Pilot schemes to help people on sickness benefits back to work

We’re in one of the pilot areas for this scheme and one of mine has now been referred onto it.

I’m wondering how this couldn’t fall foul of the prevention at reg 3(4)(b)(ii) ESA(WRA) Regs 2011 to require someone to undergo medical treatment.

It would appear to be flying very near to the wind…

I’d be interested in folks’ thoughts.

Ta!

Seen also in The DM Guide Chapter 53, here at 53032:

” 53032 A requirement to undertake WRA must be reasonable in the view of the Secretary of State taking into account the claimant’s circumstances1. The claimant cannot be required to

1. apply for a job or undertake work, whether as an employee or otherwise or

2. undergo medical treatment2.

1 ESA (WRA) Regs, reg 3(4)(a); 2 reg 3(4)(b)”

http://www.dwp.gov.uk/docs/dmgch53.pdf

Please see from the WRA Regs link at the bottom of the “Work Programme”

(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.

http://www.legislation.gov.uk/ukdsi/2011/9780111507476/regulation/3

However, the embargo against the DWP from forcing someone to undergo medical treatment only obtains when a requirement to undertake WRA is imposed on a claimant under 3(1) of the WRA Regs.  There is still reg 157(b) and (c) of the main ESA Regs (and carried over from the IB regime) which is as follows.

Disqualification for misconduct etc.
157.—(1) Subject to paragraph (3), paragraph (2) applies where a claimant–
(a) has limited capability for work through the claimant’s own misconduct,
except in a case where the limited capability is due to pregnancy or a sexually
transmitted disease; or
(b) fails without good cause to attend for or submit to medical or other treatment
(excluding vaccination, inoculation or major surgery) recommended by a
doctor with whom, or a hospital or similar institution with which, the claimant
is undergoing medical treatment, which would be likely to remove the
limitation on the claimant’s capability for work;
(c) fails without good cause to refrain from behaviour calculated to retard the
claimant’s recovery; or
(d) is, without good cause, absent from the claimant’s place of residence without
leaving word with the Secretary of State where the claimant may be found.
(2) A claimant referred to in paragraph (1) is to be disqualified for receiving an
employment and support allowance for such period not exceeding 6 weeks as the
Secretary of State may determine.
(3) Paragraph (1) does not apply where the claimant–
(a) is disqualified for receiving an employment and support allowance by virtue
of regulations made under section 16B or7 of the Social Security Fraud
Act 2001(a); or
(b) is a person in hardship.

Reg 157 (b) is about people refusing treatment from a GP or Hospital which will remove their LCW, whereas the scheme Dan refers to seems to be more about encouraging people to access treatment/ info/activities that will somehow make them more job ready.

“The regular discussions with healthcare professionals – which will be provided by Ingeus UK – will not replace someone’s GP, but can promote health support and help a claimant to re-engage with their GP if they are struggling to adapt to their condition. They will also signpost claimants to activities and information to help them manage their condition to improve their readiness for getting a job, and work with local services to provide a holistic approach to health interventions. “

In my mind, these are two slightly different things, although as Dan says, sailing pretty close to the breeze.

I agree.  They are different things.  That’s not the point I was making.  The first two posts were concerned that the WRA regs prevented the DWP from compelling someone to undergo medical treatment.  Reg 157 clearly says that that is not so.  Of course the DWP cannot force them.  But that point is rendered moot by the power to stop benefit if they don’t.  Furthermore 157(1)(c) is drawn widely enough to possibly enable to DWP to push alcoholics or substance abusers towards programmes designed to force them to address their behaviour in severe cases.  That’s just one example.  There are probably others.

By implication therefore, we are both saying that the DWP is able to introduce this scheme without falling foul of its own regulations, although we are coming at it from different angles.
This sort of constant badgering of claimants really should be covered by the Protection from Harassment Act. Indeed it may be if not for the defence that ‘it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment’.
Jobseeker’s are only unemployed because they don’t do enough to find work. Now ESA claimants are only actually ill because, obviously, they have not done enough to get better. Shame on them.
Where will this all end? Will someone claiming Council Tax Reduction be told that they have to move to a cheaper LA area if they want to continue getting support? Damn, might just have given some scumbag Thinktank a new policy idea…

Hi Billy

“By implication therefore, we are both saying that the DWP is able to introduce this scheme without falling foul of its own regulations, although we are coming at it from different angles”.

Pretty much.  Historically, reg 157 was used quite sparingly.  After all, decision makers had enough to do.  Imagine, for example, having to run around checking whether 157(1)(d) had been complied with.  If you look at the commentary to the reg you will see that there is hardly any case law on the matter and most of what there is is more than 50 years old.  I hope it stays that way.  The turning point, of course, was the introduction by the previous government of the concept of work related activity.  This opened the door to the type of scheme that Dan has highlighted and, potentially, behaviour addressing programmes that I mentioned above.  Furthermore. It won’t take much to repeal reg 3(4)(b)(ii) of the WRA Regs.

Reg 93 IN THE ESA Regs 2013 - The equivalent of 157. Jesus 93(1)(C) IS VERY WIDE RANGING, now I see where you’re coming from NEVIP BILLY. 50 year old caselaw isn’t going to be supporting that now.

Disqualification for misconduct etc

93.  (1)  Subject to paragraph (3), paragraph (2) applies where a claimant—

(a)has limited capability for work by reason of the claimant’s own misconduct, except in a case where the limited capability is due to a sexually transmitted disease;
(b)fails without good cause to attend for or submit to medical or other treatment (excluding vaccination, inoculation or surgery which the Secretary of State considers is major) recommended by a doctor with whom, or a hospital or similar institution with which, the claimant is undergoing medical treatment, which would be likely to remove the limitation on the claimant’s capability for work;
(c)fails without good cause to refrain from behaviour calculated to retard the claimant’s recovery to health; or
(d)is, without good cause, absent from the claimant’s place of residence without informing the Secretary of State where the claimant may be found.
(2) A claimant referred to in paragraph (1) is to be disqualified for receiving an employment and support allowance for such period not exceeding six weeks as the Secretary of State may determine in accordance with Chapter 2 of Part 1 of the Social Security Act 1998(1).

(3) Paragraph (2) does not apply where the claimant—

(a)is disqualified for receiving an employment and support allowance by virtue of regulations made under section 6B or 7 of the Social Security Fraud Act 2001; or
(b)is a person in hardship.
(4) In this regulation, “doctor” means a registered medical practitioner, or in the case of a medical practitioner practising outside the United Kingdom, a person registered or recognised as such in the country in which the person undertakes medical practice.

So they can’t compel someone to undertake medical treatment but if that person doesn’t partake of treatment recommended by a doctor that would be likely to remove the limitationthen they could be disqualified.

I wonder whether the Ingeus HCPs will be doctors. I doubt it!

I can see some fun on the horizon though…  Once more into the breach!

in case anyone’s interested the guidance is…

https://www.gov.uk/government/publications/employment-and-support-allowance-health-care-pilot-provider-guidance

here!