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Neutral Citation Number:	2014 UKUT 412 AAC
Reported Number:
File Number:	CE 3453 2013
Appellant:	IM
Respondent:	Secretary of State for Work and Pensions (ESA)
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	15/09/2014
Date Added:	25/09/2014
Main Category:	Employment and support allowance
Main Subcategory:	Regulation 35
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 10. Employment and support allowance – regulation 35(2) – information about work-related activity to be provided to the First-tier Tribunal The Secretary of State decided that the claimant’s award of incapacity benefit did not qualify for conversion to an award of employment and support allowance (ESA). Following her appeal, the First-tier Tribunal (F-tT) held that the award did qualify for conversion to ESA, finding that the claimant had limited capability for work but not limited capability for work-related activity. She appealed against that decision on the basis that the F-tT had erred in its approach to regulation 35(2) of the Employment and Support Allowance Regulations 2008 (the 2008 Regulations). The issue raised by regulation 35(2) was whether 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. It was submitted to the Upper Tribunal (UT) on behalf of the Secretary of State that, in assessing the risk, it was sufficient to identify some work-related activity that the claimant could reasonably be expected to do without a substantial risk to anyone’s health. The appeal was heard by a three-judge panel because differing views had been expressed by judges of the UT on the appropriate approach to regulation 35(2). Held, allowing the appeal, that: 1. a “substantial risk” in this context meant a risk that could not sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case (paragraph 65); 2. the Secretary of State’s submission was rejected because, while it was not necessary to identify the activity in which a claimant would be required to engage, it was necessary to identify activities in which he or she might be required to engage because the risk of an inappropriate requirement being imposed on a claimant could not be ignored – particularly as any findings by a healthcare professional or tribunal that there were some activities that would give rise to an unacceptable risk were not communicated to those who required claimants to engage in work-related activities (paragraphs 85 to 86 and 95 to 101); 3. the F-tT ought to be provided with information about all types of work-related activity in the area where the claimant lived, and this is so even if the Secretary of State considered that the claimant did not have limited capability for work, since the question whether the claimant had limited capability for work-related activity was bound to arise if the F-tT was minded to allow the claimant’s appeal (paragraphs 102 to 109); 4. however, being unable to carry out an activity does not necessarily imply that there will be a substantial risk to anyone’s health if the claimant is required to engage in the activity and nor does the risk of being sanctioned (paragraph 110); 5. where a claimant had been found to have limited capability for work, the result of any work-focused interview or other consideration of whether a claimant should be required to engage in work-related activity should be provided to the F-tT (paragraph 113). The decision of the F-tT was set aside and the appeal remitted to a differently constituted panel to be re-decided in accordance with the three-judge panel’s findings.
Decision(s) to Download:	[2015] AACR 10ws.doc