Incapacity and 'substantial risk'
Simon Osborne looks at various approaches to applying the ‘substantial risk’ provision that is part of the test for incapacity for work.
The substantial risk provision
The main test of incapacity for work contains within it – at regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 – a number of ‘exceptional circumstances’. These circumstances treat a claimant as incapable of work even though s/he is neither exempt from the test nor scores sufficient points to count as incapable of work.
Thanks to the decision of the Court of Appeal in Howker (reported as R(IB) 3/03), the exceptional circumstance that may, for shorthand purposes, be referred to as the ‘substantial risk’ provision continues to apply (or rather, it does from the date of the Court’s decision on 8 November 2002), despite the fact that the Government attempted to delete it in early 1997.
The substantial risk provision is that someone who otherwise fails to satisfy the personal capability assessment (which must be established first – see CIB/143/2007) will be treated as incapable of work if ‘he suffers from some specific disease, 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 he were found capable of work’.
The provision itself would seem now to be settled law. However, case law is developing as to what, in this context, ‘substantial risk’ really means.
Is there a ‘specific disease or bodily or mental disablement’?
In CIB/26/2004, Commissioner Jacobs applied the approach taken to similar questions in DLA in holding that,
‘[t]hat decision is made on the balance of probabilities. It is not necessary to have medical evidence of a diagnosis of a particular condition, nor is medical evidence of a particular diagnosis necessarily decisive. It must be assessed in the context of the evidence of the whole.’
But, as was held in CIB/143/2007, ‘a detailed aetiology – or formal statement of the cause or reasons for diagnosis – may assist assessment of the consequences of the diagnosis.’
Is the risk ‘substantial’?
In CIB/3519/2002, Commissioner Rowland considered what ‘substantial’ meant and held that,
‘a risk may be ‘substantial’ if the harm would be serious, even though it was unlikely to occur and, conversely, may not be ‘substantial’ if the harm would be insignificant, even though the likelihood of some such harm is great.’
That was approved by Commissioner Fellner in CIB/2767/2004, although she suggested that, in the context of regulation 27 as a whole, the approach to whether such a ‘substantial’ risk applies should be rather narrow and fact-based.
How is ‘risk’ to be identified?
This question is more contentious. A dichotomy has emerged between requiring consideration of the kind of work the claimant might be expected to do, or instead exercising a ‘reasonable judgement’ without reference to such detail. Most recently, it has been suggested that the two approaches are not necessarily in conflict.
In CIB/26/2004, Commissioner Jacobs noted that the risk must arise from the claimant being held ‘incapable of work.’ He went on to hold that the risk ‘must be assessed in relation to the type of work for which the claimant would otherwise be required to be available.’ However, that did not mean reference to specific job descriptions, although the Commissioner did refer to the work set out in a jobseeker’s agreement. Rather, it involved ‘a consideration of the risk to health involved in the general type of work the claimant is otherwise qualified, experienced or skilled to undertake'.
That approach was expressly not followed by Commissioner May in CSIB/223/2005. For him, Commissioner Jacobs had sought to broaden the scope of the regulation, ‘beyond what it says’. The questions about the health restrictions that might apply in a jobseeker’s agreement were for situations where the claimant had failed the personal capability assessment, including failing to come under any of the exceptional circumstances of regulation 27. The Commissioner could not see how tribunals were to determine what range of work must be taken into account in the absence of evidence allowing it to do so. Instead, the tribunal ‘have a simple, crisp and direct issue to determine’, namely whether the wording in regulation 27(b) applied or not. That is a ‘jury question on which they must make a reasonable judgment’.
Identifying risk – which is the correct approach?
CIB/26/2004 (consideration of types of work) and CSIB/223/2005 (exercise of reasonable judgement) set out the main positions on the approach taken to identifying ‘risk’.
Other decisions have, on the whole, tended to fall in behind one or other approach, albeit with some modifications. Thus in CSIB/33/2004, Commissioner Parker approved the approach of Commissioner Jacobs (i.e. in CIB/26/2004). She set out some practical ways of implementing this approach, which arguably go some way to resolving the problems later posed by Commissioner May. Where the claimant had, subsequent to his incapacity for work refusal, claimed jobseeker’s allowance, then there should be a jobseeker’s agreement available for use in assessing the risk that may arise in the kind of work which the claimant would otherwise be capable of.
Where JSA had not been claimed, the tribunal would have to ‘determine the likely content of a jobseeker’s agreement’ for the claimant with regard to all of the available evidence and facts. As the Commissioner allowed, this is a difficult job. However, although Commissioner Parker was not in a position to comment on Commissioner May’s approach in CSIB/223/2005, it is arguably not much more difficult, and not so very different in kind, than the ‘jury question on which they must make a reasonable judgement’ that the latter approach would require.
More recently, Deputy Commissioner Paines has lent more qualified support to Commissioner Jacobs’ approach. In CIB/360/2007, he notes that he had already agreed with that approach in CIB/1695/2005, before explaining the need to identify whether there would be substantial risk if the claimant were found capable of work: ‘I do not see how that can be done without thinking through the consequences of such a finding in a particular claimant’s case. I do not consider that the maker of the regulation only had in mind cases in which merely learning of the finding would cause damage to health; he must have had in mind the health consequences of the claimant returning to the workplace.’ However, the degree of detail involved will vary from case to case, and will not necessarily involve ‘a thought experiment conducted in such detail as imagining the terms of future hypothetical negotiations between the claimant and a Jobcentre . . .’. Instead, the tribunal’s ‘general knowledge’ about work and evidence from the claimant might suffice. The Deputy Commissioner’s approach represents some thing of a joining of the need in CIB/26/2004 to think about types of work with the ‘reasonable judgement’ approach in CSIB/223/2005.
The dual approach hinted at in CIB/360/2007 has found full expression in the recent decision of Commissioner Williams in CIB/143/2007. In a full consideration of the substantial risk provision, he points out that two separate assessments must be made: that of the risk to the claimant and that of the risk to the people s/he would be working with. With that in mind, either or both of the main approaches might be needed. Someone with heart disease might be a substantial risk whatever work they did, irrespective of the details of the work; for someone who might cause physical harm to their colleagues, consideration of the nature of the work that they would be expected to do may well be required.
In the case before the Commissioner, which involved alcohol abuse and mental illness, there was nothing to suggest substantial risk to the claimant, so there was no need to consider specific work there. But regarding risk to others, it was ‘directly relevant to this point that a realistic view [be] taken of the kind of work to which [the claimant] might be directed under a jobseeker’s agreement'. The Commissioner could not see how the risk to others could be assessed in this case without regard to the work context ‘that might link with a disease or a disablement to generate the risk'.
The main area of debate concerns whether the substantial risk at issue is identified with reference to the type of work at issue, or merely by using the ‘reasonable judgement’ of the tribunal. A clear majority of cases favour at least the possibility of considering the type of work. In that sense, CIB/26/2004 would seem to carry more favour than CSIB/223/2005. But bridges have been built between the two positions, arguably with good reason. The decision in CIB/360/2007 shows that it will not always be necessary to imagine the content of jobseeker’s agreements, and that, in CIB143/2007, in some cases at least, looking both at such detail and exercising a more general judgement will be required, because of the different nature of the risk to the claimant and to others.
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