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ESA Regulation 29: How should a tribunal decide if there is work a claimant can do without creating the substantial risk to health envisaged by Regulation 29

16th December, 2021

RB v. Department for Communities (ESA) [2021] NI Com 42

Background

The Department refused the claimant’s claim for ESA on the basis that he did not have limited capability for work. The claimant appealed the decision. The tribunal disallowed his appeal and he appealed to the Social Security Commissioner.

Legal issue

The claimant’s appeal focused on the tribunal’s application of regulation 29 of the Employment and Support Allowance Regulations (NI) 2008.

Regulation 29 states:

‘Exceptional circumstances
29 – (1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.
(2) Subject to paragraph (3) this paragraph applies if –
(a) the claimant is suffering from a life threatening disease in relation to which –
(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and
(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or
(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.’

In AH v. Department for Communities (ESA) [2017] NI Com 13, Commissioner Stockman provided authoritative guidance to decision-makers and appeal tribunals on the proper approach to regulation 29. The Commissioner’s guidance is summarised as follows:

  • The decision of the Court of Appeal in England and Wales in Charlton v. Department for Work and Pensions [2009] EWCA Civ 42 is relevant to the application of regulation 29 and, although not strictly binding in Northern Ireland, should be followed.
  • Although Charlton considered the position under rules governing Incapacity Benefit, the same principles apply to cases involving ESA (JW v. Secretary of State for Work and Pensions (ESA) [2011] UKUT 416 (AAC) Deputy Judge Poynter).
  • Charlton approves the decision of Deputy Commissioner Paines QC in CIB/360/2007, including the following statement:
‘A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to consider whether, within that range, there is work he could do without the degree of risk to health envisaged by regulation 27(b) [IB equivalent of regulation 29 ESA Regulations]’.
  • Charlton requires a tribunal to form a view on the range or types of work for which the claimant is suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. It must then consider whether within that range there is work the claimant can do without a substantial degree of risk to health.
  • While a tribunal does not have to specify particular occupations which are safely open to the claimant, it must identify the range of work the claimant could do.

Decision

The Commissioner endorsed the principles set out by Commissioner Stockman in AH. He agreed that the approach of the tribunal was not in keeping with the approach recommended by Charlton or sanctioned by Commissioner Stockman in AH. He allowed the claimant’s appeal and referred the case to a new tribunal.