Employment and support allowance case law summaries

As of 17 March 2015 no more additions will be made to this case law pack. New decision summaries will now only be published, initially, as a news item and then in the yearly summaries. If you wish to find a particular decision on our website you can use our search facility.

overview
limited capability for work activities
limited capability for work related activity tests
evidence
tribunal procedure
work related activity
youth esa

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Note: The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work- Related Activity) (Amendment) Regulations 2011 (SI 2011/228) amend Schedules 1 and 2 of the Employment and Support Regulations 2008 from 28 March 2011. These schedules respectively contain the rules for the limited capability for work test and the limited capability for work related activity test.

Decisions listed here for those activities which applied prior to 28 March 2011 are marked with an asterisk *. Later decisions post-28 March 2011 may have different activities and a different numbering. The new activity categories will not have an asterisk by them.

A FULLER SUMMARY OF EACH DECISION IS USUALLY AVAILABLE BY SEARCHING FOR THE DECISION NUMBER ON THIS WEBSITE.

Overview of the test as a whole

aids and adaptations

CE/1217/2011 [2011] UKUT 449 (AAC) considers the application of Regulation 19(4) of the Employment and Support Allowance Regulations 2008 in relation to a walking stick. This regulation provides:

“In assessing the extent of a claimant’s capability to perform any activity … the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.”

The judge holds that the correct approach is as follows:

“If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it. If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it.

If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same.”

The judge listed factors that needed to be taken into account in deciding whether or not it would be reasonable for the claimant to be assessed as using an aid or appliance where one had not been prescribed or recommended.

These are that:

the claimant possesses the aid or appliance
the claimant was given specific medical advice about managing their condition, and it is reasonable for them to continue following that advice
the claimant would be advised to use an aid or appliance if they raised it with the appropriate authority such as a GP or occupational therapist (advice may only be given on request)
it is medically reasonable for them to use an aid or appliance
the health condition or disability is likely to be of short duration
an aid or appliance is widely available
an aid or appliance is affordable in the claimant’s circumstances (people are not routinely required to buy equipment where it can be prescribed.)
the claimant is able to use and store the aid or appliance and
the claimant is unable to use an aid or appliance due to their physical or mental health condition, for example they are unable to use a walking stick or manual wheelchair due to a cardiac, respiratory, upper body or mental health condition.

Judge Levenson adds that there must be an explanation of how the aid or appliance could help the particular claimant:

“The degree of detail is a matter for the tribunal on the facts of each particular case, but in my view, in the absence of actual use or prescription, there does need to be some explanation.”

The DWP have issued guidance on this decision (Memo DMG 24/12).

Alcohol dependence/ whether points under Part 1 and Part 2 of Schedule 2 to ESA Regs restricted to physical and mental causes respectively/ meaning of “specific…disablement”

CSE/496/2012 [2013] UKUT 37 (AAC) is a Three-Judge Panel decision which considers:

(i) whether the Tribunal of Commissioner’s decision in R(DLA)6/06 concerning a person with alcohol dependence could be applied to ESA adjudication;

(ii) whether points could only be awarded under Part 1 (Physical Disabilities) of Schedule 2 to the Employment and Support Allowance Regulations 2008 (the “ESA Regs”) because of physical disablement (and similarly for part 2 and mental disablement);

(iii) what is meant by “specific bodily disease or disablement” and “specific mental illness or disablement”.

In CE/618/2011 [2012] UKUT 201 (AAC) Judge Williams holds that there are two tests used for identifying who is receiving hospital treatment as an “in-patient”:

was the individual admitted to hospital?
did the individual occupy a bed at the hospital?

linking claims

CE/52/2011 [2011] UKUT 317 (AAC) [2012] AACR 17allows that in the case of linked claims the work-related activity component (WRAC) can be paid from the start of a new claim where the assessment phase had been passed on the old claim.

mental health test

CE/2323/2010 [2011] UKUT 454 (AAC) states that there need not be a specific mental illness in order for a tribunal to consider mental health descriptors.

permitted work

CE/1295/2011 [2012] UKUT 255 (AAC) states that, when considering descriptors, it is important to consider the evidence of permitted work in context at the time of the decision.

regularly,reliably and repeatedly

CE/1936/2012 [2013] UKUT 77 (AAC) examines whether the tribunal considered the claimant’s capacity to perform the limited capability for work activities regularly, reliably and repeatedly

relevance of moyna

CSE/121/2010 [2010] UKUT 245 (AAC) concerned manual dexterity descriptor 6(e) - Cannot physically use a conventional keyboard or mouse". Judge May considers that the approach taken in the key DLA decision Moyna v Secretary of State for Work and Pensions might be useful when analysing evidence.

“5…In both Moyna and the instant case what a tribunal has to decide is whether a claimant cannot, in the context of the relevant statutory provisions, perform the task as set out in the legislation.

In this case it is apparent that the claimant can in some circumstances physically use a conventional keyboard but in the circumstances outlined by him in relation to the use of two hands he cannot. It would seem for example from what Mr Brown said that on a computer he could google in the weather but could not send an email.

The Secretary of State in paragraph 9 of his written submission made a submission in relation to a feature contained in machines manufactured by one manufacturer which would enable the claimant to obviate the effects of his disability and physically use the keyboard with one hand for a function of the machine which would normally require two hands.

I consider that Mr Olsen’s argument is too extreme and I do not accept it. The proper approach to the descriptor is to follow a similar approach to that set out by the House of Lords in Moyna. It is to take a broad view and exercise a reasonable judgement as to whether the claimant satisfies the descriptor. There are no absolutes by which “can” and “cannot” can be defined. In these circumstances I consider that the failure by tribunal to deal with this descriptor was a material error in law as they had already awarded him six points under descriptor 5(c). Accordingly I set their decision aside. I am persuaded that the appropriate disposal is to remit the matter to a freshly constituted tribunal.”

