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Memo DMG 22/11 - Relates to latex allergy (Read 97 times)
Liz944
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Memo DMG 22/11 - Relates to latex allergy
23.08.12 at 10:08:19
 
Memo DMG 22/11
 
INCAPACITY FOR WORK, LIMITED CAPABILITY FOR WORK AND LIMITED CAPABILITY FOR WORK-RELATED ACTIVITY – EXCEPTIONAL CIRCUMSTANCES  
 
     Contents                                     Paragraphs
     Introduction                      1
     Background                      2-4
     The Court of Appeal’s judgment      5-6
     DM’s action      7
     Allergic health conditions      8
     Other health conditions      9
     Appeal writer’s action      10
     First-tier Tribunal decisions      11
           
1 INTRODUCTION      
This memo gives guidance on a recent Court of Appeal decision1. It deals with the issue of whether a claimant is suffering from some specific disease or bodily or mental disablement and, by reasons 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 capable of work2. The decision relates to IfW, but DMs should note that its findings may equally apply when determining LCW and LCWRA3.  
 
1 SSWP v Cattrell [2011] EWCA Civ 572; 2 SS (IW) (Gen) Regs, reg 27(b); 3 ESA Regs, reg 29(2)(b) and reg 35(2)(b)
 
2 BACKGROUND
The claimant became incapable of work in 2007 due to a latex and rubber allergy. In 2008, after examination by a HCP, the DM decided that the claimant did not meet the threshold of incapacity1 and was therefore, no longer entitled to IfW credits.  
1 SS (IW) (Gen) Regs, reg 25
 
3 The claimant appealed to the FtT who found that her health condition meant that she was at risk of anaphylactic shock in the workplace and there was no work that she could safely perform. This meant that the claimant was treated as incapable of work1 . The FtT accepted the claimant’s evidence that a Jobcentre Plus staff member had advised her that there was no prospect of her obtaining work that was safe for her.
1 SS (IW) (Gen) Regs, reg 27(b)
 
4 The Secretary of State appealed to the UT, who dismissed the appeal saying that the FtT had reached a decision that it was entitled to reach on the evidence before it1. The Secretary of State was granted permission to appeal to the Court of Appeal.
1 CIB/256/2009
 
5 THE COURT OF APPEAL’S JUDGMENT  
Appeals to the Higher Courts may only be brought if a decision is erroneous in a point of law1. In this case, the Court of Appeal dismissed the Secretary of State’s appeal, finding that no point of law had been identified.
1 TCE Act 07, s11 and 13
 
6 However, DMs should note that the Court did not overturn the judgment in Charlton, which remains good caselaw1 (see paragraph 7).
 1 Charlton v SSWP [2009] EWCA Civ 42; R(IB) 2/09
 
 
7 DM’S ACTION      
DMG 13626 – DMG 13631 gives guidance on how to assess whether there is a substantial risk to the mental or physical health of any person if the claimant were found to be capable of work. DMG 42194 – DMG 42199 and DMG 42365 gives equivalent guidance when assessing LCW and LCWRA. DMs should continue to follow that guidance, which was based on Charlton.  
 
8 ALLERGIC HEALTH CONDITIONS      
However, in cases where the claimant suffers from an allergic health condition and where consideration of the substantial risk issue is required, DMs are advised to seek further evidence. The following are examples of further evidence which may inform the decision making process –  
 
1. What are the precise details of the substances or materials that the claimant is allergic to?  
2. What, if any, further investigations have been undertaken to establish the cause of the claimant’s allergy?  
3. What has been the result of those investigations?  
4. Has the claimant been prescribed any emergency medicine to deal with the effects of an allergic reaction? i.e. a self-administered adrenaline syringe, commonly known as an Epipen.  
5. Is the claimant able to self-administer emergency medication successfully?  
6. Has the claimant ever suffered an anaphylactic reaction?  
7. If so, what are the details? i.e. when did it occur, what were its after effects and was the claimant hospitalised as a result?  
8. What type(s) of work, if any, has the claimant previously undertaken when suffering from their stated allergic condition?
9. How were the effects of the claimant’s allergic condition accommodated when undertaking that work? i.e. were any reasonable adjustments made in the workplace?  
10. What precautions does the claimant take in their daily life to avoid contact with the substances or materials in question?  
11. Why would it not be possible to take such precautions within the workplace?
 
9 OTHER HEALTH CONDITIONS      
In cases where the claimant is suffering from another kind of health condition, but where the DM is considering the substantial risk issue, the following are examples of further evidence which may inform the decision making process –
 
1. What are the precise details of the claimant’s health condition?  
2. What, if any, investigations have been undertaken into the claimant’s health condition?  
3. What has been the result of those investigations?  
4. Has the claimant been prescribed any medication to deal with their health condition? i.e. an angina sufferer who has been prescribed a GTN spray to relieve their symptoms.  
5. Is the claimant able to self-administer their medication successfully?  
6. Has the claimant ever suffered an emergency in connection with their stated health condition?  
7. If so, what are the details? i.e. when did it occur, what were its after effects and was the claimant hospitalised as a result?  
8. What type(s) of work, if any, has the claimant previously undertaken when suffering from their stated health condition?  
9. How was the claimant’s health condition accommodated when undertaking that work? i.e. were any reasonable adjustments made in the workplace?  
10. What precautions does the claimant take in their daily life to accommodate their health condition?  
11. Why would it not be possible to take such precautions within the workplace?
 
10 APPEAL WRITER’S ACTION  
Any additional evidence obtained in accordance with the guidance in paragraphs 8 and 9 above, should be identified and its relevance, or otherwise, argued, within the appeal writer’s response to the FtT.
 
11 FIRST-TIER TRIBUNAL DECISIONS      
If a FtT finds against a DM in future cases of this kind and the DM is not content with the decision, they may consider referring the case to DMA Leeds for consideration of a potential appeal to the UT. See DMG 06600 et seq and CAP 6800 et seq for further guidance.
 
ANNOTATIONS  
Please annotate the number of this memo (22/11) against the following DMG paragraphs.  
 
DMG 13624 Heading and DMG 42191 Heading.  
 
CONTACTS  
If you have any queries about this memo, please write to Decision Making and Appeals (DMA) Leeds, GS36, Quarry House, Leeds. Existing arrangements for such referrals should be followed, as set out in Memo DMG 14/11 - Obtaining legal advice and guidance from DMA Leeds.  
 
DMA Leeds: [August] 2011
 
 
 
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Liz944
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Re: Memo DMG 22/11 - Relates to latex allergy
Reply #1 - 28.12.12 at 11:01:13
 
The following is an article from the Mail Online from March 30th 2011 where Coralina Cattrell went to the Civil Court of Appeal regarding her Incapacity Benefit because of latex allergy. I understand these findings may equally apply when determining LCW and LCWRA. She was told by the judge that “no work is safe for her”.  Also the staff at the job centre told her that with her allergy they could see no prospect of getting work that would be safe.  
 
http://www.dailymail.co.uk/news/article-1371501/Artist-rubber-allergy-granted-in capacity-benefit-job-safe-her.html
 
The case details are:  
CIB/256/2009 [2010] UKUT 127 (AAC) states that latex allergy can come under the exceptional circumstances rules (regulation 27(b) - substantial risk to the mental or physical health of any person if [s]he were found capable of work). This decision was upheld by the Court of Appeal as Secretary of State for Work and Pensions v Cattrell [2011] EWCA Civ 572 (29 March 2011).  
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