WT v SSWP (ESA)

For the Work Capability Assessment mobility activity, “other aid” is confined by the express reference to a walking stick and a manual wheelchair. The permissible aids are those which assist mobility while requiring the claimant to supply the energy for movement. A powered wheelchair relies on an external power source and therefore cannot be taken into account when assessing a claimant’s ability to mobilise.

This construction gives effect to the deliberate specification of a manual wheelchair, the shared characteristic of the listed aids, and the distinct legislative treatment of aids in the mobility activity and in the general assessment rule.

The claimant appealed against a First-tier Tribunal decision dismissing his appeal concerning employment and support allowance. The tribunal had assessed his ability to mobilise on the basis that he could reasonably be expected to use a powered wheelchair.

The Upper Tribunal considered whether a powered wheelchair could be an “other aid” within the mobilising activity in Schedule 2 to the ESA Regulations 2008. The Secretary of State ultimately supported the claimant’s construction. The central issue was whether use of a powered wheelchair could lawfully be taken into account in the Work Capability Assessment.

1. Appeal allowed. The First-tier Tribunal made an error of law by treating a powered wheelchair as an aid which could be taken into account in the Work Capability Assessment mobility activity. Its decision was set aside and the case was remitted for a complete rehearing.

2. Under section 8 of the Welfare Reform Act 2007 and regulation 19 of the ESA Regulations 2008, the assessment concerns capability to perform prescribed activities. Regulation 19(4) generally requires account to be taken of aids or appliances normally used or reasonably expected to be used. However, Schedule 2 itself defines the mobilising activity by reference to mobility with or without a walking stick, manual wheelchair or other aid.

3. That wording confines “other aid”. The express inclusion of a manual wheelchair, and no other wheelchair, showed a deliberate legislative choice. A manual wheelchair and walking stick share a sufficient common characteristic: each requires the individual to provide all energy for movement, without an external power source. By the ejusdem generis principle, other aids must share that characteristic.

4. The listed aids were not merely illustrative. Parliament could have used express non-limiting language, as it did elsewhere in the assessment provisions, or could have relied solely on the general rule in regulation 19(4). The resulting inquiry was straightforward: an aid qualifies only if it enables mobility while the claimant moves under their own power, and is normally used or reasonably usable.

5. A powered wheelchair therefore falls outside “other aid”. The rehearing tribunal was directed to determine the appeal by reference to circumstances obtaining when the Secretary of State made the decision and without relying on the set-aside tribunal’s findings or reasons.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision for error of law under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and remitted the case for rehearing.
• First-tier Tribunal: on 6 October 2015 at Newcastle, dismissed the claimant’s appeal after assessing mobility on the basis that he could reasonably be expected to use a powered wheelchair.