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ESA test must consider risks when travelling to work

12 July 2018

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Employment and support allowance

CE/2821/2017: Regulation 29 can encompass risk posed by physical health factors during journeys to and from work

Upper Tribunal Judge: Hemingway

This decision considers Regulation 29(2(b) of the Employment and Support Allowance Regulations 2008 that requires someone to be treated as having a limited capability for work if they suffer from:

“...some specific disease or bodily disablement and, by reason 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 not to have limited capability for work.”

Judge Hemingway first holds that an assessment of the risk envisaged in regulation 29(2)(b) will encompass a journey to and from a place of work. 

Also that, in principle, any such risk that there might be may arise in consequence of physical difficulties as well as mental health difficulties.

However, he stresses his view that think “it would be rare (though not impossible) for a claimant to succeed simply on the basis of risk on the journey to and from a workplace in consequence only of physical health difficulties in circumstances where those same difficulties do not lead to the risk arising in the workplace itself.” 

He then adds that:

“So, a failure to refer to the possibility of any such risk on the part of a tribunal is unlikely, absent unusual circumstances, to justify a finding that there has been an error of law of a material nature. 

Further, for the agoraphobic the facility of public transport will almost certainly not be a solution.  But that cannot necessarily be said of a person who only has substantial physical health difficulties. 

There will thus be cases where, depending on the circumstances, all that will need to be assessed will be risk to and from a hypothetical bus stop at either end of the journey.  Put another way there may depending on the facts only be a need to assess risk on the basis that a claimant will have to journey under his/her own steam on relatively short journeys.”

Ken Butler

12 July 2018

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