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

For the purposes of regulation 35(2) of the Employment and Support Allowance Regulations 2008, the First-tier Tribunal must assess the substantial risk to health by considering both the claimant’s circumstances and the work-related activities which may realistically be required. The Secretary of State should provide information about the range of such activities available at the relevant time.

A risk is substantial where, having regard to the nature and gravity of the feared harm, it cannot sensibly be ignored. The fact that some safe activity may exist does not alone answer the statutory question. Judicial refusals must also be communicated openly, with sufficient indication that a judge made the decision, who made it, and why.

The claimant’s employment and support allowance was terminated on 19 October 2012 after a work capability assessment found that he did not have limited capability for work. On appeal, the First-tier Tribunal found that regulation 29 applied, but found neither a Schedule 3 descriptor nor regulation 35(2) applicable. It gave no statement of reasons.

The claimant later sought to challenge the decision after being required to attend a work-related interview. The Upper Tribunal granted permission out of time. The Secretary of State accepted that the regulation 35 issue required reconsideration because the First-tier Tribunal had not received information about the work-related activities the claimant might have been required to undertake.

The central issue was whether the claimant might have had limited capability for work-related activity under Schedule 3 or regulation 35(2).

1. Appeal allowed. The Upper Tribunal set aside the part of the First-tier Tribunal’s decision concerning Schedule 3 and regulation 35(2), and remitted those issues to a differently constituted First-tier Tribunal. It preserved the finding that the claimant had limited capability for work under regulation 29, since the Secretary of State implicitly accepted that conclusion.

2. Under regulation 35(2), the tribunal must decide as a factual matter whether finding the claimant not to have limited capability for work-related activity would create a substantial risk to the mental or physical health of any person, including the claimant. It must consider the claimant’s condition and personal circumstances alongside the likely work-related activities that could be required.

3. Following IM v SSWP [2014] UKUT 412 (AAC), the Secretary of State must provide information about the range of relevant work-related activities available locally at the material time. If that information is unavailable, the tribunal must consider the consequences of uncertainty. The existence of one activity which could safely be undertaken does not by itself resolve the statutory question.

4. The Upper Tribunal also gave obiter procedural guidance. A judicial refusal should not be communicated merely through an anonymous administrative summary. Save for urgency, it should be recorded in an order or direction approved by the judge, identifying the judicial decision-maker and giving at least brief reasons. That transparency is required by natural justice.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the decision on Schedule 3 and regulation 35(2), and remitted those issues for rehearing.

• First-tier Tribunal (Social Entitlement Chamber): found that regulation 29 of the Employment and Support Allowance Regulations 2008 applied, but found that no Schedule 3 descriptor and no regulation 35(2) ground applied.