LH v Secretary of State (Employment and support allowance : Regulation 29)

Factual and Procedural Background

The Secretary of State appealed against a First-tier Tribunal decision which had allowed the claimant's appeal, awarding Employment and Support Allowance (ESA) with the support component under Regulation 35 of the Employment and Support Allowance Regulations 2008. The First-tier Tribunal found the claimant attracted 6 points under the work capability assessment and applied Regulation 35 on the basis of a risk of substantial self-harm to the claimant. The Upper Tribunal Judge was tasked with reviewing this decision and remaking the First-tier Tribunal's decision on the facts.

Legal Issues Presented

1. Whether a claimant can be treated as having limited capability for work-related activity (LCWRA) under Regulation 35 and thus be entitled to ESA when the claimant has not been found to have limited capability for work (LCW).
2. Whether the First-tier Tribunal erred in law by awarding ESA based on Regulation 35 without a prior finding of LCW.
3. The proper interpretation and application of the statutory scheme governing ESA, particularly the relationship between Regulations 29, 34, and 35 of the Employment and Support Allowance Regulations 2008.

Arguments of the Parties

Secretary of State's Arguments

• The First-tier Tribunal erred in law by awarding ESA on the basis that the claimant had LCWRA when the claimant was not found to have LCW, which is a prerequisite.
• Reliance on Upper Tribunal Judge Jacobs' analysis in NS v Secretary of State for Work and Pensions [2014] UKUT 149, emphasizing that LCW must be established before LCWRA can be considered.
• Reference to the three Judge Panel decision in IM v SSWP (ESA) [2014] UKUT 412, arguing that information relevant to Regulation 35 should only be considered after LCW is established.
• Submission that the First-tier Tribunal incorrectly treated Regulation 35 as independent of LCW, contrary to the statutory scheme.

Claimant's Arguments

• The tribunal properly considered the risk to the claimant’s health and correctly applied Regulation 35 without needing to satisfy Regulation 29.
• Reliance on the First-tier Tribunal Judge's refusal to grant permission to appeal, supported by the view that Regulation 35 is not dependent on Regulation 29.
• Reference to the tribunal’s own knowledge and assessment of the claimant’s condition and work-related activity requirements.
• Support for the view that Regulation 35 can be applied independently to afford entitlement to ESA.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
NS v Secretary of State for Work and Pensions [2014] UKUT 149	Clarifies the statutory scheme of ESA, establishing that LCW must be found before LCWRA and Regulation 35 can be applied.	The court agreed with Judge Jacobs' analysis that Regulation 35 and Schedule 3 descriptors depend on a prior finding of LCW, which was absent in this case.
IM v Secretary of State for Work and Pensions (ESA) [2014] UKUT 412	Discusses procedural requirements for providing information related to Regulation 35 where LCW is established.	The court found no basis to extend Regulation 35 application where LCW was not established, rejecting the Secretary of State's broader interpretation.
ML v Secretary of State for Work and Pensions [2013] (AAC)	Consideration of the relationship between Regulations 29 and 35 in ESA claims.	The court determined that Judge Gamble’s wider interpretation of Regulation 35 was incorrect; Regulation 35 cannot apply without LCW or Regulation 29 being satisfied.

Court's Reasoning and Analysis

The Upper Tribunal Judge carefully analysed the statutory framework governing ESA, particularly the relationship between limited capability for work (LCW) and limited capability for work-related activity (LCWRA). The court accepted the Secretary of State’s submission that LCW must be established before any consideration of LCWRA or Regulation 35 can occur. The tribunal’s decision to apply Regulation 35 independently of a finding of LCW was identified as an error in law. The Judge distinguished previous decisions relied upon by the claimant, noting that the interpretation of Regulation 35 in those cases did not support its application absent LCW. The court concluded that the First-tier Tribunal had erred by awarding ESA under Regulation 35 without establishing LCW, thereby setting aside the First-tier Tribunal’s decision and remaking it to uphold the original decision made on 27 March 2013.

Holding and Implications

The appeal by the Secretary of State is ALLOWED. The decision of the First-tier Tribunal dated 12 December 2013 is set aside, and the decision dated 27 March 2013 is upheld.

The direct effect is that entitlement to ESA under Regulation 35 cannot be awarded without a prior finding of limited capability for work. No new precedent beyond the application of existing statutory interpretation principles was established. The ruling clarifies the necessity of sequential application of the statutory criteria for ESA awards.