MG v The Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration.

The members of the First-tier Tribunal who reconsider this appeal should not be the same as those who made the decision which I have set aside.

To the Appellant, if you, or your representative on your behalf have any further written evidence that you wish the new tribunal to consider (and which casts light on your state of health on or before 28 March 2023), you must write to the First-tier Tribunal, quoting reference: SC063/23/00632, enclosing copies of any additional evidence.

The newly constituted tribunal hearing the remitted appeal is not bound in any way by the decision of the previous tribunal. It will not be limited to the evidence and submissions before the previous tribunal. It will consider all aspects of the case entirely afresh and it may reach the same or a different conclusion to the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

MG appeals against the decision of the First-tier Tribunal, which upheld the Secretary of State’s decision dated 28 March 2023. By that decision, the Secretary of State concluded that MG had Limited Capability for Work (LCW) but did not meet the criteria for Limited Capability for Work-Related Activity (LCWRA).

I granted permission to appeal.

The Secretary of State submits that the First-tier Tribunal erred in law in reaching its decision and that the matter should be remitted for a fresh hearing.

I am satisfied, based on the evidence, that an order should be made under rule 14(1)(a) and (b) of the Tribunal Procedure (Upper Tribunal) Rules 2008, due to MG’s history of assault linked to the nature of his previous conviction.

MG made a claim for Universal Credit (UC). The Secretary of State arranged a Work Capability Assessment (WCA), conducted by a Healthcare Professional (HCP) via telephone on 6 March 2023. A UC85 medical report was subsequently prepared.

On 28 March 2023, relying on the UC85 report and the HCP’s analysis, the Secretary of State determined that MG scored 18 points, meeting the threshold for LCW but not for LCWRA. The points were awarded under the following mental health descriptors:

The HCP’s assessment summary [p.57 of the bundle] noted:

“Although there is evidence to suggest he can travel to certain familiar places alone such as relatives; due to his anxiety he can’t reliably manage this and will either need collecting or will not go. Although he does engage with the job centre this is through his journal and does not need to attend appointments as they are aware of his anxiety when leaving his home. He stopped going to physiotherapy appointments as he was not attending consistently due to his anxiety when leaving his home. It appears due to his anxiety he would be unable to travel anywhere unfamiliar alone. He does have contact with his siblings and other family members; however he has no other social contact and struggles to engage with anyone unfamiliar due to his anxiety. Today he appeared to be anxious when speaking on the phone. He denies any problems with his behaviour and had insight today. Therefore significant functional restriction seems likely in the area of getting about and coping socially; however unlikely in the other areas of mental health.” [Bold added]

MG disclosed a medical history of depression and anxiety dating back to 2015, exacerbated by his conviction and custodial sentence for a sexual offence. He is currently on the Sex Offenders Register. He reported being assaulted due to his conviction, most recently in May 2022 at work. The Job Centre does not require him to attend in-person appointments due to his anxiety. The HCP report [p.42] recorded that MG declined medication for fear of addiction and rejected counselling, having found it unhelpful during his time in prison. These facts were not disputed.

In his appeal, MG referred to panic attacks, breathing difficulties, and palpitations when required to undertake work-related activities [p.3]. He also stated that he had been prescribed medication due to poor mental health [p.3].

The issue before the tribunal was whether MG met the criteria for LCWRA. In its decision dated 1 November 2023, the tribunal dismissed his appeal and upheld the Secretary of State’s decision. It found that no descriptor in Schedule 7 of the Universal Credit Regulations 2013 applied, nor did Schedule 9, paragraph 4. The tribunal considered the JobCentre Plus work-related activities list [p.125], which included attending in-person activities such as community hub placements, library visits, and courses.

The tribunal’s findings of fact are set out at [10a–e] of the Statement of Reasons (SoR). Key findings included:

MG appealed the tribunal’s decision and on 24 April 2024, the First-tier Tribunal refused permission to appeal, concluding that the reasons provided in its decision were adequate. This refusal was issued to the parties on 2 May 2024.

MG submitted his appeal to the Upper Tribunal. His primary ground of challenge is that the First-tier Tribunal failed to properly engage with his evidence that he is unable to leave his flat due to mental health difficulties. He contends that this evidence was central to the assessment of his entitlement to Limited Capability for Work-Related Activity (LCWRA) and was not adequately considered.

The Secretary of State supported the appeal and submitted that the First-tier Tribunal committed material errors of law, consistent with the grounds upon which permission to appeal was granted. The submissions are as follows:

The Secretary of State observed that, if the tribunal’s assumption about mild WRA were accepted, the other errors might not be material. However, the Secretary of State ultimately submitted that this assumption was inadequately reasoned and unsupported by evidence, and therefore the errors remain material.

I am satisfied that the First-tier Tribunal committed material errors of law in reaching its findings of fact at [10] of the Statement of Reasons. Notably, the tribunal made a series of findings without referencing supporting evidence from the papers before it. This absence of evidential foundation renders the findings unsustainable.

First, the tribunal made several material findings ([10vi–x]) without identifying the evidential basis for those conclusions. These findings appear to replicate information from a 2021 HCP report, despite the tribunal having before it a more recent HCP report dated 6 March 2023, which had formed the basis of the Secretary of State’s decision to award LCW. A comparison of the two reports reveals a deterioration in MG’s mental health, particularly following an assault in May 2022, which significantly impacted his ability to leave his home. The tribunal failed to engage with this intervening event and its relevance to MG’s current condition.

Secondly, the tribunal failed to consider the Secretary of State’s own findings in relation to MG’s entitlement to LCW when assessing whether there would be a substantial risk to his mental health if required to engage in work-related activity. The Secretary of State accepted that MG could not travel to a familiar place unaccompanied and was precluded from engaging socially with unfamiliar individuals due to significant distress. These descriptors, Activities 15 and 16, were directly relevant to the substantial risk test and should have informed the tribunal’s analysis.

Thirdly, the tribunal did not engage with the possibility that MG might be required to undertake unreasonable or inappropriate work-related activity (WRA), as discussed in IM v SSWP (ESA)[2014] UKUT 412 (AAC). In failing to consider the mental health risks associated with MG being required to leave his home unaccompanied and attend unfamiliar settings, the tribunal overlooked a key aspect of the substantial risk assessment.

Fourthly, the tribunal failed to address MG’s evidence that he had previously been physically attacked when outside his home, including at work, due to his conviction for a sexual offence. This evidence was relevant to the question of whether requiring MG to leave his home for WRA would pose a substantial risk to his mental health, particularly considering his fear of further attacks.

Fifthly, the tribunal misunderstood the role of the work coach in determining WRA within the UC framework. It speculated that MG’s WRA would be tailored to address his barriers and would be ‘mild’, despite having no evidence to support this assumption. This reasoning is inconsistent with the guidance in KS v SSWP (UC) [2021] UKUT 132 (AAC) and IM v SSWP (ESA)[2014] UKUT 412 (AAC), which emphasise that the tribunal must assess the risk based on the range of activities that could reasonably be required, not on speculative or idealised scenarios.

In light of the above, I am satisfied that the grounds of appeal disclose material errors of law in the tribunal’s decision.

For the reasons set out above, the appeal is allowed. Accordingly, the appeal will be re-heard by a differently constituted First-tier Tribunal (Social Entitlement Chamber) tribunal panel.

The Appellant’s success in this appeal to the Upper Tribunal, which concerns an error of law, does not determine the outcome of his substantive appeal. That will be a matter for the First-tier Tribunal to assess, in accordance with the law and upon full consideration of all relevant evidence.