DJ v SSWP (ESA)

Under the pre-28 January 2013 form of the Employment and Support Allowance Regulations 2008, a claimant who cannot mount or descend two steps without another person’s active verbal reassurance, encouragement or cajoling may be unable to do so “unaided by another person”. The expression is not confined to physical assistance. Passive presence, merely standing by in case intervention becomes necessary, is not aid.

The limited capability for work assessment then permitted incapability under Part 1 of Schedule 2 to arise from either physical or mental disablement unless the particular activity or descriptor excluded that cause. A tribunal must give adequate reasons when evidence raises the shorter-distance repeated-mobilising descriptors or the continence “at risk” descriptor.

The appellant was refused employment and support allowance by a Secretary of State’s decision dated 24 August 2012. He received six points for mobilising 200 metres. The First-tier Tribunal upheld that decision without a hearing.

On appeal, the appellant contended that the tribunal had inadequately addressed repeated mobilising over shorter distances, his ability to use two steps, and bowel-control evidence relevant to the continence descriptor. The central issue was whether, under the pre-amendment scheme, “unaided by another person” in descriptor 1(b) of Schedule 2 meant without physical assistance only.

1. Appeal allowed. The First-tier Tribunal made material errors of law. Its decision was set aside and the appeal was remitted for a fresh oral hearing before a differently constituted tribunal.

2. The tribunal’s reasons for awarding only six points under activity 1 were inadequate. Ability to mobilise a longer distance in one go does not necessarily answer whether a claimant can repeatedly mobilise a shorter distance within a reasonable timescale. Walking around a flat and walking for one minute did not adequately explain findings on the 50-metre and 100-metre repeated-mobilising descriptors.

3. The tribunal also failed to address evidence capable of raising descriptor 9(b), the continence “at risk” descriptor. Its acceptance of diarrhoea without loss of control did not explain why the appellant’s evidence about soiling and changing clothes was rejected.

4. In the relevant form of descriptor 1(b) in Schedule 2 to the Employment and Support Allowance Regulations 2008, “unaided by another person” was not limited to physical aid. It could include active verbal reassurance or cajoling which enabled a claimant, because of a mental disablement, to overcome acute anxiety and use the steps. The statutory wording elsewhere expressly referred to physical assistance where that limitation was intended. This construction was consistent with regulation 19(5), which then allowed incapability under Part 1 to arise from either bodily or mental disablement.

5. However, aid requires active help. A person merely standing by, ready to intervene if necessary but doing or saying nothing, does not provide aid for descriptor 1(b).

6. The new tribunal must make findings on the evidence available as to whether, by reason of physical or mental disablement, the appellant could mount or descend two steps unaided. Success on the error-of-law appeal did not determine the factual entitlement to benefit.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for material errors of law, and remitted the case for a fresh oral hearing.
• First-tier Tribunal: On 22 August 2013, upheld the Secretary of State’s 24 August 2012 decision that the appellant did not have limited capability for work.