Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 132 (AAC)

Fecha: 11-Jul-2023

Permission to appeal

Permission to appeal

10.

On 12 April 2024, I granted LB permission to appeal to the Upper Tribunal. A summary of the grounds on which I granted permission is:

(a)

Whether the FTT applied the correct legal tests when deciding LB’s appeal: I considered it arguable that

(i)

the FTT failed to explain how it had analysed the test of exceptional circumstances in paragraph 26 of its Statement of Reasons. Elsewhere the FTT had referred to LB being capable of performing a range of work, but this was arguably not the correct legal test (which was about whether there was a substantial risk). The FTT also included an incomplete sentence at the end of paragraph 26 of its Statement of Reasons that stated: “The Tribunal could find no evidence”. It was unclear what the FTT meant by this;

(ii)

Having listened to the audio record of proceedings of the hearing, it appeared the medically qualified tribunal member (“MQTM”) focused a substantial portion of her questions on exploring activities relating to whether LB should be treated as having limited capability for work-related activity, rather than whether he should be treated as having limited capability for work; and

(iii)

It appeared the relevant regulations for LB were the ESA regulations 2013. However, the FTT’s Decision Notice and Statement of Reasons referred to the Employment and Support Allowance Regulations 2008 (“the ESA regulations 2008”) instead. In the online appeals system, First-tier Tribunals are required to use a digital decision tool that, for ESA, writes in automatic references to the ESA regulations 2008. However, the FTT did not identify the ESA regulations 2013 in its decision and Statement of Reasons. It was therefore unclear whether the FTT decided LB’s appeal under the legislation that applied to him;

(b)

Whether the FTT gave LB an adequate opportunity to answer its questions at the hearing: the audio recording identified some instances where the MQTM asked a question and LB asked her to repeat it or clarify it. Instead of doing so, the MQTM asked LB a question about a new issue. This approach arguably would have left LB unclear about what he was being asked and unable to give his evidence;

(c)

Addressing LB’s argument that he was due to have an operation on his right foot on 05 December 2022: the FTT did not address this argument in its Statement of Reasons. Regulation 21 of the ESA regulations 2013 provides for a person to be treated as having limited capability for work on a day when they are a hospital inpatient and on a day when recovering from that treatment. The FTT had not addressed this provision; and

(d)

Potential wider legal issue: The appeal raised a broader question about whether LB’s circumstances allowed DWP to defer making a decision about whether he had limited capability for work, given DWP knew about his imminent operation, or to supersede (change) LB’s entitlement to ESA on the basis that although he had failed the LCWA, LB would shortly satisfy regulation 21 of the ESA regulations 2013 and therefore fall to be treated as having limited capability for work.