Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                Upper Tribunal case No.  CE/1609/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before:           Mr E. Mitchell, Judge of the Upper Tribunal

 

Hearing:         4^th February 2015, Field House, Bream’s Buildings, London

 

Attendances:  Mr T Jones, for the Secretary of State

                        The appellant, in person.

 

Decision:  The decision of the First-tier Tribunal (29 November 2013, file reference SC 192/13/00389) did not involve the making of an error on a point of law. I do not set it aside.

 

REASONS FOR DECISION

 

Introduction

 

1. Is a resident of a domestic violence refuge a person undergoing medical or other treatment as a patient in a hospital or similar institution? If the answer is yes, the resident is deemed to have limited capability for work. Limited capability for work is one of the basic conditions for entitlement to Employment and Support Allowance (ESA) under section 1 of the Welfare Reform Act 2007.

 

2.  I have decided that, in this case, the First-tier Tribunal correctly decided that the claimant did not fall within regulation 25. 

 

3. I cannot rule on the status of every single resident in every single refuge in the country. But if their characteristics match those in this case regulation 25 ought not to apply.

 

The background

 

4. The appellant, Miss J, claimed ESA.

 

5. Miss J completed a disability questionnaire on 16^th November 2012. She indicated difficulties with initiating actions, coping with change, going out and coping with social situations. Miss J wrote that her difficulties were due to stress. She also recorded that she was living in a women’s refuge “due to fleeing domestic violence”.

 

6. The Department for Work & Pensions arranged for a Healthcare Professional (HCP) to examine Miss J on 31^st January 2013. In the HCP’s opinion, Miss J satisfied none of the Work Capability Assessment (WCA) points-scoring descriptors. The WCA is contained in Schedule 2 to the ESA Regulations 2008 and is used to determine whether a person has limited capability for work (section 8(1) of the Welfare Reform Act 2007). At least 15 WCA points are required (regulation 19(3) of the ESA Regulations 2008).

 

7. In support of her appeal, Miss H supplied a GP letter, dated 11^th March 2013, about her work readiness. The letter ended by stating “I feel it would be at least twelve months before her anxiety levels are to improve to a level where looking for work would be deemed appropriate”.

 

8. The Secretary of State agreed with the HCP and on 26^th March 2013 decided that Miss J did not have limited capability for work and was not entitled to ESA.

 

9. Miss J appealed to the First-tier Tribunal. Beforehand, she wrote to the Tribunal and argued she should be treated as having limited capability for work because she was residing in, and pursuing an abuse recovery programme at, a women’s refuge. Rightly, the First-tier Tribunal took this as an argument that regulation 25 of the ESA Regulations 2008 applied. This letter also argued that Miss J was “not fit for work”, as evidenced by her GP certificates and letter.

 

10. The hearing before the First-tier Tribunal was on 29^th November 2013. By this date, Miss J had left the refuge although the Tribunal was concerned with her circumstances at the date of the decision under appeal (section 12(8) of the Social Security Act 1998).

 

11. The record of proceedings kept by the First-tier Tribunal judge is commendably full and legible. It records Miss J giving the following evidence about her refuge: it “was like a recovery centre – structured day with treatment programmes”; “we had counselling sessions – they did courses but I found it difficult to motivate myself to attend”; “there were support groups – we did all discuss our experiences”; “there were classes such as stained glass making”; at the refuge “there were 10 staff in total and one was a child support worker”; “they say you should have recovered after six months and try to get you into accommodation”.

 

Regulation 25 of the ESA Regulations 2008

 

12. Since the meaning of regulation 25 of the ESA Regulations 2008 is the principal issue on this appeal, I will outline its structure and the relevant case law before considering how it was applied by the First-tier Tribunal.

 

Legislative structure

 

13. Here is the version of regulation 25 in force when the decision under appeal was taken:

 

“Hospital patients

 

(1) A claimant is to be treated as having limited capability for work on any day on which that claimant is undergoing medical or other treatment as a patient in a hospital or similar institution, or on any day which is a day of recovery from that treatment.

 

(2) The circumstances in which a claimant is to be regarded as undergoing treatment falling within paragraph (1) include where the claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction.

