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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA - Should the DWP always carry out a medical when determing fitness for work!

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J.Mckendrick
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I have a client who has been placed in the work related activity group of ESA after transfering from IB. The determination was made with use of the ESA50 and the findings of a Registered Medical Practitioner who made their findings by reading the contents of the ESA50. I believe the client should be in the support group. To make a valid determination regards support group status, is the DWP under an obligation from the outset to carry out a medical as per Reg 36(1)(b) of the 2008 Regs. Any views would be appreciated.

Bryan R
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I’d say 36(2)

(2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited capability for work-related activity without the information specified in paragraph (1)(a), that information will not be required for the purposes of making the determination.

suggests to me that no the SoS does not need to ask you for a medical.

benefitsadviser
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I have a heck of a lot of IB->ESA conversions that didnt require medicals.

Funnily enough most are placed in WRAG, and as many people dont read their letters they have no idea of what their work related commitments are.

Ive lost count of the numbers of clients who tell me their work focussed interview must be a mistake, as they are “on the sick”.

BC Welfare Rights
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I’ve had clients put straight into the Support Group without a medical but fail to see how they can reasonably make a WRAG decision this way

J.Mckendrick
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FAO Bryan R. Many thanks for your reply but I believe 36(2) allows the Decision Maker to award limited capability for work related activity without the use of a Form ESA50 36(1)(a). Therefore if the Decision Maker cannot make up his/her mind where to place the applicant taking into account the contents of the ESA50, then should the DM request an ATOS medical take place. 36(2) only allows the DM to make an award and not make an alternative finding ie work related activity status only of fit for work! Any views.

Edmund Shepherd
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Not sure of the legal basis, but I believe DWP won’t find anyone fit for work without offering a medical. WRAG decisions in IB/IS conversion cases seem pretty common and as you rightly point out, people don’t read the letters and assume situation normal. It’s a while down the line (such as when their benefit stops) that it develops into SNAFU.

Dan_Manville
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J.Mckendrick - 02 April 2014 08:03 PM

FAO Bryan R. Many thanks for your reply but I believe 36(2) allows the Decision Maker to award limited capability for work related activity without the use of a Form ESA50 36(1)(a). Therefore if the Decision Maker cannot make up his/her mind where to place the applicant taking into account the contents of the ESA50, then should the DM request an ATOS medical take place. 36(2) only allows the DM to make an award and not make an alternative finding ie work related activity status only of fit for work! Any views.

Under the current structure it is Medical Services who will decide whether a medical is carried out. The DM doesn’t even see the ESA50 until after Medical Services have had their say and conducted an assessment should they need to.

In my experience the defining factor for whether an assessment will be conducted is “how busy are we?” the number of files passed on scrutiny alone sky rocketed at the height of the conversion last year… Getting the job done on time is more important than making a legally sound decision in the culture we’re operating in at the moment.

Bryan R
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Noting Dan’s comments, I’d agree on the political element of this. However the Regs having re-read them does seem to imply what Mr McKendrick is saying is the correct way to view this. So yes for now I do agree but will seek higher counsel for further opinion

Martin Williams
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Um…. Reg 38 provides a discretionary power for the SSWP to call a claimant to attend a medical.

I think an argument that there is a duty in all cases to call a claimant to attend a medical is a bit unpalatable- do we really want our most vulnerable clients to be forced needlessly to attend medicals?

Clearly if the SSWP feels he cannot make a decision on the evidence then he can ask the claimant to attend a medical.

If he has proceeded and determined the claimant does not have LCWRA on the evidence available and thinks he can do this, then this is probably a good thing (at least with a rep) as the appellant is in a position to marshall evidence in support of LCWRA in the knowledge that the SSWP will probably not have the evidence to counter it.

If you do want a medical report further to an examination in such a case (!), then on appeal you could apply, at an early stage, for a direction under rule 6 of the Procedure Rules (SI 2008 No. 2685) that the Tribunal should direct an examination and report under rule 25(3) and Schedule 2 para (i).

J.Mckendrick
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Dear Martin - thanks for the reply and yet again this evidences how badly this regulation has been written. Reg 36(1) header is…

“Information required for determining capability for work-related activity”

Reg 36(1)(b) is identical to that of Reg 21(c) where Judge Jacobs confirms in paragraph 19 of CE/1467/2013 that 21(c) is in fact the ATOS medical. Therefore if the Decision Maker is in any doubt in actually awarding Support Group status with the info in front of him/her, then he/she is bound to have an ATOS medical take place. I believe it is in order for the DM to make an award to the SG without an ATOS medical but cannot refuse SG status without the results of such a medical examination.

Dan_Manville
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J.Mckendrick - 03 April 2014 12:34 PM

Dear Martin - thanks for the reply and yet again this evidences how badly this regulation has been written. Reg 36(1) header is…

“Information required for determining capability for work-related activity”

Reg 36(1)(b) is identical to that of Reg 21(c) where Judge Jacobs confirms in paragraph 19 of CE/1467/2013 that 21(c) is in fact the ATOS medical. Therefore if the Decision Maker is in any doubt in actually awarding Support Group status with the info in front of him/her, then he/she is bound to have an ATOS medical take place. I believe it is in order for the DM to make an award to the SG without an ATOS medical but cannot refuse SG status without the results of such a medical examination.

