JS CE 3688 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge S. Wright |
| Judgment Date | 18 September 2014 |
| Neutral Citation | 2014 UKUT 428 AAC |
| Subject Matter | Employment and support allowance |
| Respondent | JS v Secretary of State for Work and Pensions (ESA) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CE 3688 2013 |
| Appellant | JS |
[2015] AACR 12
(JS v Secretary of State for Work and Pensions (ESA)
[2014] UKUT 428 (AAC))
Judge Wright CE/3688/2013
18 September 2014
Regulation 29(2) – Equality Act 2010 – whether assessment of employers’ duties to disabled person under the Equality Act part of risk assessment under regulation 29(2)(b)
As part of the conversion process from incapacity benefit (IB) to employment and support allowance (ESA) the appellant completed a questionnaire and was examined and interviewed by a health care professional (HCP). The HCP considered that the appellant met none of the Schedule 2 descriptors and failed to satisfy regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 (2008 Regulations). The Secretary of State decided that the appellant’s award of IB did not qualify for conversion to an award of ESA. Included within the appellant’s appeal submission to the First-tier Tribunal (F-tT) was a letter from her GP which, amongst other matters, stated that her mental health would significantly deteriorate if she was found fit to work or to take part in work-related activities. The F-tT dismissed her appeal, holding that regulation 29 did not apply because under the Equality Act 2010 (the 2010 Act) an employer had to make reasonable adjustments if someone was disabled and that the word significant did not have the same meaning as substantial. These were the issues before the Upper Tribunal (UT).
Held, allowing the appeal, that:
- the F-tT erred by reading the GP’s letter as saying that the risk to the appellant’s health was significant (not substantial). The letter stated that the appellant’s mental health would significantly deteriorate if she were found fit for work thereby confirming the GP’s judgment of what would actually occur (not the risk of it doing so). In the circumstances, it provided evidence for finding that there was a substantial risk to the appellant’s health (paragraphs 42 to 43)
- the assessment of risk under regulation 29(2)(b) of the 2008 Regulations did not require or involve the decision-maker in making an assessment as to whether employers would owe a duty under the 2010 Act to make reasonable adjustments in respect of an individual claimant because (i) the 2010 Act and ESA schemes have different statutory aims and materially different statutory contents; (ii) a 2010 Act test sits uneasily with Charlton; (iii) the F-tT is ill-equipped to make proper assessments under the 2010 Act; and (iv) recourse to the 2010 Act is unnecessary (paragraphs 44 to 61)
- if regulation 29(2)(b) was an issue raised by an appeal then it must be addressed properly on the facts of the individual case before the decision-maker. That required the Secretary of State to confirm the range of work which in his view an individual claimant could do without substantial risk to health. The degree of detail required would vary on the facts of each individual case (paragraphs 69 to 72)
The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be decided in accordance with his directions.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
DECISION
The Upper Tribunal allows the appeal of the appellant.
The decision of the First-tier Tribunal sitting at Darlington on 24 June 2013 under reference SC224/12/02521 involved an error on a point of law and is set aside.
The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.
This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007
DIRECTIONS
Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:
(1) The new hearing will be at an oral hearing.
(2) The appellant is reminded that the tribunal can only deal with her situation as it was down to 19 April 2012 and cannot deal with any changes after that date.
(3) If the appellant has any further evidence that she wishes to put before the tribunal that is relevant to her health conditions in April 2012, this should be sent to the First-tier Tribunal’s office in Newcastle-Upon-Tyne within one month of the date this decision is issued.
(4) The First-tier Tribunal should have regard to the points made below.
REASONS FOR DECISION
Introduction
- The narrow but important issue with which this appeal is primarily concerned is the extent, if any, to which the Equality Act 2010 falls to be considered when deciding whether “there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work” under regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 (SI 2008/794) (the ESA Regulations).
- Putting matters very briefly at this stage, evidence had been provided to the First-tier Tribunal by the appellant’s GP that her mental state would significantly deteriorate if she were found fit for work or to take part in work-related activities. However, the First-tier Tribunal reasoned that regulation 29(2)(b) of the ESA Regulations was not met, inter alia, because:
“The Equality Act 2010 includes provisions concerning disability discrimination in the work place. This legislation is designed to ensure that people with a range of health conditions can be accommodated in the workplace. The provisions apply to all facets of employment and protect job applicants and employees. For example, it is unlawful for an employer to discriminate directly by treating a job applicant or employee less favourably then others because of disability or unfavourably because of something arsing in consequence of disability, without objective justification. Steps are also required to be taken by employers to enable employees to undertake work with supervision and support, after appropriate training; where appropriate with reasonable adjustments. Positive discrimination in favour of a disabled job applicant or employee is not unlawful. The Appellant’s needs shall be taken into consideration by an employer. Appropriate aids and appliances will be provided as appropriate. On consideration of all the information provided, the Tribunal was satisfied that the Appellant could undertake any supervised low skilled, non manual or light manual, non-demanding job, taking into account her overall disability. Such jobs are available in a range of organisations including, but not limited to, supermarket chains or call centres or other workplaces employing fewer people.”
- In other appeals I have seen, the reasoning is shorter but the gist is the same: because the Equality Act 2010 will require an employer not to discriminate against, and make reasonable adjustments in the workplace to accommodate, a “disabled person”, there will be no risk arising from the person being found fit for work. The question this decision addresses is whether that approach is permissible.
4. Instinctively the breadth of the approach seems problematic because if the Equality Act 2010 is such a universal panacea then it leaves unclear in what situations regulation 29(2)(b) continues to have application, yet Parliament has not sought to amend or remove it as a provision on the enactment of the Equality Act 2010. On the other hand it can be argued that neither does regulation 29(2)(b) expressly exclude the Equality Act 2010.
Summary of decision
5. The conclusion I have arrived at is that the assessment of risk under regulation 29(2)(b) of the ESA Regulations does not require or involve the decision-maker (be that the Secretary of State’s delegate or the First-tier Tribunal) in making an assessment as to whether employers would owe a duty under the Equality Act 2010 to make reasonable adjustments in respect of the individual claimant whose case falls for decision, and in my judgment the tribunal therefore erred in law in relying on the Equality Act 2010 to that effect.
Relevant background – facts
6. The appellant was aged 32 at the time of the conversion decision that was under appeal to the First-tier Tribunal. She had been entitled to incapacity benefit for ten years prior to this decision due to anxiety and depression. By the time of the conversion decision on 19 April 2012 she also had problems with alcohol abuse. As the focus of the appeal is on regulation 29(2)(b) of the ESA Regulations,...
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