The DWP has issued new guidance to decision makers in relation to the vital substantial risk safety net for employment and support allowance (ESA) this week. However, the guidance tells decision makers to only tell judges about some of the work-related activities that claimants may have to do and then argue that “it is not practical to produce the whole list due to size constraints”. In addition, the guidance may actually put claimants in more danger of substantial risk or sanctions.
Substantial risk regulations
The substantial risk regulations apply where a claimant has not qualified for the support group, but where it is then decided that there would be a substantial risk to the claimant or to someone else unless they are found to be incapable of work-related activity.
Substantial risk might apply, for example, to claimants who due to a mental health condition would experience severe distress if they had to travel on public transport or talk to strangers.
Upper tribunal decision
A recent three judge panel of the upper tribunal ruled that, where substantial risk is likely to be an issue at an appeal the DWP must provide the tribunal with details of what work-related activities a claimant might be asked to carry out in any given part of the country. They must then say which activities the claimant is likely to be asked to undertake, so the court can decide if they might pose a substantial risk.
The court ruled that:
“But what the Secretary of State can and should provide is evidence of the types of work-related activity available in each area and by reference thereto what the particular claimant may be required to undertake and those which he considers it would be reasonable for the provider to require the claimant to undertake. The First-tier Tribunal would then be in a position to assess the relevant risks.
“We understand that the types of work-related activity available may vary from provider to provider, but it should not be beyond the wit of the Department and providers to produce and maintain a list, perhaps for each of the regions into which the First-tier Tribunal is organised, of what is available in each area within the region. The relevant information could then be included in submissions in individual cases. The First-tier Tribunal would be able to assess the evidential force of such a submission.”
New guidance issued to decision makers explains that lists of work-related activities for Jobcentre Plus and for work programme providers exist and that “the types of WRA on either list have not changed significantly since the requirement for ESA claimants to undertake WRA was introduced on 1.6.11.”
This would suggest that it would be very easy and straightforward for decision makers to provide full lists to all tribunal venues, which could be stored for use by judges whenever needed. However, the guidance goes on to tell decision makers not to include the full list:
“The DM should provide the FtT with examples of the most and least demanding WRA which it is considered the claimant could undertake (see paragraph 37), rather than the whole list. The response to the FtT should explain that it is not practical to produce the whole list due to size constraints.
“The DM should then consider what types of WRA that the claimant could undertake without risk, and which may be appropriate to help them become work-ready,”
As well as the failure to provide full lists, there are other concerns about this approach.
For example, if decision makers are left to decide which are the easiest and hardest activities without extremely good medical knowledge there is a real possibility they will not include the activities that the claimant would, in reality, find most challenging.
Moreover, even when they include the correct activities they may fail to understand the ways in which they may pose a substantial risk to the claimant.
DWP's dangerous interpretation
Benefits and Work has already heard from a concerned member on this subject in relation to the example below, taken from the guidance:
“Tahla has diabetic neuropathy and also suffers from anxiety. His consultant neurologist provides a report stating that he has been advised to avoid walking long distances and spending more than a few minutes outside when it is cold because of the risk of damage to the feet. Damage can take the form of ulceration of the skin, arthritis and deformity of the joints. The damage is painless because of the nerve damage to the feet so tends to be noticed at a late stage when it is severe. Poor healing is also a feature of this condition. The risk is severe damage to the foot resulting in amputation and loss of mobility. Tahla is very anxious about going out and using public transport because of the risk of damage, and is always taken everywhere by his wife. He is found to have LCW scoring 6 points for mobilising and 9 points for getting about.
“The DM determines that, although there is a potential for substantial risk to Tahla’s health, it can be prevented by not requiring him to undertake WRA outside the home on cold days, and ensuring anywhere he has to attend has disabled parking near the entrance. The most demanding types of WRA in Tahla’s area includes weekly health and well-being workshops designed to help people learn how to manage their health condition in the workplace, as well as sessions about building confidence and motivation, and the DM considers that Tahla could undertake these without risk to his health.”
Amongst the concerns raised by our member were the following:
Neuropathy is not painless. The ‘damage’ may be but the neuropathy itself is not and nor is the fatigue associated with the pain. How will allowance be made for days when the pain or fatigue makes it impossible to attend workshops?
How can anyone guarantee that a disabled bay will be available at the time it is needed and who will define what ‘near’ means for Tahla?
Tahla suffers from what is clearly severe anxiety. How will he cope with attending workshops, even if his wife is available to take him, which cannot be guaranteed?
Risk and sanction danger
The whole purpose of the ruling by the upper tribunal was to ensure that there is not a substantial risk to the claimant or someone else because of the effect of being obliged to undertake work-related activities.
However, the likelihood of Tahla not only facing substantial risk to his physical and mental health but also being sanctioned for failure to attend a workshop seems extremely high, if the decision maker follows this guidance.
Benefits and Work has made a Freedom of Information request for the lists of work-related activities held by the DWP.
We will also be updating our ESA guides as soon as possible to take account of the new guidance.