Introduction

The case of KC and MC v. Secretary of State for Work and Pensions (ESA) (Employment and Support Allowance - Regulation 35) ([2017] UKUT 94 (AAC)) represents a significant development in the application of Regulation 35(2) of the Employment and Support Allowance Regulations 2008 (“ESA Regs”). This judgment, delivered by Upper Tribunal Judge Wright in the Administrative Appeals Chamber, addressed critical issues regarding the assessment of a claimant's limited capability for work-related activity (LCWRA) and the administration of the Jobcentre Plus Offer.

The appellants, KC and MC, challenged the Secretary of State's decisions that determined their eligibility for contributory ESA based on their assessed capabilities. KC, residing in Spain, and MC, residing in Newcastle, both argued that the decisions erroneously failed to consider the substantial risks associated with not recognizing their limited capability for work-related activity.

Summary of the Judgment

The Upper Tribunal found that both the First-tier Tribunals (FTTs) had made errors on material points of law by inadequately applying Regulation 35(2) of the ESA Regs. Specifically, the FTTs failed to properly assess the risks associated with requiring the appellants to engage in work-related activities, particularly under the Jobcentre Plus Offer.

For KC, the Upper Tribunal allowed her appeal, set aside the FTT's decision, and remitted the case to be reheard by a newly constituted FTT with specific directions to ensure compliance with Regulation 35(2). In MC's case, the Upper Tribunal allowed his appeal and held that he indeed had limited capability for work-related activity, therefore placing him in the support group of ESA with retroactive effect.

Analysis

Precedents Cited

The Judgment extensively referenced previous cases, notably IM v. Secretary of State for Work and Pensions [2014] UKUT 412 (AAC) and BB v. Secretary of State for Work and Pensions [2015] UKUT 545 (AAC). These cases established the necessity for comprehensive risk assessments under Regulation 35(2), emphasizing that decision-makers must consider the range of work-related activities available and their potential impact on a claimant's health.

The court also referenced NS v. Secretary of State for Work and Pensions [2014] UKUT 149 (AAC) and KB v. Secretary of State for Work and Pensions [2015] UKUT 179 (AAC), reinforcing the principles laid out in IM regarding risk assessments and the provision of appropriate information to tribunals.

Legal Reasoning

The core of the Tribunal's reasoning rested on the proper application of Regulation 35(2), which serves as a safety net to protect vulnerable claimants from being wrongly assessed as capable of work-related activities that could pose substantial risks to their health or the health of others. The Tribunal critiqued the Secretary of State for failing to provide detailed evidence of the range of work-related activities available to KC and MC, undermining the ability of the FTTs to make informed decisions.

The court emphasized that the Jobcentre Plus Offer must include a clear delineation of the most and least demanding work-related activities available in the claimant's area. Without this information, the FTTs could not adequately assess whether requiring the appellant to engage in specific activities would present a substantial risk, as mandated by Regulation 35(2).

Additionally, the Tribunal highlighted systemic issues within the Department for Work and Pensions (DWP), such as the lack of "joined-up" decision-making processes and inadequate training for decision-makers regarding the Jobcentre Plus Offer. These deficiencies contributed to the erroneous assessments made by the FTTs.

Impact

This Judgment sets a crucial precedent for the assessment of LCWRA under the ESA Regs. It mandates that:

• Decision-makers must provide detailed information on the range of work-related activities available to a claimant.
• The most and least demanding activities must be clearly identified to facilitate accurate risk assessments.
• The administration of the Jobcentre Plus Offer must be reformed to ensure comprehensive and consistent application across different regions and cases.

Future cases will likely reference this Judgment to ensure that tribunals receive adequate information for fair and legally compliant decision-making, thereby strengthening the protections for vulnerable ESA claimants.

Complex Concepts Simplified

Regulation 35(2) of the ESA Regs

Regulation 35(2) serves as a protective measure to determine if a claimant who is not limited in their capability for work should still be treated as having limited capability for work-related activities. This is necessary if engaging in such activities would pose a substantial risk to their health or the health of others.

Jobcentre Plus Offer

The Jobcentre Plus Offer comprises a range of work-related activities and support services designed to help claimants return to work. It includes mandatory interventions, flexible support tailored to individual needs, and access to various back-to-work programs. Proper administration of this offer is essential to ensure that it aligns with the claimant's capabilities and limitations.

Limited Capability for Work-Related Activity (LCWRA)

LCWRA refers to a claimant's inability to engage in work-related activities without risking significant harm to their health or the health of others. This designation affects the type and amount of ESA benefits received.

Conclusion

The KC and MC v. Secretary of State for Work and Pensions Judgment underscores the critical importance of meticulous application of Regulation 35(2) within the ESA framework. By highlighting systemic deficiencies in the provision of information and the administration of the Jobcentre Plus Offer, the Tribunal has set a precedent that ensures the protection of vulnerable claimants from inappropriate work-related activity assessments.

This decision not only mandates procedural reforms within the DWP but also reinforces the necessity for tribunals to receive comprehensive and precise information to make informed decisions. As a result, it enhances the fairness and accuracy of ESA assessments, thereby safeguarding the well-being of claimants reliant on these benefits.

Moving forward, ESA decision-makers must adhere to the standards set by this Judgment to ensure compliance with legal obligations and to promote equitable treatment of all claimants under the ESA scheme.