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Reg. 35
Client placed in WRAG; wishes to go into Support. MR decision negative. MR letter says Reg 35 has been considered but client doesn’t qualify. Apart from a brief comment on the HCP’s report & a note that some of the WR activities could be arranged to be done by phone the only comment is that decision maker asked client on the phone whether she would consider suicide & was told no - because of the effect on her children. Is it saying that if she wouldn’t consider suicide she doesn’t qualify? - that’s the way it seems to read.
Fortunately, I don’t deal with much ESA but this seems odd (to say the least!). Any comments please? And how difficult is it to get JC+ to agree to WR activities being done on the phone?
Hi Derek
Unfortunately this level of argument is to be expected from DWP in ESA appeals, it comes out with all kinds of rubbish. I tend to find that discussion of Regs 29/35 in appeal papers is usually restricted to ‘we have considered it and he does not qualify’ so getting some kind of statement from them about the reasons is an achievement of sorts, even if it is plain silly.
There is lots of useful stuff about Reg 35 scattered across these pages - http://www.rightsnet.org.uk/forums/viewthread/6760/ - for example and yesterday’s attached judgement.
Have a good look at the caselaw as it is getting increasingly complex. Martin Williams’ article is a must read as a starting point, although slightly outdated now.
The bottom line is that to meet reg 35 test, client will usually have to do so on mental health grounds rather than physical ones, although physical reasons are always possible. If they have already done some WRA and experienced problems, I have successfully been able to persuade Tribunal that this is informative of the DWP’s lack of ability to tailor WRA to an individual’s needs, even though it is post decision and therefore not strictly admissible as evidence.
Getting them to agree to doing WRA on the phone will often come down to the individual advisor who does it (in my limited experience).
here’s the judgment from yesterday that Billy mentions -
In a nutshell, appeal it. IM v SSWP (the new decision) leaves to door wide open for reasonable reg 35 applications unless DWP can tell a Tribunal what WRA a person might be referred into.
It also draws a line under what WRA is; Work Focussed Interviews are not WRA and there’d need be evidence that any activity over the phone is more than that simple Work Focussed Interview.
It’s extremely unlikely that JCP are going to be able to provide the evidence that the UT has repeatedly demanded; they’ve said in submission to the panel in IM and to Judge White in AK that they can’t provide it. As we stand DWP at executive level does not know what individual Work Programme Providers are actually providing.
It will take a restructure of how appeal submissions are prepared and how Work Programme is constructed for them to be able to gather that evidence.
Although the panel in IM didn’t go quite so far as I hoped they might, the more I think about it the more I realise how much of a kick in the crotch their decision might be for the Work Porgramme.
Many thanks - a lot for me to get my teeth into!
It is mental health (should have said that before!) & is being appealed.