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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 Conservative 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.

Legislation

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.

Sources:

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).

Despite IM, and the subsequent guidance in DMG Memo 1/18, Judge Wright highlights in [2020] UKUT 210 (AAC) and [2021] 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 [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.

Although Judge Gray in [2013] UKUT 545 (AAC) firmly rejects taking account of a third party when assessing substantial risk when undertaking work-related activity, Judge Ward in [2014] 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. [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. In [2016] UKUT 521 (AAC), Judge Gray accepts that she was wrong in [2013] 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.