KN v Secretary of State for Work and Pensions (ESA): [2016] UKUT 521 (AAC)

Upper Tribunal Administrative Appeals Chamber decision by Judge Gray on 16 November 2016.

Read the full decision in CE/1665/2016.

Judicial Summary

Tribunal practice and procedure: statement of reasons and dealing with the evidence ESA: regulation 35 and the presence of a third party If the FTT is considering whether the presence of a third party will reduce any risk in relation to work-related activities or travelling to them there must be findings of fact what their role would need to be, and the reasonableness of them being available. Where relevant consideration will need to be given to whether anxiety in relation to whether a person will be available of itself creates a substantial risk to health. Where the tribunal says that it relies upon the HCP report but comes to a different conclusion as to functional ability than that in the report there is more need to explain the basis of the reliance than where the conclusions of the report are adopted. The lack of a complaint by an appellant about the conduct of the examination or the accuracy of the report to the organisation providing the HCP report should not be used as a significant credibility pointer in relation to whether the appellant’s evidence can be accepted as to any limitations of the report.

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