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Summary

In considering the claimant’s adult disability payment (ADP) appeal, the First-tier Tribunal for Scotland (FTS) found that he scored two points in each of daily living activities 1, 4, 6 and 9; and 10 points in mobility Activity 1 (for descriptor (d)). The claimant had contended for more points in the daily living activities, including four points in each of activities 7, 9 and 10.

Social Security Scotland appealed (and was granted permission) against the decision of the First-tier Tribunal regarding the tribunal’s decision in mobility Activity 1 (planning and following journeys). In the Upper Tribunal, Lady Carmichael allowed that, holding that the tribunal erred in its approach to mobility Activity 1 by failing to construe descriptor (d) as it was construed by the Upper Tribunal in MH v SSWP [2016] UKUT 531, reported as [2018] AACR 12. The appeal was remitted to a new tribunal in relation to mobility Activity 1 only.

Lady Carmichael also considered a separate point, regarding the jurisdiction of the Upper Tribunal to consider disputes with other findings of the tribunal, raised by the claimant in his response to Social Security Scotland’s appeal. The claimant, in responding, also attempted to dispute the approach of the tribunal to daily living activities 5, 7, and 9. The claimant argued that the tribunal had erred in not awarding him sufficient points in those activities, and that he should have scored 14 points rather than the eight awarded by the tribunal. Social Security Scotland argued that the Upper Tribunal did not have jurisdiction to consider those points as they had not been the subject of a grant of permission to appeal either by the First-tier or the Upper Tribunal.

After an extensive review of authority, Lady Carmichael agreed, settling the question by concentrating on the specific statutory requirements for the Upper Tribunal for Scotland. Under section 46(3) of the Tribunals (Scotland) Act 2014, an appeal to the Upper Tribunal requires the permission of the Firsttier Tribunal, and only if that is refused can permission be granted by the Upper Tribunal. Construing section 46, Lady Carmichael held: ‘The appellant in this case seeks to challenge the approach of the FTS to daily living activities 5, 7 and 9 in response to an appeal directed at the FTS’s treatment of mobility Activity 1. He requires permission to do so. He does not have that permission. It follows that I have no jurisdiction to adjudicate on his challenges to the treatment of daily living activities 5, 7 and 9’ (paragraph 38).

Further, ‘In the context of a claim for ADP, if the respondent seeks to do anything other than preserve the decision of the FTS in the terms in which it is made, then the respondent requires to seek permission to appeal. Any more involved analysis as to outcome and benefit is likely to be unworkable’ (paragraph 45).

Comment from CPAG

As the judge also observes that there may be no reason for a claimant to appeal against a tribunal’s decision unless he finds that Social Security Scotland has been given permission to appeal, that may result in late applications for permission to appeal where Social Security Scotland is given permission to appeal.

Summary

The claimant had limited capability for work (LCW) under the ‘substantial risk’ rule, but not limited capability for work-related activity (LCWRA). In rejecting the claimant’s appeal about that, the First-tier Tribunal gave reasons which would seem also to have required that the claimant should not be treated as having LCW either.

Allowing the claimant’s further appeal and remitting the case to a fresh tribunal, Judge Stout held that the tribunal erred by giving inadequate reasons in failing to recognise and address that inconsistency. The tribunal had also failed to weight the evidence properly.

In UC, the substantial risk rule is found at paragraph 4 of Schedule 8 (regarding LCW) and of Schedule 9 (regarding LCWRA) to the Universal Credit Regulations 2013, SI No.376. The tribunal had before it (as required) a list of the least and most demanding work-related activities the claimant could be required to undertake. It concluded regarding LCWRA that the claimant’s mental health problems were minimal and in effect that there was no real risk of substantial risk. But given that one of the most demanding work-related activities was carrying out actual work by attending a work placement, it was an error of law for the tribunal to conclude that the claimant was not entitled to LCWRA for substantial risk when he did have LCW on that basis without explaining its reasons. Further, the tribunal had relied on the official medical report on the basis that it was supposedly the only report that directly considered the question of risk. But Judge Stout agreed with the claimant that that was to overlook the fact that (as is usually the case) the healthcare professional (HCP) who wrote the report was not aware of the list of work-related activities he could be required to carry out. Unless there was evidence to the contrary, ‘the only rational approach’ of a tribunal was to assume that the HCP did not have access to the list of work-related activities. That was potentially an important factor for the tribunal to bear in mind when deciding how much weight to give to the opinion of the HCP (paragraph 16).