Limited capability for work activities

exceptional circumstances (regulation 29)

CE/343/2011 [2011] UKUT 416 (AAC) concerns the exceptional circumstances under which a claimant can be treated as having limited capability for work if there would be a substantial risk to health, and applies the existing incapacity benefit caselaw to the ESA scheme, in particular in Charlton v Secretary of State for Work and Pensions and CIB/360/2007. In this case the Tribunal should have followed CIB/360/2007 (as approved in Charlton) and:

a. made findings as to the range or types of work for which the claimant was suited as a matter of training or aptitude and which his disabilities did not render him incapable of performing; and then

b. decided whether, within that range, there was work that he could do without the degree of risk to health envisaged by regulation 29(2)(b).

CE/691/2012 [2012] UKUT 431 (AAC) also cites Charlton etc. when finding that a tribunal erred by failing to consider the range of work the claimant might be expected to do in the statement of reasons.

CE/1880/2012 [2012] UKUT 428 (AAC) considers substantial risk where a tribunal failed to to consider the claimant’s need for continual supervision.

CE/1757/2011 [2012] UKUT 225 (AAC) examines substantial risk to health for someone who needs to drink alcohol in order to go to work. When considering this a tribunal should consider the amount of alcohol drunk.

"Significant amounts on a daily basis might well pose a substantial risk to his own health and also (depending on the nature of the work) to the health of others. The First Tier Tribunal was in error in not giving proper consideration to this issue."

CE/811/2013 [2013] UKUT 518 (AAC) discusses an employers duty under the Equality Act 2010 when considering Regulation 29 (substantial risk to health)

CE/2286/2013 [2014] UKUT 77 (AAC) discusses evidence produced after a decision had been made, in this case a Med 3 Fit Note. The tribunal was under a duty to consider whether regulation 29 might apply.

CE/3100/2013 [2013] UKUT 630 (AAC) discusses whether the Equality Act 2010 and an employers duty to make reasonable adjustments means regulation 29 does not apply.

CE/3043/2013 [2014] UKUT 1 (AAC) states tribunals need to give reasons for not awarding descriptors before going on to apply regulation 29 because in some cases regulation 29will not need to be invoked.

CE/2964/2013 [2014] UKUT 131 (AAC) considers the relevance of ill-health retirement under the National Health Service Pension Scheme Regulations 1995 SI 1995/300 as evidence of satisfying regulation 29.

CE/3627/2013 [2014] UKUT 11 (AAC) states that the test is whether there is a riskin going to work, not whether it is of benefit or therapeutic.

CE/4405/2013 [2014] UKUT 208 (AAC) may be useful in cases where leave to appeal to the Upper Tribunal is being is being sought even though the issue of Regulation 29 was not raised in the appeal itself. However, where regulation 29 is being put as an issue before a First Tier Tribunal reference to it may still be useful (even where someone has been awarded nil points). This is because it will act as a reminder to the tribunal that if it decides that 12 points are applicable it must give serious consideration as to whether Regulation 29 is applicable.

CE/4095/2013 stresses the importance of Med 3 evidence when considering Regulation 29.

functional approach to test

CE/313/2010 [2010] UKUT 244 (AAC) examines the correct approach to the interpretation and application of Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI 2008/794) which lists the limited capability for work activities.

It holds that the correct approach to the ESA medical test is the same as that outlined in R(IB)2/03 (an earlier decision by this judge) which states:

"The scores attached to each disability, when added together, indicate the extent of the claimant’s physical capacity for work. It is, therefore, to be expected that each of the activities will concentrate on different parts of the anatomy so as to isolate, as far as possible, the claimant’s ability in respect of each."

Each activity is therefore concerned with a particular function of the body in relation to capacity for work.

In this decision there was a dispute as to whether the claimant satisfied manual dexterity descriptor 6(f) - Cannot do up/undo small buttons, such as shirt or blouse buttons. Judge Jacobs held that:

"14. The proper approach to the interpretation and application of descriptor 6(f) is this. The descriptor tests the claimant’s anatomical functions that would be involved in fastening or unfastening buttons. They include pinch grip, co-ordination of finger movements, and flexibility of the finger joints. The reference to small buttons identifies the size and shape of the object to which those functions are applied. The First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor. By doing that, it will avoid the myriad questions that otherwise appear to arise on descriptors. Is the ability to use a tap tested with wet or dry hands? What sort of surface is the £1 coin resting on? How smooth or thick are the pages of the book? And so on and so on.”

hospital inpatient

Activity 1: walking with a walking stick or other aidbif such an aid is normally used*

In CE/1839/2010 [2011] UKUT 75 (AAC) Judge Ward states that activity 1 is concerned with walking without severe discomfort but that the discomfort does not have to have been brought on by the walking itself.

repeating an activity

CE/1750/2012 [2013] UKUT 118 (AAC) considers the meaning of “repeatedly” and “reasonable timescale” but offers no clear definition.

“I am not going to attempt to define what these words mean. That would be wrong. It would be the wrong approach to statutory interpretation and would trespass impermissibly into the role of the First-tier Tribunal.

It is not for the Upper Tribunal to give more specific content to the law than the language used in the legislation. The Upper Tribunal will not decide that ‘repeatedly’ means five times, ten times or any other number. Nor will the Upper Tribunal decide that ‘reasonable timescale’ means five seconds, five minutes or any other time.”

“The key to applying the words of Activity 1 lies in making findings of fact relevant to those words that are as specific as the evidence allows. And, if the claimant is present at the hearing, the tribunal should ensure that it obtains evidence that is sufficient to that purpose."

Activity 1: Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be worn or used

Reasonable to use a wheelchair

CE/327/2013 and CE/509/2013 are two appeal decisions, made by a Three Judge Panel, which consider whether a manual wheelchair could reasonably be used by a claimant who does not actually have one. They give specific guidance to the application of Activity 1 to claimants who do not normally use manual wheelchairs taking into account:

The modern workplace - where reasonable adjustments should be expected to be made
Medical considerations
The home environment - which is potentially relevant. However the inability to use a manual wheelchair at home or to store it there due to the physical layout of the home may be irrelevant because the wheelchair could be stored in the workplace.
The availability of manual wheelchairs - The availability of manual wheelchairs is a question of fact, but the Access to Work scheme operated by Jobcentres may well make it unnecessary to consider in each case whether a claimant would be able to obtain a manual wheelchair.
The claimant’s objections to being expected to use a wheelchair - The First-tier Tribunal needs to show why the decision that the use of an aid is reasonable, for that claimant, accords with and promotes the underlying purposes of the legislation governing entitlement to ESA.

