Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 131 (AAC)

Fecha: 18-Abr-2024

Ground 1: the ‘work’ issue

Ground 1: the ‘work’ issue

The legislative framework for Ground 1

20.

The first of the so-called basic conditions for entitlement to ESA is that the claimant “has limited capability for work” (Welfare Reform Act (WRA) 2007, section 1(3)(a)). Although the primary legislation defines what is meant by “limited capability for work” (see WRA 2007, ss.1(4) and 24(1)), it does not define the term ‘work’ itself. However, section 22 of the WRA 2007 introduces various enabling powers, one of which provides that “Regulations may prescribe circumstances in which a person is to be treated as not entitled to an employment and support allowance because of his doing work” (Schedule 2, paragraph 10).

21.

To that end, the heading to regulation 40 of the ESA Regulations 2008 declares that “A claimant who works to be treated as not entitled to an employment and support allowance”. Regulation 40(1) lays down the general rule while regulation 40(2) (as amended) provides for various exceptions to that overarching principle:

40.

—(1) Subject to the following paragraphs, a claimant is to be treated as not entitled to an employment and support allowance in any week in which that claimant does work.

(2)

Paragraph (1) does not apply to—

(a)

work as a councillor;

(b)

duties undertaken on either one full day or two half-days a week as—

(i)

…

(ii)

a member of the First-tier Tribunal where the member is eligible for appointment to be such a member in accordance with article 2(3) of the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008.

(c)

domestic tasks carried out in the claimant's own home or the care of a relative;

(d)

duties undertaken in caring for another person who is accommodated with the claimant by virtue of arrangements made under any of the provisions referred to in paragraphs 28, 29 or 29A of Schedule 8 (sums to be disregarded in the calculation of income other than earnings) or where the claimant is in receipt of any payment specified in those paragraphs;

(da) duties undertaken in caring for another person who is provided with continuing care by a local authority by virtue of arrangements made under section 26A of the Children (Scotland) Act 1995 and is in receipt of a payment made under that section of that Act;

(e)

any activity the claimant undertakes during an emergency to protect another person or to prevent serious damage to property or livestock; or

(f)

any of the categories of work set out in regulation 45 (exempt work).

22.

Furthermore, it should be noted that regulation 40(7) provides that ‘work’ means “any work which a claimant does, whether or not that claimant undertakes it in expectation of payment.”

23.

The general principle in regulation 40(1) is reinforced by regulation 44(1), which relevantly provides that “Where a claimant is treated as not entitled to an employment and support allowance by reason of regulation 40(1) … the claimant is to be treated as not having limited capability for work.”

24.

As well as referring to ‘work’, the ESA regime also deploys the concept of ‘remunerative work’. Thus, in order to qualify for income-related ESA, a claimant must meet the financial conditions as well as the basic conditions of entitlement. One of those financial conditions is that the claimant “is not engaged in remunerative work” (WRA 2007, Schedule 1, paragraph 6(1)(e)). This concept is further defined by regulation 41 of the ESA Regulations 2008:

Meaning of “remunerative work” for the purposes of paragraph 6(1)(e) of Schedule 1 to the Act

41.

—(1) For the purposes of paragraph 6(1)(e) of Schedule 1 to the Act (conditions of entitlement to an income-related allowance), “remunerative work” means any work which a claimant does for which payment is made or which is done in expectation of payment, other than work listed in paragraph (2) of regulation 40.

(2)

Subject to paragraph (3), a claimant who was, or who was being treated as—

(a)

engaged in remunerative work; and

(b)

in respect of that work earnings to which regulation 95(1)(b) and (d) applies are paid,

is to be treated as being engaged in remunerative work for the period for which those earnings are taken into account in accordance with Part 10 of these Regulations.

(3)

Paragraph (2) does not apply to earnings disregarded under paragraph 1 of Schedule 7 (sums to be disregarded in the calculation of earnings).

25.

I now turn to summarise the parties’ submissions on Ground 1.