‘Substantial risk’ and the WCA

Simon Osborne reviews the ‘substantial risk’ rules in the work capability assessment, looking at some key questions and caselaw.

These are rules that may apply in the assessment of a claimant’s limited capability for work (LCW) and limited capability for work-related activity (LCWRA). They are an important feature of the work capability assessment (WCA). The rules apply both in universal credit (UC) and employment and support allowance (ESA).

Under the rules, a claimant who would otherwise not be assessed as having LCW (or as the case may be, LCWRA) may be ‘treated as’ having such a status – ie, so as to pass the WCA and (in the case of LCWRA) qualify for the LCWRA element of UC, or the support component of ESA. The basic requirement is of a ‘substantial risk’ to health.

The rules are essentially the same in UC and ESA, including in ‘old-style’ ESA and ‘new-style’ ESA.1For UC: Sch 8 para 4 [for LCW] and Sch 9 para 4 [for LCWRA] Universal Credit Regulations 2013; for new-style ESA: reg 25 (2)(b) [for LCW] and reg 31(2)(b) [for LCWRA] Employment and Support Allowance Regulations 2013; for old-style ESA: reg 29(2)(b) [for LCW] and reg 35(2)(b) [for LCWRA] Employment and Support Allowance Regulations 2008

The substantial risk rules can apply in the context of both mental and physical health problems. They can apply where a claimant does not score enough points under the WCA to have LCW; regarding LCWRA, they can apply where the claimant does not satisfy a descriptor so as to have LCWRA.

For LCW, the rule applies where ‘the claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the mental or physical health of any person were the claimant found not to have limited capability for work.’

However, this will not apply where the risk could be reduced ‘by a significant amount’ by ‘reasonable adjustments’ in the claimant’s workplace or by the claimant taking prescribed medication. In JS v SSWP (ESA) [2014] UKUT 428, reported as [2015] AACR 12, it was held that consideration of any such reasonable adjustments did not involve consideration of employer’s duties under the Equality Act 2010.

For LCWRA, the rule applies where ‘the claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the mental or physical health of any person were the claimant found not to have limited capability for work-related activity’ [in UC, the closing words are ‘…for work and work-related activity’].

The regulations do not define ‘substantial risk’. The facts and evidence of the case will be crucial.

Caselaw has provided some further detail.2For a comprehensive and authoritative survey of the caselaw authority on the substantial risk rules, see the commentary to regs 29 and 35 Employment and Support Allowance Regulations 2008 in Vol I Social Security Legislation 2021/22, published by Sweet and Maxwell. In CIB/3519/2002, it was held that a risk might be ‘substantial’ if the harm was serious, even if it was unlikely that the harm would occur; and if the harm was insignificant, then it may not be ‘substantial’ even if it was very likely that it would occur. In MW v SSWP (ESA) [2012] UKUT 31 (AAC) it was held that, even though whether the risk was ‘substantial’ involved an essentially objective test, in a mental health case the (subjective) views of the claimant could be part of the overall test of whether
her/his mental health would deteriorate significantly were s/he found not to have LCW.

The starting point is the decision of the Court of Appeal in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42. There, regarding LCW and substantial risk, the court held that with the ‘probably rare’ exception of where a claimant’s anxiety or depression might significantly worsen by learning that s/he had failed the WCA, ‘the determination must be made in the context of the journey to or from work or in the workplace itself’. The decision maker must assess ‘the range or type of work’ the claimant could safely do, but was not required to consider the detail of a hypothetical jobseeker’s agreement. The ‘essential question,’ held the court, ‘is whether there is an adequate range of work’ that the claimant could undertake without substantial risk. In AH v SSWP (ESA) [2013] UKUT 118 (AAC), reported as [2013] AACR 32, it was held that the Charlton approach also applied in the context of work-related activity and the assessment of ‘substantial risk’ for LCWRA.

Subsequent caselaw regarding LCW and substantial risk has emphasised that the rule concerns risk arising from being found capable of work, not just from attending the workplace. That, for a claimant with mental health problems, the impact of failing the WCA and so having to attend interviews and look for work could itself be a ‘substantial risk’ to her/his health has been adopted in several decisions, most notably IJ v SSWP (IB) [2010] UKUT 408 (AAC).

That was approved, in the context of the relevance of the risk of being found capable of work, in the reported decision NS v SSWP (ESA) [2014] UKUT 115 (AAC), reported as [2014] AACR 33.

More recently, it has been approved in ET v SSWP (UC) UKUT 47 (AAC) (which contains detailed reasoning, and is itself to be reported). That decision holds that risks on travelling to and from the job centre and job interviews can be relevant, and comprehensively disapproves the contrary approach (which included a criticism of IJ v SSWP) in MW v SSWP (ESA) [2015] UKUT 665 (AAC).

Whether home working was a relevant context regarding LCW and substantial risk was addressed specifically in SM v SSWP (ESA) [2014] UKUT 241 (AAC). There Judge Wikeley held that home working was not relevant, as it was not within the contemplation of the rules or established authority on the context in which they apply. Home working was, said the judge,

To hold that a claimant could not take advantage of the substantial risk rule, said the judge, ‘…would simply be to deprive the statutory provision of any real purpose for large numbers of claimants. Such an interpretation would defeat the statutory purpose of providing a degree of protection for exceptionally vulnerable individuals, especially for those suffering from mental health problems.’

That was not disagreed with by Judge Jacobs on the facts of the case in CL v SSWP (ESA) [2015] UKUT 375 (AAC). However, Judge Jacobs did consider that, regarding LCWRA and substantial risk, work-related activity that the claimant could do at home could be taken into account – for example, where travelling was a risk, but was not necessary for activity that could be done at home.3Even so, it remains that there would need to be (per Charlton) an ‘adequate range’ of work-related activity that the claimant could undertake without substantial risk.

The Upper Tribunal has ruled repeatedly on the evidence that a First-tier Tribunal should have from the Secretary of State when considering the substantial risk and LCWRA. However, in practice it would seem that problems have persisted. The starting point is IM v SSWP (ESA) [2014] UKUT 412 (AAC), reported as 2015 AACR 10. There, a panel of Upper Tribunal judges held that where substantial risk and LCWRA was in issue, the Secretary of State should provide (in the form of a list) ‘evidence of the types of work-related activity’ available in the relevant area, and identify what of that the claimant might reasonably be expected to undertake. Perhaps surprisingly, it has been necessary to remind the First-tier Tribunal that IM is binding and no tribunal is free to ignore it (CT v SSWP (ESA) [2021] UKUT 131 (AAC)).

In MR v SSWP (ESA) [2020] UKUT 210 (AAC), Judge Wright returned to the problem, this time manifest in the Secretary of State’s use of a ‘soft skills’ list of activities which did not include the most onerous forms of activity, including work placement. The judge hoped this would be the end of the need for the Upper Tribunal to examine such deficiencies. But (following a repeated criticism in MD v SSWP (UC) [2020] UKUT 215 (AAC)) in the recent KS v SSWP (UC) [2021] UKUT 132 (AAC), a possibly exasperated Judge Wright said: