IU v Secretary of State for Work and Pensions

Activity 8 in Schedule 6 to the Universal Credit Regulations 2013 is a single composite activity: navigating while maintaining safety. The word “and” does not create two separate activities. Each descriptor must therefore be assessed by asking whether the claimant can perform the relevant navigation safely and unaccompanied, where the descriptor so requires. Safety is integral to descriptors 8(a), 8(b) and 8(c), even though the word “safely” appears expressly only in descriptor 8(b). The decision does not establish a general requirement that every activity and descriptor in Schedule 6 must be performed safely.

The appellant challenged a First-tier Tribunal decision dated 10 October 2023, which dismissed his appeal against a determination that he did not have limited capability for work. The appeal concerned the effect of hearing loss on the activity 8 descriptors in Schedule 6 to the Universal Credit Regulations 2013, particularly whether safety was relevant only to descriptor 8(b), or also to navigation under descriptors 8(a) and 8(c).

The Upper Tribunal also considered the adequacy of the First-tier Tribunal’s reasoning concerning activity 8 and paragraph 9(4) of Schedule 8. The central issue was the proper construction of “navigation and maintaining safety”.

1. Appeal allowed. The First-tier Tribunal’s decision was erroneous in law because it did not adequately explain why the appellant failed to satisfy the activity 8 descriptors or paragraph 9(4) of Schedule 8. The decision was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.
2. Activity 8 in Schedule 6 to the Universal Credit Regulations 2013 concerns one composite activity, namely navigation together with maintaining safety. Its descriptors form a descending series of thresholds measuring capability to perform that activity. Treating safety as relevant only to descriptor 8(b) would make that descriptor a more significant limitation than descriptor 8(a) and would divide the activity into separate capability spectrums.
3. The conjunction “and”, the statutory structure and the need to give “maintaining safety” rational content support reading activity 8 as requiring safe navigation. A claimant cannot properly be regarded as able to navigate familiar or unfamiliar surroundings unaccompanied if, because of sensory impairment, the claimant cannot do so safely. Descriptor 8(b) is not confined to crossing the road; that example is illustrative of a potentially hazardous task.
4. The court confined its decision to the wording of activity 8. It expressly declined to decide whether “safely” is an overarching requirement applicable to all activities and descriptors in Schedule 6 or Schedule 7, because that issue was unnecessary to dispose of the appeal and could have far-reaching consequences.
5. The appeal was remitted to an entirely differently constituted First-tier Tribunal for an oral rehearing. The Upper Tribunal refused the appellant’s request that it redecide the factual issues itself, since the First-tier Tribunal was the specialist tribunal for finding facts and applying the law.

• Upper Tribunal (Administrative Appeals Chamber): the appeal from the First-tier Tribunal decision dated 10 October 2023 was allowed. The decision was set aside and the appeal was remitted to an entirely differently constituted First-tier Tribunal for an oral rehearing.