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

A sanction for failing to undertake work-related activity can arise under the Employment and Support Allowance (Work-Related Activity) Regulations 2011 only if the activity was imposed as a lawful requirement. A requirement must be reasonable having regard to the claimant’s circumstances.

On an appeal concerning failure to show good cause within five working days, the tribunal must decide the reasonableness of the requirement where that issue arises on the evidence. This is logically prior to the good-cause question. An unreasonable requirement is not a requirement which the claimant can fail to meet for the purposes of the sanction regime.

The five-working-day period for showing good cause cannot be extended. Evidence obtained later may nevertheless be considered if it establishes the claimant’s circumstances at the date of the decision.

The appellant received employment and support allowance and agreed to participate in work-related activity through the Work Programme. She did not attend a mandatory appointment on 17 April 2013. The Secretary of State imposed a benefit reduction after deciding that she had neither undertaken the activity nor shown good cause within five working days.

The First-tier Tribunal dismissed her appeal, principally because her explanation had been provided late. It did not have the appellant’s action plan or other material relevant to her mental health and functioning. The appellant appealed to the Upper Tribunal.

The central issue was whether the requirement to attend the appointment was reasonable having regard to her circumstances, and therefore capable of founding a sanction under the Employment and Support Allowance (Work-Related Activity) Regulations 2011.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside, and the Upper Tribunal remade the decision by allowing the appellant’s appeal and setting aside the Secretary of State’s sanction decision.

2. Under regulation 3(4)(a) of the Employment and Support Allowance (Work-Related Activity) Regulations 2011, a work-related activity requirement must be reasonable in the Secretary of State’s view, having regard to the individual claimant’s circumstances. Regulation 8 applies only to a person who is required to undertake such activity. A requirement that fails regulation 3(4)(a) is not a lawful requirement and cannot be failed for regulation 8 purposes.

3. Accordingly, in an appeal against a regulation 8 decision, the First-tier Tribunal must determine whether the particular requirement was reasonable whenever that issue arises. It is a logically prior question to whether the claimant showed good cause within five working days. The tribunal may consider later evidence insofar as it establishes the claimant’s circumstances at the date of the decision under appeal.

4. On the evidence which was, and should have been, before the tribunal, an issue arose as to the reasonableness of requiring this appellant to attend on 17 April 2013. The omitted action plan and health-related information were relevant. The tribunal’s failure to address the issue was material.

5. The Upper Tribunal was satisfied that, in light of the appellant’s mental state and family circumstances between 25 March and 17 April 2013, the attendance requirement was unreasonable. No sanction was therefore applicable. Although the five-working-day period for showing good cause cannot be extended, that conclusion did not determine the appeal.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision, and remade the decision in the appellant’s favour under section 12 of the Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal: Sitting at Peterborough on 24 January 2014, dismissed the appeal against the employment and support allowance sanction.
• Secretary of State: On 28 May 2013 superseded the award and reduced the appellant’s employment and support allowance following the alleged failure to undertake work-related activity.