CPAG Test Case referrals

Further to the inappropriate work-related activity Tom Royston, barrister at Garden Court North, has set out further details about what would make an ideal case - see attached - please do get in touch if you might have someone - with both Mike and Tom -

I have felt for some time that work-related activity despite being defined as “activity which makes it more likely that the person will obtain or remain in work or be able to do so” must implicitly be referring to activity that addresses the limitations in a person’s capability for work.  Otherwise, it is simply a waste of time.  Cruel treatment even. 

In other words the suitability of work-related activity must be a subjective not objective test.  If it were the latter then sending me on, say, a CV writing class would be justified because it would arguably increase anyone’s chances of eventually obtaining work, but it would be pointless in the short term if it didn’t address the reasons why I’d scored 15pts or otherwise had LCW.  All the good Cvs in the world couldn’t hide the fact that I would still pass the WCA, so why bother sending me to the class?  If some of my 15pts were awarded for not being able to mobilise 100metres, for example, then the work-related activity could plausibly include physiotherapy.  Wasn’t that the point of the work-focussed health related assessment (WFHRA) which they abolished, ie to identify realistic work-related activity?  The problem is that a CV writing class might further down the line become appropriate but until the immediate cause of my LCW is addressed the CV class is too remotely connected to my chances of obtaining work.

That is why I also feel that, whilst a person awaiting an assessment of their LCW appears, under the law (Reg 54), to have to attend a Work-focussed interiew if requested to, there must be a case for saying that they have good cause for not attending simply because the nature of the WFI (see Reg 55 ESA Regs) is such that it pre-supposes that the LCW assessment has been done.  Or that it is implicit in Reg 55 that a WFI cannot take place until after the LCW assessment.

“55. The purposes of a work-focused interview are any or all of the following–

(a) assessing the claimant’s prospects for remaining in or obtaining work;

(b) assisting or encouraging the claimant to remain in or obtain work;

(c) identifying activities that the claimant may undertake that will make remaining in or obtaining work more likely;

(d) identifying training, educational or rehabilitation opportunities for the claimant which may make it more likely that the claimant will remain in or obtain work or be able to do so;

(e) identifying current or future work opportunities, including self-employment opportunities, for the claimant, that are relevant to the claimant’s needs and abilities.”

How can any of (a)-(e) above be realistically done when the DM doesn’t yet know what the limitations to my work capability are.

It might well have been the intention of the govt that people attend WFI before the LCW assessment but judges will only look at the intention where there is ambiguity or the law doesn’t make sense as drafted.  I think it seems clear from Reg 55 that the outcome of the LCW is known.

Tom H - 10 September 2014 06:52 PM

If some of my 15pts were awarded for not being able to mobilise 100metres, for example, then the work-related activity could plausibly include physiotherapy.  .

Medical treatement is excluded. Reg 3(4)(b)(ii) ESA (WRA) Regs applies.

DManville - 11 September 2014 02:11 PM

Tom H - 10 September 2014 06:52 PM

If some of my 15pts were awarded for not being able to mobilise 100metres, for example, then the work-related activity could plausibly include physiotherapy.  .

Medical treatement is excluded. Reg 3(4)(b)(ii) ESA (WRA) Regs applies.

Thanks for the reminder Dan.  I had overlooked that.  However, I don’t think it affects the general point I was making.  The physiotherapy was an example.  I should have stuck to the CV writing class. 

It’s a pedantic point but I don’t necessarily agree that medical treatment is “excluded” from the definition of work-related activity.  That definition is found, as we know, in section 13(7) WRA 2007 as “activity which makes it more likely that the person will obtain or remain in work or be able to do so”.  There appears no reason why certain types of medical treatment, defined in Reg 2 ESA Regs as “medical, surgical or rehabilitative treatment (including any course or diet or other regimen)”, would not make it more likely that someone would remain in work.  If that were not the case then occupational health depts wouldn’t recommend, eg, physiotherapy, to help someone stay in work.  The only activity, in fact, that it seems safe to exclude from the definition of work-related activity is work itself: the activity must be “related” to work rather than be work.  However, I’m not completely confident that even that is correct.  Isn’t permitted work, for instance, activity which may make it more likely that a person will eventually obtain work and come off the sick?  Not in every case I accept but certainly in a fair few.

