstanding the enclosure, the district judge decided on 10 August 2012 not to admit the appeal against the decision notified on 4 January 2012 and reiterated that no appeal lay against the decision terminating the award of employment and support allowance from 1 May 2012.  Her holding that there was no right of appeal against the decision terminating the award was effectively an acceptance of the Secretary of State’s submission that the appeal should be struck out, but it was a striking out under rule 8(2)(a) of the 2008 Rules for lack of jurisdiction, rather than under rule 8(2)(c) for lack of prospects of success. 

16.	The claimant’s husband wrote to the First-tier Tribunal to express dissatisfaction with the district judge’s determination but was told that “there is nothing further the Tribunal can do”.  He sought a statement of reasons but was told that there was no right of appeal.  Undaunted, he applied directly to the Upper Tribunal for permission to appeal, enclosing all the earlier correspondence to which I have referred.  I granted permission to appeal against both the decision not to admit the appeal against the decision notified on 4 January 2012 and the decision implicitly striking out the appeal against the termination of the award.

17.	For reasons that I shall explain in more detail below, the Secretary of State accepts that an appeal lies to the Upper Tribunal against both decisions of the First-tier Tribunal and he also accepts that both decisions were wrong in law.  However, while he accepts that there was a right of appeal to the First-tier Tribunal against the termination of the award of employment and support allowance, he submits that the scope of the appeal is quite limited.  It was for that reason that I directed an oral hearing.

The facts in the second claimant’s appeal – CE/2390/2013

18.	The claimant in this case became entitled to contributory employment and support allowance on 5 June 2010 and was placed in the work-related activity group.  On 15 July 2011, she attended a work capability assessment as a result of which the award was superseded on 2 August 2011 and terminated on the ground that she did not have limited capability for work.  However, she then submitted medical evidence and appealed and so the supersession decision was revised on the basis that she was to be treated under regulation 30 of the 2008 Regulations as having limited capability for work while the appeal was pending.  Before that appeal was determined, the award was terminated on 30 April 2012 with effect from 1 May 2012 on the ground that section 1A of the 2007 Act would come into force on 1 May 2012 and the claimant had been entitled to contributory employment and support allowance for more than 365 days.

19.	The claimant appealed, with the help of Kirklees Benefits Advice Service, on the ground that she should be treated as having limited capability for work-related activity under regulation 35(2) of the 2008 Regulations and also that the termination of the award was in breach of Article 1 of Protocol 1 to the European Convention on Human Rights and also Article 7.  Her appeal was received on 14 May 2012.

20.	Two days later, the claimant’s earlier appeal was disallowed and the First-tier Tribunal confirmed that she did not have limited capability for work in August 2011.  However, the claimant sought permission to appeal to the Upper Tribunal against that decision, which was granted by the First-tier Tribunal.

21.	The Secretary of State invited the First-tier Tribunal to strike out the claimant’s appeal against the decision of 30 April 2012 on the ground that it had no prospects of success.  It was argued that the question whether or not the claimant had limited capability for work-related activity, so as to be a member of the support group, was to be determined in the outstanding proceedings arising out of the decision of 2 August 2011 and that the appeal against the decision of 30 April 2012 was “to be treated as a time limiting appeal only”.  The unarticulated point was that there could be no doubt that there had been 365 days of entitlement without the claimant being a member of the support group and that, if the appeal against the July 2011 assessment was successful to the extent that the claimant was placed in the support group, the decision of 30 April 2012 could be revised (under, I presume, section 9 of the 1998 Act and regulation 3(5A) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) (“the 1999 Regulations”)).

22.	However, on 31 July 2012, a district judge – in fact the same judge who had dealt with the appeal by the first claimant – issued a direction stating that there was no right of appeal at all against the decision of 30 April 2012 but, inconsistently in my view, directing that the parties set out their human rights arguments in further submissions.  This they did.  The claimant seems to have abandoned her argument under Article 7 when the Secretary of State pointed out that that applied only to the punishment of criminal offences, but the parties locked horns in relation to Article 1 of Protocol 1 and, after further case management directions, the case came before a different judge and a medically qualified member of the First-tier Tribunal at a hearing on 14 February 2013.  Meanwhile, it now appears that her earlier appeal to the Upper Tribunal (on file CE/2227/2012) had been withdrawn in January 2013.