 

(3) For the purposes of this regulation, a claimant is to be regarded as undergoing treatment as a patient in a hospital or similar institution only if that claimant has been advised by a health care professional to stay in a hospital or similar institution for a period of 24 hours or longer.

 

(4) For the purposes of this regulation, “day or recovery” means a day on which a claimant is recovering from treatment as a patient in a hospital or similar institution and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work on that day.”

 

14. That version took effect on 28 January 2013 (see Statutory Instrument 2012/3096, the amending instrument). It applied on Ms J’s claim decided on 26 March 2013. It remains the version currently in force.

 

15. Regulation 25(1) is a deeming provision. It treats a person as having limited capability for work on any day on which the person is undergoing treatment with particular characteristics. While not formally divided into sub-conditions, it does, together with regulation 25(3), contain discrete elements although I recognise that they overlap and the entire statutory wording “should be read as a whole” (Davis LJ in Slavin v Secretary of State for Work & Pensions [2012] AACR 30 (“Slavin”)). The elements are as follows:

 

(a) the claimant must be undergoing medical or other treatment; and

 

(b) the treatment must be as a patient; and

 

(c) the treatment must be in a hospital or similar institution; and

 

(d) the claimant must have been advised by a health care professional to stay in the hospital or other institution for a period of 24 hours or longer.

 

16. If any of those elements is absent, any claim based on regulation 25(1) must fail. Accordingly, it is permissible to reject an argument that regulation 25(1) applies simply by reference to the non-satisfaction of any one element. Indeed, that is what the Court of Appeal did in Slavin. It is what the Secretary of State invites the Upper Tribunal to do in this case.

 

17. Regulation 25(2) is a special case (effectively, a deeming provision within a deeming provision).  If a claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction on any particular day, there can be no argument about regulation 25(1). It applies. I note that the express legal consequence is that the claimant is regarded as undergoing treatment within regulation 25(1), rather than a declaration that regulation 25(1) applies. However, regulation 25(1)’s legal hinge is treatment. The other elements do not have an independent legal existence. Their function is to qualify “medical or other treatment” by requiring it to have specified characteristics – as a patient in a hospital or similar institution. Therefore, a provision that deems the treatment condition to be satisfied inevitably deems the qualifications satisfied too.  And so what regulation 25(2) does is bring persons attending residential rehabilitation programmes, as defined, within the scope of regulation 25(1) without further ado.

 

18. Some of the case law relied on by the parties arose under the previous version of regulation 25. That was as follows:

 

“Hospital in-patients

 

(1) A claimant is to be treated as having limited capability for work on any day on which that claimant is undergoing medical or other treatment as an in-patient in a hospital or similar institution, or which is a day of recovery from that treatment.

 

(1A) The circumstances in which a claimant is to be regarded as undergoing treatment falling within paragraph (1) include where the claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction.

 

(2) For the purposes of this regulation, “day of recovery” means a day on which a claimant is recovering from treatment as an in-patient in a hospital or equivalent under paragraph (1) and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work on that day.”

 

19. As the altered heading signals, the January 2013 change concerned the relationship between a claimant and the hospital or similar institution. Previously, treatment had to be received “as an in-patient” but now it is simply “as a patient”. However, that is not as expansionary as it might first seem. The other side of the coin was the enactment of paragraph (3) so that treatment only counts, for regulation 25(1) purposes, if the “claimant has been advised by a health care professional to stay in a hospital or similar institution for a period of 24 hours or longer”. This means arguments about whether a claimant has attained the status of in-patient fall away. What matters, instead, is whether a patient has been advised by a health care professional to stay in a hospital or similar institution for a period of at least 24 hours.

 

20. Some components of regulation 25 are defined by the ESA Regulations 2008.

 

21. Regulation 2(1) of the ESA Regulations 2008 supplies a definition of “medical treatment”, which is “medical, surgical or rehabilitative treatment (including any course or diet or other regimen)”. This clause also defines the recipient of medical treatment because it goes on to provide that “references to a person receiving or submitting to medical treatment are to be construed accordingly”. That definition of “medical treatment” repeats exactly the definition in section 191 of the Social Security Administration Act 1992.

 

22. Regulation 2(1) also defines “health care professional”, as a registered medical practitioner, registered nurse or registered occupational therapist or physiotherapist.

