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.
Note: in Autumn 2023, the government launched a consultation on reform of the work capability assessment including proposals to either remove the LCWRA risk criteria entirely, or amend the substantial risk definition to reflect that this would not apply where a person could take part in tailored or a minimal level of work preparation activity and/or where reasonable adjustments could be put in place to enable that person to engage with work preparation. In its November 2023 response to the consultation, the government confirmed that it will amend the LCWRA risk criteria to specify the circumstances, and physical provisions and mental health conditions, for which they should apply. The government also confirmed that this and other changes to the work capability assessment will be implemented for new claims for universal credit and ESA from September 2025 onwards.
The rules that provide for a claimant to be treated as having LCWRA where there is a substantial risk to the health of any person 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 35 of the 2008 ESA Regulations and regulation 31 of the 2013 ESA Regulations 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 2013 UC 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.
- Regulation 35(2) of the Employment and Support Allowance Regulations 2008 (SI.No.794/2008), and regulation 35(2) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 (SR.No.280/2008) (apply to income-related and old-style contributory ESA).
- Regulation 31(2) of the Employment and Support Allowance Regulations 2013 (SI.No.379/2013), and regulation 31(2) of the Employment and Support Allowance Regulations (Northern Ireland) 2016 (SR.No.219/2016) (apply to new-style contributory ESA).
- Paragraph 4 of Schedule 9 to the Universal Credit Regulations 2013 (SI.No.376/2013), and paragraph 4 of Schedule 9 to the Universal Credit Regulations 2016 (SR.No.216/2016) (apply to universal credit).
Commentary: In the reported case  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)  UKUT 170 (AAC), along with the immediate effects of the decision on capability and the consequences of undertaking work-related activity  AACR 32 (AH) (applying principles set out in Charlton).
Despite IM, and the subsequent guidance in DMG Memo 1/18, Judge Wright highlights in  UKUT 210 (AAC) and  UKUT 132 (AAC) the continued failure of the Department to provide an accurate list showing the least and most onerous forms of work-related activity that are available for the claimant to undertake, and the failure of First-tier Tribunals to pick up on this omission.
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  UKUT 635 (AAC) finds that substantial risk is not relevant if there is no work-related activity a claimant could reasonably complete, whilst in  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.
Although Judge Gray in  UKUT 545 (AAC) firmly rejects taking account of a third party when assessing substantial risk when undertaking work-related activity, Judge Ward in  UKUT 148 (AAC) finds that third party assistance may be taken into account (in a case considering LCW), but only where there is clear evidence of the availability of that person.  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. In  UKUT 521 (AAC), Judge Gray accepts that she was wrong in  UKUT 545 (AAC) and 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.
Tribunal erred in failing to ensure it had before it an accurate list of work-related activities that were available for the claimant to undertake / training of universal credit staff on providing lists to tribunals not completed until July 2020
-  UKUT 132 (AAC)
Whether tribunal erred in law by relying on evidence that it did not disclose to claimant / substantial risk under regulation 35 and requirement to consider risk to others
-  UKUT 90 (AAC)
Consideration of ‘substantial risk’ arising from claimant being found fit for work includes travel to and from jobcentre and job interviews, as well as to and from work
-  UKUT 47 (AAC)
Whether DWP’s former practice of only providing tribunals with examples of least demanding work-related activities in ESA appeals was flawed
-  UKUT 210 (AAC)
Extent to which work-related activity between decision and tribunal hearing can be taken into account / relevance of third party assistance
-  UKUT 80 (AAC)
Tribunals must consider potential increased anxiety related to availability of third party assistance when assessing risk for regulation 35
-  UKUT 521 (AAC)
Available third party assistance can be taken into account when assessing risk under ESA regulation 35
-  UKUT 502 (AAC)
Substantial risk for LCWRA and the requirement to supply specific details of work-related activity
-  UKUT 170 (AAC)
- Risk of work-related activity post IM
-  UKUT 581 (AAC)
Regulation 35 / test for people living abroad and claimant’s inability to put forward a case due to lack of information in DWP submission
-  UKUT 545 (AAC)
Relevance of claimant’s education course to regulation 35 / whether test of ability to participate in work related activity is hypothetical
-  UKUT 385 (AAC)
Home working may be relevant to consideration of regulation 35 and there is no absolute prohibition from considering it under regulation 29 although it is unlikely to be relevant
-  UKUT 375 (AAC)
Tribunal’s error in finding that DWP would take into account claimant’s mental health problems when deciding what work-related activity she should be required to do
-  UKUT 200 (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
- What evidence of work-related activity is required when considering LCWRA
-  UKUT 412 (AAC)
- Reported as  AACR 10
- 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)
- Whether someone who will never work again can satisfy regulation 35
-  UKUT 149 (AAC)
- Regulation 35 satisfied where risk to health would be to claimant’s child
-  UKUT 107 (AAC)
What evidence of work-related activity is required / whether jobcentre staff have the necessary skills to deal with claimants with mental health problems
-  UKUT 35 (AAC)
- Risk to mental health if found not to have limited capability for work (and work-related activity)
-  UKUT 16 (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
- Claimant who was never going to be able to work could not satisfy regulation 35
-  UKUT 635 (AAC)
Duty of Secretary of State and tribunal to consider what work related activity claimant is capable of for purposes of ESA regulation 35(2)
-  UKUT 573 (AAC)
- Anxiety and depression
- Coping with social engagement (LCW)
- Majority of time / always
- Substantial risk (LCWRA)
Evidence of ‘work-related activity’ for the purposes of ESA regulation 35(2); Presence of another person not relevant to legal tests
-  UKUT 545 (AAC)
- Deemed limited capability for work / work-related activity are different tests
-  UKUT 174 (AAC)
- Reported as  AACR 33
- Assessing evidence of whether a claimant has limited capability for work-related activity
-  UKUT 118 (AAC)
- Reported as  AACR 32
- Incapacity for work and ‘substantial risk’ to health if found capable
-  EWCA Civ 42 (Charlton)
- Reported as R(IB)2/09