Difference between UC Regulations relating to LCW and LCWRA in Schedule 8 and Schedule 9

I may be completely missing an obvious point, so please excuse me if this is the case.

I have had a couple of clients recently found to have LCW but not LCWRA. The reasons provided are that the clients meet the criteria that there would be a risk to themselves or others should they have not been found to have LCW.

When reading over the legislation it notes the following

Schedule 8 4.—(1) The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work.

I have removed the 2nd part which it notes where this wouldn’t apply as this is not the case with the clients.

Schedule 9 4.  The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work and work-related activity.

The wording is identicall and i am trying to find out if there is a specific threshold where a client would meet schedule 8 but not schedule 9?

Any input is appreciated!

CalMcM - 10 February 2022 02:27 PM

I may be completely missing an obvious point, so please excuse me if this is the case.

I have had a couple of clients recently found to have LCW but not LCWRA. The reasons provided are that the clients meet the criteria that there would be a risk to themselves or others should they have not been found to have LCW.

When reading over the legislation it notes the following

Schedule 8 4.—(1) The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work.

I have removed the 2nd part which it notes where this wouldn’t apply as this is not the case with the clients.

Schedule 9 4.  The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work and work-related activity.

The wording is identicall and i am trying to find out if there is a specific threshold where a client would meet schedule 8 but not schedule 9?

Any input is appreciated!

The wording is not the same.

Sch 8 concerns the ‘risk’ of not being found to have ‘limited capability for work’. When Sch 8 is applied (or the claimants scores sufficient points to have LCFW) they may still be required to undertake ‘work related activity’ (a level of conditionality can be required).

Whereas Sch. 9 concerns the ‘risk’ of not being found to have ‘limited capability for work and [additionally] work related activity’.  In which case the claimant cannot be required to engage in any ‘work related activity’ (cannot be subject to any level of conditionality).

ADM memo 02/18 has some useful guidance.

Can’t find which set of regs you’re looking at but they’re not exactly the same.

Schedule 8 4.—(1) The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work.

Schedule 9 4.  The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work and work-related activity.

As such, the second of the above requires you’d have to be at risk if you were found not to have both LCW and LCRWA whereas the first is only in relation to not having LCW which is a lesser test if you like.

<edit> Peter got there first whilst I was getting my mucking words fuddled….

Perversely the “threshold” (if we can call it that) for sched 9 substantial risk if found not to have limited capability for… Work Related Activity is markedly lower than it is for sched 8. That’s due to a long list of UT cases (that I was hunting for when I stumbled across this thread) that held that because DWP can’t evidence what WRA a person might be required to undertake, then if any WRA might lead to a risk crystallising then the substantial risk provisions bite and the person is treated as LCWRA, whereas for sched 8 if a person can undertake any work the sched 8 risk doesn’t crystallise.

Thanks for the updates.

Va1der - 10 February 2022 03:17 PM

ADM memo 02/18 has some useful guidance.

Thank you, this is exactly what i was looking for.

Dan Manville - 14 February 2022 03:48 PM

Perversely the “threshold” (if we can call it that) for sched 9 substantial risk if found not to have limited capability for… Work Related Activity is markedly lower than it is for sched 8. That’s due to a long list of UT cases (that I was hunting for when I stumbled across this thread) that held that because DWP can’t evidence what WRA a person might be required to undertake, then if any WRA might lead to a risk crystallising then the substantial risk provisions bite and the person is treated as LCWRA, whereas for sched 8 if a person can undertake any work the sched 8 risk doesn’t crystallise.

Sorry to resurect this but did you find caselaw or succsessfully argue sch9 rather than sch8? Im struggling to get this straight in my head and think I am making it more complicated than it is.

My claimant has been found to satisfy sch8. Reasons for not satisfying sch9 are that he drives a car, can answer the telephone and looks after his children (single parent) He does in fact have an intensive family support worker helping him with his children and preventing escalation into social care but DWP have decided that this equates to WRA as he is engaing with a support worker.

It was his work coach who referred him into welfare rights over concerns over his mental health and she did not give him any WRA to do as she thought he could not cope.  He doesnt have a lot of evidence around his mental health and risk though as he is on waiting lists to be seen by the CMHT.

The DWP’s stock respone that engaging with a support worker equates to work related activiity is at best over stating the case and at worse simply wrong

There may be some aspects of engaging with a support worker that could be seen as evidence that a person could undetake work related activity, but in the absence of any risk assement or evaluation of the kind of work related activity that the person could undertake, the DWP’s argument makes no sense because WRA is defined in S40 of the 2012 Welfre Reform act as:

activity which makes it more likely that the person will obtain or remain in work or be able to do so;

Judge Bano held in CMcC v Secretary of State for Work and Pensions (ESA)[2014] UKUT 176 (AAC)) [2015] AACR 9
at [7-[8]

The Secretary of State’s representative has sought to uphold the tribunal’s reasoning on the following basis:

“ … Although it is acknowledged that the claimant was ‘assisted’ by occupational therapists whilst carrying out her tasks, it should be remembered that WRA is tailored to suit each claimant, and in view of this, the activities mentioned could still be accepted as WRA which suited the needs of the appellant. I therefore submit that the tribunal did not err in law by using the attendance at the Psychiatric Unit as evidence of the claimant’s ability to cope with WRA and did not misinterpret the meaning of WRA.”

8. Although ESA work-related activity and a course of therapeutic occupational therapy in a psychiatric hospital might be said to share the aim of enabling people to undertake or resume paid employment, in my view in most cases any similarities between those two forms of intervention end there. Treatment in a psychiatric hospital is designed to overcome the often-devastating effects of mental illness. Its purpose is therapeutic, and it is carried out by qualified mental health professionals in a way which is designed to improve and not to harm the health of the patient. Work-related activity, on the other hand, is designed to overcome obstacles to gaining employment for people who may have no relevant health problems, and employment advisers are not required to have mental health qualifications or experience. I therefore reject the argument that the tribunal was entitled to find that work-related activity posed no substantial risk of harm to the claimant on the basis that she was already receiving occupational therapy in hospital.

The DWP are still perpetuating the false equivalence of therapeutic activity designed to enable a person to cope with the vargaries of daily living with that of WRA.  They dont have the support of the Upper Tribunal as was made clear in CMc

I dont agree that the Sch 8 risk would not crystalise if there is any work that the claimant could do.  The test is wider than that as Judge Mark held in IJ v Secretary of State for Work and Pensions (IB) [2010] UKUT 408 (AAC).
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 1990s, 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.”