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Neutral Citation Number: 2012 UKUT 289 AAC
Reported Number:
File Number: CE 2275 2011
Appellant: CD
Respondent: Secretary of State for Work and Pensions
Judge/Commissioner: Judge H. Levenson
Date Of Decision: 14/08/2012
Date Added: 15/10/2012
Main Category: Employment and support allowance
Main Subcategory: Pre 28.3.11. WCA activity 16: initiating and sustaining personal action
Secondary Category: Employment and support allowance
Secondary Subcategory: WRAA Schedule 3 prescribed activities
Notes: Reported as [2013] AACR 12 Work capability assessment – whether a person qualifying for the support group under Schedule 3 to the Employment and Support Allowance Regulations 2008 must inevitably be more severely impaired than one who qualifies under Schedule 2 The claimant, who suffered from depression and diabetes, was receiving employment support allowance (ESA). The benefit was withdrawn following a decision by the Secretary of State that she did not have limited capability for work. The claimant appealed to the First-tier Tribunal (F-tT). It decided that descriptor 16(a) in Schedule 2 was appropriate - the F-tT accepted the claimant needed constant encouragement to start and complete routine daily jobs and so had limited capability for work. Although it had not been asked to consider any of the activities listed under Schedule 3 the F-tT nevertheless stated that in its view none of them applied. On 16 May 2011 the claimant applied for permission to appeal to the Upper Tribunal on the ground that descriptor 10 of Schedule 3 must also apply as it exactly corresponded to descriptor 16(a) of Schedule 2. Permission to appeal was refused by the district tribunal judge on the basis that the Schedule 3 assessment was more stringent and a person could only enter the support group if they had a severe level of functional limitation. He cited, in support of this view, a Ministerial statement, in a parliamentary committee considering the legislation, which referred to the government’s intention that the support group would only be for a minority of severely impaired customers. The claimant renewed her application and a judge of the Upper Tribunal (UT) granted her permission to appeal. The issue before the UT was whether or not a person qualifying under Schedule 3 must inevitably be more severely impaired than one who qualified under Schedule 2. Held, allowing the appeal, that: 1. irrespective of what the Minister told the relevant committee the wording of the legislation and regulations provided no support for the argument that a person qualifying under Schedule 3 must inevitably be more severely impaired than one who qualified under Schedule 2 (paragraphs 21); 2. the only difference between the wording of descriptor 16(a) in Schedule 2 and descriptor 10(a) in Schedule 3 is that 16(a) contained a cause of the inability to carry out the specified tasks (cognitive impairment or a severe disorder of mood or behaviour). Arguably this actually makes 16(a) narrower than 10(a). In any event once the F-tT found that 16(a) applied then it was a necessary consequence that 10(a) applied also (paragraphs 22). The judge substituted his own decision for that of the F-tT and referred the case back to the Secretary of State to consider any questions relating to payment of benefit in the light of his decision.
Decision(s) to Download: CE 2275 2011-00.doc CE 2275 2011-00.doc  
[2013] AACR 12ws.doc [2013] AACR 12ws.doc