Recent WCA caselaw
Simon Osborne reviews some important recent caselaw about the work capability assessment (WCA).
Work-related activity and ‘substantial risk’
There is a ‘substantial risk’ rule in the assessment for limited capability for work-related activity (regulation 35 of the Employment and Support Allowance Regulations 2008 – there is a near identical provision about limited capability for work at regulation 29). The essence of the provision is that if not satisfying the assessment would pose a ‘substantial risk’ to the health of the claimant or someone else, then the test should be treated as satisfied.
A growing body of caselaw concerns the situation where the Secretary of State has provided little or no evidence of exactly what work-related activity the claimant could safely do. A number of Upper Tribunal decisions criticise that. The recent decision of Judge Gray in MT v SSWP (ESA) UKUT 545 (AAC) (Bulletin 238, p13) confirms that absence of such evidence from the Secretary of State invalidates the initial decision that there was no substantial risk. A tribunal may then decide to adjourn to get the evidence, decide that the claimant’s appeal should succeed as the Secretary of State has not shown there was no substantial risk or, where there is sufficient evidence otherwise available, make its own findings about what could or could not be done. This decision approves the findings in MN v SSWP (ESA)  UKUT 262 (AAC) (Bulletin 236, p11) and the earlier AH v SSWP  UKUT 118 (AAC) (Bulletin 234, p15) that there is a basic requirement on the Secretary of State to provide sufficient information about relevant work-related activity.
In some cases (in mental health cases in particular), the tribunal cannot simply rely on its own knowledge to decide what, if any, work-related activity could be carried out without substantial risk. The point is made in MT v SSWP (ESA) (and arguably is inherent in MN v SSWP (ESA) and AH v SSWP). However, there is not unanimity on this point. In AK v SSWP (ESA)  UKUT 435 (AAC), Judge White held that a tribunal could rely on its own knowledge, and could even refer to such wide categories of work-related activity as ‘interviews, retraining and therapy’. That was specifically disagreed with in MN v SSWP, and in the recent AP v SSWP (ESA) UKUT 35 (AAC) (p11 of this Bulletin), Judge Mark directly criticised the tribunal’s inference from the claimant’s ability to attend therapy: ‘I am wholly unable to understand the rationality of this conclusion. There is a world of difference between attending regular therapy sessions with a psychotherapist and having to attend interviews with DWP employees at the jobcentre’ (paragraph 18). However, in RV v SSWP (ESA)  56 (AAC), the same judge held that although a list of hypothetical work-related activity was inadequate and what really mattered was ‘what was likely to happen at the relevant jobcentre in the case of the claimant in question’ (paragraph 10), the tribunal in that case was able to rely on its own knowledge to hold that there was no substantial risk, as long as the claimant was given the chance to comment. Perhaps significantly, in contrast to AP v SSWP (ESA), the facts in RV v SSWP (ESA) did not involve mental health problems.
A general list of potential work-related activity (including, for example, CV writing and attending basic literacy or numeracy classes) was supplied by the Secretary of State in AK v SSWP (ESA), but clearly the tribunal needs to be sure the individual claimant is capable of carrying out such activity safely. In AP v SSWP (ESA), Judge Mark’s lack of confidence in the Secretary of State’s ability to make safe provision for the claimant at the jobcentre led to him finding that the ‘substantial risk’ rule did indeed apply in that case.
DWP medical reports
When a claimant has passed the WCA before, if s/he then fails it and appeals, should the tribunal have recourse to the DWP medical reports (ESA85s) from those previous assessments as evidence? Older caselaw indicated that, unless there had been a change (eg, a medical intervention or a return to work) that rendered those reports of little relevance, it generally should. But recently a division has arisen on a specific point.
In ST v SSWP  UKUT 469 (AAC) (Bulletin 232, p14), Judge Wright upheld the idea that in the absence of some relevant change the previous ESA85s should be considered. He buttressed that by holding that a tribunal that does not errs by breaching the rules of natural justice, and that the Secretary of State is obliged, under the tribunal rules, to supply copies of the previous ESA85s to the tribunal. Recently, that approach has been rejected by Judge May QC in AM v SSWP  UKUT 458 (AAC) (Bulletin 238, p13). For Judge May, such an obligation arose only where the previous reports had been put in issue by either of the parties to the appeal, or if the tribunal decided it needed to see them. To make the provision of the reports a routine requirement in many cases was not open to the Upper Tribunal. Also Judge Wright’s decision came ‘very close’ to suggesting that a change of circumstances was required before the Secretary of State could supersede an employment and support allowance award following a WCA failure, when all that was actually required was receipt of a new medical report.
It may be that further authority is required on this point. But in the meantime it is strongly arguable that ST v SSWP is the correct approach. It is more consistent with the inquisitorial approach of the tribunal not to leave it up to a claimant to decide what official evidence may be relevant, and more consistent with the tribunal rules under which the Secretary of State is indeed obliged to provide copies of ‘relevant’ documents. None of this challenges the ability of the decision maker to supersede an award in the first place; it merely ensures that the tribunal reconsiders the decision properly.
