[2025] UKUT 130 (AAC)

I agree that the FTT erred in law in failing to reason out adequately why it concluded that the appellant did not meet any of the scoring descriptors under activity 8 in Schedule 6 to the UC Regs (or the terms of paragraph 9(4) in Schedule 8 to the UC Regs). This, in essence, is for the reasons given by the Secretary of State in her submission supporting the appeal to the Upper Tribunal of 11 July 2024 (see paragraph 11 above).

The appellant’s case before the FTT was, amongst other things and at least in part (notwithstanding Mr Stedman’s earlier skeleton argument (at Addition A in the FTT bundle)), that he should score 15 points under activity 8 (see page 34 of Addition E in the FTT bundle). Such an award was covered by the appellant satisfying either descriptor 8(a) or descriptor 8(b). The FTT’s reasoning does not sufficiently address these two bases for an award of 15 points.

In particular, there is no express consideration of descriptor 8(b) and whether the appellant could safely complete a potentially hazardous task, such as crossing the road, on his own. Crossing the road is just an example of a potentially hazardous task: CC v SSWP (ESA) [2015] UKUT 62 (AAC). In so far as the FTT was considering the walking along the pavement as a potentially hazardous task for the appellant, due to his hearing loss, in my judgement the FTT’s reasoning fails to adequately explain why it concluded that the appellant could safely complete this (or any other) potentially hazardous task unaccompanied by another person. The FTT referred to the appellant usually being able to move out of the way even though he had not heard people moving behind him on the pavement, but this leaves unanswered what had occurred on the ‘unusual’ times when the appellant had not been able to move out of the way, and how did this affect his ability to safely compete this (or any other) potentially hazardous task The FTT’s failure to address this in its reasoning is a material deficiency.

If, as was submitted on the Upper Tribunal appeal, the appellant’s evidence to the FTT was that he had collided many times with scooter riders and cyclists on pavements as he had been unable to hear them approach from behind, that was plainly relevant to whether the appellant could safely complete this task unaccompanied. It might also call into question his ability to safely complete other hazardous tasks unaccompanied, such as crossing the road.

I am unclear whether the FTT directed itself that ‘safely’ (and maintaining safety) was (or was not) part of what it had to take into account in deciding whether the appellant was unable to navigate, unaccompanied, around familiar or unfamiliar surroundings. The heading to its reasons in paragraph 10 (which omits “and maintaining safety”) and the lack of any reference to how the appellant was able to navigate safely around such surroundings if unaccompanied by another person might suggest the FTT directed itself that doing so ‘safely’ was not relevant to descriptors 8(a) and 8(c). In addition, as the Secretary of State put it, the FTT’s seeming focus on the appellant’s ability to navigate around the use of unfamiliar surroundings by using a map, rather than on his ability to do so safely given his evidence about what sometimes would happen when he was walking on the pavement, might also suggest the FTT discounted safety considerations under descriptors 8(a) and 8(b).

However, I am in any event satisfied that whether ‘safely’ (and ‘maintaining safety’) is relevant to descriptors 8(a) and 8(c) in Schedule 6 to the UC Regs is a matter on which I should direct the new FTT that is to redecide this appeal pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

I base my conclusion on the wording of activity 8 (and its descriptors) alone and (per paragraph 18 above) not on any wider principle as to how ‘safely’ might affect the approach to Schedule 6 (and Schedule 7) to the UC Reg as a whole.

The history of the wording of activity 8 does not, in my judgement, assist. Understanding this history involves consideration of Schedule 2 to the Employment and Support Allowance Regulations 2008 (“the ESA Regs”), on which Schedule 6 of the UC regs is mirrored. The sensory function activities found in Schedule 2 of the ESA Regs prior to amendment were: activity 7, speech; activity 8, hearing; and activity 9, vision. Under hearing, for example, a 9 point scoring descriptor applied if the claimant could not “hear someone talking in a normal voice in a quiet room, sufficiently clearly to distinguish the words being spoken”. One part of the background to these ESA activities being amended was a concern that the sensory activities “overly focused on an individual’s impairment, rather than the disability engendered by it”. As part of this background, it was said, in the 2009 “Work Capability Assessment Internal Review”, in relation to ‘vision’ that “the key disabling features of the impairment [of vision] can be identified as navigation and maintaining safety”; though the current wording of activity 8 does not apply just to vision. The appellant sought to rely on this last quotation as showing that ‘maintaining safety’ and ‘safely’ were integral parts of activity 8 – Mr Brooks put it that they were “necessary features of the activity”.

I would accept that this evidence from the 2009 WCA Review is admissible when considering any mischief that the amendments to Schedule 2 of the ESA Regs were introduced to address: per paragraph [8] of R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687. However, I do not consider the above quotation the appellant relies on assists about the correct construction of activity 8 in Schedule 6 to the UC Regs. I say this because the quotation on which the appellant relies refers to the key features (plural) of the sensory impairment, and so would (also) be consistent with activity 8 covering two different and separate areas of activity under activity 8. It therefore does not show clearly that activity 8’s wording is covering two necessary features of one activity.

Nor does the fact that the July 2024 version of the UC50 says “Only answer Yes to the following questions, if you can do the activity safely, to an acceptable standard, as often as you need to and in a reasonable length of time” relevant on the issue of statutory construction. What the UC50 says is just the view of one party as to what the statutory scheme requires. As such, I am not sure that the UC50’s wording even falls into the secondary category of non-statutory materials that might assist in statutory construction: per paragraph [30] of R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255).

Thus, the enquiry must focus on the wording of activity 8 and its descriptors. I am satisfied, as both parties argued, that “maintaining safety” and “safely” are integral parts of one activity in activity 8 and so undertaking descriptors 8(a) and 8(c) need to be considered on the basis of whether the claimant can do so safely. Another way of putting this is that activity 8 is about is ‘navigating safely’. I have arrived at this conclusion for the following, related reasons.

