This may be a silly question - can you appeal a refusal to grant an exemption?

Thanks!

There are various Commissioner's decisons quoted within the commentary in Bonner, so it would appear that you can appeal such a decison.

You can usually only appeal an outcome decision, that is that a person is not entitled to ICB/IS. This will usually embody a determination that a person is not incapable of work (either under the own occupation test or under the PCA). The decision may also embody a determination that a person cannot be treated as incapable of work under reg 10 of the Incapacity for Work regs either before or after the PCA or under reg 27 (only after he has failed the PCA – although that interpretation is currently subject to appeal).

Thus all these issues are up for re-determination, or determination at first instance, on an appeal against the benefit disallowance and it is then a matter for producing evidence and argument in the usual manner.

It is not unknown for a Tribunal to decide on a PCA appeal that Regulation 10 should be applied, especially in mental health cases.

Thanks for the replies - not such a silly question after all....

The situation here is client has Haemophilia A, Hepatitis C and HIV. I obtained a report from his consultant stating that his CD4 count was low at 150, and on this basis applied for an exemption on the grounds of "manifestations of severe and progressive immune deficiency states characterised by the occurance of severe constitutional disease". I didn't think there would be any issue with the first part and thought the low CD4 count would count towards the second part.

I heard nothing but client received an IB 50. I called then and was told that the exemption had been refused - no decision received though.

I am concerned that on the points test of the PCA he may well fail. Also he does part time work as a special needs bus driver - he applied for it to be accepted as higher permitted work which appears to have been accepted as it is taken into account for his IS assessment

This category in Regulation 10 is probably intended to apply to people who have gone beyond HIV to full-blown immune deficiency syndrome. CD4 appears to be related to the mediation of the immune response and in HIV cases its gradual loss is said (in my big book) to be largely responsible for the immunological problems of HIV. I have no idea though of how low 150 is and what its implications are. The definiiton in reg 10 clearly regards the "severe consitutional disease" as being analogous in its importance to things like pneumonia and Karposi's sarcoma, which are indicative of end-stage AIDS.

Have you tried contacting the Terrence Higgins Trust? I'm sure they'd be able to put you on the right lines.

Oh, and did the consultant also say that this was what the law says? This is one of the conditions for which medical evidence is essential.

For info on CD4 Counts and other lab tests see http://www.labtestsonline.org.uk/understanding/analytes/cd4/test.html, or put CD4 into your search engine.

Hello

Having a CD4 count of 150 is AIDS defining. Your client may also suffer from day or night sweats as a result of the HIV infection, and this in itself would put them in the exempt category. This is how we word it:

"According to SI 1995/311, reg 10, and following the DWP guidance to approved doctors, NAME should be exempt from the Personal Capability Assessment as he has “severe and progressive immune deficiency states characterised by the occurrence of … opportunistic infections…” (SS (Incapacity for Work) (General) Regulations 1995) which includes “Frequent fever and/or night sweats” (Incapacity Benefit Handbook for Approved Doctors p27). "

I work for Terrence Higgins Trust by the way - just never bothered to change my log in name.

Cheers

Ali

Thanks for all the further replies - very helpful.

Carlos

Without looking at reg 10 I'd ask whether the requirement is "AND the presence of opportunistic infection" or "OR the presence..."

Even thrush is an opportunistic infection and is often one of the indicators of a low CD4 that sparks investigation. I've persuaded tribunal of that in times past without bother.

The actual wording:

"manifestations of severe and progressive immune deficiency states characterised by the occurrence of severe constiutional disease OR opportunistic infections OR tumour formation". (My emphasis)

So any one of then will do.