Charlton v Secretary of State for Work and Pensions

Regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 is an exceptional additional route to incapacity. It applies only after the claimant has failed the ordinary statutory test. The disease or disablement must create a substantial health risk because the claimant is found capable of work. Save for the unusual case where the finding itself causes deterioration, the risk is assessed in relation to travel to work or the workplace.

The decision-maker need identify only the range or types of work the claimant could undertake sufficiently to assess that risk. The inquiry does not require identification of an actual job or a hypothetical Jobseeker’s Agreement. It is inquisitorial and involves no formal burden of proof.

The appellant, who had alcohol dependency syndrome and no work history, claimed incapacity benefit and incapacity credits. He failed the Personal Capability Assessment. A tribunal increased his score but found no substantial risk to health under Regulation 27(b).

On appeal, the Social Security Commissioner held that the tribunal had given inadequate reasons but concluded that the appellant could undertake supervised, structured unskilled work without a substantial risk to himself or others. The claimant appealed to the Court of Appeal.

The central issues were whether Regulation 27(b) requires a causal connection between capability for work and the risk, and how specifically the decision-maker must identify the work which the claimant might perform.

Appeal dismissed. Moses LJ gave the judgment of the court, with which Lloyd and Pill LJJ agreed.

1. Regulation 27(b) is not a substitute for the Personal Capability Assessment. It operates only after the claimant has failed the ordinary statutory test and is otherwise capable of work. It provides an additional route by which such a claimant may nevertheless be treated as incapable.
2. The regulation requires a causative link between the disease or disablement and a substantial risk arising from the claimant being found capable of work. In the unusual case, the finding itself may create the risk, such as serious deterioration following refusal of benefit. Otherwise, the inquiry concerns risk on the journey to or from work or in the workplace.
3. The Commissioner was wrong to appear to compare work risk with the risks of the claimant’s existing lifestyle. Regulation 27(b) does not require a greater risk than that arising from everyday activities assessed under the Personal Capability Assessment. That error did not affect the result because the Commissioner ultimately asked the correct question: whether the work the claimant might be expected to perform would create a substantial risk.
4. The decision-maker need assess only the range or type of work for which the claimant is suited and capable. The degree of detail depends on the claimant’s circumstances and the disablement. The court approved the approach in CIB/360/2007 and rejected the requirement, suggested in CIB/0026/2004 and CSIB/33/04, to construct a hypothetical Jobseeker’s Agreement or identify actual employment.
5. The inquiry is inquisitorial. There is no formal burden of proof. On the Commissioner’s unchallengeable factual assessment, the appellant could undertake appropriately supervised and structured unskilled work without substantial risk to himself or others.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal: [2009] EWCA Civ 42.
• Social Security Commissioner — held that the tribunal had given inadequate reasons, but concluded that the claimant had not established a substantial risk under Regulation 27(b).
• Appeal Tribunal — increased the claimant’s Personal Capability Assessment score from three to five points, but found no substantial risk to health.
• Secretary of State’s decision-maker — found that the claimant had failed the assessment and was not entitled to incapacity credits from 30 January 2006.