The Secretary Of State For Works And Pensions V. Kevin Brade
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lady Smith,Lady Dorrian |
| Judgment Date | 01 May 2014 |
| Neutral Citation | [2014] CSIH 39 |
| Docket Number | XA81/13 |
| Published date | 01 May 2014 |
| Court | Court of Session |
| Date | 01 May 2014 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2014] CSIH 39 | |
| Lady Smith Lady Dorrian Lord Clarke | XA81/13 OPINION OF LADY SMITH in the Appeal Under the Tribunals, Courts and Enforcement Act 2007, section 13 by THE SECRETARY OF STATE FOR WORK AND PENSIONS Appellant; against KEVIN BRADE Respondent: _______________ |
Appellant: Webster; Solicitor to the Advocate General
Respondent: Skinner; Francis Gill & Co.
1 May 2014
Introduction
[1] The capturing of a butterfly in a net may prove to be an easier task than that of capturing Parliamentary intention in the language of legislation, particularly when the latter involves the need to place human beings - in their myriad of forms - into limited categories. It is the difficulty inherent in that unenviable task that has given rise to this appeal.
[2] It concerns the interpretation of a regulation which determines whether or not a person is capable of "work related activity". If he is, he is part of the work-related activity group ("WRAG") and will receive a lower rate of the state benefit called "employment support allowance" ("ESA") than those claimants who have only limited capability to perform such activity and, significantly, a member of the WRAG may be required to undertake certain activities as a condition of continuing to be entitled to the full amount of ESA payable to a claimant in that group.
[3] Claimants who have only limited capability to perform work related activity are referred to as being members of the "support group" (Welfare Reform Act 2007 sec 24(4) ("the 2007 Act")).
Work Related Activity
[4] "Work related activity" is "activity which makes it more likely that the claimant will obtain or remain in work or be able to do so" (see: sections 24(1) and 13(7) of the 2007 Act). Regulations provide what, in practical terms, a claimant who is found to have capability for work related activity may be required to do, namely, to take part in "one or more work-focused interviews", provided it is reasonable, having regard to the circumstances of the individual, to impose that requirement (see: The Employment and Support Allowance (Work -Related Activity) Regulations 2011 ("the 2011 Regulations") paragraph 3(1), (2) and (4)). These and other provisions in force at the relevant time seem to reflect an intention to identify whether a person has potential for engagement in the labour market and the means whereby any such potential may be unlocked rather than restricting the assessments carried out for benefits purposes to the measurement of levels of incapacity. Put broadly, the provisions indicate the intention of achieving an outcome whereby those who might have such potential will be placed in the WRAG and thus subject to such requirements to attend interviews designed to help them into the labour market as are reasonable, even although it is accepted that, at that point, they do not have capability for work.
The Support Group
[5] Members of the support group cannot be required to perform work related activity. They may speak to a personal adviser if they wish to do so but that is not obligatory. The continuation of their ESA at the full "support group" rate is not conditional on anything being done by them. It seems to follow that the provisions envisage that the support group will consist of persons of whom it cannot realistically be said that they might have potential to engage in the labour market.
Capability for Work or Limited Capability for Work
[6] Whether or not a claimant's capability for work is limited has to be determined under and in terms of part 5 of the Employment and Support Allowance Regulations 2008 ("the 2008 Regulations") which were made in exercise of the powers conferred by various provisions in the 2007 Act. They have been amended on more than one occasion since then. The version which applies to the present case is as amended by the Employment and Support (Limited Capability for Work and Limited Capability for Work- related Activity) (Amendment) Regulations 2011. Paragraph 19 of the 2008 Regulations provides that a person has limited capability for work if, by adding up points that are listed in column (3) of Schedule 2 against any "descriptor" listed in that schedule, he obtains 15 points whether singly or by a combination of descriptors, as follows:
"19 Determination of limited capability for work
(1) For the purposes of Part 1 of the Act, whether a claimant's capability for work is limited by the claimant's physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.
(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.
(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least-
(a) 15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;
(b) 15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or
(c) 15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule."
The assessment of a claimant's mental, cognitive and intellectual functions, for the purpose of paragraph 19, is covered by Part 2 of Schedule 2 and includes:
"[SCHEDULE 2 ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED CAPABILITY FOR WORK]
Part 2
Mental. Cognitive, and intellectual function assessment
| 16 Coping with social engagement due to cognitive impairment or mental disorder. | (a) Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual. |
| (b) Engagement in social contact with someone unfamiliar to the claimant is always precluded due to difficulty relating to others or significant distress experienced by the individual. | |
| (c) Engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual. | |
| (d) None of the above apply. |
WRAG or Support Group?
[7] Whether or not a claimant who does not have capability for work is in the WRAG or in the support group has to be determined under and in terms of regulations 34 and 35, and Schedule 3. Unlike the approach where the issue is capability for work, point scoring is not required. A claimant is to be found to have limited capability for work related activity if any one of the descriptors set out in Schedule 3 applies to them:
" 34 Determination of limited capability for work-related activity
(1) For the purposes of Part 1 of the Act, where, by reason of a claimant's physical or mental condition, at least one of the descriptors set out in Schedule 3 applies to the claimant, the claimant's capability for work-related activity will be limited and the limitation will be such that it is not reasonable to require that claimant to undertake such activity.
(2) A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.
...
35 Certain claimants to be treated as having limited capability for work-related activity
(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if-
(a) the claimant suffers from some specific disease or bodily or mental disablement; and
(b) by reasons of such disease or disablement, 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-related activity.
...
...
SCHEDULE 3
ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED CAPABILITY FOR WORK RELATED ACTIVITY
| Activity | Descriptors |
| 13 Coping with social engagement, due to cognitive impairment or mental disorder. | Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual" |
The other descriptors in Schedule 3 include: "8............At least once a week experiences: (a) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder", and "12........Cannot cope with any change....... to the extent that day to day life cannot be managed."
[8] The importance of the work related activity requirement imposed on a member of the WRAG being "reasonable" is highlighted by the wording of regulation 34(1) which, in effect, deems it to be unreasonable to require a person to carry out such an activity if any one of the descriptors referred to applies, without further enquiry about that matter. That has now changed; the regulation has been amended so as to provide that it cannot be concluded that a person has limited capability for work related activity (and is, accordingly, in the support group) unless the particular limitation in fact shows that it would not be reasonable to make such a requirement (see: Social Security (Miscellaneous Amendments) (No. 3) (Regulations) 2013/2536 regs 13(17)(a)(i)(ii) and (iii)) but that was not the position when the respondent's claim was determined.
The Issues
[9] The principal issue is whether or not regulation 34(2) applies to descriptor 13 and,...
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