Repetition of task

E/2293/2013 [2014] UKUT 72 (AAC) states that this descriptor involves a double test: mobilising and mobilising repeatedly.

Work place context

CE/1470/2013 [2013] UKUT 587 (AAC) says the ability to mobilise repeatedly within a reasonable timescale must be seen in the context of the workplace.

Activity 3: bending or kneeling*

holding onto or pushing against an object

With reference to descriptors 3(b) and (c) CE/917/2010 [2011] UKUT 48 (AAC) states that any ability to perform these descriptors where they can only be achieved by holding on to or pushing up on an object such as a piece of furniture must be disregarded apart from any assistance gained from using the hands to steady oneself or push up on the floor in the case of both descriptors or from a low shelf in the case of descriptor 3(b).

repeating an activity

CE/1992/2010 [2011] UKUT 61 (AAC): Employment and support allowance WCA stresses the need for tribunals to consider the ability to repeatedly and reliably undertake such actions even though the word “sometimes” which appeared in the old PCA test is not present in the ESA test.

Activity 5: Picking up and moving or transferring by the use of the upper body and arms*

use of both hands

CE/1826/2011[2011] UKUT 492 (AAC) states that the test is the ability to pick up an object “with either hand” not both hands. Note: In the revised Schedule 2 to the Employment and Support Allowance Regulations 2008 which came into effect from 28 March 2011 the words “with either hand” are removed from the equivalent descriptors, suggesting that the test does now include both hands.

Activity 5: Manual dexterity

CE/3650/2012 [2013] UKUT 434 (AAC) considers Descriptor 5(d): Cannot use a suitable keyboard or mouse.

Activity 10: continence* (pre 28 March 2011)

incontinence history

CE/1172/2010 [2011] UKUT 82 (AAC) considers descriptor 10(a)(vii) – continence other than enuresis (bed wetting) where the claimant does not have an artificial stoma or urinary collecting device and 'risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach the toilet quickly.'

Judge Lane found that the tribunal gave insufficient reasons for its decision on this descriptor. The tribunal held that the claimant did not satisfy descriptor 10(a)(vii) because although he had bladder urgency, he had not actually wet himself. The Judge states that an assessment of whether this descriptor is satisfied in this case should focus on the risk of the full voiding of the bladder if the claimant was not able to reach a toilet quickly, rather than whether this had actually happened.

Judge Lane goes on to suggest a series of questions that a tribunal should consider.

Does the claimant suffer from a condition (or conditions) which, in the tribunal’s medical experience, may lead to a loss of bladder control? If so, a risk of losing control clearly exists.
Considering the evidence (including the ESA50, GP and medical reports provided by the appellant or obtained by the tribunal and the ESA85) is the loss of control likely to be such that the appellant cannot control the full voiding of the bladder?
Has the claimant ever unexpectedly emptied his bladder fully?

“Although the descriptor is about risk and not the materialisation of the risk, it will generally be relevant to find out whether the claimant has ever unexpectedly emptied his bladder fully. If he has not, it may be because he never goes far from a toilet. On the other hand, if he has a normal lifestyle and still has never lost full control of his bladder, it may be that there is no real risk of it happening. If he has lost control fully but infrequently, it may be that the appellant has learned techniques to minimise the risk to the point where it is too trivial to be legally significant, or that the instances of loss of control did not materially involve the condition of which he complains.”

limited control

In CE/1222/2010 [2011] UKUT 216 (AAC) [2012] AACR 5 Judge Mesher held that the descriptors do not require “immediate, involuntary full evacuation of the bowel” but “can be satisfied even though the claimant is able to exercise control for a certain amount of time” before losing control.

CE/2585/2011 [2012] UKUT 331 (AAC) found that loss of control of bowels twice in the last 6 months amounted to satisfying 10(a)(v) - Occasionally loses control of bowels so that the claimant cannot control the full evacuation of the bowel. The tribunal also erred in its approach to descriptor 10(a)(vii) –

“To say that the claimant “is normally able to reach a toilet in time” was no answer to the question whether there was a risk of his losing control of his bowel “if he is not able to reach a toilet quickly”. Indeed, to say that he normally reaches a toilet in time implies an acceptance that sometimes he was not able to reach a toilet quickly and did lose control of his bowel, at least to some extent, which plainly implies a risk. Therefore, it was important in this case for there to be a clear finding as to whether or not the claimant did lose, or at least was at risk of losing, control of his bowels to the extent that there was a full evacuation.”

medication

CE/609/2011 [2011] UKUT 507 (AAC) suggests that medication can enable a person to exercise control by will where previously he could not have done so. If a person acquires or regains control by will over the emptying of bladder or bowel, however the ability to exercise that control was brought about, they cannot be said to have "no voluntary control".

Activity 10: Consciousness during waking moments

drug induced drowsiness

CE/578/2013 [2013] UKUT 496 (AAC) states that drug induced drowsiness may satisfy the test.

Panic attacks

CE/869/2013 [2013] UKUT 504 (AAC) places a duty on tribunals to investigate the severity of panic attacks to see if they are relevant to the test.

Activity 11: remaining conscious during waking moments*

need to bodily disease or disablement to be physical in origin

In CE/903/2010 [2010] UKUT 301 (AAC) the claimant had a history of depression caused by alcohol misuse. Judge May rejected the claimant's appeal because he failed to establish a specific bodily disease or disablement which would enable the claimant to score points for this descriptor.

Activity 11 requires that the specific bodily disease or disablement be physical, whereas depression is a mental health condition. The claimant provided no other evidence of physical disability brought on by alcohol misuse.

The decision also rejects R(DLA)6/06 as relevant to the work capability assessment.

Activity 14: memory and concentration* (pre 28 March 2011)

habitual tasks which are second nature

CSE/456/2009 [2009] UKUT 230 (AAC) is a Scottish ESA decision which rejects the claimant's appeal by finding that, based on its reasoning, the tribunal was entitled to accept the evidence of the examining practitioner.

"Descriptor 14(c) - Frequently forgets or loses concentration to such an extent that overall day to day life can only be successfully managed with pre-planning, such as making a daily written list of all tasks forming part of daily life that are to be completed."

