IN THE UPPER TRIBUNAL 		            Appeal No: CE/4112/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright 

DECISION 

	The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Colchester on 13 November 2013 under reference SC132/13/01594 involved an error on a material 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 his situation as it was down to 30 January 2013 and not any changes after that date.

(3)	If the appellant has any further evidence that he wishes to put before the tribunal that is relevant to his health conditions and how they were affecting him in January 2013, this should be sent to the First-tier Tribunal’s office in Birmingham within one month of the date this decision is issued. 

(4)	The Secretary of State must provide a submission to the First-tier Tribunal within one month of the date this decision is  issued providing that tribunal with the information about work-relate activity that IM –v- SSWP (ESA) [2014] UKUT 412 (AAC) requires.       

(5)	The First-tier Tribunal should have regard to the points made below.
REASONS FOR DECISION 

1.	Both parties having agreed that the First-tier Tribunal’s decision of 13 November 2013 (“the tribunal”) should be set aside for material error of law and the matter remitted to a freshly constituted First-tier Tribunal to be re-decided, and my agreeing with that result, I set the tribunal’s decision aside for the following reasons.

2.	In an otherwise well reasoned and careful decision, I consider the tribunal erred in law in two respects. First, in its approach to regulation 35 of the Employment and Support Allowance Regulations 2008 (“the ESA Regs”). On one analysis this was not the tribunal’s fault as the three judge panel of the Upper Tribunal’s decision in IM –v- SSWP (ESA) [2014] UKUT 412 (AAC) was not decided until 15 September  2014 and so the tribunal could not have been aware of it nearly a year earlier when it came it its decision. On the other hand, English law operates on the basis of superior courts (here the Upper Tribunal in IM) declaring what the law has always been.  

3.	Given IM, the tribunal erred in law by not having before it evidence of the work-related activity the appellant may have been required to undergo in his local area at the end of January 2013 on which to assess whether there would any substantial risk to the his (or another’s) health from his undertaking such activity, particularly in the context of the appellant having met descriptors 15(b) and 16(c) under Schedule 2 to the Employment and Support Allowance Regulations 2008 (“the ESA Regs”) . (The tribunal itself may have been of the view that it may have got the law wrong given its reference in paragraph 28 of its reasons to my decision in DH –v- SSWP (ESA) [2013] UKUT 0573 (AAC), which came to a similar (though not identical) conclusion to that in IM.)

4.	The second respect in which I consider the tribunal erred in law was in its lack of reasoning on whether the appellant met the descriptor under activity 14 in Schedule 3 to the ESA Regs. This is a separate error of law (but also relates to the regulation 35(2) error of law – see below).  

5.	The descriptor under activity 14 in Schedule 3 to the ESA Regs – uncontrollable episodes of aggressive or disinhibited behaviour on a daily basis that would be unreasonable in any workplace is identical to the first descriptor – 17(a) – under this activity in Schedule 2 to the ESA Regs.  The appellant had arguably put this “behaviour on a daily basis” test into issue on his appeal by his answers to the activity 17 question in the ESA50 form on page 24, and it is noteworthy that the HCP on scrutiny did not address whether the appellant met the descriptor under activity 14 in Schedule 3 (see pages 28-29). Furthermore, on a fair reading of the appeal on pages 4-7, meeting the descriptor under activity 14 in Schedule 3 was not being ruled out: indeed, the appeal on page 4 refers to “anger problems” and “severe mood”.  

6.	In these circumstances, in my judgment it was incumbent on the tribunal to explain why it concluded the appellant did not satisfy activity 14 in Schedule 3. However, its reasoning on Schedule 3 (and its reasoning on Schedule 2) in paragraph 21 (and 20) of the statement  of reasons says nothing at all about activity 14 in Schedule 3 or the appellant’s behaviour and is focused almost entirely on activity 13. That deficit in the reasoning in my judgment amounts to a material error of law because if the appellant had met the descriptor under activity 14 in Schedule 3 then his appeal would have succeeded, regardless of regulation 35(2). 

7.	I have not discounted that in paragraph 19 of the statement of reasons the tribunal says “[The appellant] has significant mood swings, and on occasion [his mother] had to call the police, as was unable to calm him down. He has never hit anyone, but he has punched the wall. Such events are traumatic, but infrequent”. This may be good evidence that the “daily basis” part of the descriptor under activity 14 in Schedule 3 was not met.  However, these passages appear under a sub-heading “Background and medical condition” which comes before another sub-heading “Evidence, Findings of fact and descriptors”, which is where paragraphs 20 and 21 and the findings of fact and the reasoning on Schedule 3 appear, and given this arrangement I cannot be confident that what I have quoted immediately above were the tribunal’s findings of fact on the appellant’s behaviour.  This concern is perhaps underscored by the fact that the relevant descriptor speaks in terms of disinhibited as well as aggressive behaviour, but what is said in paragraph 19 of the reasons only seems to address the latter and not the former.     

8.	In addition, in my judgment in a case such as this one in order to properly assess the application of regulation 35(2) a determination has to be made as to the extent to which the person met Schedule 2 at the date of the decision under appeal as that informs the factors to be taken into account in assessing the regulation 35(2) risk. There seemed to be no issue – and ought to be no issue for the new First-tier Tribunal - that the appellant met descriptors 15(b) and 16(c) under Schedule 2 as at 30 January 2013.  However, on the facts of this case, the appellant also had put his “behaviour” into issue with what he said on pages 10, 24 and 25, and as already noted activity 14 in Schedule 3 was not addressed by the HCP.  In my judgment, as well as for the reasons given in paragraphs 4-7, it was necessary for the tribunal to address the extent (if any) to which the appellant met any of the descriptors under activity 17 in Schedule 2 so as to properly assess the regulation 35(2) risk, and its failure to do so amounted to an error of law.
        
9.	The Three Judge Panel of the Upper Tribunal has now given its decision on regulation 35(2) in IM –v- SSWP (ESA) [2014] UKUT 412 (AAC). The new First-tier Tribunal will need to direct itself according to that decision when coming to its decision on regulation 35(2).  However, IM imposes obligations on the Secretary of State to provide information in advance to First-tier Tribunals in respect of work-related activity which the individual claimant might be expected to have engaged in at the date of the decision under appeal (see paragraphs 100-109 and paragraph 110 of IM), and those obligations need to be met by the Secretary of State on this appeal.

10.	For the reasons set out above, the tribunal’s decision dated 13 November 2013 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence. 

11.	I have directed a further oral hearing of this appeal. I cannot direct, let alone compel, the appellant to attend such a hearing, but it will undoubtedly assist the tribunal to understand how the appellant was affected by his health problems back in January 2013, and thus decide the appeal, if the appellant was to attend the hearing. He can attend that hearing with his mum, as occurred before, if that would help him to attend. Alternatively, if he is unable to attend then his mum could attend on his behalf, though it would be better if he could attend and give direct evidence as to how he was affected in January 2013.       

Signed (on the original) Stewart Wright
Judge of the Upper Tribunal
                                                                                                          
Dated 19th March 2015