THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Before:  James T Lunney
Attendances:		
For the Appellant:   Mr Thomson, Welfare Rights Officer
For the Respondent:  Mr Simpson QC, instructed by Ms Marshall, Solicitor, of the Office of the Solicitor to the Advocate General

The decision of the First-tier Tribunal (the tribunal) given at Glasgow on 15 November 2013 was erroneous in law but that error was not material.  The appeal against the tribunal’s decision is therefore refused and the decision upheld.

REASONS  FOR  DECISION

1.	The claimant was awarded employment and support allowance from 23 January 2013.  To determine continuing entitlement to the benefit the claimant completed a questionnaire form ESA50 on 27 February 2013 and was then examined by a Health Care Professional on 1 May 2013; the report of this examination is in form ESA85.  A decision maker on behalf of the Secretary of State on 21 May 2013 found the claimant entitled to employment and support allowance on the basis that she had limited capability for work;  He awarded her 9 points for descriptor 1(c) and 6 points for descriptor 2(c) within schedule 2 to the Employment and Support Allowance Regulations 2008.  However he also held that the claimant did not have limited capability for work related activity.

2.	The claimant appealed the decision to the tribunal which refused her appeal and upheld the decision maker’s decision.  Permission to appeal to the Upper Tribunal was sought on the claimant’s behalf by her representative Mr Thomson, by email of 3 April 2014, document 77.  The grounds were directed to the tribunal’s conclusion that the claimant did not satisfy Activity 1 within schedule 3 to the regulations. Mr Thomson stated:
		“The tribunal did make findings that the appellant has a limitation in walking.  The descriptors in schedule 3 apply if regulation 34 applies.  The tribunal made a finding that the appellant regularly goes to the supermarket. The test is whether the appellant fulfils descriptor 1 of schedule 3 for the majority of the time.  The tribunal make no findings on this point.”

3.	Permission was granted by a District Tribunal Judge on 11 April 2014.  The Secretary of State’s submission writer did not support the appeal.  His reasons were set out in his response of 23 June 2014, documents 89 – 91.  Mr Thomson then sought an oral hearing which was granted by the Registrar on 28 July 2014.  Shortly before the hearing Mr Thomson submitted a further ground of appeal by email of 22 October 2014 arguing that the tribunal erred in law in its treatment of regulation 35(2)(b) in the light of the decision of a 3 judge panel in IM v Secretary of State for Work and Pensions (ESA) [2014] UKUT 0412 (AAC).  Understandably no written response was received from the Secretary of State but Mr Simpson advised me that he had prepared to deal with this ground of appeal.  

The first ground of appeal

4.	Regulation 34(2) of the regulations provides as follows:

	If that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.

Mr Thomson contended that the tribunal’s findings relevant to the claimant’s mobility were flawed when it commented in paragraph 13 of its Statement of Reasons:

	“This was consistent also with the general daily living described by the appellant in which she regularly walked out of doors to go shopping and to go to banks and such like.”

Mr Thomson contended that such findings did not satisfy the terms of regulation 34(2).  However, as he confirmed at the hearing no evidence was presented by the claimant to the tribunal to suggest that there were any occasions when her condition was such that she would have been unable to have gone out walking in the manner described by the tribunal.  The tribunal therefore could not have made any qualification to the claimant’s ability to walk out of doors.  Mr Simpson was therefore, in my judgement, correct when he contended that regulation 34(2) was satisfied by the findings made by the tribunal.  Such findings clearly indicate that on the majority of occasions when the claimant undertook the walking described above she was able to mobilise for distances in excess of 50 metres as found by the tribunal.  Accordingly no error of law arises from the tribunal’s conclusion that the claimant did not satisfy Activity 1 within schedule 3. 
	
Second ground of appeal

5.	Mr Thomson’s submission on this issue was that as the Secretary of State had not provided evidence of the type of work related activity that is available in the claimant’s area, the tribunal could not properly determine whether there was, in terms of regulation 35(2)(b):

	“ … 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.”

Mr Thomson contended that IM supported his argument that before any assessment of risk could be carried out the Secretary of State must first provide such evidence.  He proposed that paragraph 106 of IM buttressed his argument; it is in the following terms:

“106.	What the Secretary of State can and should provide is evidence of the types of work related activity available in each area and by reference thereto what the particular claimant may be required to undertake and those which he considers that would be reasonable for the provider to require the claimant to undertake.  The First-tier Tribunal would then be in a position to assess the relevant risks.”

It was Mr Thomson’s position that the absence of such evidence led inexorably to the tribunal committing an error of law by virtue of which its decision should be set aside.  

6.	I do not accept Mr Thomson’s submission for the following reasons.  The claimant’s letter of appeal, document 10, asked that she be put in the support group on the basis that she could not envisage working again.  The terms of the appeal were such that the Secretary of State could not be said to have been put on notice that regulation 35(2)(b) was directly raised on appeal.  Therefore, the Secretary of State was not obliged by application of rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 to provide a response relevant to regulation 35, see the comments of Upper Tribunal Judge Wright in MN v Secretary of State for Work and Pensions (ESA) [2013] UKUT 262 (AAC).

