COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE MOSES
| Leon Charlton
|- and -
|The Secretary of State for Work and Pensions
Mr Jason Coppel (instructed by The Department for Work & Pensions) for the Respondent
Hearing dates : 3rd December 2008
Crown Copyright ©
Lord Justice Moses :
The Statutory Scheme
"…an assessment of the extent to which a person who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in the Schedule or is incapable by reason of such disease or bodily or mental disablement of performing those activities."
"Where the question of whether a person is capable or incapable of work falls to be determined in accordance with a Personal Capability Assessment, a person should be treated as incapable of work on any day in respect of which any of the circumstances set out in paragraph (2) apply to him." (my emphasis)
"A person who does not satisfy the all work test shall be treated as incapable of work if in the opinion of a doctor approved by the Secretary of State –
(a) he suffers from a previously undiagnosed potentially life-threatening condition; or
(b) he 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 he were found capable of work; or
(c) he suffers from a severe uncontrolled or uncontrollable disease; or
(d) he will, within three months of the date on which the doctor so approved examines him, have a major surgical operation or other major therapeutic procedure."
Facts and History of the Claim
"My advice based on the Personal Capability Assessment medical examination I have carried out as a doctor approved by the Secretary of State is that this person:
- Is not suffering from a severe uncontrolled or uncontrollable disease
- Is not suffering from some specific disease or bodily or mental disablement and because of this there would not be a substantial risk to the mental or physical health of any person if they were found capable of work
- Is not suffering from a previously undiagnosed potentially life-threatening condition
- Will not within 3 months have a major surgical or other major therapeutic procedure"
"He cannot be treated as incapable of work in connection with the Personal Capability Assessment and is not entitled to incapacity credits from and including 30/01/2006."
"What has the claimant done in the past?
What was the claimant doing at the time of the decision?
What are the claimant's qualifications?" (see § 43)
"Does that evidence (the evidence of the doctor's report and the evidence given before the Tribunal) suggest the probability of a substantial risk to C's health if he is expected to work in the kind of work to which a person of no physical limitations, no qualifications, no skills and no experience might be directed? I think not.
In my view, this is a case where there is no link established on the evidence between the general risk to C's health posed by C's disease or disablement and the finding that he is no longer incapable of work. Such evidence as there is suggests that the risk to health may be reduced by going to work. The other risk is of C injuring himself by carelessness. I have been shown no significant evidence to suggest that C is any more at risk from accidents while at work than if he continues his existing lifestyle. The link is again not present." (§ 48)
"More probable, as I have suggested, is a context of straightforward and structured unskilled work. I also take into account the description of C that arises from the Personal Capability Assessment. In such a context, there is a risk of incidents caused by C's carelessness. I assess the risk to others from such carelessness, while undoubtedly present, is not likely to be substantial in the kind of work setting that C might be expected to enter. Indeed, as with the risk to himself, it may be that the risk he presents to others in a work setting is less than the risk to others that he presents in a domestic context. The one example of an incident of carelessness at home is potentially less of a risk in a work setting – where there will be management structures and fire and similar safety features in place – than at home. In my view, it has not been established that the risk to others presented by C if he found (sic) capable of work is probably a substantial risk."(§ 49).
Interpretation of Regulation 27(b): Risk at Work
Assessment of the type of work for the purposes of Regulation 27(b)
"17. The degree of detail in which [the consequences of a finding that the claimant is capable of work] will need to be thought through will depend on the circumstances of the case… A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant's background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).
18. Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial."
"A person should be treated as capable of work throughout any period in respect of which he claims a Jobseeker's Allowance, notwithstanding that it has been determined that…he is or is to be treated as incapable of work under Regulation…27 if…
(b) he is able to show that he has a reasonable prospect of obtaining employment."
"…to which a person with no physical limitations, no qualifications, no skills and no experience might be directed (§ 48) and that he could undertake straightforward and unstructured, unskilled work."
Lord Justice Lloyd:
Lord Justice Pill: