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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Rare, but severe seizures - LCWRA? 

Va1der
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I’m looking at an appeal for LCWRA for one of my clients.

About once a month he takes a seizure. He gets a few seconds warning, enough time to put down the kettle and lie down etc. However, the seizures are so violent that he usually injures himself anyway - multiple hospitalisations due to broken bones, concussions etc. Once started they can’t be stopped, even with intervention from someone else - main support is just moving things out of the way and phoning an ambulance.

DWP had awarded LCW, though under Sch 6. I can’t see that any of the descriptors in sch 7 would apply, so I’m considering Sch 9(4) Risk to self or others.

DWP had identified WRA including attending phone appointments and browsing the internet.

While he is in constant danger (the fits were fairly regular, and with the gift of hindsight we know he took multiple further fits during the WCA/MR timeline) there is no indication that WRA, or indeed work, increases this risk.

It also transpires that he got significantly worse and started taking fits on a weekly and eventually daily basis - though there is no indication that this was caused by any WRA.
I.e. indicates that there would be little basis to thinking there was a certain minimum time-lag between fits.


I’m also looking at appealing his PIP - I think that should succeed on basis of needing constant supervision with any activity in order to do it safely. It’s not as if the need for supervision goes away while he cooks, even though he could do that isolated task for the majority of time without incident.

Elliot Kent
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Yes the issue is whether he would be at substantial risk as a result of a finding that he does not have LCWRA. This is clearly one of those cases where the risk needs to be viewed in the context of what WRA would be required of him. The DWP will say “we would only ask you to sit at home, go online and take the odd phonecall, so what is the risk?” and if that is correct, then they are probably right. If the WRA is flight school or tightrope walking, then he plainly would be at risk by reason of his seizures. It comes down to the old chestnut of how the FtT is supposed to address the question of what WRA would be required - see IM v SSWP [2015] AACR 10 and KC and MC v SSWP [2017] UKUT 94 (AAC) and so on.

Insofar as PIP goes, the question is not whether he can do the task without injury the majority of the time, the question is whether there is a risk of injury in performing the activity which, bearing in mind the likelihood of injury weighed against its severity, means that the activity cannot be performed ‘safely’ for the majority of the time. See RJ v SSWP [2017] AACR 32. It may be that even if the chances of him seizing whilst making a given meal are small, the risk of injury is so severe as to make the activity unsafe.

[ Edited: 24 Jun 2022 at 01:19 pm by Elliot Kent ]
Va1der
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Thanks Elliot.
I’ve been reading through the caselaw, but it’s still a new chestnut for me.

In this case there is less difference between tightrope walking and taking a phone call though. He might die if he has a fit in the former, but in the latter he still ends up with concussions and broken bones.

There’s been a few cases regarding the presence of third party assistance - wondering if that can help my client:

In [2013] UKUT 545 (AAC) judge Gray said: ‘As a matter of law any WRA which could only be accomplished because of the presence of another person must be looked upon as not being an activity that the claimant can carry out’.

Some of the later decisions seems to take a lesser approach, but the latest I’ve seen (My copies of Sweet and Maxwell are 18/19) is judge Gray again in [2017] UKUT 80 (AAC), saying: ‘what should not be assumed is regular and open ended input from another person’.

Regular and open ended supervision (actual input only needed during a fit), is exactly what my client currently receives from his family, but that is onerous enough for them already - would it not be unreasonable for DWP to add any further complications for them?


Slightly different, but related note:
Is there anything to say that the WRA must be functional, rather than arbitrary? I.e. does DWP have to show that the WRA increases chances of securing future employment, and can’t just suggest low-level WRA such as low level online IT classes where a client already have those skills? Rather than just being a box ticked so they can avoid awarding LCWRA.
Lots of LCW clients appear to sit around for years with zero contact from their WC or any actual WRA - usually clients that should have been awarded LCWRA.

Paul Stockton
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Slightly different, but related note:
Is there anything to say that the WRA must be functional, rather than arbitrary? I.e. does DWP have to show that the WRA increases chances of securing future employment, and can’t just suggest low-level WRA such as low level online IT classes where a client already have those skills? Rather than just being a box ticked so they can avoid awarding LCWRA.
Lots of LCW clients appear to sit around for years with zero contact from their WC or any actual WRA - usually clients that should have been awarded LCWRA. [/quote]

I think this is a good point. S13(7) of the Welfare Reform Act 2007 defines work-related activity as follows: ” “work-related activity”, in relation to a person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so.” On that definition low-level activities where the claimant has the skills already or where it won’t make any difference to the employment prospects of that particular claimant is not work-related activity at all. I’ve put that argument in submissions but never had to pursue it, and I’ve never found any UT authority on the point.

nevip
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Have you enquired whether he has been diagnosed with, or investigated for, status epilepsy?

past caring
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Va1der - 29 June 2022 10:59 AM

Slightly different, but related note:
Is there anything to say that the WRA must be functional, rather than arbitrary? I.e. does DWP have to show that the WRA increases chances of securing future employment, and can’t just suggest low-level WRA such as low level online IT classes where a client already have those skills? Rather than just being a box ticked so they can avoid awarding LCWRA.
Lots of LCW clients appear to sit around for years with zero contact from their WC or any actual WRA - usually clients that should have been awarded LCWRA.

