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Neutral Citation Number:	2014 UKUT 428 AAC
Reported Number:
File Number:	CE 3688 2013
Appellant:	JS
Respondent:	JS v Secretary of State for Work and Pensions (ESA)
Judge/Commissioner:	Judge S. Wright
Date Of Decision:	18/09/2014
Date Added:	09/10/2014
Main Category:	Employment and support allowance
Main Subcategory:	Regulation 29
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 12 Regulation 29(2) – Equality Act 2010 – whether assessment of employers’ duties to disabled person under the Equality Act part of risk assessment under regulation 29(2)(b) As part of the conversion process from incapacity benefit (IB) to employment and support allowance (ESA) the appellant completed a questionnaire and was examined and interviewed by a health care professional (HCP). The HCP considered that the appellant met none of the Schedule 2 descriptors and failed to satisfy regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 (2008 Regulations). The Secretary of State decided that the appellant’s award of IB did not qualify for conversion to an award of ESA. Included within the appellant’s appeal submission to the First-tier Tribunal (F-tT) was a letter from her GP which, amongst other matters, stated that her mental health would significantly deteriorate if she was found fit to work or to take part in work-related activities. The F-tT dismissed her appeal, holding that regulation 29 did not apply because under the Equality Act 2010 (the 2010 Act) an employer had to make reasonable adjustments if someone was disabled and that the word significant did not have the same meaning as substantial. These were the issues before the Upper Tribunal (UT). Held, allowing the appeal, that: 1. the F-tT erred by reading the GP’s letter as saying that the risk to the appellant’s health was significant (not substantial). The letter stated that the appellant’s mental health would significantly deteriorate if she were found fit for work thereby confirming the GP’s judgment of what would actually occur (not the risk of it doing so). In the circumstances, it provided evidence for finding that there was a substantial risk to the appellant’s health (paragraphs 42 to 43); 2. the assessment of risk under regulation 29(2)(b) of the 2008 Regulations did not require or involve the decision-maker in making an assessment as to whether employers would owe a duty under the 2010 Act to make reasonable adjustments in respect of an individual claimant because (i) the 2010 Act and ESA schemes have different statutory aims and materially different statutory contents; (ii) a 2010 Act test sits uneasily with Charlton; (iii) the F-tT is ill-equipped to make proper assessments under the 2010 Act; and (iv) recourse to the 2010 Act is unnecessary (paragraphs 44 to 61); 3. if regulation 29(2)(b) was an issue raised by an appeal then it must be addressed properly on the facts of the individual case before the decision-maker. That required the Secretary of State to confirm the range of work which in his view an individual claimant could do without substantial risk to health. The degree of detail required would vary on the facts of each individual case (paragraphs 69 to 72). The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be decided in accordance with his directions.
Decision(s) to Download:	[2015] AACR 12.ws.doc