Substantial risk to health if found capable of work

Relating to the news story on this on the front page today (http://www.rightsnet.org.uk/news/story/substantial-risk-to-health-if-claimant-found-capable-of-work/) I was wondering if anyone else had experience of this part of the ESA legislation being used (either at appeal or by decision makers)?

The clause sits within the ‘Exceptional Circumstances’ section and reads:  “A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if….the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”

Since, I think, we all feel that the WCA doesn’t really look at the likely impact that working would have on a claimant (or even their ability to function in an actual workplace) this clause may be a way to circumvent the flaws with the assessment if you could clearly argue that, even where a client may appear functional, returning to work at this time would be likely to damage their health. From a mental health perspective, perhaps previous experiences that the client has had at returning to work and how this affected their levels of anxiety/stress/depression.

Does anyone have any knowledge/experience of this?

Hi Tom,

Check this list of threads out which mention “substantial risk” from some previous discussions.

http://www.rightsnet.org.uk/forums/search_results/9991460235ef930e3bb6265b130f9145/

Hi Tom,

I would guess that some argument for the application of reg 29 is probably in most peoples ESA submissions, even if just as something to fall back on. I think tribunals also use it as a way to exercise common sense. Reg 35 contains a similar rule for membership of the support group. There was a similar rule for the PCA.

In my experience it is rare for DMs to use either reg 29 or 35, but it is applied at tribunal.

Jane

I have used the eg 35(2)(b) argument quite a few times as grounds for appeal.
Each time the DM has changed the decision and placed the client in the support group
I also submitted evidence from either a CPN or Consultant Psychiatrist.

However one silly DM said that a letter from a CPN is not medical evidence, for some strange reason so I got a direction from a Tribunal Judge that it should be considered as evidence. The decision was then changed

Yes, I use exceptional circumstances (return to work…) as an alternative ground more routinely than I ever did for ICB.  One ICB case I did, the introductions were hardly over when the chair turned to me and said “well Mr Neville, we’ve had a look at this and decided that Ms …….falls squarely within regulation 27, as amended by Howker, (a court of appeal decision – my insert)….” and then hands me the decision.  Result!

Jane

I must say that my experience of ESA differs from yours.  The first two appeals I did were revised by the DWP on exceptional circumstances grounds, the first even went into the support group.  I’ve had another four or five also revised by the DWP since, and not all on the provision of further evidence. 

You rarely saw this with ICB.  There does seem to be more of a willingness by decision makers to revise ESA decisions than there ever was with ICB.  So credit where credit is due.  There are some little bright spots in the general misery that is the benefit system but someone eventually might put a stop to this however.

Hi Nevip,

I’m pleased to hear about your more positive experiance. Maybe it’s to do with the different client groups?

I do wonder if the DMs ever apply either reg in the initial decision, people don’t tend to ring welfare rights when the DM gets the decision right first time, so if it is happening it is not something I would see.

During the course of some recent research I asked the DWP Information Directorate for statistics relating to the use of the Special Circumstances provisions for IB/ESA by Decision Makers, and was informed that such information is not collected.  I have never come across a single case of these provisions being invoked by first-tier Decision Makers.

In common with most other welfs I usually include a Special Circumstances argument as back-up in appeal submissions.  Instances in which this argument was successful have included clients with learning difficulties, head injuries and one case of a client who developed allergic dermatitis when exposed to chromium VI and to colophony (rosin) - these chemicals are widely used in industrial processes and in paper products, and his skin was red raw.

Have had several cases where I have specifically asked the decision maker to consider the substantial risk element within the appeal and also on occassion backed it up with evidence from CPN or psychiatrist and it is ignored…..while in almost every case the Tribunal have accepted the argument.