23.	At that hearing, the claimant’s appeal was struck out on the ground that she had no right of appeal and that, in any event, the First-tier Tribunal had no power to disapply primary legislation or to issue a declaration of incompatibility under section 4 of the Human Rights Act 1998.  The claimant sought a statement of reasons, which was duly provided and explained that the First-tier Tribunal considered that the award had been terminated by effluxion of time and the operation of the statute, rather than by virtue of a decision.  The statement of reasons continued –

“14.	Finally, and for the sake of completeness, we have considered whether the interests of justice require that we should consider whether this appellant was at any material date entitled to be placed in the support group of ESA recipients.  Entitlement to the support component would exempt her from the time-limiting effect of Section 51 [of the 2012 Act, inserting section 1A into the 2007 Act].  The question was not raised before us, but we have a discretion, which must be exercised judicially, whether or not to consider it.  We have decided that it would be quite wrong to exercise that discretion in favour of considering the point, for the following reasons:
    a.	Our primary finding is that there was no decision and therefore no jurisdiction to entertain the appeal at all;
    b.	Even in the alternative, the issue put before us by an able and experienced representative is limited to the ECHR argument referred to above, and no question of entitlement to the support component has been raised either orally or in written submissions;
    c.	There is no suggestion that [the claimant] has at any stage applied for the supersession of her award of contribution based ESA on the ground that she should be placed in the support group;
    d.	no evidence whatever on the issue has been adduced before us by either party.”

24.	The claimant then sought permission to appeal, which was granted on 15 May 2013 by the judge who had presided at the hearing.  

25.	When this case came before me on 11 October 2013, I directed that it be heard with the first claimant’s case, because it raised the same issues and this claimant was represented.  However, in relation to the human rights arguments, I pointed out that the Upper Tribunal had no more power to issue a declaration of incompatibility than the First-tier Tribunal and I suggested that there was therefore little point in the Upper Tribunal considering those arguments.

The arguments on the appeals

26.	It is common ground that the First-tier Tribunal erred in the first claimant’s case in stating that there was no right of appeal against its decisions.  The terms of section 11 of the Tribunals, Courts and Enforcement Act 2007 are very broad and I accept that the Upper Tribunal does have jurisdiction to consider these appeals.

27.	It is also common ground that the First-tier Tribunal erred in law in both cases in striking out under rule 8(2)(a) the appeals against the termination of the awards on the ground that it had no jurisdiction.  However, although the Secretary of State concedes that there was a right of appeal in each of these cases, he submits that it was confined to the question whether the relevant 365 days had elapsed and that, where there is no challenge to the calculation of the 365 days, such appeals can normally properly be struck out under rule 8(2)(c) on the ground that they have no prospects of success.  The claimants, on the other hand, submit that other issues can be raised in such appeals, such as whether the claimant has limited capability for work-related activity and so qualifies as a member of the support group.  The Secretary of State submits that that point had to be taken by way of an appeal against, or an application for supersession of, the last decision as to whether the claimant had limited capability for work or by way of a new claim and he accepts that appeals against termination decisions should not be struck out while any such appeal or application is pending.  

28.	In the first claimant’s case, the Secretary of State further submits that the First-tier Tribunal erred in law in its decision refusing to extend time for appealing against the decision notified on 4 January 2012 placing the claimant in the work-related activity group.

The decision notified to the first claimant on 4 January 2012

29.	Before turning to the main issues in these appeals, it is convenient to consider the nature of the decision notified on 4 January 2012 relating to the first claimant, since it was the Secretary of State’s case before the First-tier Tribunal that it was by way of an appeal against that decision that the claimant could seek to have herself placed in the support group.  In his written submission to the Upper Tribunal, the Secretary of State submitted that the decision was a refusal to supersede the existing award, which was made under section 8(1)(c) of the 1998 Act so that there was a right of appeal under section 12, citing R(DLA) 1/03 as authority.  However, at the hearing, Mr Blundell submitted on behalf of the Secretary of State that a refusal to supersede is a decision made under section 10.  That seems to me to be a better reading of the Court of Appeal’s decision in Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53, which is the decision reported as R(DLA) 1/03.  In any event, it is plain from the Court of Appeal’s decision that there is a right of appeal against a refusal to supersede.