 

Case law about “hospital or similar institution”

 

23. The important phrase “hospital or similar institution” is not defined. However, it has featured in social security legislation for many years without being defined. A body of case law has developed.

 

24. Regulation 25’s reformulation does not render irrelevant the case law about the meaning of “hospital or similar institution”. This concept must mean the same thing whether linked with an “in-patient” (the old version) or a “patient” who stays there for a period of at least 24 hours under clinical advice (the new version).

 

25. I shall begin with the Court of Appeal’s decision in White v Chief Adjudication Officer & Another 17 BMLR. The Court construed the phrase “hospital or similar institution” in social security legislation that applied throughout Great Britain. The Court held that “hospital” has the same meaning as in the National Health Service Act 1977 (“the 1977 Act”). Even though there was a separate NHS statute for Scotland, Ralph Gibson LJ observed that all parties agreed that the Scottish Act “provides no assistance”. 

 

26. Then, the definition of “hospital” in the 1977 Act was:

 

“(a) any institution for the reception and treatment of persons suffering from illness;

 

(b) any maternity home; and

 

(c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation, and includes clinics, dispensaries and out-patient departments maintained in connection with any such home or institution…”

 

27. I observe that the definition has three limbs. While limb (a) has generated the most legal activity, limbs (b) and (c) should not be overlooked. 

 

28. The definition of hospital includes the word “illness”. Since “illness” was itself defined, its definition was an integral part of the definition of “hospital”. As originally enacted, “illness” was defined in the 1977 Act to include:

 

“mental disorder within the meaning of the Mental Health Act 1959 and any injury or disability requiring medical or dental treatment or nursing”.

 

29. The 1977 Act has long since been repealed and replaced with separate NHS legislation for England and Wales. But for present purposes that is of no significance. The very same definition remains in today’s NHS statutes for England and Wales (section 275(1) of the National Health Service Act 2006 and section 206(1) of the National Health Service (Wales) Act 2006). The reference to the Mental Health Act 1959 has also been updated to the Mental Health Act 1983 but, again, that is of no importance for present purposes.

 

30. In construing this definition of “hospital”, the Court of Appeal in White applied its decision in Minister of Health v General Committee of the Royal Midland Counties Home for Incurables at Leamington Spa [1954] 1 All ER 1013, [1954] 1 Ch 530. That case concerned a materially identical definition of “hospital”. The Court in Leamington Spa held that an institution for the reception and treatment of persons suffering from illness (i.e. a hospital under limb (a) of the statutory definition) included “an institution for the reception and treatment of persons suffering from any disability requiring nursing, as distinct from medical or dental treatment, in the sense that the inmates were cared for by persons who were professionally trained to care for the sick”.

 

31. In Leamington Spa, the Court of Appeal was concerned only with limb (a) of the definition of “hospital or other institution”. It held that, in order to fall within limb (a), an institution could provide either medical treatment, dental treatment or nursing. But it had to provide at least one of those things.

 

Case law about “medical or other treatment”

 

32. To recap, the ESA Regulations 2008 define “medical treatment”. This is in regulation 2(1), a provision which introduces its definitions with the statement that they apply “in these Regulations”. The phrase used in regulation 25 is “medical or other treatment”. So there are two types of treatment, medical treatment and other treatment.  Read literally, it seems the intention is that the definition in regulation 2(1) applies. However, I note that in AS v Secretary of State (DLA) [2010] UKUT 482 (AAC) (which became Slavin in the Court of Appeal) the Upper Tribunal was of the opinion that, in the Social Security Administration Act 1992, the definition seemed only to apply to the phrase “medical treatment” and not to “medical or other treatment”.

 

33. In Slavin the Court construed the phrase “undergoing medical or other treatment as an in-patient...in a hospital or similar institutions”, as used in the Social Security (Disability Living Allowance) Regulations 1991.

 

34. Richards LJ, who gave the principal judgment, was clearly aware that “medical treatment” had the statutory definition referred to above for the purposes of social security legislation. He quoted it in the scene-setting part of his judgment.