7.	It is also important to have regard to paragraph 65 of IM  where the issue of substantial risk is discussed.  The judges remarked:

“65.	As is pointed out in R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd  [1993 1 WLR23, “substantial” is a word that means different things in different contexts.  However, it was our view correctly common ground before us that a “substantial risk” in this context means a risk:

	“that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”

Bearing this in mind, I turn now to the tribunal’s Statement of Reasons where it deals with the claimant’s diagnosed conditions.  In paragraph 3 the tribunal made findings in fact as follows:

	“Appellant was affected by underactive thyroid, kidney problem, hypertension, generalised arthritis and a hearing problem.  The condition that was mainly relevant for the purposes of this appeal was her condition of generalised arthritis.”

Further findings in fact were made to the effect that the claimant neither claimed to suffer nor did suffer either from any adverse mental health condition or any cognitive impairment or mental disorder.  It is important to note that no challenge to those findings was made by the claimant in this appeal.  What was not demonstrated by the claimant was that substantial risk as defined in paragraph 65 of IM above, existed as a consequence of her condition of generalised arthritis.  Mr Simpson’s position was that it was for the claimant to demonstrate that some form of risk was established before the tribunal need embark on the consideration of evidence relevant to the types of work related activity the claimant may be required to undertake.  As he put it, it is not sufficient for a claimant to simply utter the words “regulation 35” at a hearing.  It must be clear from the claimant’s evidence to the tribunal or in certain circumstances from the very nature of the claimant’s condition, that some form of risk is established.  Mr Simpson submitted that support for his view was to be found in paragraph 110 of IM  which is in the following terms:

“110.	The issue under regulation 35(2) is not whether the claimant could carry out all forms of work related activity or even whether he or she might inappropriately be sanctioned.  Satisfaction of regulation 35(2) requires a substantial risk to health to be identified (in the sense of a risk that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case).  Being unable to carry out an activity does not necessarily imply that there will be a substantial risk to anyone’s health if the claimant is required to engage in the activity.  Nor does the risk of being sanctioned.  Therefore, it may be fairly obvious in most cases that the claimant does not have any realistic argument under regulation 35 and indeed, if made aware of the issues, the claimant may often accept that is so. But where there turns out to be a serious argument in relation to regulation 35, the provision of the basic information about the more demanding types of work related activity would enable the First-tier Tribunal to make the necessary predictions by reference to possible outcomes for the particular claimant.”

8.	Having regard to the unchallenged findings in fact made by the tribunal to which I refer above I consider that this appeal falls squarely into that class described in IM as one where “the claimant does not have any realistic argument under regulation 35”.  Neither the claimant’s evidence nor the nature of her main disabling condition established risk that would have necessitated consideration of the effects of undertaking work related activity.  The tribunal therefore was entitled to decide the regulation 35 issue on that basis. 

9.	The tribunal’s decision on the above regulation is to be found in paragraph 17 of its Statement of Reasons where it found as follows:

“17)	With regard to Regulation 35, Tribunal considered carefully the evidence that the appellant had been told at the Job Centre that they should not have been admitted to the work related activity group but should have been admitted to the support group.  However, on taking into account the appellant’s limited ability to mobilise independently and her ability to engage socially with other persons and her condition and demeanour as she appeared at the Appeal Tribunal, tribunal concluded that appellant was able to deal with making appointments and attendance at interviews and to consider and address matters arising therefrom, all without risk to her physical or mental condition.”

Further comments on the application of regulation 35 were made in paragraph 18:

“18)	With further regard to regulation 35, the tribunal considered the appellant’s own evidence when she described herself as going of doors only when accompanied by another person.  However, when this topic was explored with questions from the tribunal, it transpired that the appellant did not describe any particular help that she required from another person and, standing the normality of the condition of the appellant’s mental health, tribunal could not find any reason why appellant was not able to travel to places as likely to be required in the course of work related activity and to do so independently.”

10.	I consider the tribunal erred in law in its treatment of regulation 35 as it proceeded to assess the question of risk based on its own knowledge of the type of the work related activity the claimant would be expected to do and that such knowledge was not an adequate substitute for the evidence envisaged to be provided by the Secretary of State by IM.  In addition the tribunal’s assessment of risk was restricted to that of the claimant herself.  However the regulation refers to substantial risk to “any person”.  Such errors of law in the circumstances of this appeal are not material.  As I have explained above the tribunal did not need to go on to consider the question of risk in the context of work related activities as the claimant had not established that any risk arose as a consequence of her debilitating condition.  The claimant therefore had no realistic argument under regulation 35.  To reiterate the comments made in paragraph 110 of IM it is only where it turns out that there is a serious argument in relation to regulation 35 that the provision of information from the Secretary of State need be considered. 

11.	For these reasons no error of law has been identified by the claimant sufficient to vitiate the decision of the tribunal.  The appeal to the Upper Tribunal is therefore refused. 

	(Signed)
	J T  LUNNEY
	Judge of the Upper Tribunal;
	Date: 9 December 2014