Shaun Gleeson v Secretary of State for Work and Pensions

When assessing activity 1 (mobilising), a tribunal must apply the statutory descriptors by deciding whether the claimant can mobilise the specified distance without stopping to avoid significant discomfort or exhaustion, and whether that distance can be repeated. A finding that walking causes some pain, together with the observation that claimants need not mobilise pain-free, does not answer that test. The tribunal must make findings about the need to stop, the distance possible before stopping and repeatability. Failure to make those findings is an error of law where it could affect entitlement.

The claimant, who had received Employment and Support Allowance, appealed against the Secretary of State’s decision that he did not have limited capability for work. The First-tier Tribunal awarded him 9 points for activity 2, concerning standing and sitting, but no points for activity 1, mobilising, and confirmed that he was not entitled to the benefit. It accepted that walking could cause him some pain and slow his pace, but considered that he was not expected to mobilise pain-free.

After the First-tier Tribunal refused permission to appeal, the Upper Tribunal granted permission. The Secretary of State supported the appeal. The issue was whether the First-tier Tribunal had applied the mobilising descriptors correctly and made adequate findings about stopping to avoid significant discomfort or exhaustion.

1. The appeal was allowed. The First-tier Tribunal’s decision involved a material error of law and was set aside.

2. Activity 1 in Schedule 2 to the Employment and Support Allowance Regulations 2008 concerns the distance a claimant can mobilise without stopping in order to avoid significant discomfort or exhaustion. The First-tier Tribunal accepted that walking sometimes caused the claimant pain and made him walk more slowly. Its observation that claimants were not expected to mobilise pain-free did not resolve the descriptor test. It needed to find whether, and how often, the claimant needed to stop to avoid significant discomfort or exhaustion; how far he could walk before needing to stop; and whether he could repeat that distance. It had to apply the descriptors faithfully (paras [16]–[17]).

3. The error was material. The claimant already had 9 points under activity 2, so any points under activity 1 would have brought him to the 15-point threshold for limited capability for work (para [18]).

4. The decision was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The appeal was remitted because further facts needed to be found and the First-tier Tribunal was the appropriate forum for that task (paras [19]–[20]).

5. The rehearing must be oral and before a differently constituted panel. The First-tier Tribunal must reconsider the issues raised, subject to its discretion under section 12(8)(a) of the Social Security Act 1998. It must assess the claimant’s circumstances as at the date of the Secretary of State’s decision; later evidence is admissible if it relates to that date. Any other errors in the original decision are subsumed by the rehearing.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision and remitted the appeal for rehearing before a differently constituted panel.
• First-tier Tribunal (Social Entitlement Chamber): On 27 February 2025, awarded 9 points for activity 2 but no points for activity 1, and confirmed the decision that the claimant was not entitled to Employment and Support Allowance.