 

35. Richards LJ relied heavily on Leamington Spa. He referred to Romer LJ in that case holding that “Parliament had three forms of treatment in contemplation under the Act, that is to say medical, dental and nursing”. Then, at para. 53, Richards LJ says:

 

“The three main authorities considered above (Minister of Health v Royal Midland Counties Home for Incurables at Leamington Spa, White v Chief Adjudication Officer, and Botchett v Chief Adjudication Officer) establish that the expression “medical or other treatment” is to be read as including nursing as well as medical and dental treatment”. The inclusion of nursing results from reading together the statutory definitions of “hospital” and “illness”, as appears most closely from the passage quoted at [15] from the judgment of Evershed MR in the Leamington Spa case. There is nothing in the authorities to suggest that the expression goes wider than medical, dental and nursing treatment”.

 

36. I have not found this passage straightforward to understand, in particular the proposition that the cases referred to establish that “medical or other treatment”, as used in social security legislation, goes no wider than medical, dental and nursing treatment.

 

37. The legal issue in Leamington Spa was the meaning of “hospital” in the National Health Service Act 1946 (defined in materially the same terms as the current definition). If a facility in Leamington Spa was a hospital it vested in the Minister of Health as part of the newly-created National Health Service. There was, indeed, an issue about “treatment” but only as part of deciding whether limb (a) of the definition of “hospital” was satisfied. To see how it arose, we can combine limb (a) with the definition of “illness” in the National Health Service Act 1946, which results in this:

 

“hospital means “any institution for the reception and treatment of persons suffering from illness, which includes…mental illness…and any injury or disability requiring medical or dental treatment or nursing”.

 

38. The italicised wording is simply the definition of “illness”. It is clear why the Court in Leamington Spa held that, for the definition of “hospital” to apply, medical treatment, dental treatment or nursing was required. In their absence, there could be neither injury nor disability - important elements of the definition of illness - and, without an illness, no hospital within limb (a) of the definition of hospital.

 

39. I observe that nothing was said in Leamington Spa about the meaning of “medical or other treatment”. It was simply not an issue. In fact, Lord Denning expressed the view that “treatment”, in the NHS Act 1946, meant “the exercise of professional skill to remedy the disease or disability, or to lessen its ill-effects or the pain and suffering which it occasions”. While Lord Denning disagreed with the other members of the Court as to the outcome, Evershed MR said they agreed on the meaning of “treatment” in the 1946 Act.

 

40. For the above reasons, I have found it difficult to see how Leamington Spa establishes that “medical or other treatment”, as used in the social security legislation, is limited to medical, nursing and dental treatment. Left to my own devices, I would have thought that all it establishes is that, in order for an institution to fall within limb (a) of the definition of “hospital”, it must provide medical or dental treatment or nursing.

 

41.  Similarly, White was about the meaning of “hospital or similar institution” and the Court of Appeal offered no views that I can discern about the meaning of “medical or other treatment” or the definition of medical treatment. True, in Botchett the Court of Appeal held that the care and assistance received by individuals with “severe mental handicap” from nursing staff, as opposed to domestic staff, must be regarded as ““medical or other treatment” within the statutory definition”. However, the Court did not attempt exhaustively to identify the content of “medical or other treatment” and it did not refer to the statutory definition of medical treatment.

 

42. My reservations are irrelevant if Slavin is binding on me. The other members of the Court of Appeal agreed with Richards LJ. Pill LJ adopted Richards LJ’s “exposition of the principles of the law involved” and Davis LJ said he agreed with his analysis. In those circumstances, I consider Slavin held that “medical or other treatment” is confined to medical treatment, dental treatment or nursing care. If it applies to the term as used in the ESA Regulations 2008, it is binding on me in deciding this appeal.  It is not open to me to depart from Slavin on the basis that the Court overlooked anything. It was aware of the statutory definition of “medical treatment” and the relevant authorities were drawn to its attention.

 

43. Finally, it is important to read the whole of Richards LJ’s judgment in the context of the decision under appeal, that of Upper Tribunal Judge Turnbull. In paragraph 58, Richards LJ said the Court assumed that Mr Slavin “does not receive treatment from doctors, qualified nurses or other healthcare professionals at The Lodge”. I note here the appearance of the phrase “healthcare professional”.

