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Neutral Citation Number:	2013 UKUT 174 AAC
Reported Number:
File Number:	CE 3261 2012
Appellant:	ML
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	08/04/2013
Date Added:	25/04/2013
Main Category:	Employment and support allowance
Main Subcategory:	effect of work
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 33. Work-related activity – whether regulation 35 is dictated by regulation 29 – need for sufficient information about work-related activity – relevance of an award of disability living allowance As part of the conversion process from incapacity benefit to employment and support allowance (ESA), the appellant completed a questionnaire and was interviewed and examined by a health care professional. In her questionnaire, the appellant said that she had problems with mobilising and initiating actions. The health care professional (a surgeon) found no disability relevant to ESA. Having received this evidence, the Secretary of State decided that the appellant was not entitled to ESA. The appellant appealed against that decision to the First-tier Tribunal (F-tT) and submitted documentary evidence including letters from her GP and her consultant. The F-tT decided she was entitled to ESA as she was unable to mobilise more than 100 metres and also satisfied regulation 29(2)(b) (but not regulation 35). The appellant appealed against that decision to the Upper Tribunal (UT) on two grounds: (i) her entitlement to disability living allowance (DLA) proved she was unable to walk 100 metres; and (ii) she satisfied regulation 35. The primary issue before the UT was the difference between regulations 29(2)(b) and 35(2)(b) of the Employment and Support Allowance (ESA) Regulations 2008. Held, dismissing the appeal, that: 1. the outcome of regulation 29 would not have necessarily dictated the outcome for regulation 35. Each regulation used similar wording but it did so for different purposes: regulation 29 was concerned with the risk of work and regulation 35 with the risk of work-related activity. There was no reason why the former would have automatically determined the latter. Rather this would depend upon: (i) the nature of the claimant’s condition; (ii) its effects; and (iii) the nature of the work-related activity (paragraph 14); 2. the Secretary of State must provide sufficient information about work-related activity to enable a claimant to present a case and for a tribunal to make a decision, thereby ensuring that a statutory right of appeal was effective. In this case there had been sufficient information available to the F-tT for it to make a decision (paragraph 15 to 17); 3. the fact that the appellant had an award of DLA of the higher rate mobility component cannot of itself be directly related to the mobilising activity in Schedule 2; more evidence was needed about how her mobility was restricted and at what point it gave rise to significant discomfort or exhaustion (paragraph 18). Editor’s note: this is a companion decision to AH v Secretary of State for Work and Pensions (ESA) [2013] UKUT 118 (AAC); [2013] AACR 32
Decision(s) to Download:	[2013] AACR 33ws.doc