Appeal No. UA-2025-000041-ULCW
Between:
SP
Appellant
- v -
The Secretary of State for Work and Pensions
Respondent
Before: Deputy Upper Tribunal Judge Hocking
Decided on consideration of the papers
Representation:
Appellant: Trafford Welfare Rights
Respondent: R J Whitaker, DWP
On appeal from
Tribunal: Social entitlement chamber
Tribunal Case No: 16851 821 79643933 / SC946/23/01765
Tribunal Venue: Manchester/remote
Decision Date: 12 September 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal
DIRECTIONS
This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.
It must be heard by an entirely differently constituted panel.
The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.
The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.
These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT.
REASONS FOR DECISION
Factual background
This appeal is concerned with an assessment that the appellant does not have limited capacity for work (LCW).
On 6 April 2023 the Secretary of State assessed the appellant and not having LCW, awarding him no points for any of the health descriptors relevant to the assessment. That decision was upheld on mandatory reconsideration on 25 may 2023.
The appellant appealed to the FtT. On 5 November 2024 the FtT rejected that appeal. He now appeals to the Upper Tribunal with the permission of UTJ Wright given on 31 January 2025.
A factual issue before the FtT was that the appellant’s condition fluctuates; he has good days and bad days. It was said that he might be able to perform certain activities for one working day but then need a rest day to recover before picking the activities up again on another day and so on. If that was right then, he argued, he might be able to perform work for some days a week without substantial risk to health, but he could not do so for a full 35 hour working week.
The grounds of appeal
The grounds of appeal are:
The Tribunal erred in law in finding that it need not consider the impact of full-time work when assessing whether work would pose a substantial risk to the appellant's health. Given the absence of any firm commitment from the department that it would expect the claimant to look for or undertake work at any lesser number of hours than the default of 35, the analysis of the question of substantial risk should be undertaken in the context of full-time work. (Appellant’s letter dated 2 December 2024)
The appellant elaborated by letter dated 16 January 2025:
it is not clear from the statement of reasons how such a conclusion that the appellant could work full-tíme hours without posing a substantial risk to his health, squares with some of the conclusions drawn by the Tribunal elsewhere in the statement of reasons.
The Tribunal effectively conclude that the appellant could overcome these barriers to work on his rest days through 'reasonable adjustments' (paragraphs 27 and 29 of the SoR). The Tribunal had a duty to set out what such reasonable adjustments might be, and how the Tribunal believed any adjustments would help the appellant to overcome the barriers to working caused by both his inability to stand or sit for long periods without moving away, and his need to rest and undertake physiotherapy or yoga exercises, in order to manage his condition
Giving permission Judge Wright added:
whether work of 35 hours per week is the baseline for assessing substantial risk to health under paragraph 4 in Schedule 8 to the Universal Credit Regulations 2013 is an issue which merits consideration by the Upper Tribunal
Broadly then there are two grounds of appeal: that the FtT took 35 hours a week as its baseline and that was wrong, and that it has not reasoned its conclusions adequately/appears to have reached mutually inconsistent conclusions.
The respondent’s position
The Secretary of State supports the appeal.
He points out (and I agree) that there is some confusion as to what the FtT actually decided, (and I would add that that confusion alone might be enough to justify allowing the appeal). He says this:
The issue that was consistently argued by the claimant’s representative involved stating that the claimant was able to work for over 7 hours a day for three days a week, with a rest day in between each working day, but that the claimant would not be able to manage the same over a five day full-time working week, without there being substantial risk to the claimant’s physical health, namely a significant worsening of their back condition.
The Tribunal, therefore, had to deal with this submission and explain why the claimant could manage this role (or other appropriate roles) on a full-time basis. The Tribunal, I submit, did not make sufficient findings to deal adequately with that issue.
A similar point is made as regards the possibility that the FtT found that the appellant was able to work full time without substantial risk, because reasonable adjustments could be made to mitigate any risk, namely that in making such a finding (if that was the finding) it was necessary to identify the risk, the reasonable adjustment, and how the adjustment ,mitigated the risk to an acceptable degree.
The Secretary of State says nothing about the 35 hour baseline point.
The appellant made no further observations on the Secretary of State’s response.
Decision
I agree with the parties that the decision is inadequately reasoned. The appeal must be allowed for that reason. It is unclear whether the FtT did consider that it had to decide the question of substantial risk on the basis of a 35 hour week or not, and it although it is clear that the FtT considered the appellant could work without substantial risk provided reasonable adjustments were in place, it did not say what those adjustments were, why it would be reasonable to make them, and how they would mitigate the risk to an acceptable degree. I observe in passing that the issues may be connected, in as much as a reduction in hours from 35 a week might itself be a reasonable adjustment. But these are matters of fact for the FtT to consider.
I make no observations on the substance of the 35 hour baseline point. The respondent has not expressed a view and the appellant has not said he requires it to be determined. The point should await decision in a future appeal, where it is a live issue and where the Upper Tribunal has had the benefit of submissions from both sides. It is not right to expect the appellant to wait for his decision to be taken again by the FtT where I have already decided the case should be remitted.
Conclusion
Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by a fresh tribunal
Stephen Hocking
Deputy Judge of the Upper Tribunal
Authorised by the Judge for issue on 15 July 2025