 

44. What lay beneath the assumption in paragraph 58 was that, if such treatment was present, the requirement for “medical or other treatment” was met. Part of the context to paragraph 58 is an earlier part of Richards LJ’s judgment in which he refers to the decision under appeal. In paragraph 33, Judge Turnbull’s decision was described as addressing issues including whether “the respondent received treatment from doctors, nurses and other healthcare professionals”.

 

45. What Upper Tribunal Judge Turnbull said on this point is contained in paragraph 88 of his decision:

 

“[Counsel] submitted that “nursing” and “treatment” cannot be confined to care and skill exercised by doctors and nurses, but must extend to, for example, occupational therapists. I would agree that there are certain allied health care professionals, such as physiotherapy and occupational therapy, to which “treatment” must extend.”

 

46. Judge Turnbull then went on to refer to those professions allied to health regulated by a body mentioned in section 35(3) of the National Health Service Reform and Health Care Professions Act 2002, followed by the view that “I would think that treatment by a health care professional falls squarely within the words “medical treatment”, particularly where the patient is referred to the health care professional by a doctor or hospital. Judge Turnbull must have intended to refer to section 25(3) of the 2002 Act since it is the section which identifies regulatory bodies.

 

47. It would, I think, be going too far to say that the Court of Appeal approved the views in paragraph 88 of Judge Turnbull’s decision. Healthcare professionals only featured in the Court of Appeal as part of the assumption on which the case was argued and no one argued that Mr Slavin received treatment from a regulated healthcare professional.

 

48. It is true that Richards LJ said “there is nothing in the authorities to suggest that [“medical or other treatment”] goes wider than medical, dental or nursing treatment”. However, it should be remembered that the Court of Appeal was hearing an appeal from a decision in which Judge Turnbull characterised treatment provided by a health care professional as medical treatment. And, of course, Judge Turnbull’s decision was upheld by the Court of Appeal. I cannot identify any clear indication that the Court of Appeal disapproved of what Judge Turnbull said in paragraph 88 of his decision. In those circumstances, I find that the Court of Appeal did not disapprove of paragraph 88 of Judge Turnbull’s decision.

 

49. In circumstances where Slavin itself is binding on me, I agree with Judge Turnbull’s views as expressed in paragraph 88 of his decision.

 

Relevance of the case law to this case

 

50.  Legislative words and phrases are judicially interpreted and then re-used in other legislation. The Judicial Committee of the House of Lords decided in Barras v Aberdeen Steam Trawling and Fishing Co. Ltd. [1933] AC 402 that:

 

“where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it” (per Viscount Buckmaster at 411).

 

51. This has become known as the Barras principle. Lord Walker in Transport for London (formerly London Underground Ltd) v Spirerose Ltd (in administration) [2009] UKHL 44; [2009] All ER (D) 324 remarked that the Barras principle was “concerned with the meaning of a particular word or phrase which has appeared in a succession of statutes dealing with the same subject-matter”.

 

52. The phrases “hospital” and “medical and other treatment” have appeared in a succession of enactments dealing with social security. Accordingly, I find that where those phrases appear in the ESA Regulations 2008 they are to be construed according to judicial interpretation of the phrases as used in other social security enactments.

 

Why the Tribunal decided Miss J’s refuge did not qualify her under regulation 25

 

53. The Tribunal decided that regulation 25(1) did not apply to Miss J. It gave these reasons:

 

“The Appellant’s position was not analogous to that of a “patient”. She was primarily a victim of violence who was resident in the refuge for her personal safety.

 

The woman’s refuge is not “a hospital or similar institution”. It is not staffed by health care professionals, and its primary purpose is not the provision of medical treatment but the provision of a safe environment for victims or potential victims of violent crime.

 

Even if it was to be accepted that the terms of regulation 25(1) were satisfied, there was no evidence that the Appellant had been “advised by a health care professional” to take up residence in the refuge as required by regulation 25(3).”

 

54. Miss J applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal. A salaried First-tier Tribunal judge gave her permission. The judge expressed concern that First-tier Tribunals might be reaching “conflicting conclusions” about the legal nature of domestic violence refuges, which called for the “authoritative guidance” of the Upper Tribunal. The grounds of appeal were not, however, formally limited.

