Treated as having LCFW

With regards Reg 20(c)(ii) ESA Regs 2008, does the “by reason of the claimant being a carrier….” etc only apply to 20(c)(ii) or does it also apply to 20(c)(i) - any thoughts!

Reg 20(c)the claimant is— .
(i)excluded or abstains from work, or from work of such a kind, pursuant to a request or notice in writing lawfully made under an enactment; or .
(ii)otherwise prevented from working pursuant to an enactment, .

by reason of the claimant being a carrier, or having been in contact with a case, of a relevant disease;

http://www.rightsnet.org.uk/forums/viewthread/7159/#31287

and

Acute encephalitis
Acute meningitis
Acute poliomyelitis
Acute infectious hepatitis
Anthrax
Botulism
Brucellosis
Cholera
Diphtheria
Enteric fever (typhoid or paratyphoid fever)
Food poisoning
Haemolytic uraemic syndrome (HUS)
Infectious bloody diarrhoea
Invasive group A streptococcal disease and scarlet fever
Legionnaires’ Disease
Leprosy
Malaria
Measles
Meningococcal septicaemia
Mumps
Plague
Rabies
Rubella
SARS
Smallpox
Tetanus
Tuberculosis
Typhus
Viral haemorrhagic fever (VHF)
Whooping cough
Yellow fever

http://www.legislation.gov.uk/uksi/2010/659/schedule/1/made

?

So could 20(c)(i) include a physical injury or a mental health issue as well as diseases and contamination etc!

Only if the injury is infectious or a the mental health problem a result of contamination (or vice versa.)

... the claimant is excluded or abstains from work, pursuant to a request or notice in writing lawfully made or given under an enactment by reason of it being known or reasonably suspected that the claimant is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination;

Unless in a close encounters/bodysnatchers scenario I’d hazard a guess as to NO.

So again can I clarify a major point - those who attend an ESA medical and are awarded 15 points will receive the work related activity component back dated to week 13. However what about the people ‘treated’ as having LCFW - when do they start to receive the WRAC - is it also immediately after week 13. Secondly for these people I take it that they do not need to attend a medical in order to receive the WRAC from week 13.

J.Mckendrick - 11 April 2016 03:32 PM

So again can I clarify a major point - those who attend an ESA medical and are awarded 15 points will receive the work related activity component back dated to week 13. However what about the people ‘treated’ as having LCFW - when do they start to receive the WRAC - is it also immediately after week 13. Secondly for these people I take it that they do not need to attend a medical in order to receive the WRAC from week 13.

Per reg 4(3) a determination under rr 20,25,26, 29 or 33(2) is exactly the same as a medical awarding 15 points so the backdating works in the same way.

They can still be required to attend a medical although one imagines that requirement would be waived in normal circumstances.

What ESA Regs are you looking at 2008 or 2013.

2008

So those treated as having limited capability for work under Reg 20 get the WRAC after week 13….

Certain claimants to be treated as having limited capability for work

20(c)the claimant is—
(i)excluded or abstains from work, or from work of such a kind, pursuant to a request or notice in writing lawfully made under an enactment; or
by reason of the claimant being a carrier, or having been in contact with a case, of a relevant disease;

My client has HEP C and reads Section 7 of the Health & Safety at Work Act 1974….

General duties of employees at work.
It shall be the duty of every employee while at work—
(a)to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work;

So could the client claim Reg 20 by abstaining from work under Section 7 of the Health & Safety Act as it is a notice in writing lawfully made under an enactment and due to Hep C being covered under …

SCHEDULE 1Notifiable Diseases
Acute encephalitis
Acute meningitis
Acute poliomyelitis
Acute infectious hepatitis

It would need to be ‘acute infectious hepatitis’ to be relevant - per Davidsons (21e) “Acute symptomatic infection with hepatitis C is rare. Most individuals are unaware when they became infected and are only identified when they develop chronic liver disease”. My guess would be that if you have the relevant condition, you probably wouldn’t be allowed out of hospital.

When the legislation refers to a lawful notice under an enactment or otherwise refraining from working due to an enactment, I think it intends to refer mainly to ss19 and 20 Public Health (Control of Disease) Act 1984. i.e. a client who is not working because they can’t engage in work without committing a criminal offence.

I don’t see how the Health and Safety at Work Act could be relevant as it only imposes a duty on an employer and only in an employment relationship. If your client is electing not to pursue employment because of the condition, then there aren’t really grounds to bring it into play.