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Neutral Citation Number:
Reported Number:	R(IB)2/09
File Number:	CIB 143 2007
Appellant:	Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42
Respondent:
Judge/Commissioner:	Judge D. Williams
Date Of Decision:	06/02/2009
Date Added:	11/07/2007
Main Category:	Incapacity benefits
Main Subcategory:	awt/pca: general
Secondary Category:	Incapacity benefits
Secondary Subcategory:	other
Notes:	Exceptional circumstances – whether test of substantial risk to be evaluated against specific employments or in the abstract The claimant failed the personal capability assessment, scoring no points on the physical descriptors and only three on the mental health descriptors. He appealed and the tribunal increased the number of mental health points from three to five, insufficient to establish incapacity for work. It also considered regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 but found that there was no evidence that the claimant would be a substantial risk to the mental or physical health of any person if he were found capable of work. The claimant appealed further to a Commissioner, who decided that the tribunal had erred in failing to give adequate reasons for its conclusion. He determined that the claimant suffered from a specific disease or disablement, namely alcohol dependency syndrome and considered whether that gave rise to a substantial risk, concluding that the assessment of the risk must depend to some extent on the kind of work the claimant might be asked to do, taking into account what he had done in the past, what he was doing at the time of the decision and what his qualifications were. It was necessary, in order to satisfy regulation 27(b), to show a link between the work and the risk. That was not present. On application, the Commissioner gave leave to appeal limited to regulation 27 issues. On the application being renewed before the Court of Appeal, the Court declined to extend the permission to appeal. The claimant appealed, challenging the Commissioner’s interpretation of regulation 27(b) and arguing that it was sufficient to demonstrate risks either to his own or to another’s safety whether at home or at work. In addition he argued that a decision-maker must identify the type of work which a claimant could perform assuming 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. Held, dismissing the appeal, that: 1. the need to consider regulation 27(b) only arises where the own occupation test or the personal capability assessment have not been satisfied. Therefore the risk to be assessed must arise as a consequence of work the claimant would be found capable of undertaking but for regulation 27. The Commissioner was correct in the question he decided, namely whether a substantial risk should be foreseen in the light of the work the claimant might be expected to perform in the hypothetical workplace in which he might be expected to be (paragraph 33 to 35); 2. the correct approach to assessment of the type of work for the purposes of the regulation is to consider the nature of any health risks posed by the disease or the disablement in the context of workplaces the claimant might find himself in, with a view to answering the question whether any such risk is substantial, ie to assess the range or type of work which a claimant is capable of performing sufficiently to assess the risk to health either to himself or to others (CIB/360/2007 followed). The Commissioner’s conclusion that the claimant could do some work without risk to himself or others is consistent with the obligation imposed by the Regulation and he was under no obligation to go further than he did (paragraphs 45 and 49).
Decision(s) to Download:	CIB 0143 2007-00.doc R(IB) 2-09 bv.doc