Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42



CIB/143/2007 discusses the caselaw concerning the type of work referred to when considering exceptional circumstances. In the decision Commissioner Williams decided that there must be a link between the work undertaken and the risk involved and that the work considered must be, in this case, that which the claimant is realistically capable of doing, according to his or her education and skills, rather than by using some abstract test.

The Court of Appeal decision

CIB/143/2007 was appealed by the claimant as Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42, challenging the commissioner's interpretation of regulation 27(b) that required additional risks relating to work and the workplace to be established, over and above those risks arising from the appellant's medical condition in his life generally. The claimant argued that it was sufficient to demonstrate risks either to his own or to another's safety whether they might arise in a domestic setting or at work.

The Court of Appeal dismissed the appeal and held that the risk to be assessed must arise as a consequence of work the claimant would be found capable of undertaking, following the pca assessment), but for Regulation 27.

It was also argued that a decision-maker should identify the type of work that the claimant could perform based on the hypothesis that he had been found capable of work, and that the commissioner's identification of the type of work he might be expected to undertake was too vague and too broad. The Court of Appeal held:

"39.The answer to this submission lies in the purpose of Regulation 27(b), that is to assess risk at work. In order to determine whether there is any health risk at work or in the workplace it is necessary to make some assessment of the type of work for which the claimant is suitable. The doctor, the decision-maker and, if there is an appeal, the Tribunal, should be able to elicit sufficient information for that purpose.

The extent to which it is necessary for a decision-maker to particularise the nature of the work a claimant might undertake is likely to depend upon the claimant's background, experience and the type of disease or disablement in question.

It is not possible and certainly not sensible to be more prescriptive. The most important consideration is to remember that the purpose of the enquiry is to assess risk to the claimant and to others arising from the work of which he is capable. No greater identification of the type of work is necessary other than that which is dictated by the need to assess risk arising from work or the workplace."

The correct approach was held to have been identified by Deputy Commissioner Paines in CIB/360/2007.

Charlton v Secretary of State for Work and Pensions has now been reported as R(IB)2/09.

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