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

For a claimant issued with the pre-amendment ESA50 questionnaire, the saving in regulation 2(2) of the Employment and Support Allowance (Amendment) Regulations 2012 requires Schedule 2 to the Employment and Support Allowance Regulations 2008 to operate as it did before commencement. That preserves the former position that Part 2 descriptors were not confined to incapability arising from a mental illness or disablement.

A tribunal therefore errs if it rejects Part 2 descriptors solely because the claimant has no mental health condition. Where that error may be material and the evidential record is incomplete, the proper course is to set aside the decision and remit for a complete rehearing.

The claimant was transferred from incapacity benefit to employment and support allowance. She completed the pre-amendment ESA50 questionnaire in December 2012. A decision-maker awarded no points, and the First-tier Tribunal awarded nine points for a physical descriptor but dismissed her appeal because she did not meet the threshold and regulation 29 did not apply.

The First-tier Tribunal rejected all Part 2 descriptors on the basis that the claimant had no mental health problems. On appeal, the central issue was whether the transitional saving in the Employment and Support Allowance (Amendment) Regulations 2012 preserved the pre-2013 position for a claimant issued with the old questionnaire, despite the amendment to regulation 19(5) having been made by a different regulation.

1. Appeal allowed. The First-tier Tribunal made a material error of law by treating a mental health condition as necessary for every Part 2 descriptor.

2. Regulation 2(2) of the Employment and Support Allowance (Amendment) Regulations 2012 disapplied regulation 5 for a person issued with the old questionnaire and required Schedule 2 to the Employment and Support Allowance Regulations 2008 to continue to apply as it had effect immediately before commencement. The phrase concerned the manner in which Schedule 2 operated, not merely its textual wording.

3. Schedule 2 had effect through regulation 19. The pre-amendment regulation 19(5) did not divide descriptors into physical and mental categories. The amendment which introduced that division was made by regulation 3, but the saving nevertheless preserved the former operation of Schedule 2 for the relevant transitional claimant. The Secretary of State did not show why the analysis adopted in FR v SSWP [2015] UKUT 0175 was wrong.

4. The error could not safely be held immaterial. The Upper Tribunal lacked a complete documentary bundle and a record of the claimant’s oral evidence, so it could not fairly remake the decision.

5. The First-tier Tribunal decision was set aside and remitted to a differently constituted tribunal for a complete rehearing. The rehearing tribunal must decide entitlement by reference to circumstances at the date of the decision under appeal. It may use later evidence or events only to draw inferences about those earlier circumstances.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, and remitted the case for a complete rehearing.

• First-tier Tribunal (Social Entitlement Chamber), Enfield: On 11 March 2015, awarded the claimant nine points under descriptor 4(b), found that regulation 29 did not apply, and dismissed the appeal.