Substantial risk' and incapacity / limited capability for work

Issue 211 (August 2009)

A recent court decision has resolved conflicting case law on the interpretation of the 'substantial risk' rule, which applies to the assessments for incapacity for work (the personal capability assessment) and limited capability for work (the work capability assessment). Simon Osborne explains.

Introduction

The 'substantial risk' rule is one of the 'exceptional circumstances' that enables a claimant to satisfy the personal capability assessment (PCA) for incapacity benefit or the work capability assessment (WCA) for employment and support allowance. The rule provides that a person who does not satisfy the PCA or WCA is to be treated as satisfying it if s/he, 'suffers from some specific disease or 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…', were s/he to be found incapable of work (for the PCA) or not to have limited capability for work (for the WCA). The rule can be found in regulation 27(b) of the Social Security (Incapacity for Work) Regulations 1997, and regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008.

In Bulletin 200, page 6, some features of the case law on the 'substantial risk' provision were described, including a division of opinion among Commissioners on how to apply the test. The Court of Appeal has now resolved the differences of approach in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 (6 February 2009), and the effect of the decision has now been integrated into official guidance to decision-makers (see Memo DMG 06/09). The Court's decision is to be reported as R(IB) 2/09.

The decision in question

The Court of Appeal in Charlton was considering the application of regulation 27(b) (i.e. for the PCA) but stated specifically that the wording is the same in regulation 29(2)(b), so the decision should also apply to the substantial risk provision in the WCA (Memo DMG 06/09 confirms that the decision applies to employment and support allowance as well as incapacity benefits).

In essence, the Court held that the 'substantial risk' had in most cases to arise in connection with the sort of work the claimant might be expected to do, but that did not require the consideration of hypothetical jobseeker's agreements or specific job descriptions. It is worth noting that although this approach was not to the claimant's advantage in Charlton, applying the provision in a work as opposed to domestic context might assist some claimants, as will the fact that the Court also held that this included the journey to and from work, as well as the workplace itself.

The claimant in Charlton had alcohol dependency syndrome. A decision-maker decided he was not incapable of work (he was awarded just three points in the mental health assessment, and none of the exceptional circumstances were considered to apply). He lost his appeal to the tribunal, who only awarded an extra two points in respect of the mental health descriptors. His further appeal to a Commissioner was also dismissed, the Commissioner holding that in applying regulation 27(b) it was necessary to show a link between the work and the risk - it was not sufficient merely to have regard to risk in the claimant's life generally. The Commissioner then decided that there was not a substantial risk, as on the facts the kind of work the claimant could be expected to do was that which a person of no physical limitations, no qualifications, no skills and no experience might be expected to do. This comprised basic, structured unskilled work, and there was no likelihood of substantial risk, either to the claimant or anyone else, arising from that.

Substantial risk and work

The Court said the Commissioner was right to hold that there must be a link between the risk and the work. It was regarding the kind of work that had to be considered that the Court had to settle a division of opinion in the previous case law. Some Commissioners, in particular Commissioner Jacobs in CIB/26/2004 and Commissioner Parker in CSIB/33/2004, had suggested that it was necessary to identify appropriate work which would be referred to in a jobseeker's agreement should the claimant make a claim for jobseeker's allowance. But that approach was not followed by Commissioner May in CSIB/223/2005, and in particular by Deputy Commissioner Paines in CIB/360/2007. He held that the degree of detail that would have to be considered would depend on the circumstances, but that, 'a tribunal will have enough general knowledge about work, and can elicit enough information about a claimant's background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing'.

The Court adopted the approach of Deputy Commissioner Paines. A hypothetical jobseeker's agreement was not an appropriate guide. Rather, 'sufficient information may be elicited by reference to the claimant's completion of the initial questionnaire, questioning during his medical examination, or by any evidence he may choose to give on any appeal to the Tribunal.' It was, 'quite impossible for the decision-maker to identify actual positions of employment or the nature of the duties and location of any job which the claimant might undertake…'. Rather, both the decision-maker and the tribunal were to, 'assess the range of work of which the claimant is capable for the purposes of assessing risk to health…'. In CIB/2907/2008 [2009] UKUT 101 (AAC), one of the first decisions on 'substantial risk' made since Charlton, Deputy Judge Paines found, on the evidence before him, that the 'range or types' of work for which the claimant was suited was, 'manual work such as building work'.

Substantial risk more generally

The Court in Charlton also confirmed that the substantial risk provision requires, firstly, a decision on whether the person scores sufficient points to past the relevant test. Only then is a second decision required regarding whether there would be a substantial risk to the mental or physical health of any person if the claimant were to fail the test.

The Court also held that the provision may apply, 'where the very finding of capability might create a substantial risk to a claimant's health or to that of others, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused.' That situation was probably rare, and normally the risk had to be assessed, 'in the context of the journey to or from work or in the workplace itself.' DMG 06/09 notes that the inclusion of the risk in travelling to and from work is a 'widening' of the rule, and advises decision-makers that if this point is raised they will need to consider relevant evidence relating to the claimant's daily life.

 


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