In relation to this descriptor it was stated that "the descriptor is related to the management of overall day to day life. To apply it means looking at the evidence of such management as a whole."This includes "tasks, which are so habitual as to be second nature, such as getting up or dressing"

lost or altered consciousness

CE/497/2010 [2011] UKUT 158 (AAC) [2012] AACR 2 states that the test for altered consciousness as outlined in R(IB)2/07 (when he or she is no longer properly aware of his surroundings or his condition so as to be incapable of any deliberate act) cannot be applied to the ESA descriptor. This is because the revised ESA wording - "resulting in significantly disrupted awareness or concentration" - applies a different test.

physical cause

CE/1222/2010 [2011] UKUT 216 (AAC) [2012] AACR 5 states that there is no general restriction of the mental function descriptors to incapacity arising from a mental illness or disablement. The test can be satisfied if they arise from a physical cause.

Activity 15: execution of tasks*

familiar tasks

"Descriptor 15(d) - Takes one and a half times the length of time it would take a person without any form of mental disablement to successfully complete an everyday task with which the claimant is familiar."

In relation to this descriptor the tribunal erred slightly in its focus on the scope of the descriptor and in discussions regarding age comparators but not sufficiently to consider this an error of law.

"In the Secretary of State's submission at paragraph 12 and the response to that submission by the claimant, there are submissions in relation to the scope of this descriptor. However, I do not consider that it is necessary to say more than this. I am satisfied that in the context of the tribunal's acceptance of the examining medical practitioner's report and the limited nature of the other evidence before them they made a reasonable judgement on this descriptor. I have not been directed to any evidence before the tribunal which would justify satisfaction of this descriptor. Whilst the tribunal met the claimant's argument in relation to motivation, that is not what the descriptor is about. Neither was it necessary to go into dealing with the comparator on an age basis as that was not focussed in evidence before the tribunal. However, in my view the comments on these matters cannot be said to be a material error in law."

CE/406/2010 [2010] UKUT 352 (AAC) holds that lack of motivation to begin tasks is immaterial.

The decision also states that the way in which a tribunal approaches this activity may vary from case to case. Here the tribunal found that the appellant was routinely able to run her home and family, and therefore was entitled to infer that the appellant was not taking a longer time to complete her everyday tasks. In these circumstances, the tribunal performed its inquisitorial role adequately and was justified in its conclusion.

lack of motivation

CE/406/2010 [2010] UKUT 352 (AAC) states that Activity 15 does not concern a lack of motivation to begin tasks.

Activity 16. Coping with social engagement due to cognitive impairment or mental disorder

Meaning of “social interaction is always precluded”

CE/3939/2013 considers the meaning of descriptor 16a of the in Schedule 2 (limited capability for work) descriptors of the ESA Regulations 2008 and descriptor 13 of Schedule 3 (support group). - “Engagement in social contact is always precluded due In discussing the operation of descriptor 16 and descriptor 13 Judge William says that the focus is on the extent to which social contact is possible. Judge William concludes that the test being applied by the two descriptors is a high one and a finding by a tribunal that it applies a majority of the time or to some social situations only (as in this appeal) is not enough.

Activity 16: initiating and sustaining personal action*

activities performed without support or assistance

In CE/841/2010 [2010] UKUT 430 (AAC) the tribunal failed to deal with Activity 16 adequately. The tribunal misdirected itself by applying the wrong test and considering whether the claimant could perform activities without the support or assistance of another person. It also failed to take account of the appellant’s evidence as given in the ESA50.

level of personal action

CE/406/2010 [2010] UKUT 352 (AAC) states that for activity 16 the tribunal only needs to decide whether the appellant could not initiate or sustain personal action without verbal prompting.

"It did not have to decide whether she was able to perform at the highest level the appellant set for herself. The evidence in this appeal was that she could. The tribunal reasoned that although the appellant’s ability in this sphere was variable, she was nonetheless able to do everything necessary to run the household without verbal prompting from another. The tribunal made adequate findings of fact and was clearly correct to find on the evidence before that she did so without verbal prompting."

The tribunal had also properly considered the medical report in relation to this activity and by implication, considered that at the date of decision the report did not reflect the appellant’s mental health condition.

relationship to personal action descriptor in the support group

CE/2275/2011 [2012] UKUT 289 (AAC) finds that where descriptor 16(a) of Schedule 2 applies, then tribunals must consider (and apply) descriptor 10 of Schedule 3 (that determines membership of the support group).

Activity 18: getting about*

specified place

CE/191/2010 [2010] UKUT 266 (AAC) was an appeal from a Secretary of State supersession which removed the claimants ESA and which was upheld by the tribunal.

With regard to Activity 18 the decision focused on the wording of descriptor’s 18(a) and 18(b).

18(a) Cannot get to any specified place with which the claimant is, or would be, familiar. – Score 15

18(b) Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person on each occasion. – Score 15

The term “any specified place” was taken to mean anywhere at all whereas “a specified place” was taken to mean just one kind of place. This interpretation was important in the case of the claimant.

“15. In the present case there is evidence that the claimant is unable to go to shops “without being accompanied by another person” and it is possible that that situation always obtains. If, on the facts, the claimant is never able to go to shops, albeit those with which he is familiar, without being accompanied by, for example, his sister (as the evidence seems to suggest) then descriptor 18(b) potentially applies, even though the restriction is not as geographically all embracing as that under 18(a); it still represents a severe level of functional impairment.”

In CE/1084/2010 [2010] UKUT 409 (AAC) the tribunal’s reasoning was in error.

"16. I also have some difficulty in following the reasoning of the tribunal in relation to descriptor 18, as the fact that the claimant will on occasions, if he has to, go out and buy his own alcohol in a local shop is not a very good reason for a conclusion that he is frequently unable to get to a specified place with which he is familiar without being accompanied by another person. Indeed, he appears to have been familiar with the examination centre but claimed that he could not get there unless accompanied by another person. He then arrived with his father. The test in this respect is not any specified place with which he is familiar (as in descriptor 18(a)) but a specified place with which he is familiar."

problem entering a building

In CE/1899/2010 [2011] UKUT 79 (AAC) the tribunal judge left open the question whether any of the descriptors in Activity 18 applied where the claimant’s only problem is in entering a building at the destination, as opposed to getting there.

