Home working and WCA

With the huge growth in home working over the last 12 months do people think this has any impact on how claimants will be assessed for WCA. Obviously the descriptors are unchanged but I am wondering whether decisions that hinge on substantial risk might now be different if it is thought that many activities could be undertaken at home.

There is also the question of Covid and people’s perception of risk from, for example, going out. Many of my clients are effectively shielding although not classed as extremely vulnerable and would be very distressed at the thought of making journeys which they previously took without much thought.

Home working in the context of substantial risk was addressed by the UT in SM v SSWP (ESA) [2014] UKUT 241 (AAC). The UT says:

As Mr Hampton notes, there are jobs which allow for some home-working. This practice is more common in today’s post-Fordist economy than it used to be but it is still not the norm. Typically it is a matter which is entirely subject to the discretion (or whim) of the employer. The fact that the Court of Appeal in Charlton held that the statutory test has to be applied “in the context of the journey to or from work or in the workplace itself” (at paragraph [34] per Moses LJ, emphasis added) is in itself instructive.

and in CL v SSWP (ESA) [2015] UKUT 375 (AAC):

I would not attribute to paragraph 34 in that case an absolute prohibition on taking home working into account. It is possible that the only type of work for which the claimant is suitable might be in an industry where home working is possible, even encouraged. That may be rare, but I do not read what the Court said as excluding that possibility.

Perhaps the 2014/15 decisions which viewed home working as a bit of a novelty need to be viewed with a little more circumspection in 2021, but it is still surely right that the Tribunal would need to be able to justify a finding that the appellant was suitable for work in an industry where long term home working was viable. We are of course frequently told that our clients could work as “CCTV operators” or engage in “light manual duties in a factory” and neither of those can be done from home so far as I am aware.

Thanks Elliott, that’s helpful.

Ianb - 18 February 2021 10:37 AM

With the huge growth in home working over the last 12 months do people think this has any impact on how claimants will be assessed for WCA. Obviously the descriptors are unchanged but I am wondering whether decisions that hinge on substantial risk might now be different if it is thought that many activities could be undertaken at home.

I think this could only apply to reg 29 (in old language), but it is clearly not a long term situation (hopefully)

BC Welfare Rights - 18 February 2021 10:42 AM

There is also the question of Covid and people’s perception of risk from, for example, going out. Many of my clients are effectively shielding although not classed as extremely vulnerable and would be very distressed at the thought of making journeys which they previously took without much thought.

I think this is the nub of it really. Always good to remember the psych impact of lockdowns in the sense that whilst it might be possible for someone to perform an activity at home that has previously been in the context of, or based on an assumption, that they would not be wholly tied to the home and that thus WFH was not in any way potentially damaging. That’s no longer the case. In many instances WFH may be both possible but damaging given that there may be no other outlets.

I have always loved WFH but in the context of always having the option to go to the workplace; go shopping; go the cinema or the theatre or even football and so on. WFH at present I am fully aware that were I not able to throw myself into at least a one hour walk every day before work and half a day gardening at the weekend then work would have destroyed me.

Thanks, all. It was a just a question that has been niggling away at the back of mind.useful to have different points of view. I don’t miss the walk to the office on a wet and windy morning like today but am definitely going ‘stir crazy’. I know also that I am fortunate to have a comfortable home, with space and a garden - it is clearly much harder for those in cramped or unhealthy conditions.