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Summary

The claimant was a German national who came to the UK in December 2011 to be nearer her daughter. The daughter was a Canadian national who was working in the UK, who was married to ‘Mr H’, a UK national and self-employed in the UK, but who had also, on three separate occasions, done some unpaid work in Greece and Germany, as a plumber and heating engineer for the International Bible Students Association. The claimant was financially dependent on her daughter and son-in-law (Mr H). The claimant’s right to reside for PC purposes was mainly reliant on an argument that she was the family member of a UK national who could be treated as if he were a European Economic Area (EEA) national, on the basis that he was ‘residing in a EEA state as a worker or self-employed person’ before returning to the UK. If that applied, then the claimant had a right to reside under regulation 9(2)(a)of the Immigration (European Economic Area) Regulations 2006 No.1003. The argument was rejected by the First-tier Tribunal.

Judge Ward rejected the claimant’s further appeal, holding that the tribunal had not materially erred in law. On the facts of the case, and with reference to the decision of the European Court of Justice (EUECJ) in Case C-456/12 O and B v Minister voor Immigratie, Integratie en Asiel (12 March 2014), he considered that the family member (Mr H) had not been ‘resident’ in Greece or Germany. He also considered that the tribunal had not erred in considering Mr H not to have been a ‘worker’ at the relevant times. Although it was not absolutely necessary to have been paid money, the fact that he was not in any sense better off as a result of performing the services, the brevity of the work and the fact that Mr H saw himself as a volunteer all suggested that his arrangements were not such as to make him a ‘worker’ (paragraphs 44–49). The judge also held that given that Mr H was a UK national, he did not count as an EEA national regarding his work in the UK, that there was no ‘lacuna’ in the law which required filling in this case, and that to accept that the denial of a right to reside to the claimant was somehow disproportionate would be ‘a large scale tearing-up’ of the relevant limitations in the law (paragraphs 54– 62). Although it was perfectly understandable that the claimant wished to be near her family, ‘that is not an unusual situation and it is not one for which the legislator has seen fit to provide’ (paragraph 62).

On the question of whether Mr H had been ‘resident’ in Greece or Germany, the facts included that he had only been in Greece or Germany for two or four weeks at a time, and was unpaid. In O and B, the EUECJ had looked at principles governing claims by ‘third-country’ nationals based on being family members of an European Union national who had exercised rights of freedom of movement and then sought to enforce her/his rights against her/his own member state. Although in the present case the claimant was German and so not a third-country national, O and B was relevant in that it held that such rights only arose where the ‘residence’ in another Member State had been ‘sufficiently genuine so as to enable the citizen to create or strengthen family life in that member state’ (paragraph 26). In the present case, the judge did not consider that Mr H’s brief periods in Germany and Greece ‘amounted to “residence” at all’ (paragraph 27). The judge rejected an argument that merely being present in the member state was sufficient, although it was not necessary to go as far as requiring ‘habitual residence’ (paragraph 32); rather, what was required was ‘a judgement of fact and degree as to whether the individual has lived in the EEA State in question with sufficient permanence, continuity, or at least some expectation of continuity, to warrant the conclusion that he “resided” there within the ordinary meaning of that word’ (paragraph 40).

Summary

The claimant was at the relevant time a child aged 7. He had learning difficulties, speech and communication problems and hyper-extensible knees and elbows. His claim for DLA (made by his mother) was refused. On appeal to the First-tier Tribunal he argued that he was entitled to the care component of at least the lower rate, and to the mobility component at the lower rate. In refusing the appeal, the tribunal held that he did not need substantially more care than that required by a child of his age who did not have a disability and, regarding the mobility component, that a child of his age would always require attention from a supervising parent or adult when crossing the road.

Judge Markus QC allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred firstly in holding that as the claimant was not dyslexic, the decision in KM v SSWP (DLA) [2013] UKUT 159 (AAC); [2014] AACR 2 (Bulletin 237, p12) did not apply. The tribunal was wrong to do this, held the judge, as ‘it is clear that KM is not limited to cases of dyslexia but applies to other cases of learning disability’ (paragraph 16). Further, KM gave guidance as to the correct approach to decision making for the care component rules (including for children) under section 72(1) of the Social Security Contributions and Benefits Act 1992. The tribunal had therefore not approached its task correctly. It did not identify what functional disability or impairment the claimant had, did not determine what bodily function that related to [KM refers to ‘the bodily function of the brain’], what assistance he required for that (including when at school), whether that counted as ‘attention’ and if so whether it was required for a significant portion of the day or frequently throughout the day (paragraph 18).

