from rightsnet.org.uk

Substantial risk to health if claimant found capable of work

New DMG Memo following Court of Appeal decision in Cattrell

01 September, 2011

The DWP has issued new guidance in relation to assessing whether there would be a substantial risk to health if a claimant were found capable of work.

In DMG Memo 22/11, the DWP advises that, in Secretary of State for Work and Pensions v Cattrell, the Court of Appeal deals with the issue of whether a claimant is suffering 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 capable of work.

The DWP says that, although the judgment relates to incapacity for work, its findings may equally apply when determining limited capability for work and limited capability for work related activity.

The DWP goes on to advise that, whilst the Upper Tribunal had confirmed the decision of a tribunal that there was no work that a claimant with a rubber and latex allergy could safely do, and that, as a result she should be treated as incapable of work, the Court of Appeal rejected the Secretary of State's appeal against that decision on the basis that it contained no point of law.

The DWP says that decision makers should note that the Court did not overturn the judgment in Charlton and that they should still adhere to DWP guidance based on that judgment in assessing whether there is a substantial risk to the mental or physical health of any person if the claimant were found to be capable of work.

However, the DWP also says that, in cases where the claimant suffers from an allergic health condition and where consideration of the substantial risk issue is required, decision makers are advised to seek further evidence and goes on to give examples of further evidence which may inform the decision making process. In addition, the DWP gives examples of further evidence which may inform the decision making process in cases where the claimant is suffering from another kind of health condition, but where the decision maker is considering the substantial risk issue.

In conclusion, the DWP advises that any additional evidence obtained should be identified and its relevance, or otherwise, argued, within the appeal writer’s response to a tribunal, and that, if a tribunal finds against a decision maker in future cases of this kind and the decision maker is not content with the decision, they may consider referring the case to DMA Leeds for consideration of a potential appeal to the Upper Tribunal.

DMG Memo 22/11 is available from the DWP website.

See also the related rightsnet news stories –

• Whether there was substantial risk to health of claimant with rubber and latex allergy if found capable of work: New Court of Appeal judgment (29 March, 2011)