Paul Stockton - 29 June 2022 12:35 PM

I think this is a good point. S13(7) of the Welfare Reform Act 2007 defines work-related activity as follows: ” “work-related activity”, in relation to a person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so.” On that definition low-level activities where the claimant has the skills already or where it won’t make any difference to the employment prospects of that particular claimant is not work-related activity at all. I’ve put that argument in submissions but never had to pursue it, and I’ve never found any UT authority on the point.

This question came up in MR v Secretary of State for Work and Pensions (ESA): [2020] UKUT 210 (AAC), one of the line of cases following on from IM and KC and MC. Or more accurately, I was invited by Judge Wright to comment on it as potentially relevant to a trench of cases being considered by Judge Gray and which were at that point stayed behind MR. I declined to do so;

a) whilst I thought those arguments were a bit thin (they’ve been aired on here previously) I didn’t want to scupper any arguments that other reps might be making in those cases stayed behind MR.

b) “thin” because I do think that even low-level stuff like checking public transport routes and trying to get out of bed at the same time each day or leave the house each day can potentially be WRA for those with longer term mental health problems if part of process - i.e. if, as the “JCP offer” proposes, a person moves from least to more demanding activity when they are ready.

c) but far more importantly, even if I’m wrong about that and it is not WRA, that doesn’t get the claimant home on the reg. 35(2)/Sch. 9 para. 4 issue - you still need to show substantial risk in respect of what WRA is available.

In the event - and for reasons unknown to me - none of the trench of cases that Judge Gray dealt with did go into this question.

Paul Stockton
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The fundamental problem, I think, is that the LCW/LCWRA hierarchy over-simplifies reality. It seems to be based on the idea that anyone with LCW can eventually become a worker with the right WRA. It reflects the more noble side of the 2007 Act, that people should not be written-off because they have an impairment. That may be true for many people but not everyone. IM v SSWP and the other cases do at least establish that providing a list of supposed WRA, some of which are very basic, isn’t good enough - otherwise scarcely anyone would get LCWRA. But it doesn’t deal with the fact that a person with LCW, for whom any WRA on offer would be futile, is treated the same way as someone who is actually on a constructive WRA journey. The former can only get to LCWRA if they can show that the available WRA would be too risky. I can’t see any logic in saying that a person for whom supposed WRA would be futile has less financial need than someone who could do the WRA if it wasn’t so risky.

Elliot Kent
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Just returning to the case at hand.

What is important is what the risk of a finding of being fit to conduct WRA would be. You have said that your client would be at risk of a seizure whilst taking a phonecall, which may well be true, but that is not a risk which is caused by the finding - it is a background risk which is particular to your client’s condition. You would need to look at whether the risks are increased through the WRA.

I think that it is fairly simple to say that if the WRA involves going to the jobcentre or somewhere, then there is a materially increased risk in a case like this. All things being equal, your client is going to have a harder time of things if he has a seizure whilst he is out and about, or at an unfamiliar office or climbing stairs than if he is sat at home. The effect of a WRA requirement that he should attend the jobcentre regularly would therefore actively contribute to the risk. I am not really sure that the availability or otherwise of third party assistance makes any difference to the main point.

In the days of the ‘work programme’, it would be trivial to win an appeal like this. The situation now where we just have the vestigial remains of WRA makes it a bit more fiddly. There is a need to emphasise to the the FtT that even though WRA might just be the pointless non-activities which are proffered by the DWP, it is entirely possible that the claimant could at any point be required to do rather more than that and be sent off at a moments notice to the proverbial lion taming classes.

Va1der
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Thanks for the input everyone.

His diagnosed condition is cough syncope. There’s been some questions whether this is correct, but it stands for now. Some potential triggers have been identified, but nothing conclusive.
He’s waiting on a new WCA now, on basis of worsening and of multiple new conditions as a consequence (head trauma, depression etc).

So in terms of WRA we’re looking at two separate aspects of risk then:

1) Risk due to WRA - i.e where WRA might increase the likelihood of a fit. Woodturning classes where he might inhale some sawdust and start coughing.

2) Risk worse during certain types of WRA (or on his way there) - i.e. driving/walking to the JCP or tightrope lessons.

Both of those conceivably limit what WRA he can do, but neither precludes it entirely. 


Where I think I was going with need for assistance and functionality of the WRA was to limit what DWP can propose he can do. If very simple things are arbitrary, and certain things are excluded because it would require an unreasonable amount of assistance, that leaves DWP with a narrower argument for why WRA is suitable and why he shouldn’t be in the LCWRA group.

Dan Manville
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Paul Stockton - 29 June 2022 04:26 PM

IM v SSWP and the other cases do at least establish that providing a list of supposed WRA, some of which are very basic, isn’t good enough - otherwise scarcely anyone would get LCWRA. But it doesn’t deal with the fact that a person with LCW, for whom any WRA on offer would be futile, is treated the same way as someone who is actually on a constructive WRA journey. The former can only get to LCWRA if they can show that the available WRA would be too risky..

There is caselaw that discussed this. It was a Jacobs decision discussing “the postulate” of reg 35. Not got time to look for it now but it struck me in a moment of procrastination.

Back to work.

edit: https://www.rightsnet.org.uk/welfare-rights/caselaw/item/whether-someone-who-will-never-work-again-can-satisfy-regulation-35

[ Edited: 30 Jun 2022 at 05:03 pm by Dan Manville ]