Regulatiomn 35

Have there been any new Upper Tribunal decisions relating to regulation 35?
At a recent tribunal the judge mentioned "the Scottish case"??

carmind wrote: Have there been any new Upper Tribunal decisions relating to regulation 35?
At a recent tribunal the judge mentioned "the Scottish case"??

Hi c

I answered a query regarding the most recent ESA Reg 35 UTT Ruling : (that I am aware of)

Here.

bro58

Hi c,

Could this be "the Scottish case" referred to ? :

2015 UKUT 131 AAC

This case was heard in Edinburgh and refers to the other UTT rulings from the link in my previous post.

bro58

Does 2015 UKUT 131 ACC mean all tribunals must have evidence of what work related activity a person will be required to perform before they can use regulation 35 to put someone in the support group or can they still put someone in the support group without being supplied with information on work related activity?

traybell wrote: Does 2015 UKUT 131 ACC mean all tribunals must have evidence of what work related activity a person will be required to perform before they can use regulation 35 to put someone in the support group or can they still put someone in the support group without being supplied with information on work related activity?

Hi tb,

This UTT ruling reiterates IM v S of S. [2014] UKUT 412 (AAC) even though The FTT decision that led to this UTT ruling (2015 UKUT 131 ACC) was made nearly 12 months before the IM v S of S Ruling.

See Para 2.

"2. In an otherwise well reasoned and careful decision, I consider the tribunal erred in law in two respects. First, in its approach to regulation 35 of the Employment and Support Allowance Regulations 2008 (“the ESA Regs”). On one analysis this was not the tribunal’s fault as the three judge panel of the Upper Tribunal’s decision in IM –v- SSWP (ESA) [2014] UKUT 412 (AAC) was not decided until 15 September 2014 and so the tribunal could not have been aware of it nearly a year earlier when it came it its decision. On the other hand, English law operates on the basis of superior courts (here the Upper Tribunal in IM) declaring what the law has always been."

Where the appellant has raised a "Realistic Argument" that their health or that of another would suffer a "Substantial Risk" if they were compelled to take part in WRA (not in The SG) under ESA Reg 35 (2) (b), The S of S (DWP) must provide evidence regarding what types of WRA are available in the appellant's local area.

Therefore providing the FTT with information of what types of WRA the appellant may be forced to take part in if in The WRAG.

See Par 9. :

"9. The Three Judge Panel of the Upper Tribunal has now given its decision on regulation 35(2) in IM –v- SSWP (ESA) [2014] UKUT 412 (AAC). The new First-tier Tribunal will need to direct itself according to that decision when coming to its decision on regulation 35(2). However, IM imposes obligations on the Secretary of State to provide information in advance to First-tier Tribunals in respect of work-related activity which the individual claimant might be expected to have engaged in at the date of the decision under appeal (see paragraphs 100-109 and paragraph 110 of IM), and those obligations need to be met by the Secretary of State on this appeal."

If The S of S fails to provide this information to The FTT, they can make a decision on whether the appellant qualifies for The SG under ESA Reg 35 using their own knowledge of WRA locally, and the evidence provided by the appellant as part of the appellant's "Realistic Argument" that they should.

Remember ESA 35 will only be considered where the appellant fails to qualify under any one of : The Functional SG (LCWRA)Schedule 3 Descriptors

Some appellants may appeal citing one or more of The SG Functional Descriptors.

Some may appeal citing only ESA Reg 35.

Others may appeal citing one or more of The SG Functional Descriptors, and ESA Reg 35 as a back up argument.

In this case ESA Reg 35 would only be looked at by The FTT after they had decided that none of The SG Functional Descriptors applied to the appellant.

"or can they still put someone in the support group without being supplied with information on work related activity? "

"In a nutshell", Yes, the FTT can make a decision if The S of S has failed to provide information regarding WRA in the local area.

bro58

So if the S OF S know that reg 35 is going to be raised at FTT and they dont give evidence in their appeal response as to what type of WRA appellant will be required to do,and FTT have good reason to believe appellants mental health would be at risk if not in support group and therfore put them in support group,S of S cant complain afterwards?