AL v Secretary of State for Work and Pensions

When assessing substantial risk for limited capability for work-related activity, the tribunal must consider the least and most onerous work-related activities the claimant might be required to undertake. It must address any inconsistency between an existing finding of limited capability for work and the proposed finding on work-related activity. A healthcare practitioner’s opinion cannot automatically be treated as addressing the statutory test if there is no evidence that the practitioner knew the activities against which risk must be assessed. The practitioner’s professional qualification alone does not determine the evidential value of the opinion.

The Secretary of State accepted that the appellant had limited capability for work because requiring him to work would create a substantial risk to health, but refused the limited capability for work-related activity element of Universal Credit. The First-tier Tribunal dismissed the appeal. It treated the appellant’s mental health difficulties as minimal and relied substantially on a healthcare practitioner’s report.

The appellant appealed, alleging inadequate reasons, inappropriate reliance on a physiotherapist’s opinion, and failure to establish that the healthcare practitioner understood the relevant work-related activities. The Secretary of State supported remittal.

1. The appeal was allowed. The First-tier Tribunal’s decision involved errors of law and was set aside under Tribunals, Courts and Enforcement Act 2007, section 12.
2. The tribunal gave inadequate reasons for finding no substantial risk from work-related activity when the appellant had already been accepted as having limited capability for work on the basis that work created such a risk. One of the most demanding activities was attendance at a work placement involving actual work. If the tribunal disagreed with the earlier limited-capability-for-work decision, it had to explain that disagreement and consider the implications for the award.
3. The substantial-risk assessment had to be made by reference to the work-related activities that the claimant might be required to undertake. The relevant list had to include the least and most onerous activities, including possible work placements or work experience. This followed IM v SSWP (ESA) [2014] UKUT 412 (AAC) and MD v SSWP (UC) [2020] UKUT 215 (AAC).
4. The tribunal was not entitled to assume that the healthcare practitioner’s opinion addressed the same legal question. The healthcare assessment preceded the Secretary of State’s identification of the activities, and there was no evidence that the practitioner had seen the activity list. Unless there was evidence to the contrary, the tribunal should assume that the healthcare practitioner did not have access to it and should treat that as potentially important when assessing the weight of the opinion.
5. The challenge based solely on the healthcare practitioner being a physiotherapist failed. The reported decision in ST and GF v SSWP [2014] UKUT 547, [2015] AACR 23 had largely disapproved JH v SSWP (ESA) [2013] UKUT 0269 (AAC). Healthcare practitioners are trained to assess both physical and mental health conditions, so qualification alone did not require the tribunal to disregard the opinion.
6. The case was remitted to the First-tier Tribunal for an oral rehearing before a fresh tribunal, limited to the appellant’s circumstances at 24 September 2022.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal and set aside the First-tier Tribunal’s decision under section 12 of the Tribunals, Courts and Enforcement Act 2007. The case was remitted for rehearing by a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): dismissed the appellant’s appeal against the Secretary of State’s refusal of the Universal Credit limited capability for work-related activity element. Decision dated 18 September 2024.
• Secretary of State: had accepted the appellant as having limited capability for work but not limited capability for work-related activity.