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JK v Secretary of State (Employment and support allowance : Regulation 29)
Factual and Procedural Background
The Appellant appealed against the decision of the First-tier Tribunal (FtT) made on 31 July 2013, which had confirmed the Secretary of State's decision dated 9 October 2012. The Secretary of State's decision found that the Appellant did not satisfy any points scoring descriptors under the relevant regulations and determined that there was no substantial risk to health if the Appellant was found not to have limited capability for work. The appeal to the Upper Tribunal concerned the application of regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008.
Legal Issues Presented
- Whether the First-tier Tribunal erred in law by failing to specify the type or range of work the Appellant could perform under regulation 29(2)(b).
- Whether the tribunal’s findings satisfied the statutory obligation to assess the risk to health posed by the Appellant working, including consideration of the nature of work he could perform.
Arguments of the Parties
Appellant's Arguments
- The tribunal erred in law by not specifying, in terms of regulation 29, the type of work the Appellant could perform given his limitations.
- There was no finding that would allow consideration of what employment could be possible on a full or part-time basis.
- The Appellant’s representative suggested that exceptional circumstances might apply, warranting further findings.
Secretary of State's Arguments
- The appeal was supported on the basis that further factual findings were necessary regarding the application of regulation 29.
- The FtT failed to explore the type of work the Appellant could reasonably be expected to do, considering his background, qualifications, and health condition, referencing the test established in Charlton v SSWP.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R(IB) 2/09 (Charlton v SSWP) | Established the correct approach to regulation 27(b) of the Incapacity for Work Regulations, requiring assessment of health risks in the context of the type of work a claimant might perform. | The court applied the principles from Charlton, noting that the tribunal was not required to make detailed findings of specific types of work, only to assess whether a substantial health risk existed from the claimant working in general terms. |
Court's Reasoning and Analysis
The Upper Tribunal considered the tribunal’s application of regulation 29(2)(b), which uses the same statutory language as regulation 27(b) discussed in Charlton. The court noted that the tribunal had not made specific findings as to the range or type of work the Appellant could perform, but found no evidence or submissions indicating a substantial health risk if the Appellant were found capable of work. The tribunal’s conclusions were based on medical evidence including a Health Care Professional’s report and the claimant’s own testimony, which indicated limited disablement effects and no significant physical or mental health risk related to work.
The court emphasized that the tribunal’s factual assessment—that the Appellant could do some work without risk to himself or others—was consistent with the regulatory obligation to assess health risks. The court rejected the argument that Charlton imposed a prescriptive formula requiring detailed findings on types of work, instead affirming that limited, general findings were sufficient where the evidence did not indicate risk. The tribunal was hampered by the vague submissions from the Appellant’s representative but nonetheless reached a reasoned conclusion that the appeal did not demonstrate an error of law.
Holding and Implications
The appeal was REFUSED and DISMISSED.
The direct effect of this decision is to uphold the First-tier Tribunal’s determination that the Appellant does not have limited capability for work under the relevant regulation. No new legal precedent was established; the decision reaffirms the application of the principles from Charlton and confirms that detailed findings on specific types of work are not required where the tribunal’s general assessment of health risk is reasoned and supported by evidence.
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