ET v Secretary of State for Work and Pensions (UC)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2021] UKUT 47 (AAC) |
| Subject Matter | Universal Credit - Limited Capability for work,Wright,S |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 16 March 2021 |
ET v SSWP (UC) [2021] UKUT 47 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. CUC/747/2020
ADMINISTRATIVE APPEALS CHAMBER
On appeal from First-tier Tribunal (Social Entitlement Chamber)
Between: ET Appellant
- v –
The Secretary of State for Work and Pensions Respondent
Before: Upper Tribunal Judge Wright
Decision date: 26 February 2021
Decided on consideration of the papers
Representation:
Appellant: The appellant represented herself.
Respondent: Decision Making and Appeals Section, Leeds.
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the
First-tier Tribunal made on 7 February 2020 under case number SC065/18/01321
was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts
and Enforcement Act 2007 I set that decision aside and remit the case to be
reconsidered by a fresh tribunal, at an oral hearing.
REASONS FOR DECISION
Introduction
1. Two discrete grounds of appeal arise on this appeal. Both find their focus in the
risk assessment contained in paragraph 4(1) of Schedule 8 to the Universal Credit
Regulations 2013 (“the UC Regs”) and its wording “there would be a substantial risk to
the health of any person were the claimant found not to have limited capability for work”. The
statutory test under regulation 29(2)(b) of the Employment and Support Allowance
Regulations 2008 is the same and the statutory predecessor of regulation 29(2)(b) –
regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations
1995 – was to the same effect. The statutory risk assessment embodied in paragraph
4(1) is therefore of long standing.
ET v SSWP (UC) [2021] UKUT 47 (AAC)
Case no: CUC/747/2020
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2. I sometimes refer below to the finding that a claimant does not have limited
capability for work as a finding that they are ‘fit for work’.
3. The first ground of appeal is about the First-tier Tribunal establishing whether a
third party would in fact have been available to accompany the claimant initially to get
to and from a place of work where that place of work is in a location that is unfamiliar
to the claimant and where it has been found that the claimant cannot get to such an
unfamiliar place without being accompanied by another person. This first ground is
relatively straightforward.
4. The second ground of appeal is a little less straightforward. It concerns whether
the risk assessment under paragraph 4(1) of Schedule 8 to the UC Regs includes
travel to and from the Jobcentre and job interviews as well as travel to and from a
place of work. Decisions of the Upper Tribunal give different answers to this question
and the Upper Tribunal decision which says that travel to and from the Jobcentre and
job interviews is excluded from the risk assessment relies on a Court of Appeal
decision as supporting its decision.
5. I am satisfied on the arguments before me that the First-tier Tribunal erred in
law in its decision of 7 February 2020 (“the tribunal”) on both grounds of appeal and
that its decision should be set aside as a result. In summary, I have concluded that
the First-tier Tribunal in its findings under paragraph 4(1): (i) failed sufficiently to
establish that another person would in fact be able to accompany the appellant on
initial journeys to and from places of work in unfamiliar locations; and (ii) wrongly
excluded journeys to and from the Jobcentre and job interviews in unfamiliar
locations. The Secretary of State now supports the appeal being allowed on both
grounds.
First ground of appeal – third party accompaniment
6. The first ground on which the appeal is allowed is that the tribunal failed
adequately to address (in its fact-finding and reasoning) the basis on which it
concluded, as part of its risk assessment under paragraph 4 of Schedule 8 to the UC
Regs, that the appellant would in fact have been able in or after August 2018 (the
date of the decision under appeal to the tribunal) to have with her the friend who
drove her to Crewe or a family member when familiarising herself with an unfamiliar
journey to a new job: per PD v SSWP (ESA) [2014] UKUT 148 (AAC). There are in
my judgment no sufficient findings of fact made by the tribunal about the availability
of the friend or a family member to accompany the appellant on such an unfamiliar
journey (or journeys) in August 2018.
7. The tribunal had kept in place the six points the Secretary of State had
determined the appellant met under descriptor 15c in Schedule 6 to the UC Regs,
despite expressing its doubts about whether the appellant in fact met that descriptor
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