Activity 19 - coping with social situations*

duty to consider all evidence

CE/191/2010 [2010] UKUT 266 (AAC) was an appeal from a Secretary of State supersession which removed the claimant's ESA and which was upheld by the tribunal.

With regard to Activity 19 the tribunal erred because it failed to explain its reasoning for accepting the disability analyst’s findings.

“12. What is important, however, is that a tribunal explains how it has reached its conclusions on the application of descriptors, probably in terms of clinical features but not necessarily so. So long as there are sufficient findings of primary fact to underpin any inferences drawn and its process of reasoning is adequately explained a tribunal may not be faulted. The present tribunal accepted the doctor’s findings after his formal examination of the appellant, as it was entitled to do, but did not give even a brief explanation of how this meant that satisfaction of activities such as Activity 19, which possibly applied on the basis of the claimant’s own evidence, had been successfully refuted by the Secretary of State.”

CE/406/2010 [2010] UKUT 352 (AAC) concerned a number of activities.For Activity 19 Judge Lane's reasoning follows CE/2373/2009 [2010] UKUT 50 (AAC). It was considered that the tribunal erred in law.

“22. In this appeal, the tribunal did not, on balance, deal adequately with the issues. The Record of Proceedings records evidence that she has few friends, but she sees them sometimes; she shops (which requires social interaction on a number of levels), and takes her child to school (which may require interaction with other parents). On the other hand, there was also evidence that she restricted herself to social activities which she had to perform to survive or meet her legal obligations. While the tribunal would have been justified in finding that the appellant did not satisfy 19(a), she may have satisfied that (b) or (c) had she been questioned more carefully. This might have given her either 9 or 6 points.”

In CE/841/2010 [2010] UKUT 430 (AAC) the tribunal failed to deal adequately with Activity 19 because it made no reference to the appellant’s evidence and why it rejected it as not satisfying the requirements of any of the descriptors.

normal activities

CE/2373/2009 [2010] UKUT 50 (AAC) was an appeal against a decision regarding limited capability for work. Chiefly it discusses Activity 19 - coping with social situations. Judge Williams held that the tribunal failed to adequately deal with this descriptor, a decision supported by the Secretary of State. The decision makes a number of points:

It notes the differences between (a) the questions on the ESA50, (b) the questions on the ESA85, and (c) the official terms of the descriptor – which requires that a decision maker and a tribunal pay attention to the terms of the statutory test as well as making adequate fact finding.
It may not be enough simply to adopt the evidence contained within either the ESA50 or the ESA85 as determining the statutory test because of the differences in wording.
Coping with social situations is considered in relation to ‘normal situations’ but these are not defined. The only guidance cited was that contained within DWP medical services policy (see paragraph 13) which is potentially a wide test.

“15. What is clear from the descriptor, and is echoed in the policy statement, is that the test of “normal activities” is potentially wide. I agree that the descriptor suggests that the activities to be contemplated are activities of “normal” people, not the previous activities of the claimant. At the same time, the wording of the descriptor suggests that the “overwhelming fear or anxiety” does not have to be experienced in respect of all normal activities. Nor does it have to occur continually to be significant. In this case, for example, the representative asked for consideration to be given to experiences either for “a majority of the time” or “frequently”. It is common ground that “frequently” means less than most of the time. It might fall somewhere near the “often” in the ESA50.

16. It is a question of fact whether an intermittent reaction at the level stated in the descriptor occurring either in temporal terms or in activity terms (or both) meets the test. For example, someone who is genuinely overwhelmed about the idea of going out – and rarely does so - may not be overwhelmed when making a phone call to a friend or neighbour or answering a call on a phone which (like so many phones now) tells her or him who is calling. It is at least arguable that someone who cannot go out most of the time for this reason meets this descriptor at least at some level even though he or she is prepared to sit at home and telephone. There is a balance to be struck between different social situations. Where there is evidence of significant problems with some social situations, there may be a need to explore a wider range of those situations to make a full judgment of the extent of the limitation.”

There could also be a potential overlap between descriptor 18 (getting about) and descriptor 19 if the guidance outlined in paragraph 13 is followed when making decisions.

Activity 20 - propriety of behaviour with other people*

day to day life

In CE/2186/2010 [2011] UKUT 170 (AAC) Judge Mark held that the tribunal had failed to investigate the claimants ability to manage day to day life in relation to descriptors 20D (strongly disproportionate reaction to minor events or to criticism to the extent that he could manage overall day to day life when such events occur) and 20F (frequently demonstrated a moderately disproportionate reaction to minor events or to criticism, but not to such an extent that he cannot manage overall day to day life when such events occur).

duty to consider all evidence

In CE/406/2010 [2010] UKUT 352 (AAC) the tribunal erred because it failed to fully explore some of the statements made in the claimant’s self-assessment questionnaire (she wrote that she was always getting cross with her children for no reasons or for little things.

“This does not appear to have been explored by the approved healthcare professional and was not explored adequately during the hearing or in the Statement of Reasons. The tribunal failed in its inquisitorial duty in this respect. It is possible that she may have been entitled to 6 points for 20(f).”

Activity 21 - dealing with other people*

anger and distress

CE/110/2012 [2012] UKUT 294 (AAC) states that anger can be significant distress.

duty to consider all evidence

In CE/406/2010 [2010] UKUT 352 (AAC) the tribunal erred because it did no more than state its conclusion without examining relevant evidence given by the appellant in her ESA50.

In CE/406/2010 [2010] UKUT 352 (AAC) the tribunal failed to deal with Activity 21 though the appellant raised it in her ESA50.

lack of awareness

In CE/2186/2010 [2011] UKUT 170 (AAC) it was held that the tribunal should have investigated the claimant's assertion that he found it hard to tell when other people are upset, but that he sometimes thought he may have upset them without knowing what it was that he had done (the claimant had Asperger's Syndrome).

