AB v The Secretary of State for Work and Pensions (ESA)

For descriptor 15(c) in Schedule 2 to the Employment and Support Allowance Regulations 2008, whether a claimant travels without being accompanied depends on the claimant’s particular mental, cognitive or intellectual difficulties. A taxi journey may be accompanied where the driver’s presence or assistance is essential or significantly contributes to the claimant’s ability to reach an unfamiliar place. A tribunal must not simply treat travel by taxi as unaccompanied.

An error concerning that descriptor may be material even where the resulting points would not reach the qualifying threshold. The tribunal must consider whether the relevant difficulties could create the risk addressed by regulation 29(2)(b), including on a journey to an unfamiliar hypothetical workplace and the availability of third-party accompaniment.

The claimant had received incapacity benefit and was assessed for employment and support allowance during the conversion phase. Following a medical examination, the Secretary of State decided that he scored no points under Schedule 2 to the Employment and Support Allowance Regulations 2008 and did not meet regulation 29.

The First-tier Tribunal dismissed his appeal on 3 June 2015. It found that he could travel by taxi to an unfamiliar place and therefore could not satisfy descriptor 15(c). The claimant appealed to the Upper Tribunal. The central issue was whether travel in a taxi was necessarily a journey made without another person’s accompaniment for the purposes of descriptor 15(c).

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 and remitted for a complete rehearing before a differently constituted tribunal.

2. Descriptor 15(c) asks whether the claimant is unable, because of mental, cognitive or intellectual difficulties, to get to an unfamiliar specified place without another person. The inquiry must be made from the perspective of the particular claimant and those difficulties. A dictionary-based characterisation of the taxi driver’s commercial relationship with the passenger does not resolve it.

3. A taxi journey is accompanied where the driver’s presence or assistance is essential or makes a significant contribution to the claimant’s ability to complete it. That may occur where the driver’s presence reassures an anxious claimant, navigates for a claimant liable to become lost, or enables a claimant to avoid crowds or open spaces which the claimant cannot face. Conversely, a mere preference for travelling by taxi does not establish accompaniment.

4. The First-tier Tribunal erred by assuming that travel by taxi was unaccompanied without investigating whether the driver was essential or important to the claimant’s ability to reach an unfamiliar place. Although descriptor 15(c) would produce only six points, the error could affect the separate assessment under regulation 29(2)(b). Following EJ v Secretary of State for Work and Pensions (ESA) [2014] UKUT 511 (AAC), the tribunal might have had to consider risk on a journey to an unfamiliar hypothetical workplace and evidence of available third-party accompaniment.

5. The rehearing must determine entitlement from 18 February 2015. It must disregard later circumstances, though later evidence may be used if it relates to that date.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed. The First-tier Tribunal’s decision was set aside and the case remitted for rehearing.
• First-tier Tribunal: dismissed the claimant’s appeal on 3 June 2015, finding no Schedule 2 points and no satisfaction of regulation 29 of the Employment and Support Allowance Regulations 2008.
• Secretary of State: decided on 2 February 2015 that the claimant was not entitled to employment and support allowance. Mandatory reconsideration did not alter that decision.