× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

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

Reg 29 and non health related factors

SamW
forum member

Lambeth Every Pound Counts

Send message

Total Posts: 430

Joined: 26 July 2012

Hi all. I’ve received a Statement of Reasons today for an unsuccessful ESA appeal. Given other findings of fact I do not think that the issue I am posting about would be sufficiently material to warrant a set aside but I was wondering what people think in case the issue arises in a more arguable set of facts.

Client does not speak any English and has no formal education. She was in an abusive marriage until her husband passed away. We have a letter from MH services stating that they believe that client is displaying low mood and is under significant social stress due to her inability to deal with benefits issues/get assistance from her GP etc (although the letter appears to stop short of making a clinical diagnosis of depression). Client also goes into trances/has episodes where she can behave erratically/aggressively when she hears religious music and then cannot remember anything about it afterwards. Mental Health assessment was that these episodes were culturally appropriate expressions of religious devotion rather than an indication of mental health condition and tribunal followed this assessment.

Client does have other confirmed health problems. In my submission I asked that the tribunal take into consideration the social circumstances above when assessing Reg 29 and the possibility that client’s health could deteriorate if she was found fit to work. I accepted that they could not be taken into account in terms of her meeting the descriptors.

The SoR I have received seems to have mis-stated what was in my submission and states that it was “accepted” that social circumstances and language barriers could not be taken into account when considering Reg 29.

Do people think that the issues above can be considered? If you look at two otherwise identical claimants with mental health conditions, one of whom speaks no English, should a tribunal take into account that the latter will find it harder to meet their obligations and will potentially be at a higher risk of being sanctioned etc and their mental health deteriorating?

On a different line of thinking - in a situation where the evidence suggests that claimant does not have any health problem at the moment but that their ‘non-health’ circumstances are such that being found fit to work would very likely cause a significant ‘new’ health problem does that person come within Reg 29? As above in this case the medical evidence seems to suggest that client was struggling to cope and this was causing her mood to deteriorate/stress levels increase but at the point of assessment these problems were not severe enough to warrant a clinical diagnosis. My argument would be that the evidence suggested that clients mental well-being had deteriorated due to the problems with her benefits (amongst other things) and that if this continued there would appear to be a risk that things would deteriorate to the point where she would have a diagnosis. I would argue that when assessing this risk the tribunal should look at all the circumstances, including ‘non-health’ factors such as linguistic ability, education, cultural differences.

Any thoughts would be very welcome :)

Mike Hughes
forum member

Senior welfare rights officer - Salford City Council Welfare Rights Service

Send message

Total Posts: 3138

Joined: 17 June 2010

Three problems spring to mind:

1) The phrase “suffering from…”
2) The word “... consequently” and
3) The fact we now live in a world where the ability to take part in a phone call is considered to be the less onerous end of work-related activity.

So, if your client is not “suffering” from something at the time they’re asked to partake (or the thing that subsequently appears) I can’t see that a subsequent deterioration so that they are then “suffering from” is of relevance. I suspect it founders there and there’s little need to explore further.  Not sure how a thing can deteriorate if it’s not there in the first place. Happy to be shot down in flames.

On that note…

It sounds like she’s not considered bad enough to be actively under Mental Health Services. They’ve seen her and provided a letter to serve her purposes. Happy to be corrected but that would certainly explain why they have “stopped short” of clinical diagnosis. The comments on religious music are fascinating but unless you have anything to the contrary I can see why a tribunal would follow that logic. I’m also not sure of the relevance. Is she likely to be placed in a work environment where there was a risk of religious music triggering such behaviour? If she takes a call and is put on hold I would think the chances of it being something other than Greensleeves or Everywhere by Fleetwood Mac are low 😊

I’m not sure what the “social circumstances” are that ought to be taken into account. Her history is relevant in as much it could explain her current health but it’s not a relevant consideration when looking at whether specific activity could lead to a deterioration. Her diagnosis and medical history are surely all that’s relevant there?

The language barrier is an interesting one but perhaps a separate issue. Playing devils advocate (and accepting there will always be cultural differences in how such things are actually handled) I would always start by looking at it from the angle of what happens if the client receives that phone call. Do they ignore the call? If so then that’s a mental health issue. Not sure there’s a risk of deterioration there unless JCP get on the case and make multiple calls in a period that could amount to harassment. However, how do you evidence that until it happens?

If the client takes the call but there is a language barrier then what happens next? I would argue it’s an EA10 ‘reasonable adjustments’ issue in as much as there would be an onus on the caller to establish what the RA would be. An interpreter paid for by JCP or a friend to assist. How is that then communicated to the client? Does any of that trigger a deterioration? Again, I can’t see how it does, or that you can argue it might, without a stronger diagnosis and some medical history suggesting it’s happened before.

It would surely be an extraordinary argument that says you are at risk of deterioration in a specific condition because of linguistic ability; cultural differences or education. I’m not sure a higher risk of sanction is looking at this from the correct angle either. The risk of sanction is not what’s being measured.

Personally my reaction to religious music is not that dissimilar to hers albeit for perhaps different reasons 😊