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

Where there is a serious argument that a claimant’s exclusion from the employment and support allowance support group would create a substantial health risk, the Secretary of State must provide sufficiently particular information about available work-related activity and what it would be reasonable to require of that claimant. General assurances are inadequate, especially for a vulnerable claimant.

Under regulation 35(2) of the Employment and Support Allowance Regulations 2008, the tribunal must make a predictive, individual assessment of whether the risk would be substantial. The inquiry is not confined to self-harm. A risk cannot sensibly be ignored when account is taken of the nature and gravity of the feared harm.

The claimant appealed against a First-tier Tribunal decision which had upheld the Secretary of State’s decision of 5 March 2013 to leave him in the work-related activity group for employment and support allowance.

He had longstanding anxiety and depression. The healthcare professional found significant limitations in travelling alone to familiar places and in social contact with unfamiliar people. Following an earlier remittal, the Secretary of State did not comply with a direction to identify the work-related activity that might have been required locally and the activities which would have been reasonable for the claimant.

The central issues were whether that failure breached the approach in IM v Secretary of State for Work and Pensions [2014] UKUT 412 (AAC), and whether regulation 35(2) required the claimant to be treated as having limited capability for work-related activity.

1. Appeal allowed. The First-tier Tribunal erred in law and its decision was set aside. The Upper Tribunal remade the decision rather than ordering a further remittal, given the lengthy history, the lost evidence, the available papers, and the parties’ invitations to determine the matter on that basis.

2. Following IM v Secretary of State for Work and Pensions [2014] UKUT 412 (AAC), regulation 35(2) generally requires an individual prediction of the consequences of finding a claimant not to have limited capability for work-related activity. Where there is a serious regulation 35 argument, the Secretary of State must provide evidence of locally available work-related activity, identify what the claimant might be required to undertake, and address what would be reasonable to require. The unparticularised assurances supplied here did not meet that obligation. The claimant’s mental-health vulnerability made the deficiency material.

3. The tribunal’s assessment under regulation 35(2) is a forward-looking balancing exercise. The statutory question is whether there would be a substantial risk to the mental or physical health of any person; it is not confined to a risk of self-harm. On the evidence, the claimant’s chronic and deteriorating anxiety, maximum-dose antidepressant medication, distress, limitations in travelling and socialising, and the connection between benefit-related demands and deterioration established a substantial risk if he were required to undertake the identified activities.

4. The statutory requirement that work-related activity be reasonable did not remove that risk. Reliance on safeguards was unsafe without evidence that relevant limitations would reach providers. Nor could the tribunal assume that the claimant’s wife could accompany him: third-party mitigation required findings about its availability, and accompaniment would not necessarily resolve the risk arising from contact with unfamiliar people.

5. The Secretary of State’s decision was set aside. The claimant was entitled to the support group from 17 December 2012.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for legal error, and substituted a decision placing the claimant in the support group.

• First-tier Tribunal, Manchester: On 31 March 2015, after a prior remittal, upheld the Secretary of State’s decision not to place the claimant in the support group.

• Earlier proceedings: The appeal from the Secretary of State’s decision of 5 March 2013 was first dismissed by a tribunal on 3 October 2013. The matter was subsequently remitted to the First-tier Tribunal by the Upper Tribunal on 2 February 2015.