LCWRA and the going out descriptor

Hi all,

I have a client who advises that he cannot do LCWRA. He has LCW and scored the full 15 points for going out, which, as you know, there is no provision for that within LCWRA. The DWP have provided a table in the appeal bundle which has a list of all the work related activities, one could partake in under LCW: Most are either not relevant, has tried and failed, or not possible or appropriate given that he has severe agoraphobia, depression and social phobia, all of which has been diagnosed and we have the evidence for that. The rest are one time things, ie updating his CV, which has been done and cannot be done anymore as he has no further work or training history. and writing a list of hobbies… well that takes one minute. He hasn’t been asked to do anything since the appeal process started which I know that work coaches can be flexible but surely we can say that this is an admission that he cannot do it?

Further more, over a year ago he was asked to attend the job centre despite agoraphobia being down on his record, he attended and he had a panic attack. To which the Work said he should apply for LCWRA even tough he had attempted it in the past and is struggling to claim it now.

One of the work related activities seems to suggest that if you can get dressed and keep a log that it is classed as work related activity, in which case, barely anyone would get LCWRA as that is just an easy way to deny anyone.

My questions are:

Is there anyway I can argue that the going out descriptor should be still taken into consideration? Via case law etc? We all know that the DWP will say they will accommodate any illnesses then turn around and tell an agoraphobic claimant that they must attend the job centre or they’ll get sanctioned. That’s just the reality of the situation but I can’t really say that at appeal as the DWP will deny and/or the judge will not believe it.

Can we say that the fact a work coach hasn’t asked him to do even the things that only require one session to do, or queried anything about what he can and can’t do, as an admission that he cannot do these activities?

Thanks for any help/advice in advance.

I’m not clear whether this is an ESA or a UC case but either way I would suggest you forget about the “going out” descriptors and concentrate on regulation 35(2) of the ESA Regs or Schedule 9(4) of the UC Regs, both of which say that a claimant has LCWRA if:

“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 facts that he has medically-attested agoraphobia etc and that the work coach themselves think he has LCWRA are pretty potent sources of evidence that he meets this criterion. There is a fair bit of case law on this provision, including IM v SSWP (ESA)[2015] AACR 10 [2014] UKUT 412 (AAC) CE/3453/2013 and MR v SSWP (ESA) [2020] UKUT 210 (AAC)CE/1689/2018.

Always useful - https://askcpag.org.uk/content/207488/substantial-risk-and-the-wca

Paul Stockton - 23 October 2023 07:39 PM

I’m not clear whether this is an ESA or a UC case but either way I would suggest you forget about the “going out” descriptors and concentrate on regulation 35(2) of the ESA Regs or Schedule 9(4) of the UC Regs, both of which say that a claimant has LCWRA if:

“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 facts that he has medically-attested agoraphobia etc and that the work coach themselves think he has LCWRA are pretty potent sources of evidence that he meets this criterion. There is a fair bit of case law on this provision, including IM v SSWP (ESA)[2015] AACR 10 [2014] UKUT 412 (AAC) CE/3453/2013 and MR v SSWP (ESA) [2020] UKUT 210 (AAC)CE/1689/2018.

Yes sorry it is UC. I’ve written about schedule 9 in the submission,I was wondering if I could go in on any other angle. Thank you for the case law I will have a look at that.

S2uABZ - 24 October 2023 08:49 AM

Always useful - https://askcpag.org.uk/content/207488/substantial-risk-and-the-wca

Brilliant thanks!

Don’t forget KC & MC

If you read the caselaw you’ll be at it for a while, Joshua Rozenberg was very critical of the writing style of the author of IM in a piece in the Grauniad. Judge Wright unfortunately needs to cite long passages of IM in both KC & MC & MR

Now Tribunals can criticise that list you’re referring to. The panel in IM demanded evidence of what WRA was available locally and the generic lists provided, even now, don’t meet the evidential threshold laid down by IM so a decent Tribunal will ignore those lists; that’s your starting point; there’s no adequate evidence of what WRA he might be sent on so the tribunal can apply reg 35 if any WRA would give rise to a substantial risk.

Also how old’s your client? We have a lot of success with older people using the principles set illustrated here: 

https://cpag.org.uk/welfare-rights/resources/article/making-exception#:~:text=Martin%20Williams%20takes%20a%20look,or%20work%2Drelated%20activity). (thanks Martin)

particularly IJ v SSWP (IB) [2010] UKUT 408 (AAC)  (confirmed in CF v SSWP (ESA) [2012] UKUT 29) in the discussion of the risks from claiming JSA and most of the UC50 reviews we’ve dealt with here a the LC have been relatively old claimants.