Further, the tribunal had erred in the approach to the extra test for children at section 72(1A)(b). That required that for a child there were either (under subsection (i)) care needs ‘substantially in excess of the normal requirements’ of a child of the same age, or (under subsection (ii)) substantial care needs ‘which younger persons in normal physical or mental health may also have’ but which persons of the claimant’s age in normal physical or mental health would not have. Endorsing comments in R(DLA) 1/05, the judge held that the tests were different in that subparagraph (ii) might apply where a claimant has substantial requirements which were ‘different to those of normally healthy children’, even though subparagraph (i) did not apply because the claimant’s requirements ‘are not substantially in excess of the requirements of those other children’ (paragraph 30). Applying that principle to a child claimant with developmental delay who needed help with reading, the judge said that ‘all young children require assistance with reading’, but ‘a child with developmental delay may require help of a type which is required by younger children in normal health’ but which was substantial and ‘different from the help required by children of the same age but is not substantially in excess of that help’. There might be cases therefore in which subparagraph (ii) applied to a child, even though subparagraph (i) did not (paragraphs 32–33). Similarly, the tribunal erred regarding the mobility component as KM held that a generally similar fact finding approach was required there. The extra test for children was at section 73(4A). The assistance required by the claimant may not have been limited to guidance in crossing the road. Also, the tribunal should then have identified the nature and degree of any guidance or supervision that was required, and whether it was ‘substantially more’ than that required by children of the same age in normal health, or whether such children ‘would not require such guidance or supervision’ (paragraphs 42–43).

See also our article on Universal credit, mental health and reasonable adjustments

Summary

The claimant was treated as possessing £7,000 of capital under the ‘notional capital’ rule. The circumstances were that the £7,000 had been withdrawn from the claimant’s account on the same day as a visit from a DWP customer compliance officer. In her appeal to the First-tier Tribunal, the claimant said that the money was used to repay her ex-partner money that she had borrowed from him, and that he had asked for the money to be returned because he had debts and his working hours had been reduced. She supplied evidence of this including a letter from her ex-partner. She said it was mere coincidence that the money had been withdrawn on the same day as the visit from the customer compliance officer. The tribunal dismissed the appeal, holding that the customer compliance officer had explained to the claimant the effect of the capital rules, and accepting the Secretary of State’s argument that the timing showed the claimant had deliberately deprived herself of the money in order to get more IS.

Judge Rowland allowed the claimant’s further appeal and substituted a decision that the claimant was not to be treated as possessing the £7,000 under the notional capital rule. On the facts and applying the relevant law, the judge considered that although the tribunal was entitled to find that the compliance officer’s visit precipitated the repayment of the debt, ‘the debt had to be paid and she had no legitimate choice but to pay it immediately’ (paragraph 16, emphasis in original). The judge pointed out that the claimant had provided the type of written evidence that had been held necessary in R(SB) 12/91, and the customer compliance officer had seen evidence of the building work that the claimant had said was financed by the loan. But it was worth emphasising that tribunals may need to investigate the facts in the thorough manner suggested in R(SB) 12/91, including (in cases involving repayment of a loan to a friend or relative) expecting the friend or relative to provide written and documentary evidence (paragraph 18).

