ESA Claimants being treated as having LCW

Reg20 (c) (ii) of the ESA regs says that a claimant wil be treated as having LCW if they have an infection or are contaminated with a relevant infection or contamination.

I have a client with Hep C who is stil undergoing treatment and I imagine must still be capable of passing the infection on-  I wonder if this would count as a ‘relevant infection’ .

Any insights or case law gratefully recieved

I’m slightly puzzled as to what’s happened here. “Relevant infection or contamination” was previously defined under reg. 2(1) of the ESA regs as being:

““relevant infection or contamination” means—

to which sections 56 to 58 of that Act (compensation) apply.”

byway of SI/2011/2425, reg 37

However, this year’s Bonner has removed that definition from the regs and references reg 37(1) and (3) of SI/2013/630, which is a UC consequential amendments provision. I’ve looked through that SI and I can’t see for the life of me that the definition has been removed (nor am I entirely sure why it would be removed either).

Reg 37(2)(b) SI/2013/630 provides that the amendments to the ESA Regs do not apply to old style ESA so Bonner seems to be wrong on that.

However, Reg 37 of 2011/2425 did, as you say, amend Reg 2(1) ESA Regs 2008 inserting a new definition of relevant infection or contamination for old-style ESA purposes.

However, that definition has been changed again by Regs 13(2)(e) and (8)(e) of 2013/2536 whose combined effect is to remove the definition of relevant infection etc out of Reg 2 ESA Regs altogether and re-insert it within Reg 20 ESA Regs itself.  The new definition has a new sub para (a)(ii).  The whole definition is now:

(2) In this regulation, “relevant infection or contamination” means—

(a)in England and Wales—

(i)  any incidence or spread of infection or contamination, within the meaning of section 45A(3) of the Public Health (Control of Disease) Act 1984 in respect of which regulations are made under Part 2A of that Act (public health protection) for the purpose of preventing, protecting against, controlling or providing a public health response to, such incidence or
spread; or

(ii)  tuberculosis or any infectious disease to which regulation 9 of the Public Health (Aircraft) Regulations 1979 (powers in respect of persons leaving aircraft) applies or to which regulation 10 of the Public Health (Ships) Regulations 1979 (powers in respect of certain persons on ships) applies; and

(b)in Scotland, any—

(i)  infectious disease within the meaning of section 1(5) of the Public Health etc (Scotland) Act 2008, or exposure to an organism causing that disease; or

(ii) contamination within the meaning of section 1(5) of that Act, or exposure to a
contaminant,

to which sections 56 to 58 of that Act (compensation) apply.”

I have not checked which regs have been made under part 2A of the Act referred to in para (a)(i) above.

Thanks Tom - I made a school boy error in not reading through the whole of the new reg. 20.

Paul_Treloar_CPAG - 07 October 2014 12:58 PM

section 45A(3) of the Public Health (Control of Disease) Act 1984(1).

Paul, the section 45 I can see refers to banning wakes over dead bodies. Am I looking at the wrong or an unamended version (on legislation.gov.uk) or is there a mistake in the text you have quoted?

Pete, it would seem to me that the wording of ESA reg 20 means that claimant is only to be treated as having LCW under these circs if they have been excluded from attending work (maybe following a notification from the HSE or similar): “pursuant to a request or notice in writing lawfully made under an enactment”.

Acute infectious hepatitis is a notifiable disease - see http://www.patient.co.uk/doctor/Notifiable-Diseases.htm
and also
https://www.gov.uk/notifiable-diseases-and-causative-organisms-how-to-report

However, it does not seem to be a RIDDOR reportable disease - http://www.hse.gov.uk/riddor/reportable-incidents.htm
unless contracted at work
http://www.hse.gov.uk/pubns/hsis1.pdf

A food handler could be lawfully excluded from their workplace due to Hep C http://www.food.gov.uk/sites/default/files/multimedia/pdfs/publication/foodhandlersireland1009.pdf
and presumably there are other professions too.

Part 2A of the 1984 Act was inserted by Reg 129 of the Health and Social Care Act 2008.  This includes Reg 45A as well as the powers under which the regs referred to in Reg 20(2)(a)(i) ESA Regs are made.  I’m not sure whether any of the provisions under Part 2A have been amended since, nor which regs have actually been made under it.

The legal source of the notifiable diseases contained in the patient.co.uk link in Billy’s post is Sch1 of 2010/659.

See also this explanatory memo which appears to list the relevant regs made under Part 2A.  But it’s the list in Sch 1 above which seems most relevant.  2010/659 is also referred to in para 4.4. of the memo concerned.  2010/659 is made under Part 2 and 2A of the 1984 Act.

FAO Tom H - Wasn’t this addressed by you previously in a previous topic “ESA - Determined opposed to Treated as LCFW dated 6/9/13 at post 9.

J.Mckendrick - 07 October 2014 04:15 PM

FAO Tom H - Wasn’t this addressed by you previously in a previous topic “ESA - Determined opposed to Treated as LCFW dated 6/9/13 at post 9.

John, thanks for reminding me about that thread.  My post 5 there referred to the correct version of Reg 20 but was silent about what actually constituted a relevant infection or contamination.

Its seems certain diseases are capable of being an “infection or contamination”, in England, by virtue of Reg 20(2)(a)(ii) ESA Regs.  DMG 42029 helps here by confirming that this includes “any disease, food poisoning, infection, infectious disease or notifiable disease” applicable to legislation governing the leaving of ships/aircraft.  It’s not clear to me on a brief reading of the latter legislation, but it seems that if the disease could prevent you being allowed to leave, eg, an aircraft without medical permission, then the disease could potentially allow you also to be treated as having LCW under Reg 20(1)(c) ESA Regs.  Some/all of the notifiable diseases under Sch 1 of 2010/659 mentioned in my above post (this thread) could, therefore, count as diseases but, it seems to me, that there might be others, not necessarily notifiable ones, that could also come within the wider definition of diseases here, eg, if they would prevent you freely leaving an aircraft/ship.  I might be reading the legislation incorrectly mind.

Reg 20(2)(a)(i) ESA Regs appears to cover infections or contaminations other than those diseases covered by Reg 20(2)(a)(ii).  That’s because regulation making powers covering diseases are authorised under Part 2 (section 13) of the 1984 Act, whereas Reg 20(2)(a)(i) is concerned only with those infections/contaminations for which regulations are made under Part 2A of the 1984 Act.  That suggests that diseases don’t come within sub para (a)(i) at all.

I don’t think Hep C would fall under 20(2)(a)(i), possibly (a)(ii) but I doubt it.  But even if it did fall under the latter, I’m not sure how the client would then satisfy Reg 20(1)(c)(i) or (ii) ESA Regs; “enactment” for this purpose being defined in Reg 2(1) ESA Regs (appears to mean any legislative provision).

Edit: Re-read Billy’s above post which does suggest possible enactments that could make you refrain from work.  I think the hardest bit will be satisfying Reg 20(2).