Secretary of State for Work and Pensions CE 52 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 28 July 2011 |
| Neutral Citation | 2011 UKUT 317 AAC |
| Subject Matter | Employment and support allowance |
| Respondent | PT |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CE 52 2011 |
| Appellant | Secretary of State for Work and Pensions |
[2012] AACR 17
(Secretary of State for Work and Pensions v PT (ESA)
[2011] UKUT 317 (AAC))
Judge Mesher CE/52/2011
28 July 2011
Employment and support allowance – linked claim – whether assessment necessary for award of work-related activity component
The claimant was in receipt of income-related employment and support allowance (ESA), and following a work capability assessment was awarded the work-related activity component (WRAC), but did not qualify for the support component. That entitlement came to an end when he started full-time employment on 16 March 2010. The employment ended on 24 March 2010 and he made a new claim for ESA with effect from 25 March 2010 and provided medical evidence from that date. He was awarded ESA from that date on the basis of regulation 145(1) and (2) of the Employment and Support Allowance Regulations 2008 (the ESA Regulations), which provides that any period of limited capability for work which is separated from another such period by not more than 12 weeks is to be treated as a continuation of the earlier period. However, in accordance with departmental guidance and advice, he was awarded the rate not including the WRAC because, having started a new “assessment phase”, he did not meet the condition for the WRAC in section 4(5)(a) of the Welfare Reform Act 2007 that the assessment phase has ended and was unable to qualify until he had had another work capability assessment. The claimant appealed. The First-tier Tribunal decided that, contrary to the Secretary of State’s view, regulation 149 of the Employment and Support Allowance Regulations 2008 had the effect that qualification for the WRAC resumed on the first day of the new period of ESA entitlement and that the claimant qualified for the WRAC from and including 25 March 2010. The Secretary of State appealed to the Upper Tribunal.
Held, dismissing the appeal, that:
- the provisions of regulations 148 to 150 were rendered irrelevant in the circumstances of the present case by regulation 7(1)(b) of the ESA Regulations, which applied precisely to the circumstances of the present case and provides that, where a period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 145(1) or (2), section 4(5)(a) of the Act does not apply. The effect of regulation 7(1)(b) in the present case was that as from 25 March 2010 the claimant qualified for the WRAC if the conditions in section 4(5)(b) and (c) were met, without any need to consider the assessment phase condition in section 4(5)(a) (paragraphs 11 and 12);
- the claimant satisfied section 4(5)(b) on its correct construction. That sub-paragraph sets out the condition that the claimant does not have limited capability for work-related activity and the natural and obvious meaning of the words of section 4(4)(b) and 4(5)(b) is that together the two provisions exhaust all possibilities in relation to limited capability for work-related activity. Providing that paragraph (a) on the ending of the assessment phase is satisfied or does not apply, either a claimant has limited capability for work-related activity, in which case section 4(4)(b) applies, or has not, in which case section 4(5)(b) applies, and considering the provisions in context made no difference of substance (paragraphs 15 and 16);
- the tribunal came to the only possible legal conclusion on the facts, although not by reference to the correct legal basis. The claimant qualified for the WRAC from 25 March 2010 under section 4(5) of the 2007 Act because paragraph (a) was not applicable, he satisfied paragraph (b) and there were no other conditions prescribed under paragraph (c) (paragraph 18).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The Secretary of State’s appeal to the Upper Tribunal is dismissed. The decision of the Sheffield First-tier Tribunal dated 8 October 2010 involved no material error on a point of law, and accordingly stands.
REASONS FOR DECISION
1. The Secretary of State for Work and Pensions appeals to the Upper Tribunal with the permission of the salaried tribunal judge who had constituted the First-tier Tribunal. I directed that there should be an oral hearing in place of the normal exchange of written submissions. The hearing took place at Leeds Combined Court Centre on 23 May 2011. The claimant had replied that he would not be attending. The Secretary of State was represented by Mr Stephen Cooper, solicitor, instructed by DWP/DH Legal Services, with the assistance of Mrs M A Gratrex of the Department’s Decision Making and Appeals Unit, Leeds. The Secretary of State was given time after the hearing to provide details of the amendment to the provisions of regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) on revision with effect from 28 June 2010 and of how the revision provisions had been implemented prior to that amendment. The claimant had no observations to make in reply.
2. The facts of this case are simple, but have given rise to a great deal of legal complication. I have concluded that a lot of that complication was unnecessary, although tracing a route through the legislation is far from easy, and that the guidance apparently given to offices administering employment and support allowance (ESA) by the Department was wrong in law. It is certainly the case that the way in which the legislation was said by Mr Cooper and Mrs Gratrex to operate, which I reject below, was very different from the way it had previously been explained to the claimant and to the First-tier Tribunal.
3. The claimant was in receipt of income-related ESA, including the work-related activity component (WRAC), awarded in August 2009 after the claimant had passed the work capability assessment, but did not qualify for the support component. From April 2009 the weekly rate of WRAC was £25.50 (going up to £25.95 in April 2010) and the weekly rate of the support component was £30.85 (£31.40). That entitlement came to an end when he started full-time employment on 16 March 2010. Unfortunately for him, the employment ended on 24 March 2010 as the person he was covering for returned to work. He made a new claim for ESA with effect from 25 March 2010 and provided medical evidence from that date. On 13 April 2010 he was awarded ESA, but only at the rate not including the WRAC. He was told that he was in effect to be regarded as in a new “assessment phase” and so could not qualify for the WRAC until he had had another work capability assessment. He was also told that if he passed the assessment the WRAC would be awarded from the date of the new claim. On 8 June 2010 the claimant found another job and ceased to be entitled to ESA, before another work capability assessment was carried out.
4. The decision was apparently an application of the basic conditions of entitlement to the WRAC for the purposes of income-related ESA in section 4(5) of the Welfare Reform Act 2007 (the 2007 Act):
“(5) The conditions of entitlement to the work-related activity component are –
(a) that the assessment phase has ended,
(b) that the claimant does not have limited capability for work-related activity, and
(c) that such other conditions as may be prescribed are satisfied.”
The conditions of entitlement to the support component in subsection (4) are the same, except under (b), where the test is that the claimant has limited capability for work-related activity (defined in section 13(7)). Subsection (6) allows regulations to prescribe (a) circumstances in which paragraph (a) of subsection (4) or (5) does not apply and (b) circumstances in which entitlement under those subsections is to be backdated. At the date of the decision in the present case regulations had been made under subsection (6)(a), but not under subsection (6)(b). Section 24(2) provides:
“(2) For the purposes of this Part, the assessment phase, in relation to a claimant, is the period –
(a) beginning, subject to subsection (3), with the first day of the period for which he is entitled to an employment and support allowance, and
(b) ending with such day as may be prescribed.”
5. The general rule under regulation 4(1) of the Employment and Support Allowance Regulations 2008 (SI 2008/794) (the ESA Regulations) is that the assessment phase ends on the last day of a period of 13 weeks beginning on the first day of the assessment phase under section 24(2)(a). Regulation 4(2) provides:
“(2) If at the end of the period of 13 weeks referred to in paragraph (1), it has not...
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