Hello Mike
My client has had a Work Capability Assessment and been told that she is fit-for-work.
I have looked at the scoring system and it seems that this is probably correct.
However, she has severe anxiety and in situations that make her feel stressed she reacts by self harming.
She doesn’t usually do this at the time of the stressful event, but afterwards when she is alone.
I’m very worried that if she has to job-seek she will end up in serious difficulties.
Is there anything that we can do about this?
Thanks
Chardonnay
Hello Chardonnay
There are two parts to a Work Capability Assessment:
Question 1 – Does your health or disability put barriers in the way of working?
Mostly this is assessed with a scoring system, although some people pass automatically. If the DWP decides Yes! Your health problem causes barriers to work, you are said to have Limited Capability for Work. You will not be required to job-seek.
Question 2 – How severe is your health problem or disability? Could you manage to do work-related-activity to look at an eventual goal of getting back to work in the future?
The DWP has some lists of severe health/disability related factors. If you come into the lists you are said to have Limited Capability for Work Related Activity.
If you pass this part of the test, ESA says that you are in the Support Group, Universal Credit says that you are in the No-Work-Related-Activity-Group.
If you pass the first part of the Work Capability Assessment, but you do not pass this part, you are said to be in the Work-Related-Activity-Group
The Safety Net Rules – Substantial Risk
If you go through a Work Capability Assessment and you are found to be fit-for-work the DWP can still make a decision that you have Limited Capability for Work if you are suffering from a specific illness, disease or disablement which means that there would be a substantial risk to the physical or mental health of any person if you were found not to have limited capability for work.
This won’t apply if the risk could be reduced by a significant amount by… reasonable adjustments being made in the… workplace or taking prescribed medication to manage your condition.
If your Work Capability Assessment put you in the Work Related Activity Group, the DWP can still make a decision that you have Limited Capability for Work Related Activity if you are suffering from a specific illness, disease or disablement which means that there would be a substantial risk to the physical or mental health of any person if you were found not to have Limited Capability for… Work Related Activity
Breaking this down:
Suffering from a specific illness, disease or disablement?
For this rule to work there must be a causal link. The risk of harm must come about because of the illness or disability.
Substantial risk?
Whatever risk-event you identify, you must focus on the severity of the harm it might cause.
If some risk-event is likely to lead to serious consequences it can count as a substantial risk, even if the event is itself unlikely.
The flip-side of this is that a frequent risk-event won’t count as substantial risk if the potential harm is trivial.
Where?
Usually:
For the LCW part of the Work Capability Assessment you must identify risks that could occur on the way to work, while at work, or on the journey from work. DWP decision makers should consider whether there is an adequate range of work that you could actually do without risk. Caselaw says that the DWP should not consider whether you could work at home.
For the LCWRA part of the assessment you must identify risks that would occur while taking part in Work Related Activity. In appeals about these decisions, the DWP should be able to identify actual Work Related Activity, that is available to you, that you could do without risk.
But:
For both parts of the assessment the DWP should take into account that, for some people with mental health problems, the simple fact of failing the Work Capability Assessment, or being required to take part in Work Related Activity might lead to a deterioration in their condition or might lead to harm.
This aspect of the substantial risk rule is the one that’s most relevant to your service user.
Putting it into Practice
If the client is getting UC, you should support her service user to ask for a revision (aka a mandatory reconsideration) of the WCA decision.
If the client is on ESA she could appeal directly to a tribunal without going through the revision/mandatory-reconsideration first. Because of a quirk in the rules this would mean that she could stay on ESA, so long as she send in sick-notes, until the tribunal makes a decision.
Either way, she will need firm evidence from mental-health professionals and support workers, that clearly explains the effects of stress on the her condition, and that links this to the likely harms that will come about.