[2025] UKUT 130 (AAC)

I gave the appellant permission to appeal on 20 March 2024, and said the following when doing so:

“3.

I give permission appeal as I consider the first ground of appeal may have a realistic prospect of showing that the First-tier Tribunal erred in law in its approach to activity 8 in Schedule 6 to the Universal Credit Regulations 2013 (“the UC Regs”). A material legal issue may be whether the wording of the activity ‘navigation and maintaining safety’ is intended to cover two different areas of activity under activity 8 or denotes two considerations that are to be assessed under each descriptor in activity 8. Putting this another way, is descriptor 8(b) the only descriptor under activity 8 in which safety arises as a material consideration or is safety also a material issue when deciding whether a person is unable to navigate around familiar or unfamiliar surroundings on their own?

4.

I do not refuse [the appellant] permission to appeal on his other two grounds of appeal, though they appear to possibly being doing no more than rearguing evidential matters. For example, was there a proper evidential basis for [the appellant] always being precluded from engaging with unfamiliar people because of mental illness or disablement (and not his hearing problems): per regulation 39(4)(b) and descriptor 16(b) in Schedule 6 to the UC Regs? Further, although the First-tier Tribunal’s reasoning on [paragraph (4) Schedule 9] to the UC Regs was very brief, was the GP evidence from 2015 (page 35) still relevant given the focus of [the appellant’s] case to the First-tier Tribunal about [Schedule 9, paragraph 4] on pages 38 and 39 of addition E, which was not on the face of it based on any mental health issues? These two grounds of appeal may only need to be addressed if the activity 8 ground is not considered determinative of the appeal.”

The Secretary of State in written submissions on the appeal of 11 July 2024 supported it being allowed and the appeal remitted to the FTT to be redecided. The Secretary of State supported the appeal both under activity 8 and in relation to the adequacy of the FTT’s reasoning about why paragraph (4) in Schedule 9 to the UC Regs did not apply to the appellant. The material parts of the Secretary of State’s written submission are as follows:

“5.

In paragraph 10 of the SoR, the claimant informed the FtT that his hearing impairment was such that the claimant was unable to hear individuals around him. The FtT concluded, that despite this hearing impairment, the claimant was awarded no points. The claimant did state that collisions with cyclists and scooter riders on pedestrian pavements had occurred, this was due to the claimant’s inability to hear anyone approaching from behind.

6.

Activity 8 is concerned with “Navigation and maintaining safety, using a guide dog or other aid if either or both are normally, or could reasonably be, used”. Although the claimant requires hearing aids to assist with hearing loss, I submit that given the claimant’s sensory impairment, the claimant would be placed at significant risk, by attempting to complete a potentially hazardous journey such as crossing the road, indeed, by just walking on a pedestrian pavement which is frequented by cyclists.

7.

In paragraph 16 of the SoR, the FtT concluded that the claimant’s hearing impairment, manifested anxiety if any social engagement were to be carried out, for example familiar individuals such as former pupils. Therefore, I submit, there may be a significant possibility that the claimant could experience anxiety whilst mobilising and navigating around strangers because of the claimant’s hearing loss.

8.

In paragraph 17 of the SoR, the FtT considered the application of Schedule 9(4) to the UC Regulations 2013 but concluded that it did not apply. Although the FtT did conclude that the claimant could convey a simple or complex message, the decision was not clearly explained adequately as to why Schedule 9(4) did not apply. In my opinion, given the claimant’s anxiety around unfamiliar individuals and places, a workplace environment could impact further on the claimant’s anxiety issues.”

In his observations in reply, the appellant acknowledged and was grateful for the Secretary of State’s support for the appeal, but made additional arguments about the scope of activity 8 (perhaps recognising that the Secretary of State’s submission had not really grappled with this issue). The appellant’s additional arguments are:

“2.

UT Judge Wright posed the question of whether safety is a material issue only to descriptor 8(b) or also to the other descriptors in activity 8, ‘navigation and maintaining safety’. Considering the interpretation to be give[n] to Schedule 2, the review that led to the original work capability assessment (WCA) stressed that assessing whether a claimant can perform a particular function once was not enough and that the person must reliably be able to sustain or repeat the activity, and that distress caused to the claimant was a relevant factor. Further, the Review that led to the revised WCA commented that the assessment was seeking to identify whether an individual was capable of carrying out an activity reliably and repeatedly for the majority of the time. In addition, the Chief Medical Adviser’s honing report emphasised that:

“Guidance states that if an individual cannot complete an action safely, reliably and repeatedly, they should be considered unable to complete it at all.”

3.

In MW v SSWP (ESA) [2014] UKUT 112 (AAC), Judge Rowland said in relation to activity 13,

“The material features of the legislation are, first, that it is not enough that the claimant can initiate and complete personal actions – he or she must be able to do so “reliably” …” (Vol 1, page 1506).

The point we seek to make is that there are overarching factors that apply to all the activities, so that there is wording to be read into the actual language used in a descriptor wording.

