wcainfo

Substantial risk (LCWRA)

A claimant can be treated as having limited capability for work-related activity (LCWRA) if, by reason of their health condition or disability, there would be a substantial risk to the health of the claimant or others were the claimant found not to have LCWRA. The provision can only come into play if a claimant has been found to have LCW but then fails to satisfy any of the LCWRA descriptors.


Legislation

Regulations provide that a claimant can be treated as having LCWRA where there is a substantial risk to the health of any person.

For ESA, regulation 35 of the Employment and Support Allowance Regulations 2008 and regulation 31 of the Employment and Support Allowance Regulations 2013 provide -

A claimant who does not have limited capability for work-related activity... [having failed to satisfy any LCWRA descriptors] is to be treated as having limited capability for work-related activity if - (a) the claimant suffers from some specific disease or bodily or mental disablement; and (b) 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-related activity.

For universal credit, paragraph 4 of schedule 9 to the Universal Credit Regulations 2013 provides that a claimant is to be treated as having limited capability for work-related activity if -

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 and work-related activity.

Sources:

  • Regulation 35(2) 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 31(2) 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 9 to the Universal Credit Regulations 2013 (SI.No.376/2013) (applies to universal credit).

Case law

Commentary:​ In the reported case [2015] AACR 10 (IM), a three judge panel of the Upper Tribunal held that a decision maker is required to predict and provide evidence of what work-related activity is available to a claimant in their area when potential risk to health is considered. The individual characteristics of the claimant must also be considered (with greater care taken the greater the vulnerabilities evident in the claimant) [2016] UKUT 170 (AAC), along with the immediate effects of the decision on capability and the consequences of undertaking work-related activity [2013] AACR 32 (AH) (applying principles set out in Charlton).

For claimants who could never work again, judges have expressed opposing views of whether they can be treated as having LCWRA. For example, Judge Mark in [2013] UKUT 635 (AAC) finds that substantial risk is not relevant if there is no work-related activity a claimant could reasonably complete, whilst in [2014] UKUT 149 (AAC) Judge Jacobs reaches the opposite conclusion (but more closely aligned to the approach in IM to reasonableness), holding that a hypothetical assessment of the types of activity a claimant could safely complete is the correct approach prior to then considering the reasonableness of the activity.

Judge Gray in [2013] UKUT 545 (AAC) firmly rejects taking account of a third party when assessing substantial risk when undertaking work-related activity, while the three judge panel in [2015] AACR 12 finds that third party assistance is not likely to be relevant (in a case considering LCW), at least without further explanation as to how in reality someone could rely on a third party to engage in social contact. [2016] UKUT 502 (AAC) supports the latter highlighting that, while third party help should be taken into account in assessing substantial risk, it is incumbent on a tribunal to enquire whether such help is available. [2016] UKUT 521 (AAC) goes further, holding that tribunals must explain the extent of anticipated involvement from a third party, whether it is reasonable to rely upon their presence, and potential increased anxiety related to their availability to assist. | Add commentary or suggest an edit.