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16 September 2008
Health professionals carrying out the new work capability assessment are being told to ignore the law in relation to the vital ‘substantial risk’ regulations which allow claimants to be found incapable of work if they would be a danger to themselves or other people.

Distressed claimant According to guidance issued to doctors, only claimants with the most extreme conditions, such as those whose mental health condition means they may be ‘extremely violent’ should be found incapable of work.

As with the current personal capability assessment, under the work capability assessment (WCA) claimants who fail to score enough points can still be found incapable of work if there would be a substantial risk to them or someone else if they were found fit.

However, doctors are being told to ignore this regulation where it would result in claimants being put into the work related activity group. Instead, they have been have been told that the test can only apply to claimants with conditions severe enough to enter the support group. They have also been warned that circumstances where it can be applied will ‘not be commonly encountered’. In other words they should only very rarely and in exceptional circumstances make use of this ‘safety net’ provision.

The shock guidance is contained in Training and Development ESA Handbook, which explains.

“A second non-functional descriptor (relating to specific condition) is also listed in the ESA 85A.

The claimant is suffering from some form of specific disease or bodily or mental disablement and, by reasons of such a disease or disablement, there would be a substantial risk to the mental or physical health of any person if they were found to have limited capability for work.

It should be noted that this NFD cannot be applied solely in relation to LCW. Within the Support Group criteria, there is a category with very similar wording to this, therefore if a claimant is considered to have a specific disease or bodily or mental disablement resulting in substantial risk, then they must be considered as having LCW/LCWRA (i.e. included in the Support Group).

It should also be noted that advice for entry into this Support Group can only be given after conducting the full LCW/LCWRA medical examination.”

In fact, the ‘very similar’ wording in relation to the support group is exactly the same, except for the final words:

“if they were found not to have limited capability for work-related activity.” (Our italics).

So, the first exemption looks at people who would be a substantial risk if they were found capable of work. The second only applies if there would be a substantial risk if they were found to have limited capability for work-related activity. As work-related activities could include such relatively unchallenging things as attending a pain management course or learning to write CVs, this is clearly a much harder to pass test than the first.

To claim that because they have very similar wording they are the same test is an astonishing misapplication of the law.

The guidance goes on to state that:

“Circumstances where this NFD would apply will not be commonly encountered. It may apply in circumstances where a claimant is being treated for significant mental illness, who at the time of assessment is considered to be very vulnerable to risk of relapse. In this circumstance, finding him fit for work or work related activity may carry a real possibility of harm. It may also apply to a claimant with a psychotic illness who as a result demonstrates completely unpredictable and potentially dangerous behaviour such as extreme violence.”

The suggestion seems to be that someone who is likely to be only moderately violent if they are found fit for work should be put on JSA.

The removal of the substantial risk exemption from all but the most severely disabled will have a dramatic effect on, for example, the number of people with substance misuse and addiction problems who will be found capable of work and expected to adhere to a jobseeker’s agreement.

However, the interpretation appears to be entirely at odds with what is stated in the regulations and seems likely to be another rich source of appeals in the months after the introduction of ESA.