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Neutral Citation Number:	2014 UKUT 115 AAC
Reported Number:
File Number:	CE 2298 2013
Appellant:	NS
Respondent:	Secretary of State for Work and Pensions (ESA)
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	14/03/2014
Date Added:	27/03/2014
Main Category:	Employment and support allowance
Main Subcategory:	Regulation 29
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2014] AACR 33. Employment and support allowance – regulation 29 – when a tribunal must consider – how it should do so As part of the conversion process from incapacity benefit (IB) to employment and support allowance (ESA), the appellant completed a questionnaire and was examined by a health care professional (HCP) who gave her no points under the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008. The decision-maker awarded six points under descriptor (d) in Activity 1 (mobilising) and decided that the appellant was not entitled to ESA as she did not have limited capability for work. The First-tier Tribunal (F-tT) dismissed her appeal: it awarded no points under the descriptors and decided that regulation 29(2)(b) of the Regulations did not apply because it believed there was not a substantial risk to the appellant or to anyone else if she were not found to have limited capability for work. Before the Upper Tribunal (UT) the Secretary of State submitted that the F-tT should not be faulted for merely stating that the regulation did not apply and cited four previous decisions by the UT in support of that view. The issue before the UT was when a tribunal should be obliged to consider the application of regulation 29(2)(b) and how it should do so. Held, allowing the appeal, that: 1. it is clear from a review of the available authorities that whether regulation 29(2)(b) requires to be considered depends on all the circumstances of the particular case: RB v Secretary of State for Work and Pensions (ESA) [2012] UKUT 431 (AAC); PC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 1 (AAC); SP v Secretary of State for Work and Pensions (ESA) [2014] UKUT 10 (AAC) and DB v Secretary of State for Work and Pensions (ESA) [2014] UKUT 41 (AAC) followed (paragraphs 29 to 41); 2. the test contained within regulation 29(2)(b) was whether a substantial risk arose from a claimant being found not to have limited capability for work. The proper approach to applying that test required an assessment of those risks arising from the loss of benefit and needing to seek work, as well as assessing the risks arising from any work the claimant might undertake: IJ v Secretary of State for Work and Pensions (IB) [2010] UKUT 408 (AAC) (paragraph 45); 3. to consider regulation 29(2)(b) properly tribunals needed to take various steps, including: (1) to identify those cases where it was in issue; (2) to identify the required level of detail about the claimant’s circumstances; and (3) to provide an adequate explanation of the reasons for its decision (paragraphs 46 to 53); 4. the F-tT erred in law as it failed to explain why regulation 29(2)(b) did not apply. A bare statement that it did not do so was inadequate, given the fundamental disagreement between the F-tT and the claimant about the effect of her condition upon her (paragraph 57). The judge remitted the case for redetermination by a differently constituted tribunal.
Decision(s) to Download:	[2014] AACR 33bv.doc