Limited capability for work related activity tests

Regulation 35: Treated as having limited capability for work related activity

In cases where there may be a risk to a person's mental or physical health, CE/587/2013 [2013] UKUT 573 AAC states that the Secretary of State’s appeal response must set out the specific work-related activity the individual appellant is capable of doing and can do without substantial risk. See also CE/2827/2013 [2014] UKUT 56 9AAC).

CE/973/2013 [2013] UKUT 545 (AAC) outlines what the judge believes to be the proper approach to Regulation 35. A tribunal should not make assumptions as to what was to be expected of the claimant rather than properly conduct an assessment of the range or type of work-related activity on the basis of evidence. It offers two suggestions for the correct approach where there is either no information or generalised information as to what work related activity will be expected of a claimant?

CE/2527/2013 [2013] UKUT 634 (AAC) states that a tribunal needs to give reasons for preferring evidence of a Health Care Professional over that of claimant’s psychiatrist for Regulation 35 cases.

CE/2207/2012 [2014] UKUT 149 (AAC) creates an absurdity whereby claimants who are unable to work but who fail to qualify under regulation 35(2) (substantial risk to health if found to have a capability for work related activity) will still have to engage in work related activity to no purpose.

CE/1750/2012 [2013] UKUT 118 (AAC) states that the nature of the claimant's disabilities will determine the nature of the evidence that the tribunal needs to decide whether this applies.

CSE/17/2014 [2014] UKUT 176 (AAC) states that occupational therapy in psychiatric day hospital is not evidence of ability to carry out work related activity.

Descriptor 1(c) - Cannot manually propel a wheelchair more than 30 metres

special equipment and adjustments

In CE/1737/2010 [2011] UKUT 21 (AAC) the tribunal disallowed the appeal on this issue because the claimant spent time in the gym, moving from one machine to another. It also rejected supportive evidence from her GP.

Judge Wikeley held that the tribunal's reasoning was inadequate. On the evidence of the claimant’s time in the gym he noted that the claimant...

“25... used special gym equipment for people with disabilities. It is said that she explained that her arms and legs were placed in the machines and the machines then manipulated the limbs rather than the other way round. This account would appear to be consistent with the tribunal judge’s abbreviated note that the 'machine does all the work'. It is difficult then to see how the tribunal could conclude that she was herself 'pulling it like a rowing action for 3 minutes'. There were also no findings as to what assistance, if any, the carer provided at the gym. All this amounts to an error of law.”

In relation to the rejection of the GP’s medical evidence Judge Wikeley accepted that the inconsistency of the GP’s evidence with a registrar’s report was a matter of judgment for the tribunal but noted that the GP had expressly stated that he had 'had a good look at her records'. Also the tribunal made no mention of DWP's own medical report of which there were only three pages in the appeal bundle with no clinical findings at all. The tribunal erred in not adjourning the hearing to see the full ESA85 medical report.

The tribunal also made no findings on variability, which was referred to in the GP’s evidence. In doing so, the tribunal should have had regard to regulation 34(2) of the ESA Regulations 2008 which, in broad terms, appears to put on a statutory footing for ESA purposes the 'reasonable regularity' test approved by the Tribunal of three Social Security Commissioners in reported decision R(IB) 2/99 in the context of incapacity benefit.

The decision also discusses how descriptor 1(c) is considered in the DWP's Training and Development ESA Handbook.

Activity 13 Coping with social engagement, due to cognitive impairment or mental disorder

Meaning and assessment of whether “engagement in social contact is always precluded

CE/1972/2013 and CE/3183/2013, a decision by a Three Judge Panel, stresses that each case to be considered on an individual basis and places no bar on the type of social communication to be considered. However, any problems with communication highlighted will need to be related back to how these would translate into a problem with the disabled person working.

CE/2527/2013 [2013] UKUT 634 (AAC): Need to give reasons to prefer evidence of Health Care Professional over that of claimant’s psychiatrist / Regulation 35 (substantial risk) - See more at: http://disabilityrightsuk.org/news/2013/november/latest-posted-decision-...

Evidence

Audited medical reports

CE/313/2010 [2010] UKUT 244 (AAC) examines the proper approach to evidence of a healthcare professional that has been amended by another on audit. The medical report was completed by a registered nurse on 17 March 2009 then amended following an audit by a doctor on 24 March 2009.

Judge Jacobs stated that the way that the report was presented to the tribunal and to the claimant was unsatisfactory and “destined to give rise to suspicion and complaint”. Ideally, the tribunal should have asked the Secretary of State for a fuller explanation and for the original unaltered medical report in order to ensure that the “provenance of the evidence” is always clear so that the tribunal can properly assess it.

In this case however Judge Jacobs did not consider that the outcome was materially affected and the appeal was dismissed.

"24. The issue for me is whether in relying on the evidence in the form submitted the tribunal made an error of law in its decision. In this case, I am satisfied that it did not have any impact on the outcome. The sole issue on the descriptors that has been raised concerns manual dexterity. The nature of the claimant’s disability alone is a significant factor in applying my interpretation. The clinical findings are also relevant and they are not inconsistent with the claimant’s own evidence. He took a different view from that adopted by the decision-maker, but the difference arose from his interpretation of the descriptor.

25. I have considered whether other issues might have arisen if the claimant and the tribunal had been told the full history of the report. In the circumstances of this case, I can see no other issue that would have arisen, given the claimant’s disability and his own evidence of his difficulties."

Burden of proof and adequacy of disability analyst's medical

In CE/1005/2010 [2010] UKUT 340 (AAC) the claimant was suffering from depression but scored no points, based on the approved disability analyst's (ADA) report. This decision was made during the assessment phase.

The claimant questioned the:

inadequate time spent on the ADA examination
refusal of the tribunal to adjourn to enable a fuller mental health assessment to be carried out by a better qualified person than the ADA, and to challenge the admissibility of the ADA’s report
tribunal’s failure to address the question of the burden of proof which is said, in the case of an existing award, to be on the Secretary of State

The examination was a short one (22 minutes) but, following CIB/908/2003, it was held that this was sufficient.

