KC & Anor v Secretary of State for Work and Pensions (ESA)

For the purposes of regulation 35(2), the assessment of substantial risk must be a real-world predictive assessment. It is not enough to identify one work-related activity which a claimant could safely perform. The decision-maker must assess the risk arising from activities which the claimant might reasonably be required to undertake.

The Secretary of State must provide accurate, representative evidence of the range of work-related activity available locally, including its most and least demanding forms. That evidence must be distinct from the subsequent, claimant-specific assessment of which activities might reasonably be required. A claimant’s inability to perform an activity, or significant distress when dealing with unfamiliar people, does not automatically establish substantial risk. It may nevertheless do so where, on the facts, the distress would endanger the claimant’s mental health.

These conjoined appeals concerned entitlement to the support group of employment and support allowance and the proper application of regulation 35(2) of the Employment and Support Allowance Regulations 2008.

KC lived in Spain and had been found to have limited capability for work, but not limited capability for work-related activity. Her appeal was dismissed by the First-tier Tribunal on 3 March 2014. MC, who lived in Newcastle, was similarly found to have limited capability for work but not limited capability for work-related activity. His appeal was dismissed by a differently constituted First-tier Tribunal on 3 March 2015 after an earlier tribunal decision had been set aside.

Both claimants had significant mental-health-related limitations. The common issue was whether the tribunals had adequate evidence of the work-related activities which might have been required under the Jobcentre Plus Offer when assessing the substantial-risk condition in regulation 35(2).

1. Both appeals were allowed. Each First-tier Tribunal had erred in law because it lacked adequate and relevant evidence about the work-related activity which the claimant might have been required to undertake under the Jobcentre Plus Offer.

2. Regulation 35(2) of the Employment and Support Allowance Regulations 2008 is a safety net requiring a predictive assessment of substantial risk to health. The assessment must address the real consequences for the individual claimant of a finding that they do not have limited capability for work-related activity. It cannot be answered merely by identifying an activity which the claimant could safely undertake.

3. Applying IM v SSWP [2014] UKUT 412 (AAC), the Secretary of State must provide a properly representative, claimant-blind account of the locally available range of work-related activity. It must identify the most and least demanding activities. The Secretary of State must then address, by reference to the claimant’s disabilities, limitations and the information available to work coaches, which activities the claimant might have been required to undertake and which it would have been reasonable to require.

4. The two stages must not be conflated. A list confined to activities which the Secretary of State believes the particular claimant could safely perform deprives the tribunal of evidence necessary to assess the risk. The continuing failure to communicate relevant work-capability information to work coaches was material to that assessment.

5. KC’s appeal was remitted for a fresh oral hearing before a differently constituted First-tier Tribunal. The Secretary of State was directed to provide the required evidence and focused submission. The tribunal was also directed that Schedule 2 descriptor 16(c) does not automatically establish substantial risk, but significant distress caused by social engagement may, depending on its effect on a claimant’s fragile mental health, establish such risk.

6. MC’s appeal was re-decided. In February 2012 there was no adequate evidence of the available range of activities, no sufficiently joined-up system to prevent inappropriate requirements, and evidence of MC’s vulnerability and reaction to compulsory activity had not been properly addressed. The Upper Tribunal could not be confident that he would not have been required to undertake inappropriate activity. He therefore satisfied regulation 35(2), was treated as having limited capability for work-related activity, and was placed in the support group from 7 February 2012.

• Upper Tribunal (Administrative Appeals Chamber): Allowed both appeals. KC’s appeal was remitted for a fresh hearing. MC’s appeal was re-decided in his favour under regulation 35(2) of the Employment and Support Allowance Regulations 2008.

• First-tier Tribunal: KC’s appeal was dismissed on 3 March 2014 (reference SC229/13/00988). MC’s appeal was dismissed on 3 March 2015 (reference SC230/12/00462), following an earlier First-tier Tribunal decision that had been set aside by the Upper Tribunal.