SB v Secretary of State for Work and Pensions

A claimant may fail to submit to a work capability examination even if they join the appointment. The requirement entails meaningful co-operation sufficient to enable the health care professional to perform the examination. Repeated answers that prevent the collection of necessary information may thwart its purpose.

However, adverse consequences for non-compliance require clear and unambiguous notice of both the obligation and the relevant consequence. A notice warning only that failure to attend may stop benefit does not adequately warn that a failure meaningfully to participate, despite attendance, may lead to disallowance under Employment and Support Allowance Regulations 2008.

The appellant received Employment and Support Allowance and was required to undertake a telephone Work Capability Assessment. He joined the call but repeatedly answered that his circumstances had not changed. The health care professional ended the assessment and the Secretary of State disallowed the award from 29 June 2021.

The First-tier Tribunal dismissed his appeal. It found that he had not submitted to the examination because he had not participated meaningfully, and that he lacked good cause. On appeal, the Upper Tribunal considered whether his conduct amounted to a failure to submit to an examination and whether the Department for Work and Pensions had given a sufficiently clear warning of the obligation and consequences of non-compliance.

1. Appeal allowed. The First-tier Tribunal erred in law. Its decision was set aside and remade so that the Secretary of State’s decision disallowing Employment and Support Allowance from 29 June 2021 was also set aside.
2. Under regulation 23(2) of the Employment and Support Allowance Regulations 2008, a claimant who does not co-operate with an examination so as to thwart its purpose fails to submit to it. Meaningful participation is required. The First-tier Tribunal was entitled on its findings to conclude that the appellant’s repeated, non-responsive answers prevented a meaningful assessment. Its conclusion on that issue was adequately reasoned.
3. That finding did not justify disallowance. The notification letter gave a clear warning about failing to attend, but did not clearly state that failure to submit to, or meaningfully participate in, an examination could end entitlement. The verbal warnings were also insufficiently clear. They said that the assessment could not be completed and would be returned to the Department, but did not clearly explain the consequence for entitlement.
4. The requirement identified in PPE v Secretary of State for Work and Pensions (ESA) [2020] UKUT 59 (AAC) applies strictly. Before imposing adverse consequences for breach of such an obligation, the Secretary of State must state in clear and unambiguous mandatory terms what the claimant must do and what follows from failure to do it. In the absence of that warning, the disallowance could not stand.

In obiter, the judge observed that the First-tier Tribunal may also have been improperly constituted, although it was unnecessary to determine that issue because the appeal succeeded on the notice ground.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal decision was set aside and remade under Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal (Social Entitlement Chamber), Leeds: decision dated 25 October 2023. The tribunal had dismissed the appellant’s appeal and confirmed the disallowance of Employment and Support Allowance.