Substantial risk and full time or part time work

Hello

I have a client for whom we are trying to get LCW (it will benefit him for reasons I won’t bore you with). This question is about whether there would be a substantial risk to his health, were he to be found to be capable of work - so it’s about paragraph 4(1) of schedule 8 of the UC regulations.

He currently works part-time, but we ran an argument that any full-time work would pose a risk to his health - he needs a lot of time to help manage his condition and keep it under control (again, I won’t bore you with the specifics here as they are not relevant to my question).

We made the argument that the Tribunal should consider the risks posed by full-time work. This is an excerpt from the submission:

7. The Tribunal will of course be aware that the appellant currently undertakes part-time work.
8. If a claimant does not fall into one of the categories of persons in sections 19 – 21 of the Welfare Reform Act 2012, then under s22 of that Act they are subject to all work-related requirements. The claimant is currently subject to all work-related requirements in accordance with the Act.
9. If a claimant is in the ‘all work-related requirements’ group for UC, they are normally expected to look for and undertake work of 35 hours per week, or, if they are working already, increase their hours of work or earnings. Work coaches do have discretion to allow a claimant to work or look for work with less hours than this. However, this is a discretionary power and as such we submit that it is not unreasonable to assess any risk on the assumption that such discretion will not be exercised on behalf of the Secretary of State, in the absence of any firm commitment to the contrary.
10. Such an approach would be consistent with the approach endorsed in IM v SSWP, in which the Upper Tribunal held that the risk to a claimant’s health when undertaking work-related activity should be assessed in the context of the most challenging activity they might be expected to undertake. IM v SSWP of course was concerned with a slightly different question (i.e., the risks of work-related activity rather than work), but we submit that the principle that it establishes, that ‘risk’ should be assessed in the context of the most challenging activities that might be expected of a claimant, is nonetheless applicable to the present case.
11. We submit that any potential risk to the appellant’s health should be considered in the context of him undertaking full-time work, as a finding that a claimant has neither LCW nor LCWRA would suggest that he would be in the ‘all work requirements’ group.

The Tribunal have rejected this argument about full-time work and risk and have said that they think that if a claimant can do part-time work without a risk, that is sufficient for there not to be a substantial risk for the purposes of schedule 8.

Firstly, does anyone know of any UT or other decisions on this issue?

Secondly, any thoughts or comments (good or bad) on the above argument?

Thanks in advance for any contributions.

Alex