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Neutral Citation Number:	2014 UKUT 140 AAC
Reported Number:
File Number:	CSE 936 2013
Appellant:	JK
Respondent:	Secretary of State
Judge/Commissioner:	Judge D. J. May Q.C.
Date Of Decision:	11/02/2014
Date Added:	15/04/2014
Main Category:	Employment and support allowance
Main Subcategory:	Regulation 29
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2014] AACR 34. Employment and support allowance – regulation 29(2)(b) – need for submission or evidence of any substantial risk to the health of appellant or others The claimant was awarded no points under the work capability assessment and it was also decided that regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 did not apply, as there was not a substantial risk to the appellant or to anyone else if he were not found to have limited capability for work. The First-tier Tribunal (F-tT) dismissed his appeal. The claimant appealed to the Upper Tribunal (UT) claiming that the F-tT had failed to specify what type of work he could reasonably do, given his medical condition, contrary to the Court of Appeal’s decision in Charlton v Secretary of State for Work and Pensions, reported as R(IB) 2/09. That decision concerned the correct approach to determining regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995. The Secretary of State supported the appeal. The issue before the UT was whether the F-tT had erred in law by failing to make specific findings about the range and type of work the claimant could do. Held, dismissing the appeal, that: 1. the Court of Appeal’s ruling in Charlton was pertinent as regulation 29(2)(b) used the same statutory language as regulation 27(b) (paragraph 8); 2. no submission or evidence had been provided to the F-tT of any substantial risk to the health of the appellant or others if he were found capable of work. There was little evidence before it other than the appellant’s previous work record and his representative’s vague submission that regulation 29 might apply. Therefore, it was difficult to see how he could have satisfied regulation 29(2)(b) and, in the absence of any evidence of such a risk, the F-tT had held that a wide range of work would be open to the appellant (paragraph 9); 3. the Court of Appeal’s decision in Charlton did not require as a legal principle specific findings of fact as to the range and type of work that the claimant could do. In that case the Court had accepted that the very limited findings which were made satisfied the statutory obligation under regulation 27(b). Accordingly, the F-tT’s conclusion in the instant case, that the appellant could do some work without risk to himself or others, was sufficient to satisfy the statutory obligation imposed by regulation 29 (paragraph 9).
Decision(s) to Download:	[2014] AACR 34bv.doc