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Neutral Citation Number:	2014 UKUT 308 AAC
Reported Number:
File Number:	CE 327 2013
Appellant:	SI
Respondent:	Secretary of State for Work and Pensions (ESA)
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	04/07/2014
Date Added:	16/07/2014
Main Category:	Employment and support allowance
Main Subcategory:	Post 28.3.11. WCA activity 1: mobilising unaided
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 5. Employment and support allowance – mobilising unaided by another person – whether manual wheelchair could reasonably be used The claimants had limited ability to walk but in both cases the First-tier Tribunal (F-tT) had decided that they could mobilise adequately using a manual wheelchair, on a work capability assessment for employment and support allowance (ESA), and did not score any points in respect of Activity 1 (mobilising). In each case the claimant, who did not have a wheelchair, raised before the F-tT the question whether she could obtain one, and in both cases the tribunal decided that she could. The Secretary of State initially supported their appeals to the Upper Tribunal (UT) but subsequently argued that only medical considerations should be taken into account. A three-judge panel was directed to hear both cases, given the different approaches adopted by previous UT judges to the application of Activity 1. Held, allowing the appeals, that: 1. the legislation needed to be applied in such a way that there was no gap between ESA and JSA, which required all circumstances to be taken into account when considering whether a person could reasonably use a manual wheelchair (paragraphs 57 to 58 and 67). 2. When considering the application of Activity 1 to claimants who did not normally use manual wheelchairs, the test had to be applied on the basis that the notional employer from whom the claimant might obtain employment had a modern workplace and was prepared to make reasonable adjustments in order to enable the claimant to be employed, all medical considerations needed to be taken into account, the home environment was potentially relevant but unlikely to be as important as suggested in some cases, the availability of manual wheelchairs was a question of fact – an NHS assessment was not necessary – and reasons for decisions or submissions to the F-tT needed to show why the decision that the use of an aid was reasonable for that claimant accorded with and promoted the underlying purposes of the legislation (paragraphs 75 to 81). The F-tT’s decisions were set aside and the appeals remitted to differently constituted panels to be re-decided following a further submission by the Secretary of State.
Decision(s) to Download:	[2015] AACR 5ws.doc