30.	The written submission also suggests that it is arguable that there was no need for the Secretary of State to issue a decision at all since he was not minded to alter the existing award following the assessment and the claimant had not applied for a supersession in her favour.  On the other hand, it is stated that it is the Secretary of State’s practice always to issue a decision following an assessment and inform the claimant that he or she may appeal if dissatisfied with it.  That practice seems desirable, at least where a claimant is not already a member of the support group, and arguably is required.  It is unnecessary for me to decide whether it is required but I am satisfied that it is permissible given the terms of regulation 6(2)(r) of the 1999 Regulations.  However, where a decision made under section 10 on the Secretary of State’s own initiative makes no difference to the award, it might perhaps be better described simply either as a decision not to supersede or as a decision to supersede but to replace the original decision with a decision to the same effect, rather than as a refusal to supersede.

31.	In any event, I am satisfied that the decision notified on 4 January 2012 was an appealable decision.  

32.	I am also satisfied that, as the Secretary of State concedes, the First-tier Tribunal erred in relying on the claimant’s husband saying that she was not appealing against that decision when deciding not to admit the claimant’s appeal lodged on 1 May 2012.  It should have been quite clear from the accompanying document and the original grounds of appeal that the claimant did wish to appeal against that decision insofar as it was a decision that the claimant did not have limited capability for work-related activity.  The problem with both that decision and the decision notice issued by the First-tier Tribunal on 18 March 2011 was that they both stated that the claimant was entitled to employment and support allowance but they did not also state explicitly that it had been found that she did not have limited capability for work-related activity and so was not to receive as much benefit as someone who was in support group.  Whether the claimant could have deduced from other information she might have been given about employment and support allowance that the implication of the decision notified on 4 January 2012 was that she had been found  not to have limited capability for work-related activity I do not know, but certainly the term “support group” had not appeared in any of the documents I have seen and it is clear that, even in May 2012 after he had read the information leaflet, the claimant’s husband did not fully understand what was required to qualify for the support group or that being put in the work-related activity group implied not being put in the support group.

The rights of appeal against the decisions terminating the awards

33.	The parties submit that there was a right of appeal against the termination of the awards and that the First-tier Tribunal erred in law in deciding otherwise in both cases.  I agree.  The awards were made for an indefinite period and were effective until revised, superseded or set aside on appeal under, respectively, sections 9, 10 or 12 of the Social Security Act 1998.  The coming into force of sections 51 and 52 of the 2012 Act was a change of circumstances justifying a supersession under section 10 (see regulation 6(2)(a) of the 1999 Regulations) and so too would be the effluxion of time in a case where the last of the 365 days of entitlement fell after 1 May 2012.  

34.	Although an Act of Parliament could in principle have the effect that an award terminated automatically on the happening of an event without there being any revision or supersession, the new section 1A of the 2007 Act does not itself make provision for the termination of awards; it merely makes provision as to the period for which a person is entitled to a contributory employment and support allowance, leaving termination of the award to be effected under section 10 of the 1998 Act when the period of entitlement ends.  Section 12 provides for a right of appeal against any decision made under section 10.  This is plainly deliberate and makes sense because, on any view, there must in reality be a decision of some kind since, as Mr Blundell submitted, even the calculation of the 365 days may not be entirely straightforward and could give rise to a dispute.

35.	What, then, was the scope of these appeals?  The Secretary of State now accepts that an appeal against the last decision making an award, or not superseding an award, on the basis of the claimant’s limited capability for work is not necessarily an adequate remedy, since such an appeal might be out of time and in any event any change of circumstances since the date of the decision could not be taken into account in the appeal (see section 12(8)(b) of the 1998 Act).  However, he submits that a claimant could make an application for supersession of that last decision shortly before it expires and, being warned of the pending termination of the award, is given an opportunity to do so.  He further submits that, in the absence of any applications by these claimants for supersession of their awards, he was not obliged to make new assessments of their capability for work-related activity before deciding to terminate their awards on the ground that 365 relevant days had passed.  Therefore, he submits, the only issue in each case was the calculation of the 365 days and, since the scope of an appeal is determined by the scope of the decision under appeal, that was also the only issue on any appeal.

