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Substantial risk (LCW)

A claimant can be treated as having limited capability for work (LCW) after failing to score sufficient points under the WCA if, by reason of their health condition or disability, there would be a substantial risk to the health of the claimant or others were they found not to have LCW. Substantial risk that can be avoided through reasonable adjustments to the claimant’s workplace or by taking prescribed medication or treatment will not count.


Legislation

Regulations provide that a claimant can be treated as having LCW where there is a substantial risk to the health of any person if the claimant were found not to have LCW.

For ESA, regulation 29 of the Employment and Support Allowance Regulations 2008 and regulation 25 of the Employment and Support Allowance Regulations 2013 provide -

  1. A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.
  2. Subject to paragraph (3) this paragraph applies if ...  (b) the claimant 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 if the claimant were found not to have limited capability for work.
  3. Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by - (a) reasonable adjustments being made in the claimant’s workplace; or (b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

For universal credit, paragraph 4 of schedule 8 to the Universal Credit Regulations 2013 provides that a claimant is to be treated as having limited capability for work if the circumstances below apply -

  1. The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work.
  2. This paragraph does not apply where the risk could be reduced by a significant amount by - (a) reasonable adjustments being made in the claimant's workplace; or (b) the claimant taking medication to manage their condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

Sources:

  • Regulation 29 of the Employment and Support Allowance Regulations 2008 (SI.No.794/2008) (applies to income-related and contributory ESA in a universal credit live service area).
  • Regulation 25 of the Employment and Support Allowance Regulations 2013 (SI.No.379/2013) (applies to contributory ESA in a universal credit full service area).
  • Paragraph 4 of Schedule 8 to the Universal Credit Regulations 2013 (SI.No.376/2013) (applies to universal credit).

Case law

Commentary:​ The Court of Appeal case Charlton, although relating to incapacity benefit, deals with a fundamental principle of 'substantial risk' decisions finding that, in order to determine whether there is any health risk at work or in the workplace, it is necessary to make some assessment of the type of work for which the claimant is suitable. [2014] UKUT 241 (AAC) expands on this, ruling that the ability to work at home is not relevant as Charlton held that the journey to and from work should be considered when assessing risk. In addition, [2014] UKUT 16 (AAC) confirms CIB/1219/2010 finding that the substantial risk test can include the consequences of a claimant losing their ESA, pursing an appeal, claiming jobseeker’s allowance, attending interviews at the jobcentre and with employers, and seeking employment.

The reported decision [2014] AACR 33 reviews a range of caselaw and gives guidance to tribunals on dealing with substantial risk. Judge White highlights that it is more likely that regulation 29 (or regulation 25 for universal credit) will be relevant where mental, cognitive and intellectual functions are at issue and, in addition, that the more narrowly focused the descriptors become (due to legislative changes) the more likely it is that the safety net provision of regulation 29 will be in issue.

Following the change in legislation in 2013 which introduced the requirement to take into account reasonable adjustments in the workplace, [2015] UKUT 88 (AAC) confirms that it cannot be assumed that, because the Equality Act 2010 will require an employer not to discriminate against and make reasonable adjustments in the work place to accommodate a disabled person, there will be no risk arising from the person being found fit for work, as held by the reported decision [2015] AACR 12 which predates the change in legislation. | Add commentary or suggest an edit.