Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
This decision is given under section 11 of the Tribunals,
Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference SC242/12/12519,
made on 29 April 2013 at Fox Court, did not involve the making of an error on a
point of law.
Reasons
for Decision
A.
The issues
1.
In this case, the Secretary of State decided to convert the claimant’s
award of incapacity benefit to an award of employment and support allowance
under regulation 29(2)(b) of the Employment and Support Allowance Regulations
2008 (SI No 794) – I refer to these as the 2008 Regulations. The claimant
appealed against that decision, arguing that she also had limited capability
for work-related activity. The tribunal dismissed the appeal, but changed the
basis of the claimant’s entitlement from regulation 29 to an assessment under
Schedule 2 to those Regulations.
2.
This raises a number of issues:
·
Did the Secretary of State make a separate decision on
work-related activity at least to the extent that the claimant was able to
challenge only that element without putting her capability for work at issue?
·
Should the tribunal have exercised its power under section
12(8)(a) of the Social Security Act 1998 to limit itself to the Schedule 3
issue?
·
Should the tribunal have warned the claimant of the course it was
going to take?
·
Should the claimant have been allowed the chance to withdraw all
or part of her case?
3.
To anticipate, the answer to all those questions is: no. Cutting through
the context in which those issues arise, a tribunal that deals with an appeal
against a decision that the claimant is capable of work-related activity is
entitled and may be required to consider the claimant’s capability for work,
even though the Secretary of State decided this issue in the claimant’s favour.
B.
History and background
4.
The claimant was receiving incapacity benefit when, in 2012, the
Secretary of State decided to consider whether her award should be converted to
employment and support allowance. She completed the standard questionnaire,
although it is not in the papers, and was interviewed and examined by a health
care professional. The decision-maker did not accept the health care
professional’s report, but instead decided that the claimant satisfied
regulation 29(2)(b) of the 2008 Regulations. That meant that the claimant was
treated as having limited capability for work. However, the decision-maker
decided that the claimant did not have limited capability for work-related
activity. The claimant’s award of incapacity benefit was converted to an award
of employment and support allowance on that basis with effect from 13 June
2012.
5.
The claimant exercised her right of appeal to the First-tier Tribunal.
She was represented by MTG Solicitors, who argued that she had limited
capability for work-related activity by virtue of satisfying any one of ten of the
descriptors in Schedule 3 to the 2008 Regulations or should be treated as such
under regulation 35(2) of those Regulations.
6.
The tribunal dismissed the appeal, but altered the basis of the
decision. It decided that:
·
the claimant scored 21 points under Schedule 2 to the 2008 Regulations:
6 for the activity of mobilising -
1(d),
6 for the activity of social
engagement - 16(c), and
6 for the activity of
appropriateness of behaviour - 17(c);
·
she did not satisfy regulation 29(2)(b); and
·
she did not have limited capability for work-related activity.
7.
I gave the claimant permission to appeal to the Upper Tribunal. The
Secretary of State’s representative and the claimant’s solicitors have made
detailed submissions. I am grateful to them both for their assistance in
understanding and analysing the issues that arise.
C.
Did the tribunal have jurisdiction to hear an appeal against the
conversion decision?
8.
Yes.
9.
The jurisdiction of the First-tier Tribunal in a social security case
derives from the section 12 of the Social Security Act 1998. Section 12(2)
confers on a claimant the right of appeal ‘In the case of any decision to which
this section applies’. Section 12(1) defines the decision to which the section
applies, which include
(1) … any decision of the
Secretary of State under section 8 or 10 above … which-
(a) is
made on a claim for, or on an award of, a relevant benefit, and does not fall
within Schedule 2 to this Act; or
(b) is
made otherwise than on such a claim or award, and falls within Schedule 3 to
this Act.
By virtue of section 8(3)(a) and (ba), incapacity benefit
and employment and support allowance are relevant benefits.
10. The
conversion of the claimant’s award of incapacity benefit to an award of
employment and support allowance was made under the Employment and Support
Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit)
(Existing Awards) (No 2) Regulations 2010 (SI No 1907). Regulation 16(3)
provides that, for the purposes of section 8, ‘the conversion decision is to be
treated as if it were a decision as to a person’s entitlement to an employment
and support allowance which had been made on a claim.’ The effect of this is to
bring the decision within section 12(1)(a) of the 1998 Act. That gave the
First-tier Tribunal jurisdiction to hear an appeal. But what was the appeal
against?
D.
What was the decision that was under appeal?
11. The
decision under appeal was the whole of the conversion decision, not just the
part that related to work-related activity.
12. Employment
and support allowance is a single benefit and the decision-makers deal with all
aspects of entitlement in a single decision. They do not give separate
decisions on a claimant’s capability for work and for work-related activity.
