Ask CPAG Online - What is the significance of case law?
Much about the way the tests of limited capablity for work (LCW) and limited capablity for work related activity (LCWRA) should be applied and the meaning of the terms used in the legislation is decided by case law (i.e. appeal decisions made by the Upper Tribunal and higher courts) which is legally binding on the DWP and tribunals. There is extensive (and occasionally conflicting) case law on LCW and LCRWA and more is emerging all the time.
Where can you find the case law?
- LASA provide updated commentary on developing case law through wcainfo.
- Commentary on the most significant case law can be found in Volume 1 of Sweet and Maxwell’s Social Security Legislation: Non Means Tested Benefits and ESA’, (used by tribunals) new editions of which appear every year.
- CPAG provides case summaries of significant decisions in our Welfare Rights Bulletin which appears six times per year and our Handbook refers to significant case law.
- Rightsnet (www.rightsnet.org.uk) includes case summaries of all Upper Tribunal decisions, with a search facility for ESA or particular decisions.
- Upper Tribunal decisions can be viewed and downloaded directly from the Ministry of Justice Tribunals Judiciary (with a search facility) at www.gov.uk/administrative-appeals-tribunal-decisions
What are the main areas of case law?
There are four main areas of case law:
- General approach to the LCW descriptors, which requires a ‘broad brush’, ‘non-snapshot’ approach to whether you can undertake and complete an activity most of the time, with reasonable regularity, taking into account pain, fatigue, dizziness, and the effects of medication.
- Individual activities and descriptors. Examples include,where there has been extensive case law on whether a manual wheelchair could reasonably be used by a claimant who does not have one. One of the leading cases by a 3 Judge panel, which also reviews previous case law, is PR and SI v SSWP (ESA)  UKUT 0308 (AAC)
- Being treated as having LCW and LCRWA on the grounds of substantial risk to health. This requires consideration of the range or type of work or work related activity you could reasonably be expected to undertake, including any difficulties travelling to work or appointments. The wider consequences of being found not to have LCW or LCWRA must also be considered e.g. the effects on your mental and physical health of losing ESA entitlement, and being required to engage in work related activity or having to satisfy the JSA jobseeking conditions. In general, the onus is on the DWP to establish that you can undertake work or WRA without a substantial risk to health. The DWP should provide evidence of the type of work or work related activity available in the relevant area which you might reasonably be expected to undertake.One of the leading cases by a 3 Judge panel, which also reviews previous case law on work related activity is IM v SSWP (ESA)  UKUT 0412
- Treatment and weighing of evidence from DWP medical assessments, the claimant, and the claimant’s doctors and other professionals. Decision makers and tribunals should not automatically give more weight to ESA85 medical reports. Your personal evidence is entirely valid and should only be rejected as unreliable or wrong for a good reason. Evidence relating to previous assessments should be taken into account. Findings that particular descriptors apply may be relevant when deciding if other descriptors or ‘exceptional circumstances’ apply.