 

The parties’ arguments about regulation 25

 

55. Miss J argued that the First-tier Tribunal wrongly concluded that regulation 25(1) did not apply and it had misunderstood the law. The refuge’s specially trained support staff and qualified counsellors showed, according to Miss J, that she was undergoing medical or other treatment as a patient in a similar institution to a hospital. Miss J also criticised the Tribunal for relying on the absence of advice from a health care professional to “take up residence” at the hostel. She was never asked about this, she said. Had she been, she would have replied that, before moving to the refuge, her GP had “written a letter to [the council] stating that I needed to be moved from my current location as the effects from my current situation were having a huge impact on my health both mentally and emotionally”. At the hearing before myself, however, Miss J explained that her GP had not advised her to move to a refuge, nor had he been involved in the support and counselling offered to her at the refuge. The GP has simply advised her to obtain alternative accommodation.

 

56. After the hearing, I received further written submissions from Miss J. I was content to consider them since they responded, mainly, to case law submitted by the Secretary of State shortly before the hearing. As Miss J was unrepresented, I considered it fair to permit her further time to reflect on these cases. Miss J argued, by reference to the Leamington Spa decision, that the therapeutic nature of her placement at the refuge meant that she was receiving treatment even though it was not medical treatment.

 

57. In the Secretary of State’s written response to Miss J’s appeal, he relied on CJ v SSWP (ESA) [2012] UKUT 201 (AAC) which he described as holding that regulation 25 was designed for those with medical conditions requiring hospital treatment such that there “can be assumed to be a serious limitation on their capability for work”. The Secretary of State also drew attention to the decision in CDLA/7980/95 which held that an “institution”, which is part of the definition of hospital, implies “some formal body or structure which controls all aspects of the treatment or care that is provided including the premises in which that treatment or care is carried out”. The Secretary of State argued that this Miss J’s refuge was not an institution. He also contended that, since staff at the refuge “do not necessarily have professional qualifications”, it did not provide “medical or other treatment”.

 

58. The Secretary of State’s position was developed by Mr Jones at the hearing. He argued that, following Slavin, the “medical or other treatment” condition within regulation 25(1) was only met where treatment was provided by or under the supervision of doctors, dentists or nurses. Otherwise, the requirement for either medical treatment, dental treatment or nursing care was absent. Mr Jones described this as a “bright-line rule”. It was clear, Mr Jones argued, that Miss J’s refuge was not a place in which Miss J received treatment of that sort.

 

Conclusions on regulation 25

 

59. I refuse Miss J’s appeal.

 

Slavin is determinative of this appeal

 

60. For the reason given above in paragraph 42, I accept Mr Jones’ argument that Slavin is binding authority that “medical or other treatment” is limited to the provision of medical treatment, dental treatment or nursing care. However, I do not accept that this limits the field to doctors, dentists and nurses. Other health care professionals may also count (see paragraph 48 above). Miss J never claimed to be treated by any healthcare professionals who might count for the purposes of regulation 25. As a result, the First-tier Tribunal arrived at the correct conclusion. Miss J was not undergoing medical or other treatment at the refuge and so regulation 25(1) cannot operate to deem her to have limited capability for work.

 

The requirement for health care professional advice was absent

 

61. Even if I am wrong about the binding effect of Slavin, I would not allow Miss J’s appeal. On her own evidence, she was not advised by a health care professional to stay in the refuge for a period of at least 24 hours. Miss J was advised to leave the area in which she had been living but was not advised to go to this or any other refuge. The condition in regulation 25(3) could not be met.

 

Case law about “in-patient” no longer relevant

 

62. I should also record that I do not accept the Secretary of State’s argument that CJ v SSWP (ESA) [2012] UKUT 201 (AAC) provides a separate basis for upholding the First-tier Tribunal’s decision.

 

63. The decision in CJ begins by stating “this appeal is about the meaning of “in-patient” in regulation 25 of the Employment and Support Allowance Regulations 2008”.  The Upper Tribunal concluded “the intention is that regulation 25 should apply only to those with medical conditions requiring hospital treatment such that there can be assumed to be a serious limitation on capability for work during, and resulting from, that treatment without the need to test capability specifically”. The Secretary of State argued that this operates to sort those within regulation 25 from those without.