13. Employment
and support allowance was created under the Welfare Reform Act 2007 and by
Regulations made thereunder, principally the 2008 Regulations. It is created by
section 1 as a single benefit. However, it may consist of a contributory
allowance, an income-related allowance or both. It is a condition of
entitlement that the claimant must have limited capability for work: section
1(3)(a). Generally, claimants are required to undertake work-related activity
in order to assist their eventual return to work: section 13. This does not
apply if they have limited capability for that form of activity under Part 6 of
the 2008 Regulations. So limited capability for work is an exception to one of
the requirements of an award.
14. As
well as excusing a claimant from satisfying this requirement, having limited
capability for work-related activity also has consequences on the terms of a
claimant’s entitlement. Claimants who have limited capability for work-related
activity may retain a contributory allowance after 365 days: section 1A. They
are also potentially entitled to a higher amount of benefit: compare paragraphs
12 and 13 of Schedule 4 to the 2008 Regulations.
15. Bringing
those points together, a decision on a claimant’s capability for work-related
activity is integral to the requirements that must be satisfied on an award, to
the duration of the contributory allowance, and to the amount of the allowance.
To put it another way, it cannot realistically be severed from other aspects of
entitlement in order to constitute a free-standing decision. It is, to adopt
the language of section 17(2) of the Social Security Act 1998, a ‘finding of
fact or other determination embodied in or necessary to … a decision’. or, to use
the language that I used in CIB/2338/2000 and was adopted by the
Tribunal of Commissioners in R(IB) 2/04, it is not itself an outcome
decision.
16. This
analysis is properly reflected in the form of decision given on conversion. In
the claimant’s case, it dealt with capability for work and for work-related
activity in a single document. That document under the legislation constituted
a single decision. That was the decision under appeal to the First-tier
Tribunal.
E.
Was the tribunal entitled to refuse to deal with the capability for work
issue?
17. No.
18. Section
12(8)(a) of the Social Security Act 1998 relieves the tribunal of the duty to
deal with all issues arising on an appeal that was previously imposed on
tribunals. It provides:
(8) In deciding an appeal under
this section, the First-tier Tribunal-
(a) need not consider any
issue that is not raised by the appeal; …
This leaves the tribunal a discretionary power to deal with
other issues.
19. In
exercising that power, the tribunal must act in accordance with the domestic
principles of natural justice and the Convention right under Article 6 of the
European Convention on Human Rights and Fundamental Freedoms. In short, the
tribunal must exercise that power to ensure that the claimant has a fair
hearing. In particular, this may mean giving the claimant a warning that the
tribunal may wish to reconsider the capability for work issue as well as the capability
for work-related issue, and allowing time to consider how to proceed. For a
claimant, there are a number of possibilities, depending on the circumstances.
One possible course would be to prepare a case to deal with the capability for
work issue. Another would be to consider whether this might result in the loss
of entitlement, in which case it might be appropriate to apply to withdraw the
appeal.
20. Before
I come to withdrawal, I need to say more about employment and support
allowance. In order to understand how the case was presented to and decided by
the tribunal, it is necessary to know how capability for work and capability
for work-related activity are determined. It is also necessary to distinguish
between being incapable and being treated as incapable.
21. Capability
for work is determined by an assessment under regulation 19 of the 2008
Regulations. Essentially, this depends on whether the claimant scores
sufficient points under Schedule 2 to those Regulations. If and only if the
claimant does not satisfy the assessment under Schedule 2, regulation 29 may
allow the claimant to be treated as having limited capability for work. It
provides:
(1) A
claimant who does not have limited capability for work as determined in
accordance with the limited capability for work assessment is to be treated as
having limited capability for work if paragraph (2) applies to the claimant.
(2) This
paragraph applies if—
…
(b) the
claimant suffers from some specific disease or bodily or mental disablement
and, 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.
22. Capability
for work-related activity is determined in a similar way. Schedule 3 now
applies instead of Schedule 2. It is sufficient for a claimant to satisfy any
of the descriptors in that Schedule: regulation 34(1). Essentially, Schedule 3
consists of the highest scoring descriptors for the equivalent activities in
Schedule 2. If and only if the claimant does not satisfy Schedule 3, regulation
35(2) may allow the claimant to be treated as having limited capability for
work-related activity. It provides:
(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.
23. Against
that background, I can now explain why the tribunal was obliged to deal with
the claimant’s capability for work under Schedule 2 and could not properly
exercise its discretion not to deal with it.
24. Remember
that the Secretary of State decided that the claimant satisfied regulation
29(2)(b). It was inherent in that decision that she did not satisfy the
assessment under Schedule 2. Given the close relationship between the
Schedules, it followed that she could not satisfy Schedule 3. The argument put
to the First-tier Tribunal by the claimant’s solicitors was that the claimant
satisfied the requirements for ten of the activities in that Schedule or, in
the alternative, satisfied regulation 35(2). The claimant could only succeed
under Schedule 3 if she also satisfied the work capability assessment under
Schedule 2. And the tribunal could not apply regulation 35(2) unless and until
it decided that the claimant did not satisfy Schedule 3.
