the effects of medication on work capability

My client is unable to use her right arm at all and is in severe pain following unsuccessful surgery. She was awarded no ESA points and is appealing this with our help. She relies on strong medication and takes the maximum dose of Oramorph up to 4 times a day. This then prevents her from functioning normally and clouds her judgement to the extent that she is then unable to leave the house, manage day to day life, or perform smple tasks. I am arguing that she fits several of the mental health descriptors on this basis and also Regs 29/35. Can someone possibly point me towards any relevant case law around the effects of medication on the ability to work please?

Reg 19 (5) ESA Regs was changed on 28/1/13 so that the part 1 (physical descriptors) must arise from physical condition or treatment for a physical condition, and that the part 2 (mental etc descriptors) must arise from a mental illness or disablement or treatment for such. So I think there may be problems if there are mental health issues from treatment for a physical condition.

But I don’t see why you can’t go with the REG 29/35 arguments as that doesn’t separate out physical and mental in the same way

Side effects of medication should be taken into account when assessing functional ability, because if the claimant is being medically advised to use such medication, it cannot be suddenly stopped to ensure an activity can be carried out safely. Morphine based medicines have to be withdrawn slowly, and therefore it is relevant in looking at ability.

Tiredness or disorientation is relevant as it would be against medical advice to simply stop taking the medication to safely manage tasks. The GP or consultant might be prepared to write a statement saying that morphine cannot simply be withdrawn, and the side effects of morphine as they affect claimant.

I have got appeals successfully through on these grounds.

I think you’re right that you can argue that but I think it would have to be via regs 29/35 - clear risk to health in attempting to work under influence of medication or risk by taking away the medication. The change in legislation to reg 19 is very specific and limiting. I don’t know if you have a copy of Sweet and Maxwell Volume 1 but the commentary on pgs 906-7 (2014/15 edition) highlights the link of physical to physical and mental to mental that the change brought about.