PH v Secretary of State for Work and Pensions (ESA)

Regulation 23(2) of the Employment and Support Allowance Regulations 2008 imposes distinct requirements to attend for, and to submit to, a medical examination. A tribunal must apply those statutory terms rather than an unqualified test of whether the claimant participated in an examination.

A claimant may fail to submit where conduct, including conduct outside the examination room, unreasonably prevents the examination from serving its purpose. However, once the examining body has abandoned or cancelled the examination, subsequent conduct cannot amount to a failure to submit. The decision-maker must assess whether the claimant's earlier conduct can properly be attributed as the reason for the cancellation.

The claimant received Employment and Support Allowance and attended an assessment centre for a medical examination. He requested that the examination be audio-recorded. A dispute arose over his completion of the recording agreement, and staff offered to arrange a fresh examination. He did not agree a new date immediately because he did not have his diary.

The Secretary of State treated him as not having limited capability for work under regulation 23(2). The First-tier Tribunal dismissed his appeal, holding that he had failed without good cause to participate in an examination. It treated his later conduct at the assessment centre as part of an ongoing examination.

The Upper Tribunal considered whether the First-tier Tribunal had applied the statutory test and whether the claimant had failed to submit to a medical examination.

1. Appeal allowed. The First-tier Tribunal's decision involved an error of law and was set aside. It gave no adequate reasons for its strained conclusion that the examination remained ongoing after the claimant had left the examination room and returned to the waiting area.

2. The tribunal also applied the wrong legal test. Regulation 23(2) distinguishes a failure to attend for an examination from a failure to submit to one. The statutory language does not impose a general requirement to participate. In this case the claimant had attended, so the material question was whether he had failed to submit.

3. To submit to an examination is to co-operate with the examination process so that its purpose is not thwarted. Relevant conduct is not confined to the examination room. Disruptive conduct elsewhere at an assessment centre may amount to a failure to submit if it is designed to prevent the examination from proceeding.

4. However, after the decision has been made not to proceed with, or to abandon, an examination, there is no examination left to which the claimant can submit. The remaining question is whether the abandonment can properly be attributed to the claimant's earlier unreasonable conduct, assessed in light of the examination's purpose.

5. On the undisputed facts, the examination never began. Staff abandoned or cancelled it after the claimant chose the offered option of rebooking. Their willingness to arrange another appointment showed that his refusal to complete the recording agreement as required that day was not regarded as unreasonable. His later conduct was therefore irrelevant to whether he had failed to submit.

6. The Upper Tribunal remade the decision: the claimant had not failed to submit to a medical examination, and regulation 23(2) did not deem him not to have limited capability for work. The Secretary of State's decision was set aside.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the claimant's appeal, set aside the First-tier Tribunal's decision for error of law, and remade the decision.

• First-tier Tribunal: Dismissed the claimant's appeal against the Secretary of State's decision under regulation 23(2) of the Employment and Support Allowance Regulations 2008.