Upper Tribunal (Administrative Appeals Chamber)

The argument is that, if the claimant were to work he would receive more income than his benefit and would be able to afford more drugs, which would increase the risk to his health. The issue is: what connection must there be between the risk and being found capable of work? Does the risk have to arise from the work itself or is it sufficient if it arises from some consequence that follows from the work but does not relate to the nature of the work?

B.         History and background

C.         The case before the First-tier Tribunal

I ask that the Tribunal considers the comment made by [the senior practitioner at the Community Drug Service] in her letter “(The Appellant) also states that he feels that he must commit to his treatment in order to break the cycle of substance use …”. I submit that the appellant would not have been able to work or seek work at this point, both because of the substance use issue, and the support that was in place to help him overcome it.

51. The Appellant’s representatives invited the Tribunal to consider a passage in a letter from the Community Drug Service dated 9^th September 2010 which stated that the Appellant felt that he must commit to his treatment in order to break the cycle of drug abuse … They also submitted that the Appellant would have been unable to work at that point because of his substance abuse and the support that was in place to help him overcome it.

52. The Appellant when he was asked what would have happened had he worked in March 2010 replied that he thought he could not have done a days work as he could not concentrate and he certainly would not have worked to the best of his ability. He was of the view that it was the provision of a pay packet that would have provided him with the means to buy more illegal drugs that was the difficulty. It is significant that he did not say that his employment or seeking employment would have interrupted a course of treatment that he was materially benefiting from such that the withdrawal from it would have inevitably caused him a relapse and deterioration.

53. The Tribunal concludes that at the date of the decision to stop his ESA benefit had the Appellant worked or sought work this would not have created a substantial risk to [h]is health over and above the risks that he was already suffering from as a result of his addiction. It seems clear that his existing treatment in March 2010 was not causing a permanent improvement in his mental condition. The letter from the Community Drug Service … states that “[Mr B] has periods where he states improvement in his low mood, and feels more optimistic, but this can quickly deteriorate again.”

54. Whatever was his intention in September 2010 the Tribunal cannot conclude that in March 2010 his not having limited capability to work would have caused such a disruption to his existing course of treatment that the disruption itself would have itself caused a substantial risk to his health in the form of a relapse or deterioration. Indeed on the evidence the Tribunal cannot even conclude that working or seeking work would have necessarily ended or disrupted the treatment he was receiving in March 2010.

55. Having made the findings that it has concerning the Appellant’s ability to undertake physical and mental tasks with the addiction he had in March 2010 the Tribunal cannot conclude that the mere act of working would have caused a substantial risk to his physical or mental health.

56. The suggestion of Appellant that the provision of a wage packet would have increased the money he had available for the purchase of illegal drugs and that of itself would have created a substantial risk to his health if accepted by the Tribunal would result it in making findings of factual causation that the Tribunal considers is not warranted by the evidence. In particular the Tribunal is not convinced that the increase in the amount drugs he would taken due to his having a wage packet would have increased the risks to his health that he was already subject to.

D.        The legislation

29 Exceptional circumstances

(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-

…

(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.

29. The correct interpretation of regulation 27(b) lies in the context of that regulation within the scheme of the Statute and the Regulations. The test whether a claimant is incapable of work is that which is identified either in section 171B, “the own occupation test”, or the personal capability assessment under section 171C. The need to consider whether to treat a person as incapable or capable of work under regulation 27(b) only arises in circumstances where the statutory own occupation or personal capability assessment tests have not been satisfied. The opening words of regulation 27 underline the circumstance that the claimant has failed to satisfy either the own occupation test or the personal capability assessment and, thus, is, apart from regulation 27(b), capable of work: he is one who “does not satisfy the all-work test”.

30. When a claimant has failed those tests, regulation 27(b) requires, firstly, a decision whether the person suffers from some specific disease or bodily or mental disablement, which does not of itself cause such functional limitation as to justify a total score sufficient to warrant a finding of incapability. If he does suffer from such a condition, then a second decision is required as to whether by reason 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 capable of work.