The relevant law in this case was the notional capital rule at regulation 51 of the Income Support Regulations 1987 No.1967. In applying that, it was well established that the purpose of securing entitlement to a benefit or increasing the amount of that benefit need not be the dominant purpose behind the deprivation. In R(SB) 12/91, it was held that a person repaying debts that s/he was obliged to pay was not caught by the notional capital rule, but only where the relevant debt was ‘immediately payable’ (R(SB) 12/91 paragraphs 13 and 14, quoted at paragraph 8). In Jones v Secretary of State for Work and Pensions [2003] EWCA Civ 964, the Court of Appeal held that the question of why a person had deprived her/himself of capital was a question of fact, but that ‘if the payment is made in satisfaction of a debt, the fact-finder will not usually conclude’ that the purpose was to secure entitlement to benefit (Jones paragraph 52, cited at paragraph 10). In the present decision, Judge Rowland noted that the Court in Jones also made it clear that the fact that a debt was not immediately repayable did not automatically mean that the claimant was caught by the notional capital rule (paragraph 12). As a matter of ‘legal theory’, it was also true that even where the debt was immediately repayable the question of the purpose of the deprivation was still a matter of fact, but (noted Judge Rowland) the Court of Appeal did not suggest there was ‘any circumstance in which it would be reasonable to say that a person who had no choice but to repay a debt’ was caught by the notional capital rule (paragraph 13).

Summary

The claimant was a Latvian national who came to the UK in 2008. She did agency work from 2009, which initially was not registered under the worker registration scheme (WRS), following the extension of the application of the WRS for the period 1 May 2009 to 30 April 2011. Her work was eventually registered in August 2010 (it was agreed before the judge that it is not possible for that to have had retrospective effect). Her eventual claim for PC in 2012 was refused on the basis that she did not have the right to reside. The First-tier Tribunal said it did not have jurisdiction to consider her appeal, which was based on an argument that the extension of the WRS scheme in 2009 to 2011 was unlawful.

Judge Ward allowed the claimant’s further appeal and substituted a decision that the claimant was entitled to housing benefit. She had a right to reside on the basis that she was a ‘worker’ who had ‘ceased activity’ on reaching pension age or taking early retirement, having ‘resided’ the UK for at least three years, as provided for in regulations 5 and 15 of the Immigration (European Economic Area) Regulations 2006 No.1003. Firstly, the extension made to the WRS scheme in 2009 to 2011 was unlawful – so that when working in that period the claimant counted as a worker. The extension was not automatically unlawful, as the Treaty of Accession to the European Union of Latvia and the other so-called ‘A8’ states allowed for that ‘in case of serious disturbance’ of the labour market (paragraph 69). But the judge agreed that the restrictions on the labour market involved in such an extension must tackle the disturbance ‘proportionately’ (paragraphs 76–77), and considering the available evidence did not consider that test was met when the extension was made in 2009 (paragraphs 104–119).

Also, the three years’ ‘residence’ test in regulation 5 was, in the judge’s view, a test of ‘actual’ residence, not of ‘lawful’ residence (ie, as applies to the test for permanent right to reside after five years’ residence). It, therefore, did not actually matter whether the claimant had a right to reside in those years or not. In so holding, the judge declined to follow the decision to the contrary effect of Judge Jacobs in ID v SSWP (IS) [2011] UKUT 401 (AAC). But even if that was wrong, so that the three years’ residence had to be ‘lawful’, the judge considered that on the facts of the case in the relevant times the claimant in fact had a right to reside either as a worker (as above) or as a jobseeker, including having a ‘genuine chance of being engaged’ while a jobseeker (paragraphs 122–135).

Note: this decision was appealed to the Court of Appeal and subsequently to the Supreme Court, see our caselaw summaries Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751 and Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31.

Summary

The claimant had various health conditions including significant visual impairment. He failed the work capability assessment, having been scored nil points. The First-tier Tribunal allowed him nine points under Activity 8(c). In his further appeal to the Upper Tribunal, the claimant argued that he should be scored 15 points under Activity 8(b) – ie, ‘cannot safely complete a potentially hazardous task such as crossing the road, without being accompanied by another person, due to sensory impairment’. The tribunal had not applied that descriptor, based on its conclusions from the claimant’s evidence that he was able to cross the road using a zebra crossing but would not go somewhere unfamiliar.

Judge Wikeley allowed the claimant’s appeal and remitted the case to a new tribunal for more findings of fact. The tribunal had erred in two respects. Firstly, it had failed to make findings about the variability of the claimant’s problems with vision under different lighting conditions (bearing in mind the overall test of ability to perform the specified activity with ‘reasonable regularity’), an issue which was indicated in the evidence before the tribunal. Secondly, the tribunal had concentrated exclusively on the claimant’s ability to cross the road using a zebra crossing, and in so doing had not applied the wording of descriptor 8(b) correctly (paragraphs 17–18).

