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.
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 -
- 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.
- 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.
- 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 -
- 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.
- 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.
- 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).
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.  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,  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  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,  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  AACR 12 which predates the change in legislation. | Add commentary or suggest an edit.
Tribunal’s failure to properly consider ESA regulation 29 by not assesing risk posed by physical health factors during journeys to and from work
-  UKUT 174 (AAC)
Effects of jobseeker’s conditionality on a claimant are relevant when deciding substantial risk under ESA regulation 29(2)(b)
-  UKUT 124 (AAC)
Requirement to identify the specific type of work a claimant could undertake without substantial risk for the purposes of regulation 29
-  UKUT 251 (AAC)
Detailed findings of fact concerning substantial risk may not be required if tribunal finds no significant functional impairment
-  UKUT 493 (AAC)
Tribunal failed to properly consider effects of work-related activity on claimant’s mental health / caution required when changing an appeal hearing time on the day
-  UKUT 465 (AAC)
Factors to consider in deciding whether drug dependency is a ‘specific disease or bodily or mental disablement’
-  UKUT 100 (AAC)
Tribunal failed to properly consider ESA regulation 29(2)(b) by indicating type of work claimant may be able to do
-  UKUT 617 (AAC)
Regulation 29(2)(b), as amended in 2013, not satisfied by generalised reliance on employer’s duties under Equality Act 2010
-  UKUT 88 (AAC)
Failure to properly consider wording of ESA descriptor 8 (navigating safely) and explaining why ESA regulation 29 did not apply
-  UKUT 62 (AAC)
ESA regulation 29 was concerned with risk at the date of decision, not the possible future benefits of working
-  UKUT 550 (AAC)
Duties of employers under Equality Act 2010 not relevant to assessment of risk to health if claimant found to not have limited capability for work
-  UKUT 428 (AAC)
- Reported as  AACR 32
- Ability to work at home not relevant to application of ESA regulation 29
-  UKUT 241 (AAC)
- Consumption of alcohol does not, in itself, amount to disinhibition
-  UKUT 188 (AAC)
- Reported as  AACR 38
- Appropriateness of behaviour (LCW)
- Appropriateness of behaviour (LCWRA)
- Physical or mental condition
- Substance misuse
- Substantial risk (LCW)
- Substantial risk (LCWRA)
- Regulation 29 where person unable to make journey to work unaccompanied
-  UKUT 148 (AAC)
Potential relevance of evidence that a claimant has been granted ill-health retirement from the public sector in relation to regulation 29
-  UKUT 131 (AAC)
Review of caselaw on tribunals’ treatment of regulation 29 and requirement ro explain why it does not apply
-  UKUT 115 (AAC)
- Reported as  AACR 33
- Regulation 29 / content and timing of Med 3
-  UKUT 77 (AAC)
- Meaning of social engagement / regulation 29, the journey to work, and compliance with medication
-  UKUT 22 (AAC)
- Coping with social engagement (LCW)
- Coping with social engagement (LCWRA)
- Substantial risk (LCW)
- Risk to mental health if found not to have limited capability for work (and work-related activity)
-  UKUT 16 (AAC)
Regulation 29 / tribunal error in relation to finding that work would be of social benefit to claimant
-  UKUT 11 (AAC)
Whether tribunal entitled to consider capability for work in appeal against refusal to place in support group
-  UKUT 5 (AAC)
- Reported as  AACR 23
- Regulation 29 / whether there was reasonable cause for uncontrolled disease not to be controlled
-  UKUT 637 (AAC)
Descriptor 16 (engagement in social contact) can be triggered by significant distress for whatever reason
-  UKUT 293 (AAC)
- Need for medical evidence to establish uncontrollable or uncontrolled disease
-  UKUT 271 (AAC)
- Deemed limited capability for work / work-related activity are different tests
-  UKUT 174 (AAC)
- Reported as  AACR 33
Regulation 29 / whether substantial risk to drug user’s health if found capable of work / application of Charlton
-  UKUT 228 (AAC)
- Incapacity for work and ‘substantial risk’ to health if found capable
-  EWCA Civ 42 (Charlton)
- Reported as R(IB)2/09