WCA closed due to gap in fit note - MR-able?

Hello, we’ve got a client who has been submitting medical certificates continuously since getting refugee status in the second half of last year. His last medical certificate expired on 4/2/24 and he’s had difficulty getting a new one (some GPs are much better at it than others!) and he also speaks no English, and has recently been diagnosed with a new health condition. UC issued a letter on 28/2/24 stating that his work capability assessment has been closed and he will now be treated as fit for work, because of the gap of 3.5 weeks of his not having submitted a new medical certificate. I haven’t seen one of these letters before, and have certainly seen clients have much longer gaps between med3s than this without the WCA being closed - the letter says you can MR the decision, is it worth doing this, and is there anything we can rely on in terms of legislation/policy/guidance, or to just explain the mitigating circumstances of our client?

Don’t know if it’s any help but the DWP’s latest operational change made it 21 days after fit note expiry before claimant removed from ‘health journey’ - see https://www.rightsnet.org.uk/welfare-rights/news/item/since-april-2019-two-thirds-of-universal-credit-wca-decisions-have-resulted-in-a-finding-of-lcwra

They see to have acted pretty swiftly!

Don’t see why you can’t get MR, provide evidence and explain delay in providing it

I don’t think this is an appealable decision as it’s simply a decision about whether or not to carry out an assessment (something the SSWP may do but doesn’t have to do). But if they’re saying you can MR then I would definitely go ahead & do so.

Legally, I would refer to the Social Security (Medical Evidence) Regs 1976.

Reg 2(1A) (https://www.legislation.gov.uk/uksi/1976/615/regulation/2) says:

‘Where it would be unreasonable to require a person to provide a statement in accordance with paragraph (1) above that person shall provide such other evidence as may be sufficient to show that they are incapable of work or have limited capability for work so that they should refrain (or should have refrained) from work by reason of some specific disease or bodily or mental disability.’

I’ve used this loads of times when people have had a gap in medical evidence - mostly in order to make sure LCWRA is awarded from the right date, but it’s the same principle. I’ve never had to go to appeal.

This guidance makes it clear other forms of evidence can be accepted: https://data.parliament.uk/DepositedPapers/Files/DEP2023-0791/101._Medical_evidence_including_fit_notes_V14.0.pdf

So I’d write asking for them to reopen the referral to a WCA with no gap, on the basis of other evidence (note any evidence provided by the claimant must be considered - see p2 of the guidance), & explaining a certificate will follow.  And if he is awarded LCW/RA make sure the effects go back to the correct dates!