2.2. Application of ESA Regulations and Useful Case Law

Repeatedly and Reliably

Case law has clarified that there is a “need for the decision maker to take into account whether the claimant can perform the relevant activity with some degree of repetition”, stating further that “In particular, if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account” [CE/1992/2010]

Majority of the Time

Schedule 3 descriptors (those that must apply for LCWRA) must, according to Regulation 34(2), apply “for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”.

Other Useful Case Law

  • Effect of job-seeking on claimant unlikely to gain work [CE/1992/2010]
    • “In the present economic climate, a claimant who is 62 years old with mental health problems, and who has not worked since the early 1990’s, is unlikely to find work quickly and would very possibly never find it. His GP’s assessment that it is inconceivable that he would ever be able to earn his living may be right. The tribunal would then have to determine how this change from his being in receipt of incapacity benefit would affect the claimant’s mental health, looking not at some work he may do, but at the effect on his mental health of fruitless and repeated interviews and the possibly hopeless pursuit of jobs until he reached retirement age”.  (para 10)
  • Arranging lifestyle to manage incontinence/pushing through pain to perform tasks [CE/4876/2014]
    • “the appellant was in fact able to reach toilets quickly because he had arranged his lifestyle appropriately.” “there would need to be an analysis of those precautions or techniques, and whether or not they could be maintained in a workplace”.
    • “if the “pain threshold” has been reached but is habitually ignored by a determined individual, that should not in my view imply that points cannot be awarded under Activity 1”. This concurs with the guidance in the WCA handbook on page 72 on completing tasks “reasonably”, “If a person can complete a task but suffers significant pain or distress in doing so, they should be considered incapable of the activity.”
  • Necessary for the Tribunal to consider the specific type of work a claimant could undertake without substantial risk for Regulation 29 [CE/281/2017]
    • Test is “fact-specific… a tribunal’s findings in relation to the Regulation must therefore be based specifically on a claimant’s individual circumstances”
  • Third party assistance and Regulation 35 [CE/1665/2016]
    • If there is “appropriate evidence” of a “suitable familiar person to accompany a claimant when necessary”, then it can be considered whether this mitigates the risk to the claimant.


Last updated on February 22nd, 2019 at 04:05 pm