The Upper Tribunal recently concluded that decisions taken by the Secretary of State for Work and Pensions in relation to Employment Support Allowance were so flawed as to be invalid. Morayo Fagborun Bennett explains why.
There are rare circumstances in which a decision made by the government is only a purported decision and is so flawed that it is not merely wrong but it is invalid. In such a situation, the court or tribunal can set it aside and invite the government to remake the decision. In the twin test cases of Secretary of State for Work and Pension v Dukes and Secretary of State for Work and Pension v Wheatland (CE/366/2013 and CE/705/2013), the Upper Tribunal did just that.
The test as to whether a decision is invalid has been expressed in different ways by the court and tribunal, including the following alternative formulations.
In Anisminic Ltd v Foreign Compensation Commission  2 AC 147 at 171B-E, it was held that a decision can be a nullity on grounds wider than simply that the appropriate body was acting without jurisdiction. For example, where there is a power to make a decision, if the decision maker does or fails to do something in the course of the inquiry which is of such a nature as to make its decision a nullity. This can include failing to comply with the rules of natural justice, misconstruing provisions giving it power to act so that it fails to deal with the question remitted to it, deciding some question which was not remitted to it or refusing to take into account a relevant consideration.
The invalidity test under R (IB) 2/04 at 72 was expressed as a decision with so little coherence or connection to the case or to the decision maker's legal powers that it did not amount to a decision at all. In R(IB) 7/04 at , the test was described as whether a decision was "so fundamentally flawed as to be inconsistent with any proper exercise of a legal power." R v Soneji  UKHL 49 at  was expressed in terms of the test of statutory construction: whether the consequence of non-compliance ought, in terms of legislative intent, to lead to total invalidity.
What does a decision need to contain or how does it need to be made, so that it is a valid decision? This was the question that the Upper Tribunal grappled with.
Employment Support Allowance
Employment Support Allowance (“ESA”) was introduced by section 1 of the Welfare Reform Act 2007 to replace incapacity benefit and income support on grounds of incapacity for work or disability. Claimants receiving incapacity benefit and income support have been moved during the transitional process to ESA. The limited capability for work test decides whether or not an individual can claim or remain on ESA. An individual will be entitled to receive ESA if they are determined to have a limited capability for work.
Schedule 2 of the Employment and Support Allowance Regulations 2008 sets out a range of activities, for example, mobilising, standing and sitting and reaching. Against each activity is a descriptor and different points are attributed to each descriptor. In brief, a Claimant is entitled to ESA if he matches the descriptors in Schedule 2 which add up to at least 15 points (see Regulation 19 of the Employment and Support Allowance Regulations 2008/794).
Schedule 3 of the Employment and Support Allowance Regulations 2008 sets out further descriptors under activities including mobilising, transferring from one seat to another and reaching. Regulation 34 of the Employment and Support Allowance Regulations 2008 provides that if a person satisfies at least one of the descriptors in Schedule 3, the person shall be placed within the support group of ESA. Many of the descriptors in Schedule 3 are the same as those descriptors in Schedule 2, for which the claimant scores 15.
The DWP makes one overall decision about whether a person is entitled to ESA but this decision has two elements. Firstly, whether or not someone has limited capability for work and secondly, the amount to which they are entitled to receive, which depends on whether they have limited capability for work related activity (so score at least 15 points in Schedule 2 but nothing in Schedule 3) or do not have limited capability for work (satisfy Schedule 2 and at least one of the descriptors in Schedule 3).
Mr Dukes was born with a club foot, suffered from arthritis and faced difficulty mobilising, amongst other things. He had been on incapacity benefit since March 1998. The Secretary of State's decision maker sought to convert his incapacity benefit into Employment and Support Allowance (ESA) in November 2011. The conversion decision made without a face to face assessment was that Mr Dukes had scored at least 15 points from the appropriate descriptors and was treated as having limited capability for work. Further that none of the descriptors set out in Schedule 3 to the Employment and Support Allowance Regulations 2008 (ESA Regulations) were met.
