[2025] UKUT 132 (AAC)

In early 2022, LB claimed employment and support allowance (“ESA”) on the basis that he was not capable of work. He identified health difficulties with a right ankle injury, osteoarthritis and asthma (EA50 questionnaire dated 10 June 2022). LB’s right ankle injury related to a broken ankle with complications (accident date: 15 June 2021).

LB’s claim was for what is called a “new style” employment and support allowance. This reflects the fact that:

As LB’s claim was for new style ESA, the applicable regulations for determining his entitlement to ESA were the Employment and Support Allowance Regulations 2013 (“the ESA regulations 2013”).

While it was preparing to carry out a limited capability for work assessment (“LCWA”) about LB, DB treated him on a temporary basis as having limited capability for work. This was because LB had provided evidence of limited capability for work in the form of fit notes from his GP.

DWP called LB for a medical examination as part of the LCWA, to determine whether he had, or fell to be treated as having, limited capability for work. On 10 November 2022, LB underwent a telephone assessment with a healthcare professional who gave advice to DWP. The healthcare professional advised that LB did not score at least 15 points in relation to the activities set out at Schedule 2 to the 2013 regulations. The healthcare professional advised that LB therefore did not have limited capability for work.

The healthcare professional also advised that LB did not satisfy the test described as “Exceptional Circumstances” on page 12 of the ESA85 report (page 41 of appeal bundle). This related to regulation 25(2)(b) of the ESA regulations 2013. Regulation 25 allows a claimant who does not score 15 points under Schedule 2 to the regulations, to be treated as having limited capability for work in exceptional circumstances. Regulation 25(2)(b) addresses where the person has some specific disease, or bodily / mental disablement meaning there would be substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.

On 24 November 2022, a DWP decision-maker accepted the healthcare professional’s recommendation. The decision-maker decided that LB did not score the 15 points needed to have limited capability for work and also did not satisfy the exceptional circumstances test for being treated as having limited capability for work instead. The DWP decision-maker superseded (changed) the earlier decision treating LB as having limited capability for work, from 24 November 2022 onwards.

Having been through the mandatory reconsideration process, LB appealed to the First-tier Tribunal on 11 January 2023. His appeal was decided following a telephone hearing on 11 July 2023. The First-tier Tribunal (“FTT”) agreed with DWP’s assessment that LB did not score any of the point-scoring descriptors in Schedule 2 to the ESA regulations 2013. The FTT also decided that LB should not be treated as having limited capability for work. The FTT therefore refused LB’s appeal and confirmed DWP’s decision.