CM v SSWP (ESA)

Under activity 7 in Schedule 3 to the ESA Regulations, a claimant may satisfy the communication descriptor through the requisite impairment of either hearing or sight. The claimant need not be unable to understand a simple message by both verbal and non-verbal means.

The amended wording introduced by the Employment and Support Allowance (Amendment) Regulations 2012/3096 is to be read consistently with that continuing policy. A claimant unable to understand a simple message by non-verbal means because of sensory impairment meets the descriptor even if able to understand a spoken message.

The claimant, who was partially sighted but had no hearing difficulty, had previously received employment and support allowance in the support group. Following reassessment, the Secretary of State decided that she had limited capability for work but not limited capability for work-related activity.

The First-tier Tribunal at Cardiff upheld that position. It considered that the claimant could understand a simple spoken message and therefore did not meet activity 7 in Schedule 3 to the ESA Regulations. The claimant appealed on the proper construction of the communication descriptor as amended by the Employment and Support Allowance (Amendment) Regulations 2012/3096.

1. Appeal allowed. The First-tier Tribunal made an error of law. Its decision was set aside and the Upper Tribunal remade the decision, allowing the claimant's appeal against the Secretary of State's decision.

2. Upper Tribunal Judge Ward adopted the reasoning in AT and VC v SSWP (ESA) [2015] UKUT 0445(AAC) concerning the version of activity 7 introduced by the 2012 Regulations. The legislative intention had remained constant: the requisite degree of impairment of either hearing or sight was sufficient. The wording did not require impairment of both faculties.

3. Accordingly, Schedule 3 activity 7 applied where a claimant could not understand a simple message by either verbal means or non-verbal means, using appropriate aids without another person's assistance. The claimant's ability to understand a spoken message did not prevent her satisfying the descriptor through inability to understand a message by non-verbal means.

4. The unchallenged optometrist evidence established that the claimant could not read 16-point type. She therefore met limb (ii) of activity 7 in Schedule 3 and the corresponding descriptor. She had limited capability for work-related activity and was to be placed in the support group.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal's decision for error of law, and remade it in the claimant's favour.
• First-tier Tribunal, Cardiff: On 18 May 2015, held that the claimant did not satisfy the relevant Schedule 3 communication descriptor.
• Secretary of State: On 8 September 2014, decided that the claimant had limited capability for work but not limited capability for work-related activity.