"15…….In the present case, the assessment took 22 minutes. There was no dispute that the claimant suffered from depression. It is plain that as a registered nurse the ADA had no mental health qualifications. Any opinion she expressed therefore in relation to the claimant’s mental health would be of little or no value. She was trained, however, to question him as to the effects of the depression on his ability to perform the relevant descriptors and she did report on his answers. There is no suggestion that the factual information that was provided is not admissible evidence, or that she failed to ask the right questions, except that in my view she might perhaps have asked more specific questions as to whether there was any specific place that he could not go to without being accompanied.

16. In any event, any deficiency in her questioning, or indeed any failure to conduct the examination properly does not invalidate the assessment procedure. It simply means that the tribunal should consider whether the resulting report, or some part of it, can be relied on at all, and if so, what weight should be given to it. A medical examination is not a requirement before a decision is taken by the Secretary of State but an option available to him (see regulation 23(1) of the ESA Regulations).”

It was held that the ADA had gathered enough relevant information sufficient to provide a basis for the decision maker to supersede the initial award made during the assessment phase. The tribunal also heard further evidence from the claimant, his GP and his counsellor.

"On the basis of the claimant’s own evidence it was clear that he did not score any points for any of the descriptors and his claim had to fail. I can see no reason why the tribunal should have adjourned for a mental health assessment on the facts of this case and it was right to refuse to do so. If the claimant had wanted to provide a full mental health assessment, he had had 7 months in which to obtain one, and there is no suggestion that he had made any attempt to do so, or that it could have affected the outcome of the appeal bearing in mind his own evidence."

Judge Mark also states that during the assessment phase, following R(IB)2/09, (paragraph 46) there is no formal burden of proof on either side (paragraph 17).

Note: previous case law - R(S)/13/54 & R(S)13/52 - states that at the beginning of the claim, the burden of proof lies with the claimant.

conflicting evidence

CE/428/2011 [2011] UKUT 386 (AAC) discusses the treatment of conflicting evidence in the ESA50 and the WCA medical report.

dla evidence

CE/2894/2011 [2012] UKUT 256 (AAC) holds that the tribunal also erred in law by not considering the possible relevance of the existing award of DLA or, if they did consider it, by indicating what they made of it, adding that -

“While the tests for the two benefits are not the same, there is sufficient common ground that one may provide material evidence for the other.”

See also CE/4188/2013 [2014] UKUT 129 (AAC) on this issue.

CE/3441/2013[2014] UKUT 185 (AAC) states there may be cases where a tribunal can conclude that the evidence supporting an earlier DLA award is relevant. This decision may be useful to cite by those seeking leave to appeal against a First Tier Tribunal’s dismissal of an ESA appeal on the grounds that, for example, the tribunal should have requested evidence on which a client’s DLA higher mobility component award was based. However, it may often be useful to request from the DWP such evidence before an appeal is heard. If the evidence is relevant and supportive of a client’s case it can then be forwarded to be included in the ESA appeal papers and so considered by the tribunal. It is important to remember that it is not the fact of a DLA award that is of significance but potentially the evidence that was used to make it. In addition, there needs to be some explanation as to why any DLA evidence is relevant to any contested ESA descriptors.

CE/2643/2011 [2012] UKUT 292 (AAC) highlights the dangers in tribunal’s generalised cross-referring to a statement of reasons on another decision.

CE/54/2014 [2014] UKUT 257 (AAC) considers the potential relevance of evidence underpinning DLA higher rate mobility component award to mobilising activity.

evidence of weight loss and mental health

CE/311/2011 [2011] UKUT 243 (AAC) considered the relevance of significant weight loss and treatment received to an assessment of claimant’s mental health.

health care professional's experience

CE/2894/2011 [2012] UKUT 256 (AAC) states that if a tribunal prefers the opinion of health health care professional because of his or her“experience” it must give evidence in support of this.

health professional's expertise

CE/3883/2012 [2013] UKUT 269 (AAC) raises questions about the use of health professionals on Atos Work Capability Assessments where they have no expertise on the claimant’s health condition, suggesting the evidence has "no probative value".

previous ESA85/PCA reports

CE/829/2012 [2012] UKUT 469 (AAC) states that the failure to provide the tribunal with a previous relevant ESA85 medical report breaches a claimant’s right to a fair hearing.

CSE/286/2013 [2013] UKUT 458 (AAC) says there is no binding obligation on the Secretary of State to provide the First-tier Tribunal hearing a ESA conversion appeal with previous personal capability assessment (PCA) ESA 85 medical reports unless it is asserted by either of the parties or is considered by the tribunal that the content of an earlier report is material to the decision that requires to be made.

Tribunal procedure

Adjournments

CE/1490/2013 [2013] UKUT 616 (AAC) states a tribunal should consider adjourning an appeal pending a response from Atos to a complaint about the medical examination.

CSE/141/2014[2014] UKUT 218 (AAC) considers whether a tribunal should adjourn to allow a claimant with poor mental health to obtain representation. In this case, Judge Agnew holds that the tribunal erred in not recognising that the claimant. This decision will be useful for advisers to cite when seeking a postponement or an adjournment of an appeal hearing for a client with poor mental health who has sought their advice very late. It will also be useful in support of set aside or leave to appeal applications in relation to adverse tribunal decisions made where a client with mental health problems was unrepresented.

appeals against the ending of an award

CE/3994/2012 and CE/2390/2013 [2014] UKUT 125 (AAC) asks two questions:

whether there is any right of appeal against an ending of entitlement to contributory ESA after 12 months in the work related activity group - there is.

and, if so,

whether a claimant is entitled to raise in that appeal the question whether he or she has limited capability for work-related activity - yes they can.