4.

In addition, we question whether someone can be said to be capable of completing an action ‘reliably’ if they cannot do so safely.

5.

Further, acknowledging that activity 8 is not one of those where the words ‘Coping with’ appear, we consider that there is relevance in noting the comment on the meaning to be given to the phrase. Judge Ward said in GC v SSWP (ESA) [2013] UKUT 405 (AAC),

“… It seems to me that a variety of human behaviours and responses may be indicative of a failure to ‘cope’ in such a sense. Among them may be stress reactions and discomfort sufficient to require the intervention of another in circumstances where such intervention would not normally be expected.” (Vol 1, page 1508)

We say that even where the words, ‘cope with’ are absent from the activity wording, an HCP, Decision Maker or Tribunal is tasked with asking whether the claimant can ‘cope with’ the activity or task under consideration. Looking at the wording of 8(a) and (c), if the claimant cannot navigate as described, without being accompanied by another person, they ‘cannot cope’ with the task, it is beyond them.

6.

For the reasons set out above, we say that safety is also a material issue when deciding whether a person is unable to navigate around familiar or unfamiliar surroundings on their own.”

I directed an oral hearing of the appeal on 13 September 2024 as I considered that the correct construction and scope of activity 8, and the descriptors falling under that activity, in Schedule 6 to the UC Regs needed to be explored further at an oral hearing. I said that even if the appeal to the Upper Tribunal was to be allowed and the appeal remitted to the FTT to be redecided, it was likely that the Upper Tribunal would need to give directions to the new FTT about the correct construction of the law it had to apply in redeciding the appeal.

The hearing took place before me on 15 January 2025. The appellant was represented by Glenn Brooks of the Disability Claims advice agency and the Secretary of State was represented by Thomas Yarrow of counsel. Some short submissions were provided to me by the parties’ representatives about a week after the hearing.

These later submissions concerned the source for the Chief Medical Officer’s statement in paragraph 2.1 the ‘CMA honing report’ of March 2010, which formed part of a DWP led review of the activities and descriptors in schedules 2 and 3 to the Employment and Support Allowance Regulations 2008, that:

“Guidance states that if an individual cannot complete an action safely, reliably and repeatedly they should be considered unable to complete it all”.

Neither party has been able to identify this ‘guidance’.

The Secretary of State instead referred me to passages within the 2009 version in what he called the “WCA Handbook”. In fact, this book is titled a “Training & Development ESA Handbook” and was “produced as part of a continuing medical education programme for health care professionals approved by the Department for Work and Pensions Chief Medical Adviser to carry out medical assessments”. The Secretary of State referred me to passages in this Handbook which referred health care professionals to the need for claimants to be able to perform an (ESA) activity “safely”.

The appellant in his later submissions referred me to a statement made by a DWP Government Minister (Lord Freud) to Parliament on 16 March 2011, during a debate in the House of Lords on a motion to annul the regulations that went on to become law and amend extensively the Employment and Support Allowance Regulations 2008 with effect from 28 march 2011, that “[i]t must be possible for all the descriptors to be completed reliably, repeatedly and safely, otherwise the individual is considered unable to complete the activity”. The basis for this Parliamentary statement being admissible under Pepper v Hart [1992] UKHL 3; [1993] AC 593 was not explained nor is it apparent.

The above post-hearing submissions were made in the context of an argument, advanced by the Secretary of State, that all the activities and descriptors in Schedule 6 to the UC Regs are subject to an overarching requirement that they are capable of being carried out “safely”. It is not necessary for me to decide this point on this appeal. I would, in addition, prefer not to do so given (a) it is not necessary for the proper disposal of this appeal, (b) the non-statutory materials upon which the argument is (at least in part) based were not fully before me (see above) and may in any event not provide the surest legal footing for the proposition advanced given the lack of any clear statutory wording requiring that all activities and descriptors need to be carried out “safely” (contrast, perhaps, regulation 4(2A)(a) of the Social Security (Personal Independence Payment) Regulations 2013), and (c) the potential far-reaching consequences this argument may have. As to the last point, one potential contra-indicator, which I suggested in argument, may be how “safely” is to be read into the descriptors under activity 1 in Schedule 6 where the legislation already qualifies the “mobilising” with considerations such as the need to stop in order to avoid exhaustion. Another might be what “safely” would add to the descriptors under activity 17 in Schedule 6. And yet another contra-indicator might an argument that it is in the requirements of paragraph 4 in Schedule 8 to the UC Regs that, in general, the statutory scheme seeks to address safety in the context of limited capability for work.

The appellant himself has since provided a final written submission, on 8 March 2025, without the assistance of Mr Brooks. The appellant asks that I redecide the appeal myself, if I set aside the FTT’s decision, rather than remitting it to another FTT to be redecided. He relies on the delay in getting justice, his difficulty in recalling evidence due to the lapse of time, his having to afford the further legal fees of a solicitor, and his concern that his case would be rejected again by the lower tribunal and he would have to request the upper tribunal again.