25. The
tribunal could not sensibly have left the decision on regulation 29 in place,
but nonetheless found that the claimant satisfied Schedule 3. By finding that
Schedule 3 was satisfied, the tribunal would have removed the necessary
condition for the use of regulation 29, since the claimant would then have
satisfied the Schedule 2 assessment. And that would create an internally
contradictory decision, which said in effect that the claimant both satisfied
and did not satisfy Schedule 2. It was essential, in order to deal with the
grounds of appeal, that the tribunal reconsider Schedule 2. That was the logic
of the grounds of appeal and of the structure and content of the legislation.
The tribunal did not explain why it took that approach, but it seems to have
understood practically and intuitively that this was necessary.
26. So
in this case, the tribunal had to deal with Schedule 2. The position would be
different if the claimant had conceded that Schedule 3 was not satisfied and
had relied exclusively on regulation 35(2). The tribunal would then not have
been forced by the structure of the legislation to consider Schedule 2.
Nonetheless, the claimant’s capability for work would have remained part of the
decision under appeal and within the tribunal’s discretion to consider.
27. That
leaves the question whether the tribunal should have warned the claimant and
her solicitors. In some cases, that would be appropriate, even perhaps
necessary. In this case, it was not. The claimant was represented by
solicitors. The content of their written arguments bespeaks their competence.
This is very different from an unrepresented claimant or one with a
representative whose is inexperienced and unfamiliar with the legislation. The
tribunal was entitled to proceed on the basis that the solicitors understood
the legislation and that they had advised the claimant accordingly. Added to
this is the consideration that the logic of the solicitors’ argument required
the tribunal to take the course that it did. The tribunal’s approach should not
have come as a surprise.
F.
Could the claimant have withdrawn from her appeal the issue of her
capability for work?
28. No.
29. The
claimant’s solicitors have mentioned the possibility of withdrawal. This is
governed by the Tribunal Procedure (First-tier Tribunal) (Social Entitlement
Chamber) Rules 2008 (SI No 2685). When interpreting and apply those rules, the
tribunal must seek to give effect to the overriding objective of dealing with
cases fairly and justly. Rule 17 deals with withdrawal:
(1) Subject to paragraph (2),
a party may give notice of the withdrawal of its case, or any part of it—
(a) … by
sending or delivering to the Tribunal a written notice of withdrawal; or
(b) orally
at a hearing.
(2) In the circumstances
described in paragraph (3), a notice of withdrawal will not take effect unless
the Tribunal consents to the withdrawal.
(3) The circumstances
referred to in paragraph (2) are where a party gives notice of withdrawal—
(a) …
(b) in a
social security or child support case where the tribunal had directed that
notice of withdrawal shall take effect only with the Tribunal’s consent; or
(c) at a
hearing.
This rule gave the claimant an absolute right to withdraw her
appeal outside a hearing and a conditional right (subject to consent) at the
hearing. As far as I know, the tribunal had not made a direction under rule
17(3)(b).
30. Rule
17 is not limited to appellants. It applies to all parties, and to judicial
review proceedings as well as to appeals. That explains why it uses the word case
rather than, say, appeal. The rule allows a party to withdraw a case or part
of a case. The rules do not define either case or part. Without
having received argument on the point, I do not consider that a party can
withdraw from the scope of an appeal a favourable part of the decision, leaving
only the unfavourable part for the tribunal to decide. That favourable part is
in no sense the party’s case that can be withdrawn. The position is that
there is a decision under appeal, part of which is to the claimant’s advantage
and part of which is not. If the claimant’s case is simply that the latter was
wrong, there is nothing to withdraw in respect of the favourable part. If the
case is that the former is right and the latter is wrong, it would be strange
to withdraw the case that the former was right. But, even if it this were
permissible and it were withdrawn, it could not alter the fact that it was part
of the decision that was under appeal. The content of the decision under appeal
is not part of a party’s case. Rather, it is what that case is about.
31. Specifically
in this case, there is a further consideration. If it were possible to withdraw
the capacity for work element from the scope of the appeal, that would prevent
the tribunal from dealing with the grounds of appeal. If the tribunal’s consent
were required, it could not properly consent to withdrawing part of the case in
those circumstances. For practical purposes, the claimant either had to
withdraw her appeal or leave her case as it stood.
G.
Disposal
32. I
dismiss the appeal for the reasons I have given.
33. I
would have used the power under section 12(2)(a) of the Tribunals, Courts and
Enforcement Act 2007 to dismiss the appeal even if I were wrong that (i) the
tribunal should have warned the claimant of how it would proceed or (ii) that
the claimant could and should have been allowed to withdraw all or part of her
case. I would have done so on the ground that the claimant has not been
prejudiced by how the tribunal proceeded. She was entitled to employment and
support allowance and remained entitled after the appeal. I have not been able
to find any reason why she was put at a disadvantage by having the basis of her
entitlement changed from regulation 29 to Schedule 2. She lost her appeal, but
she was no worse off as a result; and the approach that the tribunal took
ensured that it was able to deal in full with her grounds of appeal.
|
Signed on original
on 9 January 2014
|
Edward Jacobs
Upper Tribunal Judge
|
