Decision of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 20 October 2014 at Bristol under reference SC186/14/01043) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.
DIRECTIONS:
A.	The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. 
B.	In particular, the tribunal must investigate and decide the claimant’s entitlement to the support component on and from 28 February 2014. 
C.	In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Although the decision under appeal was not made until 14 April 2014, it revised the decision made on 28 February 2014, which remains the relevant time for the purposes of section 12(8)(b): R(CS) 1/03. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.
D.	I warn the tribunal that the Secretary of State’s submission from paragraph 6 on page 1C to paragraph 15 on page 1E is wrong, as it is inconsistent with the decision under appeal which is at pages 78-79.
E.	I also warn the tribunal that the decision under appeal is wrong in referring to regulation 25 of the Employment and Support Allowance Regulations 2008. It should refer to regulation 33.
Reasons for Decision
1.	I have given this decision in place of Upper Tribunal Judge Perez, who is not sitting at the moment. 
2.	Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error in point of law and agreed to a rehearing. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. 
A.	Why I have set the tribunal’s decision aside
3.	I have set the tribunal’s decision aside, because the tribunal failed to deal adequately with the issues that arose from the claimant’s absence as detailed by Judge Perez at pages 105-106 and by the Secretary of State’s representative at pages 109-110.
B.	The relevance of the claimant’s course to work-related activity
4.	I need to deal with this as it has been the subject of a brief exchange between the Secretary of State’s representative and Andrew King of the Bristol and Avon Law Centre who represents the claimant. 
	How the issue arises 
5.	The claimant was treated as having limited capability for work under regulation 33 on the basis that she was receiving education and receiving a disability living allowance. The tribunal confirmed that decision, but decided that she did not qualify for the support component. It dealt briefly with regulation 35, saying that as she was enrolled on a full-time course of study, she would be able to undertake work-related activity without substantial risk. In his application for permission to appeal, Mr King criticised the tribunal’s reasoning on that issue. He argued that the tribunal had failed to make enquiries into the claimant’s course and her attendance. Did she need help to travel to the venue? Would that help be available in respect of work-related activity? How many hours and how many days was she required to attend? Did she attend regularly or was she frequently absent? Finally:
they failed to establish whether she would be able to undertake Work Related Activity in addition to her course or, alternatively, whether it would be reasonable to require her to abandon her course in favour of attending Work Related Activity.
6.	Judge Perez directed the Secretary of State to make a submission on regulation 35. The representative conceded that the evidence necessary to apply regulation 35 was not before the First-tier Tribunal. If it had had the relevant evidence, it might have been entitled to come to the same decision. Finally:
I should perhaps respond to [Mr King’s] argument that the FtT made no findings as to whether the claimant could undertake WRA in addition to, or instead of this course. WRA is a hypothetical test of whether the claimant can participate in such activity, the claimant would not necessarily be expected to undertake WRA and attend a college course on which they had enrolled and potentially funded. Nor would a claimant be expected to abandon such a course in favour of undertaking WRA. The test is purely a hypothetical one. 
7.	In reply, Mr King commented on that final submission:
We respectfully take issue with this point. We would suggest all of the claimant’s circumstances are relevant to a consideration of Regulation 35. These would include (in this case) her child care responsibilities as well as her college course. We do not suggest that it is for the Tribunal to make a decision as to whether the Appellant should give up her college course (or indeed, her child care commitments) if required to undertake Work Related Activity. But the Tribunal has a duty to take into account whether there would be a substantial risk to the Appellant’s health were she required to undertake Work Related Activity in addition to, rather than instead of, her existing commitments. 
	Analysis 
8.	The issue for the tribunal at the rehearing is the claimant’s entitlement to the support component. The claimant may qualify for that component in one of two ways. She may show that she has limited capability for work-related activity by satisfying one of the Activities in Schedule 3 to the Regulations. Failing that, she may show that she should be treated as having limited capability for work-related activity. Specifically in this case, that means satisfying regulation 35(2):
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.
9.	In applying regulation 35, the tribunal has to follow the approach set out by the three-judge panel in IM v Secretary of State for Work and Pensions [2014] UKUT 0412 (AAC). That decision requires a tribunal applying regulation 35 to have regard to the type of work-related activity that the claimant might be expected to undertake in her area. As part of that exercise, the tribunal is required to consider whether the activity would ‘be reasonable ... having regard to the person’s circumstances’ under regulation 3(4)(a) of the Employment and Support Allowance (Work-Related Activity) Regulations 2011. The compatibility of the activity with her education course would be one of those circumstances. 
10.	But such factors are only relevant in so far as they relate to the existence of a substantial risk to health. The tribunal should ignore any factor that is not relevant to that. If the tribunal does not have, and is not to be treated as having, limited capability for work-related activity, any issues such as the reasonableness of the activity would arise subsequently. In particular, the issue might arise whether to give a direction on work-related activity or whether she had good cause for not undertaking it or whether to reduce her benefit for failing to comply with the direction. 
11.	I do not find it helpful to label any particular stage in the complex decision-making that may arise in employment and support allowance as involving a hypothetical test. That merely introduces an additional and unnecessary complication. The task for the tribunal rehearing this appeal is to apply the decision in IM. It involves a judgment of what the risks would be if identified activity were undertaken. There is no harm in describing that judgment as a hypothetical one, so long as it is understood in that way and as merely signifying that the tribunal has no power to impose any particular work-related activity on the claimant or to require her to adjust her other activities to fit in with it. But it does not seem to me to add anything to the analysis. To put it another way, it does not seem to help the tribunal in applying regulation 35. 

Signed on original
on 7 July 2015	Edward Jacobs
Upper Tribunal Judge