Forum Home → Discussion → Work capability issues and ESA → Thread
Reg 29 Query
Just want to make sure I’m thinking along the right lines here.
Client fails WCA and subsequently his mental health deteriorates to the extent that he has to leave his volunteering role, referred to A + E following erratic behaviour and is referred by GP for further MH treatment.
DWP are saying that all of this evidence is irrelevant for the purposes of Reg 29 as the period for consideration of the claimants circumtstances ends at the date of decision.
I understand that this is correct where circumstances concerning entitlement change following the decision, but surely what we are trying to examine here is the level of risk of deterioration at the point of the decision, and the subsequent events are evidence as to this risk?
Did his health deteriorate because of the LCW decision? If so, I’d say it was arguable. Recon and appeal.
You’re right; if it’s evidence of the risk at the date of decision it can be taken into account. Even if that evidence only arose after the event, if it pertains to the circumstances at the date of decision you’re in.
For discussion of what can and can’t be taken into account look to R(DLA) 3/01
Thanks guys, have been on holiday for a week and needed a bit of reassurance - I always get intimidated when a DWP submission is ‘respectfully reminding’ the tribunal of something!!
In Charlton the court said the following:
34. Regulation 27(b) may be satisfied where the very finding of capability might create a substantial risk to a claimant’s health or to that of others, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused. Apart from that, probably rare, situation, the determination must be made in the context of the journey to or from work or in the workplace itself.
This was for ICB but a more recent decision decided that this also applied to the ESA regs.
I’ve done many of these cases. They’re non-controversial in terms of the law.
Thanks guys, have been on holiday for a week and needed a bit of reassurance - I always get intimidated when a DWP submission is ‘respectfully reminding’ the tribunal of something!!
In my experience, they ‘respectfull remind’ only when they know damn well that they’re on a sticky wicket…
Tony is quite right in that the progress of events could support either interpretation but for what it is worth I would certainly be arguing Reg 29 applies and I think the client has a very reasonable chance of the appeal succeeding on that basis.
My take on this is that the decision not to determine that the client has LCFW has resulted in a deterioration in his condition.
There appears to be a correlation, and if a health professional can confirm that it was the decision itself that caused the deterioration then i cant see a problem with reg29.
Has anyone else lost an appeal on this basis?
Do they expect us all to have crystal balls??
I’ve lost an appeal on the facts but not on the interpretation of the law. If a claimant with a specific mental illness is notified by a decision notice that he has failed the WCA and his benefit has stopped and two weeks later he goes berserk inside his local supermarket and is subsequently sectioned then reg 29 applies as a matter of law. If the DWP say otherwise then they are plainly wrong.
If however, the DWP are saying that when taking into account whether being in the workplace, getting to and from the workplace and any other work connected activity is a risk to his health then, yes, s8(2)(b) of the SSA 1998 applies and only circumstances obtaining at the date of the decision can be taken into account. But that is not what is implied here.