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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.

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 [2015] AACR 10 (IM), a three-judge Upper Tribunal panel held that decision makers must predict and provide evidence of the work-related activity available to a claimant locally when assessing potential health risks, taking individual vulnerabilities into account ([2016] UKUT 170 (AAC)) and considering both immediate effects on capability and the consequences of undertaking work-related activity ([2013] AACR 32 (AH) (applying Charlton principles).

Despite IM and guidance in DMG Memo 1/18, Judge Wright highlights in [2020] UKUT 210 (AAC) and [2021] UKUT 132 (AAC) the Department’s continued failure to provide an accurate list showing the least and most onerous work-related activity, and tribunals’ failure to address this omission. 

For claimants unable to work again, judges differ on whether they can be treated as having LCWRA. In  [2013] UKUT 635 (AAC) Judge Mark finds substantial risk irrelevant if no activity is feasible, whilst in [2014] UKUT 149 (AAC) Judge Jacobs supports a hypothetical assessment of safe activity before evaluating reasonableness, consistent with IM.

In [2013] UKUT 545 (AAC) Judge Gray firmly rejected taking third-party assistance into account when assessing substantial risk in work-related activity. However, Judge Ward in [2014] UKUT 148 (AAC) held that such assistance may be considered (in an LCW case) where there is clear evidence of the person’s availability, a position supported by [2016] UKUT 502 (AAC)  which emphasises that tribunals must enquire whether help is genuinely available. In [2016] UKUT 521 (AAC), Judge Gray explicitly reverses her earlier view, holding that tribunals must assess the anticipated extent of third-party involvement, whether reliance on them is reasonable, and any potential anxiety caused by their availability. | Add commentary or suggest an edit.