Regulation 35 - substantial risk to the mental or physical health if found not to have ‘limited capability for work-related activity’
Q:
Please advise me
on the "exceptional circumstances" rules in regs 29 and 35 in ESA Regualtions
2008. My client has multiple sclerosis (MS). The Tribunal found that he did not score 15 or
more descriptor points but allowed his ESA appeal on reg 29 grounds and put him
in the work-related activity group (WRAG). It decided that if he were classed
as fit for work it would cause him stress to have to comply with JSA-type
work-related requirements and this would very likely make his MS worse.
But the
Tribunal also decided that he could manage ESA-type work-related activity. We
wanted the Tribunal to apply ESA reg 35 as well and put him in the ESA support
group on the ground that there would also be a risk to his health if he were
forced to do work-related activity. It seems that there is a fine line between
limited capability for work for reg 29 and limited capability for work-related
activity for reg 35: is it worth appealing to the Upper Tribunal or taking the case further in any other way?
A: It is not obvious at first but I
think that in this case - and in many others like it - the First-tier Tribunal
has probably erred in law by deciding an ESA reg 35 case without considering
the specific work-related activity that the appellant can do without risk to
his health. This needs some explaining.
To begin
with, yes, it is true that there is a fine line between limited capability for
work and limited capability for work-related activity. It is quite legitimate
for a Tribunal considering an appellant's risk-to-health to apply reg 29 but
not reg 35. If it considers all the relevant facts and evidence properly it
cannot be faulted for its conclusions and there would be no point appealing to
the Upper Tribunal. In this instance the Tribunal seems to have concluded that
your client can attend work-focussed interviews and the like without it causing
the kind of stress that would make his MS worse. And therein lies the error of
law: the Tribunal has not been specific enough.
There is case
law that Tribunals must consider the specific work-related activity that the
individual appellant is capable of doing and can do without substantial risk.
Moreover, the specific work-related activity in question must be set out beforehand
in the DWP appeal response. Therefore you should apply to HM Courts and
Tribunals Service for the Tribunal's statement of reasons and the record of
proceedings. If that shows that the reg 35 work-related activity has not been
specified, you should submit your Upper Tribunal appeal using the argument that
this constitutes an error of law. You
are likely to win at least a "set-aside", which means that the case
can be re-heard by a fresh First-tier Tribunal, which will be directed to consider
the specific work-related activity that the individual appellant is capable of
doing and can do without substantial risk.
One of the
most recent cases on this point is CE/587/2013
[2013 UKUT 573 AAC]. This is an important case because it puts the onus on the
DWP to specify the work-related activity in question in their submission. In
CE/587/2013 the Judge ruled that:
"The
Secretary of State has already affirmatively decided that the appellant does
not have limited capability for work-related activity, within that he has
decided that there is work-related activity in which she can safely engage
despite her severe anxiety problems, and … only he knows what work-related
activity is in fact. In these circumstances it was for him to prove his case by
saying what the specific work-related activity was that the appellant could
safely engage in, and for the tribunal on the appeal to be satisfied as to the
same.”
In other
words, the DWP must tell the tribunal what work-related activity the claimant is
expected to do and why he/she can reasonably undertake it.
If you are
dealing with a case like this after the tribunal hearing has taken place, you
can argue that the tribunal erred by either not requiring the DWP to do this or
by trying to second guess what work-related activity the claimant could do.
However, if
you are dealing with a case like this that has not yet reached the tribunal,
you should raise the reg 35(2) question - and the parallel reg 29 question if
applicable - in your own appeal
submission. You should request that the DWP set out what forms of work-related
activity they will require the claimant to undertake. This way, you'll get the
question done and dusted at the tribunal, rather than having to seek an
adjournment for the DWP to answer the question, let alone seek a set aside so
that the question can come up again before a fresh tribunal in several months’
time.
It is
becoming increasingly important for advisers to find ways of placing clients in
the support group now that contributory ESA runs out after a year for people in
WRAG (whereas it can continue indefinitely for people in the support group).
This case shows one way. Other useful pointers on how clients can be placed in
the support group are listed in our ESA factsheet available @ www.disabilityrightsuk.org
ESA
Regulations 2008:
Regulation
29:
“(1) 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 paragraph (2) applies to the claimant.
(2) … this
paragraph applies if -
… (b) 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.”
Regulation
35
“… (2) A
claimant who does not have limited capability for work-related activity …is to
be treated as having limited capability for work-related activity if -
(a) the
claimant suffers from some specific disease or bodily or mental disablement;
and
(b) 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-related activity.”
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