PD v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Regulation 29)

Factual and Procedural Background

The appeal concerns a claimant for Employment and Support Allowance (ESA) who failed to score sufficient points in the work capability assessment to be deemed to have limited capability for work. The issue arose under regulation 29 of the Employment and Support Allowance Regulations 2008/794, which allows claimants to be treated as having limited capability for work in exceptional circumstances, particularly where mental ill-health impairs their ability to get to places such as a workplace.

The claimant suffered severe panic attacks and depression following a stroke ten years earlier, resulting in significant anxiety that limited his ability to leave the house unaccompanied. The First-tier Tribunal initially awarded the claimant 9 points for inability to get to a familiar place without accompaniment, but did not treat him as having limited capability for work under regulation 29. The Appellant challenged this decision, leading to the present appeal before the Upper Tribunal.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law in its application of regulation 29 of the Employment and Support Allowance Regulations 2008/794 concerning claimants with mental ill-health affecting their ability to get to work.
2. How to properly assess risk to health under regulation 29 in the context of a claimant's need for third-party assistance, particularly relating to the journey to work and attendance at work.
3. The extent to which third-party help (such as accompaniment or transport) can be taken into account when determining limited capability for work under regulation 29.

Arguments of the Parties

Appellant's Arguments

• Submitted that the interpretation of regulation 29 should not allow the availability of third-party assistance (such as lifts) to be taken into account in a way that effectively removes third parties from the labour market.
• Argued that an inability to reach a specified place unaccompanied should carry 15 points, reflecting the severity of the claimant’s incapacity.
• Requested specific directions to the First-tier Tribunal to secure evidence from claimants with difficulties like anxiety or agoraphobia, referencing the Equality Act 2010.

Respondent's Arguments

• Contended that the tribunal’s conclusion that the claimant could perform certain types of work with third-party assistance was correct.
• Challenged the award of 9 points but was unsuccessful on that point.
• Maintained that the assessment must focus on risk arising from work or the workplace, as mandated by precedent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42	Clarification that regulation 29 concerns assessment of risk to health arising from work or the workplace, not therapeutic advantage; limits the degree of particularity required in identifying the type of work for risk assessment.	The court applied Charlton to confirm that assessment of risk must consider the journey to work and workplace context, and that the tribunal’s identification of suitable work types was appropriate, but must consider the involvement of third parties for journeys.
CH v Secretary of State for Work and Pensions (ESA) [2014] UKUT 11 (AAC)	Emphasized that regulation 29 focuses on risk to health rather than therapeutic benefits.	Supported the court’s approach to risk assessment under regulation 29, reinforcing the focus on health risk.
RB v Secretary of State for Work and Pensions (ESA) [2012] UKUT 431 (AAC)	Commented on the tightening of descriptors increasing the relevance of regulation 29.	Used to support the view that regulation 29 is increasingly important in ESA assessments.
MT v Secretary of State for Work and Pensions (ESA) [2013] UKUT 545 (AAC)	Addressed whether third-party presence can be considered in assessing capability under a similar regulation (regulation 35).	The court distinguished that work-related activity requiring third-party presence should not be considered capable activity unless the presence is actually evidenced; the present court agreed with a nuanced approach considering actual evidence of third-party assistance.
Kerr v Department for Social Development [2004] UKHL 23	Outlined a cooperative investigatory process between claimant and department regarding evidence gathering.	Invoked to emphasize the shared responsibility to gather evidence relevant to third-party assistance availability.
Secretary of State for Work and Pensions v MM and DM [2013] EWCA Civ 1565	Confirmed that Upper Tribunal lacks jurisdiction to adjudicate on Equality Act claims within social security appeals.	Used to reject the appellant’s request for directions related to the Equality Act in this appeal.
R (DLA) 2/01 and 3/01	Permitted tribunals to consider subsequent evidence or events for the purpose of inferring circumstances at the time of decision.	Applied to allow consideration of evidence after the decision date to inform factual findings regarding the claimant’s condition.

Court's Reasoning and Analysis

The court began by outlining the statutory framework under regulation 29, which allows claimants who do not meet the points threshold for limited capability for work to be treated as having such capability in exceptional circumstances involving risk to health. The court acknowledged the complexity of applying this regulation to claimants with mental ill-health affecting their ability to travel to work unaccompanied.

The tribunal’s original award of 9 points for the claimant’s inability to get to a familiar place without accompaniment was accepted, but the court found that the tribunal erred in law by concluding that the claimant was not to be treated as having limited capability for work because he could perform certain work with third-party assistance, without making findings on the availability or sustainability of such assistance.

The court relied heavily on the precedent set in Charlton, which requires the assessment of risk to health in the context of the journey to work and the workplace, while limiting the level of detail required in identifying the type of work. The court emphasized that regulation 29’s primary focus is on risk rather than therapeutic benefit.

The court considered the role of third-party assistance, concluding that while the assessment should not assume the presence of a third party without evidence, appropriate evidence of such assistance can be taken into account when assessing risk. The court rejected an absolutist reading that any work requiring third-party presence must be disregarded, instead focusing on the risk mitigation such assistance may provide.

The court recognized practical difficulties in evidencing the availability and sustainability of third-party help, such as transport or accompaniment, but held that these matters are factual issues for tribunals to determine, guided by principles of cooperative evidence gathering as outlined in Kerr.

The court also clarified that the 15-point descriptor for inability to get to a specified place unaccompanied is directed at claimants who cannot go out even with accompaniment, distinguishing it from the 9-point descriptor applicable here.

Finally, the court addressed procedural matters, directing a full rehearing of the appeal with specific instructions on evidence, findings of fact, and the treatment of evidence post-dating the original decision.

Holding and Implications

The court ALLOWED THE APPEAL, setting aside the First-tier Tribunal’s decision dated 24 May 2012 and remitting the case for rehearing before a differently constituted panel.

The direct effect is that the claimant’s case will be reconsidered with proper application of regulation 29, including a full assessment of risk considering the availability and sustainability of third-party assistance for the journey to work and attendance at work. The decision does not establish new precedent beyond clarifying the application of existing caselaw and statutory provisions, and no inference as to the outcome of the rehearing should be drawn from the appeal being allowed on a point of law.