Article 6

CE/1084/2010 [2010] UKUT 409 (AAC) states:

“29. In this case, taking into account all the facts, I am satisfied that the waiver of the right to an oral hearing was ineffective. Bearing in mind the bad advice given by the person at the Jobcentre, the claimants’ mental problems, his difficulties dealing with his appeal as described above, the fact that his problems in dealing with it were so manifest, the failure of both the DWP and the tribunal service to communicate with the claimant’s doctor either in respect of the appointment for a medical examination or as his nominated representative, and the likely consequences of that failure, I conclude that the claimant did not have a fair hearing of his appeal as required by article 6. On that account also, the decision of the tribunal must be set aside. It is irrelevant for this purpose how far the tribunal was or ought to have been aware of these problems, although it appears to me that it ought to have been alerted from the papers before it to all but the bad advice.”

considering whole award

In CE/2928/2013 [2014] UKUT 5 (AAC) a tribunal had no choice but to reconsider the claimant's capability for work on appeal against refusal to be included in support group because she had not satisfied the limited capability for work test but had instead been awarded this under regulation 29 - the exceptional circumstances rules. The only way round this would have been if the claimant had conceded that Schedule 3 (limited capability for work related activity) was not satisfied and had relied exclusively on regulation 35(2) - treated as satisfied. The tribunal would then not have been forced by the structure of the legislation to consider Schedule 2. However, the claimant’s capability for work would have remained part of the decision under appeal and within the tribunal’s discretion to consider.

discretion to hold an oral hearing

CE/841/2010 [2010] UKUT 430 (AAC) discusses situations where a tribunal should consider holding an oral hearing when a claimant has opted for a decision to be made based on the papers alone.

Judge Lane considered situations where a tribunal might override a claimant’s request for a decision to be made based on the papers alone:

“10. What is fair may vary with the jurisdiction of the tribunal concerned. In the Social Entitlement Chamber, where claimants tend to be unrepresented and often disadvantaged in a variety of ways, it may well be necessary for a tribunal to override an appellant’s choice in order to do justice. This may occur, for example, where the tribunal notices (or should have noticed) a material point which could affect the outcome of the case which a layman would not appreciate, or where the tribunal believes the appellant may have evidence whose significance he does not understand. In other types of tribunal where appellants are represented, a less interventionist approach is likely to prevail.”

Guidance on this is contained within rule 2 of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008. These rules also require a tribunal to give adequate reasons for its decision. A failure to explain why discretion on an oral hearing was not used may involve an error of law.

“15. Whether the lack of reasons on this issue would be an error of sufficient gravity to warrant setting the decision aside would depend on all the circumstances of the appeal. The error might be seen as immaterial if any tribunal acting rationally would have heard the case on the papers.

16. In the general run of cases involving paper hearings, there may be nothing in the factors in rule 2(2) to suggest to a fair-minded tribunal that the appellant’s election should not prevail.

17. I consider that to be the case here. It was not enough that the appellant was a shy person who did not like meeting new people. She was not unable to do so, as the tribunal pointed out, as shown by her attendance at the medical examination centre for her assessment. This was simply not enough to indicate that it would not be fair to comply with her choice.”

CE/330/2011 [2011] UKUT 334 (AAC) considers the need for a tribunal to consider adjournment or an oral hearing instead of a paper one under Rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. In this case the claimant's ESA50 questionnaire was very sparsely completed and vague and the First Tier Tribunal had erred by failing to consider whether to adjourn for further medical evidence (given the overriding objective of dealing with cases fairly and justly).

CE/331/2012 [2012] UKUT 257 (AAC) follows CE/330/2011. Under rule 27 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 “the Tribunal must hold a hearing before making a decision which disposes of proceedings unless - (a) each party has consented to, or has not objected to, the matter being decided without a hearing; and (b) the Tribunal considers that it is able to decide the matter without a hearing.”

"the FTT must surely actively consider whether it is able to decide the appeal without the appellant being present at the oral hearing; and the fact that that issue has been considered, together with brief reasons for the tribunal’s decision about how it has exercised its discretion, should be placed somewhere on record.”

hearing two appeals

CE/2541/2010 [2011] UKUT 224 (AAC) considers whether ESA and DLA appeals can be heard together. Judge Williams holds that where appeals listed in a single session have both a common appellant and a common respondent but require different constitutions, it is possible for the judge and the medical member to hear an ESA appeal either before or after the three members hear a DLA appeal. However in this case there was an error of law because the disability qualified member sat on the ESA panel (she did not take part in the decision on ESA but did take account of all the evidence presented when contributing to the DLA decision) in contravention of the Practice Statement on Composition of tribunals in social security and child support cases in the social entitlement chamber on and after 3 November 2008 (the “Composition Order”).

medical member's prior discussion of case

The appeal in CE/1032/2010 [2010] UKUT 295 (AAC) succeeded for the reasons summarised at paragraph 3.

“The same medical member of the First-tier Tribunal sat with different presiding judges in this case on 25th June 2009 and 8th December 2009, and on the earlier occasion considered the papers in preview with the judge. Thus the medical member had already discussed the case with a judge and therefore should not have sat on the later occasion. This was a breach of the rules of natural justice and fair procedure.”

missing evidence

CE/146/2011 [2011] UKUT 389 (AAC) discusses the tribunal's duty to adjourn for further evidence where there are missing case papers (in this case related to IB)

paper hearings

CE/1421/2012 [2013] UKUT 139 (AAC) considers whether a tribunal should proceed with a paper hearing where there are questions raised by the claimant’s answers on the standard enquiry form.

representatives's role

CE/3642/2013 [2014] UKUT 141 (AAC) states that it is permissible for a representative to give evidence at a tribunal hearing. Tribunals need to distinguish between the role of giving evidence and representation.

Work related activity

Claimant too ill

CE/1652/2013 [2013] UKUT 635 (AAC) discusses circumstances where a claimant may be required to take part in a work related activity even though he or she may be too ill to do so. In this case the Judge considers that a personal adviser would never require the claimant to carry out a work related activity becuase he is too ill to comply but bizarrely the claimant is not ill enough to be placed in the support group or be treated as such under regulation 29.

Youth ESA

In Lucy Stewart v Secretary of State for Work and Pensions (ECJ Case C-503/09) - [2012] AACR8 - it was held that short-term incapacity benefit in youth was an invalidity benefit for the purposes of EEC Regulation 1408/71, and that accordingly the award of the benefit could not be subject to tests of ordinary residence, past presence or actual presence.

The same principle should also apply to contributory ESA in youth at present. However, once CESA is limited to one year (from April 2012) the ECJ’s reasoning may no longer apply, since the key difference between a sickness benefit and an invalidity benefit is that sickness benefits cover temporary breaks in work through ill-health, and invalidity benefits cover permanent or long-term disabilities.

Last updated: 17 March 2015

Authors: Ken Butler, Martin Inch and Keith Venables