36.	I accept that, when deciding whether the period of an entitlement has come to an end under section 1A of the 2007 Act, the Secretary of State is not usually obliged to refer the claimant for another medical examination and is entitled to rely on the decision made following the last medical examination but my reasoning is not entirely the same as the Secretary of State’s.  Mr Blundell drew my attention to section 10(2) of the 1998 which provides that –

 “(2)	In making a decision under subsection (1) [i.e., a supersession decision], the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.”

I prefer to rely on the general right to presume, in the absence of indications to the contrary, that things continue as before.  I accept Ms Ingleby’s submission that any consideration of the question whether a period of entitlement to contributory employment and support allowance has come to an end necessarily raises the question whether, at the time that the Secretary of State’s decision is, or could be, effective the claimant “is a member of the support group” for the purposes of section 1A(5)(a) of the 2007 Act, which in turn necessarily raises the question whether “it is determined that he has, or is to be treated as having, limited capability for work-related activity”.  However, in answering those questions, the Secretary of State is generally entitled to rely on his previous determination, particularly if, having been given an opportunity to do so, the claimant has not applied for a supersession on the ground either that his or her circumstances have changed or that the previous decision was based on an error of fact or law.

37.	Nonetheless, although the Secretary of State generally need not look more deeply into the question whether the claimant still does not have limited capability for work-related activity unless the claimant has raised the issue, he could do so if he wished.  He is not bound by his previous decision, particularly as it is not inconceivable that there has been a change of circumstances.  It follows that the First-tier Tribunal may also consider that issue.  In R(IB) 2/04, to which Mr Blundell referred me, the Tribunal of Commissioners held that the scope of an appeal is determined by the scope of the decision the Secretary of State could have made, not by the decision that he did make (see paragraphs 15 and 19 to 32).  Therefore, whether the Secretary of State does not consider at all whether the claimant has limited capability for work-related activity as at the date from which his decision is or could be, effective, or whether he considers the issue only to the extent of relying on his own previous determination, the First-tier Tribunal is entitled to consider the issue afresh, provided that the Secretary of State has had an opportunity of dealing with any new evidence or argument (by, for instance, arranging a new medical examination if he so wished).  Moreover, section 12(8)(a) of the 1998 Act provides that, in deciding an appeal, the First-tier Tribunal “need not consider any issue not raised by the appeal”, which clearly implies that the First-tier Tribunal has the power to consider issues that have not been considered by the Secretary of State even if they are not expressly raised in the grounds of appeal.  In a complicated field of law in which claimants are normally unrepresented, such a power is essential if justice is to be done.

38.	It does not follow from this that the Secretary of State’s practice of inviting the First-tier Tribunal to strike cases out for lack of prospects of success where there is no dispute about the calculation of the 365 days is necessarily inappropriate.  Provided that the claimant has been given an effective opportunity to apply for supersession – or, now that there is a requirement to apply for a revision before appealing, a revision of a decision terminating an award – if he or she wishes to claim to have limited capability for work-related activity, applying for a striking out of an appeal may well be appropriate if the claimant has not raised that issue either in such an application or in the grounds of appeal, because the inference to be drawn may be that the claimant accepts that the criteria for inclusion in the support group are not met.  However, to show that an opportunity has been given that was such as to justify drawing such an inference may require that that it be shown that the claimant was made aware of the criteria for inclusion in the support group.

