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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

The rules that provide for a claimant to 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 are in the Employment and Support Allowance Regulations 2008, the Employment and Support Allowance Regulations 2013 and the Universal Credit Regulations 2013 (and the equivalent regulations in Northern Ireland).

For ESA regulation 29 of the 2008 ESA Regulations and regulation 25 of the 2013 ESA Regulations 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 2013 UC Regulations 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:

Case law

Commentary:​ The Court of Appeal case Charlton, establishes that assessing 'substantial risk' requires consideration of the type of work the claimant is fit to perform, including the journey to and from work. [2014] UKUT 241 (AAC) clarifies that the ability to work at home is irrelevant. The substantial risk test may also encompass the consequences of losing ESA, pursuing appeals, claiming jobseeker’s allowance, attending interviews, and seeking employment ([2014] UKUT 16 (AAC)).

In [2014] AACR 33, which reviews caselaw and offers guidance on substantial risk, Judge White notes that regulation 29 (or regulation 25 for universal credit) is particularly relevant for mental, cognitive, or intellectual impairments, and narrower descriptors are more likely to engage regulation 29's safety net provisions.

Following the 2013 legislative change requiring reasonable adjustments in the workplace to be taken into account, [2015] UKUT 88 (AAC) confirms that the Equality Act 2010 protections do not eliminate risk when a person is found fit for work, consistent with [2015] AACR 12. | Add commentary or suggest an edit.