VO CE 3183 2013
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 30 July 2014 |
| Neutral Citation | 2014 UKUT 352 AAC |
| Subject Matter | Employment and support allowance |
| Respondent | Secretary of State for Work and Pensions (ESA) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CE 3183 2013 |
| Appellant | VO |
[2015] AACR 6
(JC v Secretary of State for Work and Pensions (ESA)
[2014] UKUT 352 AAC))
Mr Justice Charles (CP) CE/1972/2013
Judge Warren CE/3183/2013
Judge Rowland
30 July 2014
Employment and support allowance – work capability assessment – whether engagement in social contact precluded
In each case the claimant appealed to the First-tier Tribunal (F-tT) against a decision that he was not entitled to employment and support allowance because he did not have limited capability for work. One was found by the F-tT to have limited capability for work but appealed to the Upper Tribunal (UT) on the ground that the F-tT had erred in not finding that engagement in social contact was always precluded due to difficulty relating to others or significant distress experienced by him so as to find he had limited capability for work-related activity under paragraph 13 of Schedule 3 to the Employment and Support Allowance Regulations 2008. The other’s appeal was dismissed because he was found to score only nine points under Schedule 2 to the Regulations but he appealed to the UT on the ground that the F-tT had erred in not awarding him six points under paragraph 16(c) of Schedule 2 on the basis that engagement in social contact with someone unfamiliar to the claimant was not possible for the majority of the time. Their appeals to the UT were heard together by a three-judge panel as there had been a conflict between earlier decisions of the UT: KB v Secretary of State for Work and Pensions (ESA) [2013] UKUT 152 (AAC) and AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 446 (AAC), in the latter of which the judge had said that “social contact … is not the same as contact for business or professional purposes”.
Held, allowing one appeal but dismissing the other, that:
- social engagement involved a degree of reciprocity, give and take, initiation and response that could be demonstrated in commercial dealings or in dealings with medical examiners or the F-tT and therefore not only in the context of pleasure or leisure (see paragraphs 28 to 35)
- the F-tT had to apply the correct criterion or conceptual test in the right way by reaching conclusions on the evidence, and explaining why the facts led to the decision. The F-tT had to decide whether the claimant had a cognitive impairment or mental disorder, whether there was a causative link between it and the claimant’s difficulty in relating to others and how the nature and quality of the claimant’s communications and behaviour would impact on their ability to work and whether there was an effective barrier to them working (paragraphs 37 to 39)
- in the first case the F-tT had not sufficiently addressed the quality of contact but in the second case the F-tT had been entitled to reach the conclusion it did by reference to its assessment of the claimant’s evidence to it and the manner in which he gave it (paragraphs 45 and 58).
The F-tT’s decision in the first case was set aside and the appeal remitted to a differently constituted panel to re‑decide in accordance with the UT’s guidance.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The claimant in the first case, CE/1972/2013, was represented by Ms Kema Salter of Stoke-on-Trent Citizens Advice Bureau.
The claimant in the second case, CE/3183/2013, was represented by Mr Tom Royston of counsel, instructed by Kirklees Law Centre.
The Secretary of State was represented by Ms Carine Patry of counsel, instructed by the Solicitor to the Department for Work and Pensions.
Decisions:
In case CE/1972/2013 the decision of the First-tier Tribunal is set aside and the appeal is remitted to a differently-constituted panel who must re-decide it in accordance with the guidance given in this decision.
In case CE/3183/2013 the appeal is dismissed.
REASONS FOR DECISIONS
Introduction
- These appeals were heard together by a three-judge panel. The reason for this was that both appeals raise an issue on which there is some conflict between earlier decisions of the Upper Tribunal (AAC) namely KB v Secretary of State for Work and Pensions (ESA) [2013] UKUT 152 (AAC), a decision of Upper Tribunal Judge Parker and AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 446 (AAC), a decision of Upper Tribunal Judge Ward. That conflict relates to the construction and application of the activities in paragraph 16 of Part 2 of Schedule 2 and paragraph 13 of Schedule 3 to the Employment and Support Allowance Regulations 2008 (SI 2008/794) (the ESA Regulations) and their descriptors (the activities and their descriptors).
- The activities and their descriptors relate to the assessments of whether a claimant has limited capability for work or limited capability for work-related activity. Those two concepts are defined by respectively sections 1(4) and 13(7) and (8) of the Welfare Reform Act 2007 (the 2007 Act), and sections 8 and 9 of the 2007 Act provide that whether a person’s capability for work or capability for work-related activity is limited by his physical or mental condition and, if it is, whether it is reasonable to require him to work or to undertake that activity shall be determined in accordance with regulations.
- Those regulations are in the ESA Regulations. Regulations 19 and 34 introduce the activities and descriptors set out in Schedules 2 and 3.
- Part 2 of Schedule 2 is headed “Mental, Cognitive and Intellectual Function Assessment. From 28 March 2011, when new versions of both Schedule 2 and Schedule 3 were substituted by regulation 4 of, and Schedules 1 and 2 to, the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011 (SI 2011/228) (the 2011 Regulations), activity 16 and its descriptors were:
|
“(1) Activity |
(2) Descriptors |
(3) Points |
||
|
16. Coping with social engagement due to cognitive impairment or mental disorder. |
16 |
(a) |
Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual. |
15 |
|
(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. |
9 |
||
|
(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. |
6 |
||
|
(d) |
None of the above apply. |
0 |
||
And activity 13 and its descriptor in Schedule 3 have been:
|
Activity |
Descriptor |
|
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 activities are in the same terms and the descriptor in paragraph 13 of Schedule 3 is the same as descriptor 16(a) in Schedule 2. Subsequent amendments have improved the drafting without affecting the substance.
General points relating to the construction and application of the statutory test set by the activities and their descriptors
Introduction
- These definitions contain ordinary words in common usage that do not have precise meanings. Their meaning and application is determined as a matter of ordinary usage by reference to the context in which they are used and this...
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