39.	There is no unfairness or material disadvantage to the Secretary of State in this approach.  Mr Blundell told me that, however unsatisfactory the information given to the first claimant in this case may have been, the information now given to claimants before an award is terminated because the relevant 365 days have passed is calculated to give them every opportunity to apply for a supersession.  If that is so, it strengthens the grounds for presuming, in the absence of any such application, that the previous decision was correct and that the claimant’s circumstances are unchanged.  However, it does not follow that a claimant who has failed to make such an application should not be able to raise the issue of his or her capability for work-related activity within an appeal against a termination decision that has been brought within time.  If the claimant does raise the issue in an appeal, the Secretary of State is no worse off than he would have been if the issue had been raised by way of an application for supersession.  Moreover, in the present cases, the issue could presumably have been raised instead by way of a new claim, which, if made within the time for appealing and ultimately successful, would have been backdated to the date from which the termination was effective and, by virtue of regulation 145 of the 2008 Regulations, linked to the earlier award.  The Secretary of State has the power to treat any document, including an appeal, as being a new claim.  Once an appeal has actually been made, there is no advantage to the Secretary of State in a requirement that the question of a person’s capability for work-related activity be dealt with in a supersession or new claim, since if he were not prepared to revise the decision under appeal (under section 9 of the 1998 Act and regulation 3(4A) of the 1999 Regulations – which permits the revision of any decision while an appeal is pending against it), he would presumably refuse the supersession or reject the claim and could expect there to be an appeal against that decision.  To refuse to treat an appeal as a new claim if the issue could not be determined in the appeal would be to engage in the sort of procedural games that, to their credit, the Secretary of State and his predecessors have avoided playing against claimants (who are mostly unrepresented) for many years.  The 1998 Act, which largely limits the right of appeal to what have become known as “outcome” decisions made under sections 8 and 10, has substantially done away with the proliferation of appeals against decisions made on individual “questions” that was previously possible.  Generally, all issues should now be dealt with at the same time which, in the long run, is to the advantage of all concerned.  Accepting the Secretary of State’s argument in these cases would undermine that approach.

40.	On the other hand, there is a disadvantage to a claimant in raising the question whether he or she has limited capability for work-related activity only after the date of the Secretary of State’s decision.  The effect of a claimant not having applied for supersession is that the earliest date from which any supersession is effective so as to entitle the claimant to the support component is likely to be the date of the Secretary of State’s decision (see section 10(5) of the 1998 Act).  Claimants will therefore not deliberately delay raising the question whether they have limited capability for work-related activity, but they may do so through misunderstanding the scheme.

41.	I am therefore satisfied that, not only did the claimants in these cases have a right of appeal against the decisions to terminate their awards of employment and support allowance, but they also were entitled to argue in those appeals that the awards should be extended on the ground that, at the date on which the Secretary of State’s decision was, or could have been, effective, they had limited capability for work-related activity so that the awards should have been superseded in their favour rather than to their detriment.  

The European Convention on Human Rights

42.	It seems to me that, notwithstanding the terms of section 3 of the Human Rights Act 1998, it is quite impossible to read sections 1A and 1B of the 2007 Act in any way that would avoid these claimants losing their entitlement to employment and support allowance if they did not have limited capability for work-related activity on 1 May 2012, which is what would be necessary if the breach of the European Convention on Human Rights suggested by Ms Ingleby were to be avoided..  Ms Ingleby conceded as much and did not seek to persuade me otherwise.  The Upper Tribunal has no power to grant a declaration of incompatibility under section 4 of the Human Rights Act 1998, which would be the only remedy available to the claimants if they did not have limited capability for work-related activity.  There is therefore no practical point in me considering the arguments advanced by Ms Ingleby in written submissions, to the effect that sections 51 and 52 of the 2012 Act involved a breach of Article 1 of Protocol 1 of the European Convention on Human Rights, read with Article 14 and so I have not invited argument from the Secretary of State.  I therefore do not express a view on the merits of Ms Ingleby’s arguments.  They can be considered if these cases go any further.

43.	Insofar as Ms Ingleby had a separate argument under the Convention based on the legislation being retrospective, it is equally unnecessary for me to express a view but it does seem to me that a fairly obvious response to the argument is that sections 51 and 52 of the 2012 Act were not truly retrospective: they affected entitlement only from the date when they came into force, even though they did so in the light of periods of entitlement before then.

The conclusion in the first claimant’s case

44.	The First-tier Tribunal erred in striking out the claimant’s appeal against the decision of 30 April 2012 for want of jurisdiction and it would also have been wrong to strike the case out for lack of prospects of success when she had clearly raised in the appeal the question whether she had limited capacity for work-related activity.  Her husband told me that she still wished to argue that she did have limited capability for such activity.  Although she attended the hearing before me I did not hear evidence from her and I therefore remit the case to the First-tier Tribunal for it to decide whether she had limited capability for work-related activity from 30 April 2012.  The Secretary of State will no doubt wish to make available to the First-tier Tribunal the healthcare professional’s reports of 21 December 2011 and June or July 2012.