Specifically, in descriptor 8(b) crossing the road was (because of the use of the words ‘such as’) ‘simply one illustration’ of a potentially hazardous task, and ‘not an exclusive and exhaustive definition’ (paragraph 18). Therefore, the tribunal had erred in treating the test of crossing the road as the sole context, to the exclusion of others – the judge suggested other potential illustrations might include walking alone on a country lane where there is no footpath, walking round a shop or workplace where there may be boxes or other obstacles at floor level, or perhaps even a busy pedestrian route with bustling crowds (paragraph 5).

Even in the context of crossing road, the tribunal had erred in focusing on the claimant’s ability to use a zebra crossing. The test was whether the claimant could ‘safely cross the road without being accompanied’, not ‘cross the road by a zebra crossing without being accompanied’. A zebra crossing could not be regarded as an ‘aid’ which could be taken into account for this purpose, as such an aid must be something which the claimant can take about with him (paragraph 20).

Summary

The claimant had various health problems including panic attacks out of doors, alcohol dependency and chronic back pain. Her claim for DLA was refused, a decision that was upheld by the First-tier Tribunal (‘the DLA tribunal’), who had been asked to consider her entitlement to the low rates of both the mobility and the care components. On the day of the tribunal hearing, the DLA tribunal had been given a copy of a decision notice dated the day before, indicating that she had successfully appealed an employment and support allowance (ESA) decision. The First-tier Tribunal dealing with that appeal (‘the ESA tribunal’) had awarded her 9 points under descriptor 15(b) for ‘getting about’, and 9 points under descriptor 16(b) for ‘coping with social engagement due to cognitive impairment or mental disorder’. However, the DLA tribunal made no reference to that.

Judge Hemingway allowed the claimant’s further appeal, and remitted the case for consideration by a fresh tribunal. The DLA tribunal had erred in failing to take into account a relevant matter, namely the decision of the ESA tribunal (paragraph 35). The judge accepted submissions from the Secretary of State that the DLA tribunal was not bound in any way by the decision of the ESA tribunal, that different tests were in issue, and that there was no obligation on the DLA tribunal to follow any of the ESA tribunal’s reasoning (paragraph 33).

Nevertheless, the DLA tribunal did not make any reference at all to the decision of the ESA tribunal and there was therefore no evidence that it received any ‘meaningful consideration’ at all (paragraph 31). In this case, the ESA tribunal decision was relevant, especially its finding that descriptor 15(b) applied. That is satisfied where the claimant ‘is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person’. While it did not necessarily follow that such a finding meant that the test for entitlement to the lower rate of the mobility component is satisfied, the judge said: ‘…I would take the view that it certainly suggests it might be. There is, it seems to me, a considerable interrelationship between the two statutory tests. So, potentially, the award made by the ESA tribunal was a matter of some significance. It merited the paying of some attention to it…’ (paragraph 34).

Comment from CPAG

Although concerned in particular with the relevance of an ESA award to DLA entitlement for mobility, it is strongly arguable that, depending on the facts, similar reasoning should apply to the relevance of an ESA award to personal independence payment. However, the relevance will depend on the facts, and claimants should be aware that adverse ESA decisions might also be considered relevant.

Summary

The claimant’s appeal to the First-tier Tribunal was signed by her solicitor. In the appeal letter, the solicitor also said that a copy of the letter had been sent to the claimant for her to sign and forward to the local authority. Although the claimant said that she did so, the local authority said that it never received the copy signed by the claimant, and by the time it received such a copy, the appeal was outside of the maximum 13-month time limit allowed for an appeal. The local authority submitted to the tribunal that the appeal signed by the solicitor was not sufficient for the appeal to have been duly made, and the one actually signed by the claimant was made too late. The tribunal accepted that and in an interlocutory decision struck out the appeal.

