ESA and substantial risk
Alison Gillies provides an update on some increasingly important rules.
The ‘substantial risk’ rules in the assessment of limited capability for work (LCW) and limited capability for work-related activity (LCWRA) (regulations 29(2)(b) and 35(2)(b) of the Employment and Support Allowance Regulations 2008, respectively) have become ever more important for employment and support allowance (ESA) claimants. These rules allow a claimant who has not satisfied the ordinary tests for LCW and/or LCWRA to be treated as having LCW and, therefore, retain entitlement to ESA, or to be treated as having LCWRA and, therefore, be placed in the support group. The essence of these rules is that if not satisfying the assessments would pose a ‘substantial risk’ to the claimant or to someone else, the tests should be treated as applying. ‘Substantial risk’, in this context, means a risk ‘that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in a particular case.’1
The stringency of the ESA tests mean that many claimants have to rely on the ‘substantial risk’ rules to protect their income, try to avoid the harsh sanction regime or retain entitlement to contributory ESA beyond one year. A growing body of caselaw concerning the application of the substantial risk rules provides useful guidance on when and how these rules should be applied by decision makers and the First-tier Tribunal.
Where regulations 29 and/or 35 are potentially at issue at the First-tier Tribunal, it is crucial that a representative states this clearly in her/his submission. Regulation 29(2)(b) can only come into play where the claimant has failed to score sufficient points to have LCW. In EJ v SSWP (ESA)  UKUT 551 (AAC),
Judge Hemingway comments that ‘in general terms … if a competent representative … chooses not to raise regulation 29 then [a tribunal] will not, absent unusual circumstances, be obliged to address it’ (paragraph 18). In NS v SSWP (ESA)  UKUT 115 (AAC), Judge Wikely considered that in cases where the mental, cognitive and intellectual functions of the LCW test are in issue, it is more likely that regulation 29(2)(b) will be relevant. Once regulations 29 and/or 35 are put in issue, or indeed if the tribunal decides of its own volition to consider the matter, it must do so properly. A ‘bald statement’ that the tests do not apply is not adequate.2
Applying the tests
The nature of the substantial risk provisions means that the decision maker or tribunal must, of necessity, engage in some ‘crystal ball gazing’ to assess the risk to a particular claimant. In relation to LCW (regulation 29(2)(b)), consideration must be given to the risks not only of any work the claimant may undertake, but also to the whole process of losing entitlement to ESA: potentially having to claim jobseeker’s allowance, seek work, attend interviews and so on (the key case here is Charlton v SSWP  EWCA Civ 42). Risks posed by the potential journey to work is also relevant and therefore the risks of being found not to have LCW cannot be negated by the ability to work from home3 – a matter of some importance to claimants whose mental health problems result in their being unable to travel independently.
JS v SSWP (ESA)  UKUT 428 (AAC) considers whether the assessment of risk under regulation 29 requires or involves the consideration of whether employers owe a duty under the Equality Act 2010 to make reasonable adjustments in respect of individual claimants. In essence, the issue was whether the potential substantial risk could be negated by employer’s obligations under the Equality Act to ensure that people with disabilities are not discriminated against in the workplace. Judge Wright comments that this contention ‘seems problematic because if the Equality Act 2010 is such a panacea then it leaves unclear in what situations regulation 29(2)(b) continues to have application’ (paragraph 4) and concludes that such an approach is not permissible. In other words, the decision maker cannot rely on the Equality Act to sweep away the potential substantial risk to a claimant of being found not to have LCW.
Limited capability for work-related activity
In a key case, IM v SSWP (ESA)  UKUT 412, a three-judge tribunal considered in detail what evidence should be before the First-tier Tribunal when it is considering whether the appellant has LCWRA – ie, under regulation 35(2)(b). The Secretary of State should provide evidence of the types of work-related activity available in the area in which the claimant lives and those activities considered reasonable for the claimant to undertake. Should the Secretary of State fail to provide the relevant evidence, the tribunal is entitled to use its own knowledge, although only if it is confident that its knowledge is current and complete. Following IM v SSWP, the DWP has issued guidance on work-related activity and substantial risk, which may be of interest to advisers.4
In KB v SSWP (ESA)  UKUT 179, Judge Ward considers the assertion that the DWP would ‘take on board’ the fact that the claimant had mental health problems and would tailor work-related activity accordingly, thus averting any risk of substantial harm. This approach is rejected as wholly inadequate, in light of the guidance set out in IM v SSWP (ESA)  UKUT 412 (AAC). KBv SSWP also finds that regulation 35 remains relevant even where the claimant is also entitled to carer’s allowance and therefore cannot, in law, be required to undertake work-related activity (regulation 3 ESA (Work-Related Activity) Regulations 2011). A claimant can still be treated as having LCWRA as a result of the substantial risk provisions even if, in law, s/he cannot be compelled to undertake such activity. This is clearly important in terms of enabling the claimant to access the support component (and potentially the enhanced disability premium) and to remain on contributory ESA beyond one year.
Universal credit and substantial risk
Substantial risk arguments are crucial for many ESA claimants who otherwise might be entirely disentitled, or be subject to work-related requirements which they are unable to meet. The arguments will continue to have rel evance as universal credit (UC) is rolled out, as UC contains identical provisions in relation to LCW and work-related activity (at Schedules 8 and 9 Universal Credit Regulations). Much of the caselaw discussed above should apply to those provisions as they do to ESA.
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