Reg 3 of the 2011 Regs to which you refer provides:

“3(1) The Secretary of State may require a person…to undertake work-related activity as a condition of continuing to be entitled to the full amount of employment and support allowance payable to that person.

..(4) A requirement imposed under paragraph (1)–

(a) must be reasonable in the view of the Secretary of State, having regard to the person’s circumstances; and

(b) may not require the person to–

(i) apply for a job or undertake work, whether as an employee or otherwise;

or

(ii) undergo medical treatment.”

I read para (4) as restricting the type of work-related activity that can be subject to the conditionality requirement rather than altering the statute’s definition of work-related activity.  Applying for a job or undertaking work is arguably not work-related activity for the reason I mentioned earlier.  It inevitably follows that having to work etc cannot form the basis of any conditionality requirement under Reg 3(4)(a)(i) either.  The fact entitlement to the full amount of ESA also cannot be made conditional upon you undergoing medical treatment does not, in my view, mean medical treatment can never be work-related activity.  If you look again at Reg 55 (set out above in my earlier post) there seems no reason why medical treatment could not be suggested under any of sub paras (a) - (e) found there, although Reg 3 WRA Regs means you wouldn’t be sanctioned if you chose not to do it.  The decision not to identify proper work-related activity, ie that which is genuinely likely to improve your chances of work by addressing your limitations, perhaps has more to do with cost than anything else.

I was suggesting that medical treatment in many cases would be a more appropriate work-related activity than something which improved work chances only in an objective sense, eg a CV writing class, without it affecting the individual claimant’s LCW.  I appreciate that medical treatment and CV classes are not mutually exclusive of course and a package of work-related activity might be best.  But what we have at present appears to be work-related activity which is “one size fits all”, not tailored to what is limiting the individual’s capability for work.  Tom Royston appears to be looking for cases where the activity not only does not help the claimant but potentially harms them by requiring them to do things which a DM has already accepted they cannot reasonably do.  I suppose what I am suggesting Dan is that, even where the activity isn’t harming someone, work-related activity isn’t really serving any purpose; it’s not helping.  But then again we all know that. However, even if activity isn’t directly harming you it’s arguably still cruel treatment if it’s not doing you any good either and yet is still compulsory.

And I still think there’s a case for Reg 55 qualifying the requirement in Reg 54 to do WFIs pre LCW assessment.

I would take the counterpoint to that…

3(1) the SoS may require a person to etc…

..(4) Arequirement imposed under paragraph (1)–

(b) may not require the person to–

(ii) undergo medical treatment.

This is a live point here as we’re in the pilot for the healthcare referrals for 12-18 month prognoses and I am waiting for a sanction to land at my door. I have thought long and hard about advising “I don’t think you need to go to the appointments” because the standard mandation phrase is included in the appointment letters.

Tom H - 11 September 2014 11:06 PM

And I still think there’s a case for Reg 55 qualifying the requirement in Reg 54 to do WFIs pre LCW assessment.

DManville - 17 September 2014 09:32 AM

..I have thought long and hard about advising “I don’t think you need to go to the appointments” because the standard mandation phrase is included in the appointment letters.

I agree Dan that it’s not safe to advise a client that they can miss a WFI but it’s interesting that the 3 judge panel of the UT in your own case of CE/3453/2013 has assumed throughout that a WFI would not be appropriate before the LCW assessment.  In fact, it makes the point explicit towards the end of its judgment: “It is clear that regulation 35(2) has to be considered and applied before the work-focused interview takes place”(para 93).  It appears to be obiter as the point wasn’t directly in issue.  Still, it’s highly persuasive that a WFI due to its very nature should be postponed until the outcome of the WCA.  For the same reason, CE/3453/2013 is equally persuasive for work-related activity itself not starting until the LCW assessment.  That’s in spite of Reg 54, as I stated earlier, appearing to put no bar on a WFI taking place beforehand.  The UT’s analysis suggests that Reg 55 does, in effect, qualify Reg 54.  The only way to test it would be for someone sanctioned prior to their LCW assessment to appeal and contend, as I suggested earlier, automatic good cause on the ground that there was no legal basis to require attendance at a WFI prior to assessment. 

here’s a link to the briefcase summary for CE/3453/2013 -

http://www.rightsnet.org.uk/briefcase/summary/what-evidence-of-work-related-activity-is-required-when-considering-regulat