Michael Monaghan v Secretary of State for Work and Pensions

When assessing substantial risk under paragraph 4 of Schedule 9 to the Universal Credit Regulations 2013, the tribunal must consider the work-related activities the claimant might reasonably be expected to undertake. It must explain why activities that could cause substantial risk would not be required, or could be done flexibly, at home or at the claimant’s own pace. Relevant Schedule 6 evidence may inform the risk assessment even where limited capability for work has been accepted; scoring points under a descriptor does not itself establish limited capability for work-related activity. The First-tier Tribunal’s decision was set aside and the appeal remitted for rehearing.

Michael Monaghan claimed the limited capability for work-related activity element of Universal Credit, reporting trauma-related stress and anxiety. The Secretary of State accepted that he had limited capability for work, based on Schedule 6 descriptors, but decided that he did not have limited capability for work-related activity and should not be treated as having it.

The First-tier Tribunal (Social Entitlement Chamber), on 12 March 2025, confirmed that decision on the papers. Mr Monaghan appealed, arguing that the tribunal had narrowed the relevant range of work-related activity, inadequately explained its assessment of risk, and failed to consider Schedule 6 activities that could inform the risk assessment. The Secretary of State supported the first two grounds but opposed the third. The central questions were what work-related activity had to be considered under the risk provision, and whether the tribunal had adequately assessed the risk in light of conditionality and the Schedule 6 evidence.

1. Appeal allowed; decision set aside. Judge Church found errors of law on all three grounds. The errors concerning the scope of work-related activity and the reasons for finding no substantial risk were material. The decision was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
2. Relevant work-related activity. The risk assessment under paragraph 4 of Schedule 9 to the Universal Credit Regulations 2013 had to address the range and type of work-related activity that might reasonably be expected of the claimant. It was not enough to identify activities he might reasonably be able to accomplish. The tribunal had to explain why, in law, guidance, practice, policy or fact, only those activities could reasonably be expected. It had adopted the Secretary of State’s examples without explaining why more demanding activities could be excluded.
3. Reasons and conditionality. A finding of no substantial risk could not rest on unexplained assumptions that work-related activities would be reasonably targeted, flexible, home-based or capable of completion at the claimant’s own pace. A person found not to have limited capability for work-related activity would face a work-preparation requirement and possible sanctions for non-compliance without good reason. The tribunal had to explain its assumptions in light of that regime, the general conditionality approach in Part 1, Chapter 2 of the Welfare Reform Act 2012, and the approach in IM v SSWP (ESA) [2015] AACR 10.
4. Schedule 6 evidence. Although the Secretary of State had accepted limited capability for work, relevant Schedule 6 activities put in issue by the claimant could inform the paragraph 4 risk assessment. The tribunal had considered Schedule 7 descriptor 11 but had not considered Schedule 6 activity 13 beyond the extent that descriptor 13(a) involved the same test. It had not explored whether descriptors 13(b) or (c) were met. The decision-maker must consider relevant evidence as part of a holistic risk assessment, but scoring points under those descriptors would not itself establish entitlement under paragraph 4. This approach is consistent with the proposition cited from KW v SSWP (ESA) [2015] UKUT 131 (AAC).
5. Remittal. The case was remitted under section 12(2)(b)(i) of the 2007 Act for an oral rehearing before a differently constituted panel. The panel must reconsider the issues raised, assess circumstances as at the original Secretary of State decision, and admit later evidence only where it relates to that time: R(DLA) 2 & 3/01. The former panel is not bound to reach the same outcome.

1. Upper Tribunal (Administrative Appeals Chamber): In [2026] UKUT 325 (AAC) , allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the case for rehearing.
2. First-tier Tribunal (Social Entitlement Chamber): By a decision dated 12 March 2025, confirmed the Secretary of State’s decision that the claimant had limited capability for work but not limited capability for work-related activity.