Memo DMG 43/07 says that in all cases where medical evidence ceases the DM must apply the PCA if that is the appropriate test of incapacity (i.e. after 197 days presumably). If the claimant has failed to attend a medical (which is only part of the PCA) The DM has to use whatever evidence is available to complete the PCA, can make negative inferences, etc. In a case where IB or credits have been stopped because the client failed to attend a medical, does this mean that the DM should have carried out the PCA and a score sheet should be included in the DWP's submission? Is there a defence if it is not?

I've been digging around the law a bit, and so far as I can see the relevant bits are:

Social Security Contributions and Benefits Act 1992
171C.–(1) Where the own occupation test is not applicable, or has ceased to apply, in the case of a person, the question whether the person is capable or incapable of work shall be determined in accordance with a personal capability assessment.
171D.–(1) Regulations may provide that a person shall be treated as capable of work, or as incapable of work, in such cases or circumstances as may be prescribed.
171E.–(1) Regulations may provide for disqualifying a person for receiving any benefit, allowance or other advantage under any provision for the purposes of which this Part of this Act applies, or, in such cases as may be prescribed, provide that a person shall be treated as capable of work, if–
(b) he fails without good cause to attend for or submit himself to such medical or other treatment as may be required in accordance with the regulations; or
(2) Regulations shall provide that any such disqualification shall be, or as the case may be that the person shall be treated as capable of work, for such period not exceeding 6 weeks as may be determined in accordance with Part II of the Administration Act.

Social Security (Incapacity for Work) (General) Regulations 1995
8.-(2) Subject to paragraph (3) where a person fails without good cause to attend for or submit himself to such an examination, he shall be treated as capable of work.

Seems to my non-legally trained mind that if a claimant fails to attend a medical examination they will be treated as capable of work for 6 weeks, after which the DWP must carry out a PCA based on whatever information is available to them. However DMG 43/07 makes no reference to the 6 weeks. Could this be because s171C of the Act does not say something like "subject to s171D or s171E" and therefore applies without exception. Is anybody aware of a CD or court decision which would have given rise to the guidance in DMG 43/07?

Brian

I don't think that S 171E and its 6 week period have any relevance to this situation. It is concerned only with people who refuse medical treatment, who may be subject to what in JSA terms would be a sanction of a maximum of 6 weeks. I've never come across this ruel being applied to anyone- has anybody else?

The relevant enabling provision for regulation 8 is 171D. Basic principle and how it wll works is that a person to whom the PCA becomes applicable goes on being treated as incapable of work under the GP's certification period until they undergo a PCA examiantion (or are found incpable without the need for examination). However they are still subject to the basic rule that if you fail to attend a PCA without good cause, you can be deemed capable of work even if, as a matter of fact, you are nothing of the sort.

Thanks Ariadne. I mis-read s171E as refering to failure to attend a DWP medical rather than failing to attend for medical treatment (in speed reading mode I guess). Still leaves me wondering though why the DMG memo says that the PCA must be applied in all cases if that is the appropriate test of incapacity, specifically even where the claimant has failed to attend a medical examination, and whether the DWP's failure to show they had applied the PCA would help an appeal against loss of IB.

Brian

Tue 22-Apr-08 10:49 AM by paul__moorhouse

Hi Brian, I think you are confusing two different beasts:

The link to DMG 43/07 from the rightnet news item

http://www.rightsnet.org.uk/cgi-bin/sub_client/search.cgi?template2=news/user_details2.htm&output_number=1&news.ID=1220132624126

seems to have stopped working and I can't find it by searching on the DWP wbesite so I'm relying on the summary in the news item.

From this I interpret the memo to be saying: If a claimant is required to submit medical evidence, but that stops for any reason the decision maker needs to apply the PCA (I think that the 'all cases where it is the appropriate test' means that they are not necessarily required to apply the PCA where the Own Occupation Test still applies) If your client has not stopped sending(or is no longer required to submit) medical evidence then the advice contained in DMG 43/07 are of no relevance.

Even if it is relevant, we have to take another step down the decision making road. When applying the PCA, the Department may or may not require your client to attend a medical examination. If ithey do and he fails to attend, without good cause, then as Ariadne says he is DEEMED to have failed the PCA. DMG 43/07 (which is only guidance and not statute or regulations) can't alter this at all.

nb - they delete the memos as the guidance is incorporated into the DMG ... so may be something in there?

DMG 43/07 is listed in the letters and memos section of the decision Maker's Guide. Yesterday I could open it, today I can't.......

Brian

is this an equivalent memo from the DSDNI ...

http://www.dsdni.gov.uk/dmser_vol1_59.doc

... is dated april 2008

Thanks Shawn,

This confirms my suspicion, the Memo is not, I think, saying that once the claimant is treated as capable of work (for failing to submit an IB50 or attend a medical) there is any need to assess them under the PCA.

It is rather, addressing the fact that, for a period between the exipiry of the medical evidence and that decision, benefit was suspended but no determination had been made on their capability. It is suggesting that in this situation the DM should make a decision under the PCA and may draw adverse conclusions in the absence of evidence to the contray.