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Neutral Citation Number:	2014 UKUT 352 AAC
Reported Number:
File Number:	CE 3183 2013
Appellant:	VO
Respondent:	Secretary of State for Work and Pensions (ESA)
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	30/07/2014
Date Added:	11/08/2014
Main Category:	Employment and support allowance
Main Subcategory:	Post 28.3.11. WCA activity 16: coping with social engagement
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 6. Employment and support allowance – work capability assessment – whether engagement in social contact precluded In each case the claimant appealed to the First-tier Tribunal (F-tT) against a decision that he was not entitled to employment and support allowance because he did not have limited capability for work. One was found by the F-tT to have limited capability for work but appealed to the Upper Tribunal (UT) on the ground that the F-tT had erred in not finding that engagement in social contact was always precluded due to difficulty relating to others or significant distress experienced by him so as to find he had limited capability for work-related activity under paragraph 13 of Schedule 3 to the Employment and Support Allowance Regulations 2008. The other’s appeal was dismissed because he was found to score only nine points under Schedule 2 to the Regulations but he appealed to the UT on the ground that the F-tT had erred in not awarding him six points under paragraph 16(c) of Schedule 2 on the basis that engagement in social contact with someone unfamiliar to the claimant was not possible for the majority of the time. Their appeals to the UT were heard together by a three-judge panel as there had been a conflict between earlier decisions of the UT: KB v Secretary of State for Work and Pensions (ESA) [2013] UKUT 152 (AAC) and AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 446 (AAC), in the latter of which the judge had said that “social contact … is not the same as contact for business or professional purposes”. Held, allowing one appeal but dismissing the other, that: 1. social engagement involved a degree of reciprocity, give and take, initiation and response that could be demonstrated in commercial dealings or in dealings with medical examiners or the F-tT and therefore not only in the context of pleasure or leisure (see paragraphs 28 to 35); 2. the F-tT had to apply the correct criterion or conceptual test in the right way by reaching conclusions on the evidence, and explaining why the facts led to the decision. The F-tT had to decide whether the claimant had a cognitive impairment or mental disorder, whether there was a causative link between it and the claimant’s difficulty in relating to others and how the nature and quality of the claimant’s communications and behaviour would impact on their ability to work and whether there was an effective barrier to them working (paragraphs 37 to 39); 3. in the first case the F-tT had not sufficiently addressed the quality of contact but in the second case the F-tT had been entitled to reach the conclusion it did by reference to its assessment of the claimant’s evidence to it and the manner in which he gave it (paragraphs 45 and 58). The F-tT’s decision in the first case was set aside and the appeal remitted to a differently constituted panel to re decide in accordance with the UT’s guidance.
Decision(s) to Download:	[2015] AACR 6ws.doc