Forum Home → Discussion → Work capability issues and ESA → Thread
Reg 35 and IS entitlement/lone parent of child under 3
Hi all!
Client has recently had an ESA tribunal and was only placed in WRAG.
She had attended a tribunal in the past where she was placed in SG under Reg 35 - the tribunal found that due to the weakness of her immune system there was a risk to her health if she were to do WRA.
Since this first tribunal client has had a baby and is a lone parent. So until the child turns 3 she does not have to do WRA, even if she is in the WRAG.
I haven’t got a statement of reasons yet but if the Tribunal were to have found that there couldn’t be any risk to her health from WRA as she could not be compelled to take part would people agree with this line of reasoning?
Judge Ward holds that the “legal impossibility” of WRA doesn’t preclude consideration of Reg 35 in KB v SSWP (ESA) [2015] UKUT 179 (AAC). That was a case about carers rather than parents but the point stands.
Hi all!
Client has recently had an ESA tribunal and was only placed in WRAG.
She had attended a tribunal in the past where she was placed in SG under Reg 35 - the tribunal found that due to the weakness of her immune system there was a risk to her health if she were to do WRA.
has her immune system improved? if not, why did the recent tribunal not agree with the earlier one? if her condition isn’t going to improve due to whatever the underlying condition is, she is always going to be at risk. do you not have a case to appeal the new tribunal decision?
(i’m thinking this as surely you need to think ahead to the point the child turns 3 and she might be required to do work related activity…...)
Thanks both for your replies. That case directly answers my question.
Claire, I’m not sure why the tribunal did not agree with the previous one. Unfortunately we are no longer able to attend the majority of hearings which can make it difficult in a case like this to have an idea of the line of thinking of the tribunal. There does not appear to be anything in the medical evidence to suggest that client’s immune system had improved (to be accurate - she has SLE and so it is not so much that her immune system is weak in itself but that the medication she takes suppresses it - this medication has remained the same). Client did travel to Burma recently so I don’t know whether this swayed the tribunal - client’s explanation was that her doctors had adjusted her medication to enable her to cope with the travel. Or maybe tribunal felt that there was enough WRA that client could be asked to perform that would not put her at risk (e.g. telephone/ one to one discussions rather than group activities).
Client was on IS (gets a disability premium so was better off than appeal rate ESA) whilst she waited for the appeal and wants to stay on this until her child turns 3 at which point she will look at reclaiming ESA if her health has not improved. She doesn’t want the stress of pursuing the support group issue at this point. So it doesn’t look like I’m going to see a statement of reasons.