Judge Wikeley allowed the claimant’s further appeal, holding that the appeal signed by the solicitor was duly made, and remitted the substantial matter of the appeal to a new First-tier Tribunal. The tribunal had erred in holding that an appeal signed by a solicitor was not duly made (paragraph 3). The relevant statutory requirement was at rule 23(6) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685. That requires, among other things, that the notice of appeal ‘must be signed by the appellant’. But the tribunal erred in failing to apply the finding in General Legal Council ex parte Basil Whitter v Frankston [2006] UKPC 42 that when a statute gives someone the right to invoke some legal procedure by giving a notice or taking some other formal step, ‘he may either do so in person or authorise someone else to do it on his behalf’ (cited at paragraph 25 of the present decision). Judge Wikeley went on to say that, given the code of professional responsibilities and ethics imposed upon solicitors, ‘one can assume that a solicitor sending in a letter of appeal on behalf of their client is properly authorised and acting on their instructions, and so is signing as an agent for their client’ (paragraph 28). This point had also been made by Judge Rowland at paragraph 11 of Salisbury Independent Living v Wirral Metropolitan Borough Council [2011] UKUT 44 (AAC), where he said, ‘the requirement for the appellant’s signature is generally waived where the notice of appeal is signed by a representative who provides signed authority to bring the appeal or who is a solicitor and therefore presumed to act only on instructions’.

Where a non-legally qualified representative, such as a welfare rights worker or CAB adviser provides written authority from their client, then they are in practical terms ‘in the same position as a solicitor who writes on the instructions of their client’. However, where such a representative lodges an appeal but does not provide such authority, the situation is less clear, and it cannot always be assumed that s/he is acting on her/his client’s instructions (paragraph 30).

Summary

The claimant was separated from her son’s father. She lived in a council property with two bedrooms. The son spent equal time with the claimant and with his father under a shared residence order. At the relevant time the father was in receipt of child benefit and tax credit in respect of the son. The claimant’s eligible rent was subject to a 14 per cent reduction under the so-called ‘bedroom tax’ rules contained at regulation B13 of the Housing Benefit Regulations 2006 No.213, as she was regarded as entitled to have only one bedroom (ie, for herself) included. The claimant’s appeal was allowed by the First-tier Tribunal, on the basis that the son occupied as his home both the claimant’s dwelling and the father’s dwelling, and that there was nothing that provided he could not have more than one home or live in more than one household.

Judge Jacobs allowed the further appeal of the local authority, and substituted a decision that for the purpose of regulation B13 the claimant was entitled to only one bedroom, so that the 14 per cent reduction should be applied. The tribunal had erred in misinterpreting the relevant legislation. Specifically, the tribunal erred in regarding the words at subparagraph (5) of regulation B13, which gave entitlement to a bedroom for each person ‘whom the relevant authority is satisfied occupies the claimant’s dwelling as their home’ as freestanding. Rather, these words had to be read in the context of other provisions in the HB legislation. Specifically, regulation 7(1)(a) provides that a person shall be treated as occupying as his home, ‘the dwelling normally occupied as his home…by himself and by his family’; ‘family’ is defined by section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 as ‘a member of the same household for whom that person is responsible and who is a child’, and regarding responsibility regulation 20(2)(a) provides that where a child spends equal time in different households, they are treated as ‘normally living with the person who is receiving child benefit in respect of him’.

Applying that to the present case, given that the father was entitled to child benefit for the son, the claimant was not responsible for him by virtue of regulation 20(2)(a). As a result, the son did not qualify for a second bedroom under regulation B13 (paragraph 9).

Summary

The claimant was refused PIP. In upholding that decision, the First-tier Tribunal said that it ‘adopted a broad axe approach to all of the evidence as required in the case of Moyna.’ That was a reference to the decision of the House of Lords in Secretary of State for Work and Pensions v Moyna, reported as R(DLA) 6/03, a Disability Living Allowance (DLA) case which held that for the DLA ‘cooking test’ an overall judgement was required rather than an arithmetical test. That approach was extended to all aspects of the care component of DLA in R(DLA) 5/05. In the present case, the claimant appealed, arguing that it was incorrect to apply the test in Moyna to PIP, as that was a different benefit and, in particular, the ‘50 per cent’ rule to assessing variability (contained at regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013 No.377) should be used instead.

