Reg 29&35; successful appeals

kd01 - 02 October 2017 10:58 AM

However, she feels that she does not have the core strength to be able to work for much more than 16 hours per week. Being rejected for jobs has also impacted on her confidence and self esteem.

If she feels that she can work more than 16 hours p/w the appeal will not succeed. However, if she can only work less than 16 hours p/w then there is a reasonable case (on the face of it) for Reg. 29.

I think that you might struggle with Reg 35 though. What are the risks to her or other people of having to do WRA given that she has done Permitted Work and is looking for part time work now?

The attached, written by Martin at CPAG, is a little old but still a good starting point.

Thank you for your reply - that’s really helpful. I agree with all of your points I just wanted to get a second opinion before deciding on how to proceed any further.

To be honest client’s main concern is that every time she is rejected after a job application her confidence is knocked further. However, I suppose that isn’t enough to be classed as a substantial risk to mental health.

Kind Regards

Kate

Bearing in mind that the risk is “a risk that cannot sensibly be ignored” then if there were a close family history of mental health problems then with all those stressors I’d probably ask a Tribunal to consider reg 29 with a caveat to the client that it was a fishing trip.

If it were simply reactive depression I probably wouldn’t.

Hi All - there’s also a more recent Welfare Rights Bulletin article by Alison Gillies which updates Martin’s article -

http://www.cpag.org.uk/content/esa-and-substantial-risk

cheers Ros

I often put this in my submissions

“In NS v SSWP (ESA) [2014] UKUT 115 (AAC) reported as [2015] AACR 33.  Judge White reviews the authorities regarding the application of Regulation 29.  I note in particular that Judge White (at paragraph 45) cites LJ v SSWP(IB) [2010] UKUT408 (AAC) where Judge Mark observed

10 Further, the test is not limited to whether there would be a substantial risk to the claimant from any work he may undertake.  The test is as to the risk as a result of being found capable of work.  If he was found capable of work, he would lose his incapacity benefit, and would very possibly need to seek work and apply for jobseeker’s allowance.  That would involve his attending interviews, and going through all the other steps that would be needed to obtain and keep jobseeker’s allowance.  In the present economic climate, a claimant who is 62 years old with mental health problems, and who has not worked since the early 1990’s, is unlikely to find work quickly and would very possibly never find it.  His GP’s assessment that it is inconceivable that he would ever be able to earn his living may be right.  The tribunal would then have to determine how this change from his being in receipt of incapacity benefit would affect the claimant’s mental health, looking not at some work he may do, but at the effect on his mental health of fruitless and repeated interviews and the possibly hopeless pursuit of jobs until he reached retirement age.  These factors were not considered by the tribunal, and indeed they did not elicit the information necessary to enable them to be considered, such as whether he had in fact applied for jobseeker’s allowance and if not, how he was coping or would cope.

Judge White also goes on to say at paragraph 50

50. I would agree with the observation of Judge Ward in RB v Secretary of State for Work and Pensions (ESA), which I have quoted in paragraph 35 above, that the more narrowly focused the descriptors become, the more likely it is that the safety net provision of regulation 29(2)(b) will be in issue”

Your client’s mental health might not be a fragile as the appellant in LJ, but Judge Mark did hold that the change from what was then IB to JSA could of itself be very stressful for some claimants and could pose a risk to mental health