The question raised by Mr Dukes was "In what sense did the decision maker make a valid decision without scoring the extent to which Mr Dukes met the Schedule 2 or 3 descriptors? Could she make a valid decision without knowing what if any scores Atos allocated against each descriptor?" The question which the Secretary of State was making a decision on was “extent to which C is capable of performing the activities prescribed in Schedule 2 or is capable or is incapable by reason of such disease or bodily or mental disablement of performing those activities.”
In Mr Wheatland's case, he was originally awarded ESA following a face to face assessment made under the version of Schedule 2 of the ESA Regs that was in place before 28 March 2011. When he sent in a renewal form, the decision maker made a "scrutiny decision" without a face-to-face assessment. The Secretary of State argued that there had been no substantial improvement in Mr Wheatland's condition and nothing to suggest that he would have dropped below 15 points on ESA. However, this failed to take into account the fact that the previous scoring descriptors in the schedules had either changed or disappeared altogether since the previous entitlement decision. This was significant.
The Secretary of State argued that an outcome decision was all that was required rather than a reasoned decision and that in concluding that the claimants had met the descriptors in schedule 2, he had done all that he was required to do to make a valid decision. There was no need to explain or record the scores obtained by the claimants.
Judge Wright disagreed.
The central question for the Secretary of State to decide
At paragraph 81, the judge held that in all cases where capability for work is in issue, a basic condition that has to be satisfied is whether the claimant has, or continues to have "limited capability for work." (the central/critical entitlement test) The Secretary of State had the constitutional responsibility to make the decision through his decision-makers. The only way to address the central/critical assessment test was for the decision maker to assess the extent to which a claimant is or continues to be capable or incapable of performing the activities in schedule 2 under regulation 19(2) of the ESA Regulations.
Judge Wright held that in both test cases, the decision makers did not carry out the tests. At paragraph 85, he ruled that the central entitlement question under s.1(3)(a) of the Welfare Reform Act 2007 (WRA) was whether the person has or continues to have limited capability for work. In addition, the "extent to which" test under regulation 19(2) of the ESA Regulations must be answered in each case. Judge Wright considered it significant that the threshold test had changed and that the decision makers failed to explain how Mr Dukes and Mr Wheatland continued to have limited capacity for work by explaining the Schedule 2 scoring.
The duty to give reasons
The Social Security Act 1998 provides the express basis for decision making by the Secretary of State. This does not provide an express duty to give reasons for his decisions at the time they are made. However, regulation 28 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the DMA Regs) provides an entitlement to a written statement of the reasons for a decision against which an appeal lies (see also rule 24 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008).
At paragraph 86, the judge held that the duty to give reasons under regulation 28 of the DMA Regs was also highly relevant. The key was for the reasons to be adequate in the context within which they are provided. The requirement in this context, "must mean at the reasons giving stage explaining why the person continues to have limited capability for work and that must entail the decision maker being able to explain the Schedule 2 scoring. That regulation 28 duty required a brief but adequate explanation of the scoring under Schedule 2. The fundamental failure of the decision makers to explain the scoring in either case rendered the purported decisions invalid. The decision makers were unable to show how the central statutory test was satisfied.
Appealing an invalid decision
In R(I) 7/94, it was held that where a purported valid decision had been made, the FTT had sufficient jurisdiction to rule on whether it was so. Accordingly, at paragraph 92, Judge Wright held that the FTT had jurisdiction to determine whether the decisions under appeal were valid or so flawed as to need setting aside and remitted to the Secretary of State to be properly decided. A tribunal faced with a purported valid decision should have ruled the decision invalid and of no legal effect and set it aside. This would then leave the Secretary of State to consider making fresh, proper decisions.
The Secretary of State's appeal against the FTT was allowed because the FTT had wrongly concluded that there would be no appeal to the FTT from an invalid decision. However, Judge Wright did what the FTT should have done and set aside the Secretary of State's decision. The overall outcome is therefore that the judge held that the conversion decisions made by the Secretary of State in both Mr Dukes and Mr Wheatland's cases were invalid and set them aside.