Judge Gamble agreed with that, allowing the claimant’s further appeal and remitting the case to a new tribunal. Moyna should not be applied to PIP. It is a replacement for DLA, with different and distinct statutory criteria of entitlement. In the judge’s view, it was ‘entirely consistent with the differences between the statutory conditions of entitlement to disability living allowance and those to personal independence payment to hold that the test laid down in Moyna as extended by R(DLA) 5/05 has been replace by the fifty per cent rule for variability’ contained in regulation 7 of the PIP regulations. That clearly provided for an “arithmetical formula”’ (paragraph 9).

Comment from CPAG

This first Upper Tribunal decision about PIP is a reminder that, despite some similarities, PIP is a different benefit to DLA, and where (as here) the statutory schemes differ substantially, it is the PIP rules that must be followed. However, where more general principles are involved, DLA caselaw may still be relevant – see, for example, BTC v SSWP.

Summary

This decision of a three-judge panel of the Upper Tribunal arises from different approaches in the caselaw to the question of what evidence is required when making a decision on whether a claimant is to be treated as having limited capability for work-related activity (ie, in the support group for ESA) due to there being a ‘substantial risk’ to her/his or someone else’s health were s/he not to be so treated, as provided for at regulation 35(2) of the Employment and Support Allowance (General) Regulations 2008, SI 2008 No.797. In MT v SSWP (ESA) [2013] UKUT 545 (AAC), Judge Gray had held that the Secretary of State was under an obligation to supply the relevant information to the First-tier Tribunal and that, generally speaking, without that the tribunal could not rely on its own knowledge; she disagreed with the finding by Judge White in AK v SSWP (ESA) [2013] UKUT 435 (AAC), who held that in the absence of the Secretary of State’s evidence generally the tribunal could rely on typical examples that were within its own knowledge.

In the present decision, Mr Justice Charles and Judges Warren and Rowland held that: (1) the Secretary of State should provide evidence of the ‘types’ of work-related activity available in the area in which the claimant lives and by reference to that ‘what the particular claimant may be required to undertake and those which he considers it would be reasonable for the provider for the claimant to undertake’ (paragraph 106); (2) however, the Secretary of State’s obligation is merely to indicate the activity the claimant ‘might’ be required to do, not that which s/he actually would be required to do (paragraph 118); (3) such evidence should be provided even in cases where the claimant has been considered not even to have limited capability for work (paragraph 108); (4) in some cases it may be sufficiently obvious to the tribunal that there is no substantial risk from any work-related activity, but in some cases (especially because information from the decision is not then passed to the decision maker who decides what work-related activity the claimant is actually then required to undertake) the tribunal cannot be sure and so will be entitled to decide that there is substantial risk (paragraphs 111–112); (5) if the Secretary of State fails to provide the relevant evidence, the tribunal is entitled to use its own knowledge ‘if it is confident that it is up-to-date and complete as to the more demanding types of work-related activity’, or it may adjourn to get more evidence, or it may decide that it can decide the case without the extra evidence – it will depend on the particular facts and, in particular, ‘how vulnerable the claimant is’ (paragraph 117).

Comment from CPAG

Despite the comment that the panel ‘broadly prefer the approach of Judge Gray in MT to that of Judge White in AK’ (paragraph 118), the decision is in effect a blending of the approaches from both decisions. However, although tribunals may use their own knowledge, that clearly must be more detailed than the general categories of ‘interviews, retraining or therapy’ referred to in AK.

Summary

The claimant had physical and mental health problems. They included major depression and panic attacks. She was transferred from income support to employment and support allowance, and was placed in the work-related activity group. On appeal she argued that she should have been placed in the support group (ie, be regarded as having limited capability for work-related activity) due to there being a 'substantial risk' to her health if she were required to undertake work-related activity. She submitted evidence that receipt of the tribunal enquiry form had triggered a serious panic attack, and a letter from her doctor saying that she had severe generalised anxiety and depression and could not be left alone by her husband. The tribunal, in a paper hearing (the claimant having said she did not want to attend), dismissed the appeal, holding that she had in the company of her husband been able to attend a counselling session.