Why have we got reg 23 which prescribes a medical examination at the SoS’s discretion then? There’s no analogous provision in chorus with reg 36…

Admittedly I haven’t read the case law but this proposition simply doesn’t ring true where LCWRA is concerned

Martin Williams
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J.Mckendrick - 03 April 2014 12:34 PM

Dear Martin - thanks for the reply and yet again this evidences how badly this regulation has been written. Reg 36(1) header is…

“Information required for determining capability for work-related activity”

Reg 36(1)(b) is identical to that of Reg 21(c) where Judge Jacobs confirms in paragraph 19 of CE/1467/2013 that 21(c) is in fact the ATOS medical. Therefore if the Decision Maker is in any doubt in actually awarding Support Group status with the info in front of him/her, then he/she is bound to have an ATOS medical take place. I believe it is in order for the DM to make an award to the SG without an ATOS medical but cannot refuse SG status without the results of such a medical examination.

Reg 21 is in the following terms:

Information required for determining capability for work
21 (1) Subject to paragraphs (2) and (3), the information or evidence required to determine whether a claimant has limited capability for work is—
(a) evidence of limited capability for work in accordance with the Medical Evidence Regulations (which prescribe the form of doctor’s statement or other evidence required in each case);
(b) any information relating to a claimant’s capability to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire; and
(c) any such additional information as may be requested.

Reg 36 however is as follows:

Information required for determining capability for work-related activity

36.  (1)  Subject to paragraph (2), the information or evidence required to determine whether a claimant has limited capability for work-related activity is—

(a)any information relating to the descriptors set out in Schedule 3 as may be requested in the form of a questionnaire; and

(b)any such additional information as may be requested.

(2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited capability for work-related activity without the information specified in paragraph (1)(a), that information will not be required for the purposes of making the determination.

I agree that reg 36(1)(b) and reg 21(1)(c) are identical and so this allows the SSWP to use the medical report to determine LCWRA. However, it does not impose a duty on the SSWP to be required to obtain a report if he thinks he can decide from the evidence already available that the claimant does not have LCWRA. If the SSWP is unable to decide things either way without a medical report from ATOS he has the power to request one under reg 38 and can consider that under reg 36(1)(b).

Take a typical case where client does not tick a single box on ESA50 indicating a schedule 3 descriptor and no issue as to reg 35. Can’t the SSWP simply accept this as meaning the client is in the WRAG and not the support group?

In the case you are discussing, I really think client would benefit from simply appealing the decision on normal lines (eg sch 3 descriptor applies) and providing evidence as to this.

Even if your position was correct, then that would still not mean that a failure to have the medical placed your client in the support group- it would just mean the medical needed to now take place.

As you have a right to request the tribunal order a medical, then if you think that would benefit your client (eg the evidence you can gather apart from this does not support schedule 3 descriptor applying etc) you can ask them to do this.

J.Mckendrick
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What I believe the Regs are saying is that a Decision Maker can just immediately decide that an applicant has support group status from any source of information eg a GP’s report. It’s seems they also do not even need to see the ESA50 to make a positive decision for the applicant but if the DM cannot place the applicant in the support group from the outset then a medical examination must take place! The only time an ESA50 and a medical are not required is when the DM makes a positive (not negative) decision for the applicant.

Bryan R
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JM I had two clients under the old regs 2008 which were put in the SG without a medical as there was sufficient material to bear out the severity of their illness. However since then all other clients have had to have a a WCA, but have managed to get them into SG mostly as I spoke to ATOS at report stage and they then made adjustments to medical evidence gained at WCA, therefore bolstering the report they passed along to the DWP decision maker

So again I agree your reading of it is correct personally

J.Mckendrick
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Dear Bryan - your two cases seem to prove our interpretation of the Regs - in that if the DM cannot make a favourable decision from the outset (placed in SG) then a medical examination must be carried out. However this causes grief for the applicants especially IB transfers eg a client may be happy to accept being placed in the work related activity component without having to attend a medical, however had the applicant attended such a medical they could have been placed in the SG. Is the DWP purposely avoiding giving medicals and placing clients in the work group because they know full well that if the client attended a medical then they would probably be placed in the SG!

nevip
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I don’t agree that a further medical must be carried out.  Reg 38 says “...may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination”.  May not shall.  The original WCA will contain information as to whether a DM thinks any schedule 3 descriptor is satisfied without him seeking to go further if he chooses not to.  Where a DM receives further medical evidence from the claimant which challenges the original ESA85 then fairness and good practice dictates that if the DM doesn’t think he can revise the decision then he should seriously consider calling for a further medical.  Each case has to be judged on its own facts about what steps the DM should take.  I’ve had clients put in the support group upon request without a further medical.  Others the DM has been quite content to let go all the way to tribunal, again without a further medical.