Client suffers from depression and alcohol dependency. He scored no points in the ESA assessment for LCW. Two weeks later he was admitted to hospital where he remained for several weeks.

In the submission to the tribunal the Sec of State (correctly) states that deterioration should be the subject of a new claim and could not be considered at the appeal. It is likely, however, that the client was in a precarious state of mental health at the date of the decision and that the decision itself tipped him over the edge.

Is there any value in getting medical evidence to that effect with a view to using Reg 27 in hindsight? If his GP can confirm that, at the date of the decision, there was a substantial risk to his health if he were to be found not to have limited capability for work (which subsequent events have shown to be a real danger), could this be accepted as evidence that Reg 27 applied at that time?

The tribunal always stands in the decision maker’s shoes and gives the decision that the dm should have given using any evidence available to it pertinent to the relevant period whether that evidence was or was not before the original dm.

Reg 27 can be applied in your client’s case if the evidence warrants. See Charlton v Secretary of State for the DWP (2009) CA, para 34 which states the following:

“Regulation 27(b) may be satisfied where the very finding of capability might create a substantial risk to a claimant's health or to that of others, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused. Apart from that, probably rare, situation, the determination must be made in the context of the journey to or from work or in the workplace itself”.