45.	The First-tier Tribunal also erred in law in its decision to refuse to admit the appeal against the decision notified on 4 January 2012.  Rather than remit the question whether the late appeal should be admitted, I consider that I should decide that issue in the claimant’s favour and leave the First-tier Tribunal simply to consider whether the claimant had limited capability for work-related activity on 31 December 2011.  I take this approach because, even though it is quite possible that some other information about employment and support allowance had been given to the claimant, the decision notice conveyed no impression that the decision was even to a small extent adverse to the claimant and it is understandable that the claimant and her husband should not have realised then that the issue whether the claimant had limited capability for work-related activity would become much more important in a few months’ time.  I recognise that, having found there was a right of appeal against the decision of 30 April 2002, this appeal is less important than it would otherwise have been, but I consider that the overall justice of the case nonetheless favours its admission.  The appeals will presumably be heard together and involve much the same evidence, so it is unlikely that great expense will be incurred.  The claimant is unlikely to be successful in this appeal unless she is also successful in the appeal against the decision of 30 April 2012 and, if she is successful in both cases, the small amount of money at stake in respect of the period between 31 December 2011 and 30 April 2012 – the difference between the work-related activity component and the support component – might be appropriate compensation for the claimant having been kept out of employment and support allowance altogether for what will have been over two years. 

The conclusion in the second claimant’s case

46.	The First-tier Tribunal erred in striking out the claimant’s case for want of jurisdiction and it would also have been wrong initially to strike the case out for lack of prospects of success when she had clearly raised in the appeal the question whether she should be treated as having limited capacity for work-related activity.  

47.	However, the claimant never produced any written evidence – other than her assertions in her grounds of appeal – to support her contention that she should be treated as having limited capability for work-related activity and she did not attend the hearing before the First-tier Tribunal to give oral evidence, instead agreeing to the hearing proceeding in her absence.  Moreover, Ms Ingleby did not suggest either to the First-tier Tribunal or to me that the claimant not attending was only because, when issuing earlier directions, the First-tier Tribunal had said that she had no right of appeal.  The clear implication was that the claimant had abandoned her argument that she should be treated as having limited capability for work-related activity, which would not have been altogether surprising when, on her previous appeal, the claimant had not succeeded even in overturning a finding that she did not have limited capability for work and the claimant had also not suggested in her grounds of appeal that she satisfied any of the descriptors in Schedule 3 to the 2008 Regulations.  The First-tier Tribunal seems to have overlooked the grounds of appeal when stating in paragraph 14 of its statement of reasons that the issue of the claimant’s capacity for work-related activity had not been raised at all, but I am satisfied that it was entitled to take the view that the issue was not a live one by the time it came to give its decision.  In any event, on the evidence presented to it, it could only have dismissed the claimant’s appeal.

48.	For these reasons, although I am satisfied that the First-tier Tribunal’s decision involved the making of an error on a point of law, I do not set it aside.

Re-qualifying for contributory employment and support allowance

49.	Finally, I draw attention to a point Ms Ingleby has also spotted which is that, quite apart from the possibility of re-qualifying for contributory employment and support allowance under section 1B of the 2007 Act if the claimant at any time subsequently has limited capability for work-related activity, a claimant may re-qualify for contributory employment and support allowance through the operation of section 1A(3) after 12 weeks have elapsed (so that the new period of limited capability for work is not linked to the earlier one under regulation 145 of the 2008 Regulations), even if he or she does not have limited capability for work-related activity.  It seems to me likely that quite a substantial proportion of claimants whose awards have been terminated solely because a period of entitlement has come to an end under section 1A(1) could re-qualify under subsection (3) following the first such termination, provided they make new claims after 12 weeks.  The Secretary of State appears not to alert claimants to this possibility.  It is open for consideration in both these cases whether any correspondence received by Jobcentre Plus in the latter part of 2012 should be treated as a new claim on that basis.

Mark Rowland
17 March 2014