First, on its language activity 8 is about one ‘activity’ rather than two separate activities. As the Secretary of State put it, the phrase “navigation and maintaining safety is a composite, singular noun-phrase. This reading is supported by regulation 39(4) of the UC Regs, which focuses on the extent of the claimant’s capability to perform a Schedule 6 activity, and requires that the incapability to perform the activity arises from a specific bodily disease or disablement. Assessing the extent of the claimant’s capability to perform any activity is, on its face, about the extent of performing the activity as a whole, with that assessment then being grounded in the descriptors under the activity. If these observations are correct, the activity in activity 8 encompasses both navigating and maintaining safety; or as I have suggested ‘navigating safely’.

Moreover, and adopting here an argument made by the Secretary of State, read in context the ‘Descriptors’ column in Schedule 6 gives in respect of each Activity a descending list of thresholds for determining the levels of capability of performing that relevant activity. It is this descending list which answers the regulation 39(4) “extent of the claimant’s capability” question. The descending list effectively answers the question, if capability were a spectrum, where on the continuum would a given claimant’s performance be located with reference to the specific activity. However, only considering ‘safety’ within descriptor 8(b), and ignoring it for descriptors 8(a) and (c), would offend against that structure in two ways. First, it would make descriptor 8(b) a more significant limitation on capability than 8(a). Second, it would split activity 8 into two spectrums.

Second, the activity is about navigating and maintaining safety and not navigating or maintaining safety. Had it been the intention that activity 8 was assessing two different and separate function tasks or activities, that differentiation could more easily have been provided for by the use of ‘or’ between ‘navigation’ and ‘maintaining safety’. Thus, it is a plausible reading of activity 8 that it is seeking to test, at the same time, the claimant’s capability to navigate and maintain safety. And on the language of the activity itself that is a more plausible reading than it covering two separate tasks or activities.

Third, there is no rational disconnect or obvious incoherence in each of the descriptors under activity 8 involving aspects of both navigation and completing the descriptor safely, even though those words may not be used in the actual descriptors. If a person is able to navigate around their surroundings (familiar or otherwise) unaccompanied by another person, notwithstanding their sensory impairment, but cannot do so in any sense safely, it would be irrational in my judgement to find they could not score points under descriptor 8(a) or 8(c). It does no statutory violence to the wording or intendment of either of those descriptors to say that being able to ‘navigate around surroundings’ must involve directing oneself around the surroundings safely. To state the converse is to show its absurdity. A person cannot in my judgement be said either to be able or be capable of navigating around their surroundings, unaccompanied and despite their sensory impairments, if they cannot do so safely or maintaining their safety in doing so. Likewise, although descriptor 8(b) in Schedule 6 to the UC Regs is not limited to crossing a road safely, that particular task, to some degree and perhaps especially for any person who is sensorily impaired, also involves navigating the route across the road.

Fourth, though this may be more than a continuation of the last point, if maintaining safety is a separate task to be assessed under activity 8, and so assessed separately from navigation, I struggle to identify how the extent of the claimant’s capability to maintain safety is to be separately assessed under the descriptors identified in activity 8. All the descriptors involve, at least to some, extent, an assessment of the extent of claimant’s ability to navigate. However, if navigation is all they assess, and they do not obviously provide for a separate assessment of an ability to maintain safety, the words “and maintain safety” would seems to be otiose. I should strain against a result that gives statutory words no meaning, especially where the evidence of the 2009 WCA Review was concerned to ensure that ‘navigating and maintaining safety’ be a measurable activity of functional ability. A construction which gives the words “and maintaining safety” rational content is the one that should be favoured.

It is for all these reasons that I have concluded that “maintaining safety” and carrying out, or competing, a task “safely” is a necessary part of deciding whether any of the descriptors under activity 8 in Schedule 6 to the UC Regs is satisfied.

I do not need to address the appellant’s ground of appeal concerning activity 16 in Schedule 6 to the UC Regs. This ground was not addressed in the Secretary of State’s submissions supporting the appeal being allowed and was not the subject of any argument before me. The arguments made under this activity 16 ground can be subsumed, if necessary, in the issues the new FTT may need to consider in redeciding the appeal.

I turn lastly to the appellant’s request that the Upper Tribunal redecide his appeal rather than remit it to be redecided by a new and entirely freshly constituted FTT. I refuse his request for the following reasons. First, it is the two member FTT which is the specialist tribunal for redeciding issues of fact and law, not the Upper Tribunal. Second, the Secretary of State has had no opportunity to address the appellant’s request. Up until the appellant made his request in March of this year, it had his case, as put though his representative, that the appeal should be allowed and remitted to the FTT to be redecided. Even if, contrary to my first reason for refusing the appellant’s request, I was inclined to agree with the request, fairness would require me to seek submissions from the Secretary of State on it and on what her arguments would be about the correct points the appellant should score, and that itself would take time. Third, the appellant’s arguments on his appeal to the FTT went much wider than activities 8 and 16 in Schedule 6 and paragraph 9(4) of Schedule 8 to the UC Regs. None of those arguments have been addressed before me, because they did not need to be. However, the proper resolution of those arguments (and arguments under activities 8 and 16 of Schedule 6 and paragraph 9(4) in Schedule 8) will need to be conducted at an oral hearing, and that hearing should take place before the FTT as the specialist tribunal for deciding the facts and applying the law to those facts. The FTT bundle shows, moreover, that the appellant has been able to make his own case to the FTT in detail, and the FTT is very used to dealing with appellant’s who are not legally represented.

My decision is therefore as set out above.