× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

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

GP refusing to issue fit note

stevenmcavoy
forum member

Welfare rights officer - Enable Scotland

Send message

Total Posts: 869

Joined: 22 August 2013

clients gp wont issue sick line.  she is currently a ft student and has PIP award so looking to get ESA awarded as a disabled student.

the course the client is on is heavily geared towards employment at the end so I am keen to have esa in place so that permitted work is an option for the client.

GP in this case wont issue a line to the client.

My question is, and its probably a basic one, can the client still claim ESA but only be paid it if/when she passes the WCA if a line isn’t submitted?

I have never had to check this before as all of the clients I have had previously where the GP has refused a line we have either managed to get one issued or financially the client didn’t have the option financially of holding out and signed on.

Tom B (WRAMAS)
forum member

WRAMAS - Bristol City Council

Send message

Total Posts: 454

Joined: 7 January 2013

I don’t deal with much ESA these days so please correct me if I’m wrong but if she is f/t student with PIP award then she would be treated as having a limited capability for work and there is no obligation to provide medical certificates anyway.

Tom H
forum member

Newcastle Welfare Rights Service

Send message

Total Posts: 783

Joined: 23 June 2010

tbidmead - 25 November 2014 12:17 PM

I don’t deal with much ESA these days so please correct me if I’m wrong but if she is f/t student with PIP award then she would be treated as having a limited capability for work and there is no obligation to provide medical certificates anyway.

Reg 21 ESA Regs provides that a client doesn’t have to submit a sick note in relation to a determination that they are a f/t student under Reg 33(2).  Firstly, I’d check whether they meet the conditions of Reg 33(2).  If so, the assessment phase will end under Reg 4 after 13 weeks provided it has been determined at that point that the person does fall within 33(2).  It shouldn’t take the DWP 13 weeks to do any checks it needs to do, eg with the college and with the PIP computer records, to decide that Reg 33(2) applies. 

The person can start to be paid assessment rate ESA without a sick note from the date the above Reg 33(2) determination is made.  Say that takes places at wk4 of the claim, they’d get assessment rate from wk4 till wk14 when they’d go onto main phase plus at least the WRAC (there may be delays in assessing him/her for the SC but if eventually put in SG then arrears of SC + EDP with an offset of WRAC already paid should be paid back to wk14).  However, that leaves the question: can client be paid any ESA for wks1-4?  They cannot be treated as having LCW under Reg 30 for that period as they don’t have a sick note.  I think the Reg 33(2) determination should be retrospectively applied to the start of claim so that arrears of assessment phase can be paid from day 8 but the law is not clear on that.  For example, the standard Reg 19 determination usually applies from wk14 rather than from the beginning of a new claim and people normally have to rely on Reg 30 until then.

If some form of sick note is required then a Med3 is not the only type of evidence that can satisfy the medical evidence regulations for the purpose of Reg 30.  If the educational establishment have accepted that the person is disabled, confirmation from it might suffice although it might be a tribunal that decides that if the Dept insist on a GP.  Any other medical professionals involved?

stevenmcavoy
forum member

Welfare rights officer - Enable Scotland

Send message

Total Posts: 869

Joined: 22 August 2013

thanks for the replies

stevenmcavoy
forum member

Welfare rights officer - Enable Scotland

Send message

Total Posts: 869

Joined: 22 August 2013

DWP are refusing to accept that the regs discussed here apply in this case.

Am i right in thinking that as this is a payment decision i can only really threaten judicial review here?

Edmund Shepherd
forum member

Tenancy Income, Royal Borough of Greenwich, London

Send message

Total Posts: 508

Joined: 4 December 2013

Surely it’s an entitlement decision, if DWP is saying she’s not unfit for work, as you are arguing?

stevenmcavoy
forum member

Welfare rights officer - Enable Scotland

Send message

Total Posts: 869

Joined: 22 August 2013

Edmund Shepherd - 28 April 2015 09:27 AM

Surely it’s an entitlement decision, if DWP is saying she’s not unfit for work, as you are arguing?

I wont really know what their legal argument….assuming they remember there is such a thing as the law, is until i see the written decision.

they havent actually sent anything in writing so far other other than a letter saying we need a med cert.  they just havent paid it.

I wrote to them pointing out the regs, then the DMG when i escalated it but they are stull refusing point blank to accept it can be done.

past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 1116

Joined: 25 February 2014

Just wondering if there may not be a simpler way around this - I’d pursue the MR/appeal but if getting payment in place quickly were the priority then….

Even in ‘ordinary’ ESA cases (i.e. where reg. 33(2) does not apply) there is no absolute requirement that a med3 needs to be supplied by the claimant’s GP. Reg. Re. 21 (1)(a) ESA regs simply says that evidence must be supplied in accordance with the Medical Evidence Regulations.