31. It must be recalled that by virtue of the statutory provisions in section 171A, 171B and 171C, the claimant would have been found capable of work. The only inhibitions on such a finding are the opening words of regulation 27 itself. Those words are in striking contrast to a provision such as regulation 10 … Regulation 27 only bites where the claimant has taken the personal capability assessment test (when the own occupation test does not apply) and failed. The essential key to the correct interpretation of regulation 27 is the very circumstance that it cannot apply before the claimant has been tested under the personal capability assessment. Regulation 10 does not require a claimant to take such a test at all.

32. Regulation 27(b), unlike regulation 10, is not a substitute for a personal capability assessment but an additional route to a determination whether a claimant is incapable of work under Part XII of the Act. The words “if found capable of work” underline the effect of section 171D which confers power to extend the category of those determined to be incapable of work. Regulation 27(b) is designed to provide an additional test of incapability not a substitute test; the claimant may be deemed incapable despite the fact that he is capable of performing those everyday tests which, but for regulation 27(b), would demonstrate that he is capable of work.

33. Once it is appreciated that regulation 27(b) applies only when a claimant’s functional abilities in the performance of everyday tasks have been established, it becomes clear that the risk to be assessed must arise as a consequence of work the claimant would be found capable of undertaking, but for regulation 27. Were it not so, there would be no statutory purpose in requiring a claimant to have undergone an assessment before consideration of the effects of any disease or disablement on his or others’ safety.

34. Regulation 27(b) may be satisfied where the very finding of capability might create a substantial risk to a claimant’s health or to that of others, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused. Apart from that, probably rare, situation, the determination must be made in the context of the journey to or from work or in the workplace itself.

35. The Commissioner was correct to construe regulation 27(b) as requiring a causative link. But I do question his apparent search for evidence of a greater risk at work than from his existing lifestyle generally (paragraph 48 penultimate sentence). The question regulation 27(b) poses is not whether there is a greater risk than that arising during the course of the performance of everyday tasks as tested by the personal capability assessment. The descriptors specified in the Schedule test a claimant’s functional limitations, both physical and mental, not the risks to which they might give rise. It is regulation 27(b) which raises the question of whether a substantial risk arises from disease or disablement. But despite what I perceive to be an error in making a comparison which is not justified by the regulation, in the end the Commissioner does (in paragraph 49) ask and answer the correct question posed by the regulation, namely whether a substantial risk should be foreseen in the light of the work the claimant might be expected to perform in the workplace in which he might be expected to be. This gives rise to the second issue in the appeal: how the decision-maker is to identify the nature of claimant’s work and workplace.

45. … The decision-maker must assess the range or type of work which a claimant is capable of performing sufficiently to assess the risk to health either to himself or to others.

46. Sufficient information may be elicited by reference to the claimant’s completion of the initial questionnaire, questioning during his medical examination, or by any evidence he may choose to give on an appeal to the tribunal. The process to be adopted by the decision-maker or tribunal is to be regarded as inquisitorial and not adversarial. It is a process described by Diplock J in R v Medical Appeal Tribunal (North Midland Region ex parte Hubble) [1958] 2 QB 228 at 240 as a fact-gathering exercise in which there is no formal burden of proof on either side. There should be no difficulty provided the decision-maker or tribunal recall that the essential question is whether there is an adequate range of work which the claimant could undertake without creating a substantial risk to himself or to others.

47. This conclusion is consistent with the practical application of these regulations. Any interpretation must bear in mind that the regulations are designed to provide a fair and effective system for assessing entitlement to incapacity benefit and to allied benefits when a claimant has passed the personal capability assessment. It would not be possible to achieve the aim of those regulations were the decision-maker to be required to make findings of the particularity for which the claimant contends. The decision-maker, it must be recalled, will be provided only with the report of the doctor based upon the doctor’s interview with the claimant and the claimant’s completion of the questionnaire. It is quite impossible for the decision-maker to identify actual positions of employment or the nature of the duties and location of any job which the claimant might undertake, not least because the decision-maker may often be based in Belfast, or elsewhere, and can have no possible means of discovering employment circumstances throughout the country. The conclusion which requires no more than that the decision-maker or tribunal assess the range of work of which the claimant is capable for the purposes of assessing risk to health has the merit of achieving the objective of the regulations.

F.         The parties’ arguments

For the Secretary of State

For Mr B

G.        My analysis

The scope of regulation 29(2)(b)

The application of regulation 29(2)(b)

Conclusion