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WRAG to SG - Accompanied by partner
I have a client who suffers from daily seizures (non epileptic) and was originally in the SG after a first tier tribunal found her to satisfy reg 35. She has been for another medical where she had a seizure during the medical assessment and it was curtailed. The HCP awarded her 15 points under consciousness which we know is not under schedule 3.
We put in a mandatory reconsideration asking for regulation 35 to be considered because of her daily seizures which can be anything from 1 to 10 a day so we would consider that to be a substantial risk to her health. How ever the DWP are arguing because she can go out accompanied by her husband there is no risk. Her husband accompanies her every where and it has been suggested by the job centre that he can accompany her to do voluntary work.
Does anyone know if there is any case law or have any guidance on how I can write my appeal to show that having to be accompanied by her carer all the times would show substantial risk.
Take a look at this case from late last year
“third party assistance can be taken into account as the long as the evidence demonstrated that it was available.
However, in the claimant’s case, the tribunal failed to enquire into the availability of support from her husband, simply assuming that it was available. Although there was evidence that the claimant received a lot of assistance from her husband, it did not follow that he would always be available or willing to accompany her to activities and assist her with initial engagement in those activities.”
In your case, I would perhaps look at whether the support from her husband would actually be available in all possible circs + whether, regardless of the support & supervision, the risk to her health would increase simply due to the requirements of any potential WRA.
WCA info mentions that case, and also some others which might be relevant:
http://wcainfo.net/issues/substantial-risk-lcwra
Judge Gray in [2013] UKUT 545 (AAC) firmly rejects taking account of a third party when assessing substantial risk when undertaking work-related activity, while the three judge panel in [2015] AACR 12 finds that third party assistance is not likely to be relevant (in a case considering LCW), at least without further explanation as to how in reality someone could rely on a third party to engage in social contact. [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. [2016] UKUT 521 (AAC) 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.
But more recently Judge Ward disageed with Judge Gray about that point.
Below is what I was preparing before the others responded - it includes a very recent decision by Judge Gray that deals with what Judge Ward said in PD and another link to the decision tbidmead refers to;
I’m not sure there is any - directly.
The issue is whether the work-related activity - and having to take part in it - would pose a substantial risk to her (or someone else’s) health. So, for example, I’d want to explore the issues of;
- is there any evidence to suggest experiencing more frequent fits would in itself be dangerous to her health - i.e. neurolgically, as opposed to the risk of falls?
- is there anything to suggest that fits do in fact become more frequent in stressful situations - i.e. would WRA be more likely to trigger more fits?
- what does the husband do when she has a fit? Why exactly is his presence necessary?
In other words, if your client is just as likely to fit at home, it might be difficult to show that the WRA (unless it’s somthing like working with heavy machinery) in itself poses a risk to the health of any person.
However, whilst there has been some (conflicting) caselaw on whether it is permissible to take into account the presence of a carer/friend/partner when assessing whether someone is able to take part in WRA (i.e. whether their ability must always be assessed as if they were on their own) there is a degree of consensus on the point that the availability and preparedness of a partner to accompany a person to WRA cannot be assumed - and also that the position on this question may well differ depending on the individual’s circumstances; so whilst it might be reasonable to take into account the availability of support which might be required for a limited period (e.g. where the claimant might need to be accompanied at the outset to make an unfamiliar route a familiar one) it would not be reasonable where the commitment would have to be an open-ended one - as in your client’s case….
see; YA and SA v Secretary of State for Work and Pensions (ESA): [2017] UKUT 80 (AAC)
https://www.gov.uk/administrative-appeals-tribunal-decisions/ya-and-sa-v-secretary-of-state-for-work-and-pensions-esa-2017-ukut-80-aacand MP v Secretary of State for Work and Pensions (ESA): [2016] UKUT 502 (AAC)
https://www.gov.uk/administrative-appeals-tribunal-decisions/mp-v-secretary-of-state-for-work-and-pensions-esa-2016-ukut-502-aac
But more recently Judge Ward disageed with Judge Gray about that point.
Below is what I was preparing before the others responded - it includes a very recent decision by Judge Gray that deals with what Judge Ward said in PD and another link to the decision tbidmead refers to;
I’m not sure there is any - directly.
The issue is whether the work-related activity - and having to take part in it - would pose a substantial risk to her (or someone else’s) health. So, for example, I’d want to explore the issues of;
- is there any evidence to suggest experiencing more frequent fits would in itself be dangerous to her health - i.e. neurolgically, as opposed to the risk of falls?
- is there anything to suggest that fits do in fact become more frequent in stressful situations - i.e. would WRA be more likely to trigger more fits?
- what does the husband do when she has a fit? Why exactly is his presence necessary?
In other words, if your client is just as likely to fit at home, it might be difficult to show that the WRA (unless it’s somthing like working with heavy machinery) in itself poses a risk to the health of any person.
However, whilst there has been some (conflicting) caselaw on whether it is permissible to take into account the presence of a carer/friend/partner when assessing whether someone is able to take part in WRA (i.e. whether their ability must always be assessed as if they were on their own) there is a degree of consensus on the point that the availability and preparedness of a partner to accompany a person to WRA cannot be assumed - and also that the position on this question may well differ depending on the individual’s circumstances; so whilst it might be reasonable to take into account the availability of support which might be required for a limited period (e.g. where the claimant might need to be accompanied at the outset to make an unfamiliar route a familiar one) it would not be reasonable where the commitment would have to be an open-ended one - as in your client’s case….
see; YA and SA v Secretary of State for Work and Pensions (ESA): [2017] UKUT 80 (AAC)
https://www.gov.uk/administrative-appeals-tribunal-decisions/ya-and-sa-v-secretary-of-state-for-work-and-pensions-esa-2017-ukut-80-aacand MP v Secretary of State for Work and Pensions (ESA): [2016] UKUT 502 (AAC)
https://www.gov.uk/administrative-appeals-tribunal-decisions/mp-v-secretary-of-state-for-work-and-pensions-esa-2016-ukut-502-aac
Summary of YA and SA just this instant gone up (YA also has epilepsy)... http://www.rightsnet.org.uk/welfare-rights/caselaw/item/extent-to-which-work-related-activity-between-decision-and-tribunal-hearing