And reg. 2(1) of these (‘evidence of incapacity for work, limited capability for work and confinement’) simply provides that the claimant must provide a statement (i.e. a med3) given by a doctor - clearly, this need not be the claimant’s GP.

And reg 2 (1A) provides that ‘where it would be unreasonable to require a person to provide a statement in accordance with paragraph (1)’ then the claimant shall produce ‘such other evidence as may be sufficient’ to show LCFW.

So if cl is seeing a hospital specialist or psychiatrist or equivalent then that might allow her to meet 2 (1) if they’ll sign a statement. Any other type of health professional could provide the kind of evidence that would allow 2 (1A) to be met.

of course, it sounds like you’d also have to point out the terms of these regs, too - but may be the quickest route if getting the claim into payment quickly is what’s wanted.

stevenmcavoy
forum member

Welfare rights officer - Enable Scotland

Send message

Total Posts: 869

Joined: 22 August 2013

past caring - 28 April 2015 10:33 AM

Just wondering if there may not be a simpler way around this - I’d pursue the MR/appeal but if getting payment in place quickly were the priority then….

Even in ‘ordinary’ ESA cases (i.e. where reg. 33(2) does not apply) there is no absolute requirement that a med3 needs to be supplied by the claimant’s GP. Reg. Re. 21 (1)(a) ESA regs simply says that evidence must be supplied in accordance with the Medical Evidence Regulations.

And reg. 2(1) of these (‘evidence of incapacity for work, limited capability for work and confinement’) simply provides that the claimant must provide a statement (i.e. a med3) given by a doctor - clearly, this need not be the claimant’s GP.

And reg 2 (1A) provides that ‘where it would be unreasonable to require a person to provide a statement in accordance with paragraph (1)’ then the claimant shall produce ‘such other evidence as may be sufficient’ to show LCFW.

So if cl is seeing a hospital specialist or psychiatrist or equivalent then that might allow her to meet 2 (1) if they’ll sign a statement. Any other type of health professional could provide the kind of evidence that would allow 2 (1A) to be met.

of course, it sounds like you’d also have to point out the terms of these regs, too - but may be the quickest route if getting the claim into payment quickly is what’s wanted.

thanks for the response.

unfortunately the client doesnt see anyone else for treatment and even never really has contact with her GP.

the client has autism and a mild learning disability so really there is nothing the GP can do for her. She is really capable in a lot of ways and i think this is the GP’s issue with issuing a line.

I helped her claim PIP which was successful so the PIP assessor agreed there were issues but thats it for alternative medical input im afraid.

past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 1116

Joined: 25 February 2014

And there’s no mileage in explaining to the GP that he would be certifying limited capability for work rather than total incapacity?

stevenmcavoy
forum member

Welfare rights officer - Enable Scotland

Send message

Total Posts: 869

Joined: 22 August 2013

past caring - 28 April 2015 10:51 AM

And there’s no mileage in explaining to the GP that he would be certifying limited capability for work rather than total incapacity?

yip,  tried that one as well.

my clients have particular problems with medical evidence due to the nature of their conditions but its still rare for someone not to get a line.

past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 1116

Joined: 25 February 2014

OK then.

Whilst you’ve yet to see the basis for their decision, I cannot see how it could only be a payability decision - if they are saying that the reg 33 (2) stuff doesn’t apply, then that’s a legal issue and will be open to MR and appeal. Can’t see how they’d find their way past that.

The only other thing I can suggest is that if you think the client could actually satisfy the WCA (i.e. without having to take advantage of the reg 33 (2) route) is to request an expedited medical assessment and WCA.

nevip
forum member

Welfare rights adviser - Sefton Council, Liverpool

Send message

Total Posts: 3135

Joined: 16 June 2010

It has to be an entitlement decision for to be entitled the claimant must have limited capability for work under s1(3)(a) of the Welfare Reform Act 2007.  That condition is satisfied if the claimant is treated as having LCFW.  Either the DWP treat her as such and thus she is entitled or they don’t and she is not entitled.  So, the upshot is, either she gets paid or is issued with an appealable decision in order to argue the law.

stevenmcavoy
forum member

Welfare rights officer - Enable Scotland

Send message

Total Posts: 869

Joined: 22 August 2013

nevip - 28 April 2015 01:22 PM

It has to be an entitlement decision for to be entitled the claimant must have limited capability for work under s1(3)(a) of the Welfare Reform Act 2007.  That condition is satisfied if the claimant is treated as having LCFW.  Either the DWP treat her as such and thus she is entitled or they don’t and she is not entitled.  So, the upshot is, either she gets paid or is issued with an appealable decision in order to argue the law.

thanks.

the DWP seem to be keeping the claim open but not paying out which was adding to my confusion here but i agree with your analysis.