The quality of the official medical report remains an important question. Usually, the strengths and weaknesses of the report are apparent in the individual case, and are a matter for weighing by the tribunal. However, in JH v SSWP (ESA) UKUT 269 (AAC) (Bulletin 236, p11), Judge Mark held that where a WCA medical is carried out by a physiotherapist and the problems s/he is dealing with are mental health problems, ‘the opinion of the physiotherapist as to the conclusions to be drawn have no probative value whatsoever’ (paragraph 22). Unsurprisingly, this is because a physiotherapist has no professional expertise in mental health problems.
Use of ‘or’ in descriptors
The use of ‘or’ linking two activities in descriptors continues to produce caselaw on whether the result is to require that to score points the claimant is unable to carry out both activities mentioned or if inability to carry out just one of them will suffice. Overall, it emerges that a key point will always be the context of the wording in the particular descriptor/activity concerned.
In the recent DG v SSWP (ESA)  UKUT 100 (AAC) (p14 of this Bulletin), Judge Wright was concerned with the activity of manual dexterity (Activity 5), and the descriptor involving inability to use ‘a suitable keyboard or a mouse’. He held that points were only scored if the claimant was unable to use both a keyboard and a mouse – ie, to score points, the inability must be in both activities. However, that entailed disagreeing with CL v SSWP (ESA)  UKUT 4345 (AAC), in which Judge Mark holds that a claimant needs to be able to use both a keyboard and a mouse, and that therefore points were scored for inability in just one of those activities. For Judge Wright, the ‘functional’ approach described in GS v SSWP (ESA)  UKUT 244 (AAC) was the correct starting point, in contrast to the broader approach recommended by DW v SSWP (ESA)  UKUT 245 (AAC) (and adopted in CL v SSWP (ESA), which refers to the context of using a computer). Next for Judge Wright, the overall structure of Activity 5 suggested the intention was to require inability to use both a keyboard and a mouse – there was no context of using a computer. Tribunals, however, are currently free to apply CL v SSWP (ESA) if they prefer it, and it may be that further authority, including on the correctness of the (arguably unreasonably narrow) ‘functional’ approach, is required.
The judge in DG v SSWP (ESA) was aware of (and did not seek to disagree with) the recent decision of Judge Williams in HD v SSWP (ESA)  UKUT 72 (AAC) (p14 of this Bulletin) which concerns the limited capability for work-related activity assessment and the mobilising descriptor. That requires that the claimant ‘cannot either (a) mobilise 50 metres...or (b) repeatedly mobilise 50 metres within a reasonable timescale...’. For Judge Williams, the correct approach to the wording here meant that the test cannot carry out ‘one or other of (a) or (b)’ – so, unless a claimant cannot both mobilise 50 metres and do so repeatedly within a reasonable time, s/he should be placed in the support group.
Coping with social engagement
Regarding Activity 16 of the WCA, in AR v SSWP (ESA)  UKUT 0446 (AAC) (Bulletin 238, p15)) Judge Gray has recently commented on the correct meaning of ‘social’ engagement. He holds that in the context of the activity, ‘social’ contact here is not the same as contact for ‘business or professional purposes’ (paragraph 18). Thus engagement for purposes such as attending medical examinations was not the correct context, and for engagement to be ‘social’ there has to be an element of what was referred to in the Oxford English Dictionary definition (or something analogous) – ie, ‘marked or characterized by friendliness, geniality, or companionship with others; enjoyed, taken, carried out, etc., in the company of others’ (paragraphs 25–28).
In so holding, he specifically disagreed with the approach of Judge Parker in KB v SSWP  UKUT 152 (AAC) (Bulletin 234, p15), which held that ‘social’ was merely a reference to relations with other human beings. Both decisions are of equal authority, but AR v SSWP (ESA)is the more recent and, very arguably, closer to the intent of specifying some quality of engagement rather than any and every engagement.
Activity 9 of the WCA includes as descriptor a test of experiencing at least once a month ‘loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder...sufficient to require cleaning and a change of clothing.’ The application of that test has been recently considered by Judge Mark in EM v SSWP (ESA)  UKUT 34 (AAC) (p14 of this Bulletin). The claimant’s evidence was that she had continence problems weekly such that she was obliged to change her underwear. The judge pointed out that the descriptor required ‘extensive’ evacuation or voiding, not ‘full’, sufficient to require cleaning and a change of clothes. This had to be despite the presence of any aids or adaptations normally used. Sanitary pads are ‘aids’ that may negate the need to change clothing. However, all that is required is a change of clothing, not a complete change. ‘Almost any’ change of clothing would count, although ‘clothing’ does not include sanitary pads (paragraph 23).
Furthermore, the fact that the loss of control and evacuation/voiding was because the claimant was unable to reach the toilet in time due to mobility problems was not a reason to hold that the descriptor did not apply. All that mattered was the loss of control and evacuation/voiding, as ‘the purpose of the descriptor is to deal with questions of personal dignity and social responsibility’ (paragraph 25).
Mobilising and wheelchair use
Finally, a reminder that a decision of a three-judge panel of the Upper Tribunal is awaited in CE/327/2013 and CE/509/2013, concerning the mobilising descriptor in the WCA and in particular the context in which a claimant is to be assessed as able to use a wheelchair. There is currently a split in the caselaw between a ‘personal circumstances’ approach, which includes considering the claimants’ ability to store and access a wheelchair, and a ‘functional’ approach, which is restricted to issues relating to actual use of the wheelchair. See the article on p6 of Bulletin 237 for details.
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