 

64. The “in-patient” has departed from regulation 25. Under the new regulation 25 there is no legislative space for the operation of any implied condition concerned with the severity of a person’s medical condition, over and above those conditions on the face of regulation 25.  New regulation 25(3) contains an overarching requirement that the person is staying at the hospital or other institution because s/he has been advised to do so by a healthcare professional. Whether such advice has been given is a question of fact. The underlying rationale must be that, if a healthcare professional has advised the claimant to stay in the hospital or other institution, the claimant’s condition must be severe enough to justify application of regulation 25. To imply an additional requirement of severity would jar with paragraph (3). It would involve making judgements about the quality of the medical advice. That would undermine the legislative purpose in constructing a test that operates by reference to the mere fact that advice of a particular type has been given.

 

Regulation 25(2) does not admit of analogies

 

65. Miss J says other residents of her refuge took their cases to the First-tier Tribunal and were successful because the Tribunal held that regulation 25 applied. Of itself, that is no basis on which to conclude that the present First-tier Tribunal made an error on a point of law. I know nothing of the circumstances of any other appellants and cannot comment on them. While I understand why inconsistent decisions would frustrate Miss J, unless a decision of the First-tier Tribunal is challenged on appeal it remains in place.

 

66. From Miss J’s grounds of appeal, she seems to think these other Tribunals concluded that a domestic violence refuge is a form of rehabilitation analogous to those within regulation 25(2). I shall assume that Miss J makes that argument. I reject that argument. To extend regulation 25(2) by analogy would run counter to the legislative intention. The legislator has decided that residential rehabilitation is to be treated as a special case if it pursues a particular purpose - recovery from drug or alcohol addiction. Either there is a residential programme of rehabilitation from drug or alcohol addiction or there is not. To construe regulation 25(2) as embracing other types of rehabilitation would undermine the careful legislative choice as to which cases to treat as special.  If other rehabilitative programmes are to fall within regulation, they will need to surmount the regulation 25(1) hurdles.

 

Does this decision apply to all domestic violence refuges?

 

67. My decision does not mean each and every establishment called a refuge falls outside regulation 25 of the ESA Regulations 2008. Because labels are attached to a thing, rather than forming an inherent part of it, they are of no intrinsic significance. As Evershed MR said in Leamington Spa “a hospital…is not a hospital within the Act because it is called a hospital, or excluded from the Act because it is called a home”. What matters is whether the facts of a particular case come within regulation 25.

 

68. However, labels tend to be applied because a thing has characteristics matching those embraced by the label. That is what labels are for. For that reason, I would not be surprised if most refuge placements have characteristics matching, in material respects, Miss J’s so that their residents fall outside regulation 25(1). That is the most I can give my way of general guidance.

 

Regulation 29 of the ESA Regulations 2008

 

69. Miss J’s grounds of appeal also argued that the Tribunal was wrong to conclude that she was not treated as having limited capability for work under regulation 29(2)(b) of the ESA Regulations 2008.

 

70. Regulation 29(2)(b) applies where “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”.

 

71. The First-tier Tribunal decided that regulation 29(2)(b) did not apply. It found that Miss J’s mental health improved significantly during her stay at the refuge and relied on the healthcare professional’s opinion that, at the medical assessment, Miss J’s mental state examination was entirely normal as well as that, one month after the decision under appeal, Miss J had been able to move to independent accommodation. The Tribunal thought that Miss J could work in an administrative position without that involving a substantial risk to her health.

 

72. Miss J challenged the Tribunal’s conclusion. She said that she remained mentally vulnerable at the date of the decision under appeal and that she had only left the refuge because her period of funding came to an end.

 

73. I agree with the argument put forward by Mr Jones at the hearing. Miss J’s challenge was to the Tribunal’s findings of fact and did not disclose any material error of law. I reject this aspect of Miss J’s challenge.

 

Conclusion

 

74. Miss J’s appeal is refused. The decision of the First-tier Tribunal is not set aside.

 

 

 

 

 

 

 

 

 

 

                                                (Signed on the Original)

                                                                                                E Mitchell

                                                                                                Judge of the Upper Tribunal

                                                                                                31^st March 2015