Judge Mark allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in its application of the substantial risk rule at regulation 35(2) of the Employment and Support Allowance Regulations 2008, SI 2008 No.797. The tribunal had failed to refer to the evidence as to her reaction to the enquiry form, and more generally was 'woefully short of evidence to justify its findings' (paragraph 14). There was no evidence about how the claimant actually was when she attended the single counselling session cited by the tribunal, and that was insufficient to support a finding that she could safely undertake work-related activity (paragraph 15). The 'only sensible course' for the tribunal to have taken was to have adjourned and invited the claimant's husband to attend a hearing and considered getting medical evidence and directing a medical examination (paragraph 18).

Also, the tribunal's approach was wrong in the light of the decision of the three-judge panel of the Upper Tribunal in IM v SSWP (ESA) [2014] UKUT 412 (AAC). In the light of that decision, the tribunal erred in not adjourning to obtain the information referred to in that decision, being information from the Secretary of State as to the type of work-related activity in the area in which the claimant lived (paragraph 22). Also, the Secretary of State should now provide evidence of 'any general practical limitations on the extent to which work-related activity is required in the area, so that, for example, a practical decision not to ask anybody over 55 to undertake work-related activity would be relevant to the question of risk, the claimant having been born in 1956.' However, if the practical position was that she might be required to undertake activities potentially dangerous to her, that was something the tribunal must assess (paragraph 22). Finally, following IM it was for the tribunal to seek evidence and make findings of fact as to the likely extent to which a third party may be available to the claimant and to assess the risk to the claimant in the light of that: depending on the evidence, it may be that such support will always be available, or that it will be available rarely, or commonly but not reliably (paragraph 23).

Summary

The claimant had no use of her left arm, but her right arm was fully functional. On appeal (having been held to fail the work capability assessment) the claimant was awarded six points for descriptor 4(c) of the work capability assessment ('cannot transfer a light but bulky object such as an empty cardboard box'), but not other points. In particular, the tribunal refused to apply descriptor 5(d), which at the relevant time was 'cannot use a suitable keyboard or mouse' (and from 28 January 2013 became 'cannot single-handedly use a suitable keyboard or mouse').

Dismissing the claimant's further appeal, Judge Mark first held that (contrary to the argument of the Secretary of State) the tribunal was entitled on the facts to award descriptor 4(c). The Secretary of State submitted that exclusion of a former reference in the descriptor to using both hands meant that is was generally accepted that a person could manage to perform the activity by using one hand and supporting the box against another part of the body. The judge disagreed. There was no suggestion that the 'bulky' object had diminished. Also, held the judge, 'in my judgement the effect of the change of wording is that the use of both hands together is no longer essential. If it can be picked up and moved by the use of one arm and the upper body, presumably by wedging it under the arm, that will suffice. But not everybody is expected to be able to do that. It seems to me that the tribunal concluded, as it was entitled to, that this claimant would reasonably require both arms to perform the task' (paragraph 5).

Regarding descriptor 5(c), the judge referred to the disagreement with his own previous decision in CL v SSWP [2013] UKUT 434 (AAC) by Judge Wright in DG v SSWP [2014] UKUT 100 (AAC) (see Bulletin 239, p6). Judge Wright disagreed with the finding in CL v SSWP that the context for the descriptor was using a computer, so that inability to use either keyboard or a mouse would be sufficient to score points. In the present decision, Judge Ward made it clear that what is being tested is physical ability to use a keyboard or mouse (paragraph 10). But he continued to believe that 'when the descriptor speaks of using a keyboard or mouse, as Judge Wright's examples make clear, the use can only be to achieve results on a computer. It follows that in assessing whether hands are so lacking in dexterity as to score points on this descriptor it must be in relation to the operation of a computer' (paragraph 11 ). On the facts of this case, however, that did not assist the claimant: she had no problems with her right hand, and suitable keyboards with standard facilities like StickyKeys can be operated with one hand (and the introduction of 'single-handedly' did no more than confirm what the case was already). Even though there might be some things the claimant could not do, 'provided her dexterity was such as to enable her to use the keyboard so as to have a significant ability to use a computer', that did not mean she could not use a keyboard or mouse (paragraphs 12-14).