had a clients payment stopped while appealling an esa decision as they couldnt find her sick lines.

as far as i am aware there is no requirment for a client to hand these in. the regs just seem to state the following:

The assessment phase – claimants appealing against a decision
6. Where the period for which the claimant is entitled to an employment and support allowance commences and the claimant has made and is pursuing an appeal against a decision which embodies a determination that that claimant does not have limited capability for work, the assessment phase in relation to that claimant ends when the appeal is determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998(72).


are other benefit delivery centres insisting on this as well?

The requirement can be found under regulation 30(2)(a) of The ESA Regs.

Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made
30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined—

(a) whether or not the claimant has limited capability for work;
(b) whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or
(c) whether the claimant falls to be treated as not having limited capability for work in accordance with regulation 22 (failure to provide information in relation to limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work).
(2) The conditions are—

(a) that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and


sorry for the copy and paste but i like to see these things laid out.

maybe i am wrong but i think the dwp here are taking their own convenient interpretation of the regulations as the regulation i quoted at first says the assessment phase continues until an appeal tribunal has made a decision. i see the point you are making with the part you quoted but from my reading that part doesnt specifically cover those under appeal where as the first part quoted does.

thats before we even get to the nonsense of them wanting gp's lines when they have already decided the gp is wrong!

Hi Steven

The whole of regulation 30 is:
Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made
30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined—
(a) whether or not the claimant has limited capability for work;
(b) whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or
(c) whether the claimant falls to be treated as not having limited capability for work in accordance with regulation 22 (failure to provide information in relation to limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work).

(2) The conditions are—
(a) that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and
(b) that it has not, within the 6 months preceding the date of claim, been determined, in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work under regulation 22 or 23 unless—
(i) the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination;
(ii) a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or
(iii) in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation.

(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998

Paragraph 3 has to exist to disapply paragraph 2(b) when an appeal is made otherwise a person pursuing an appeal would not be treated as incapable of work and thus could not get paid until the appeal was determined.

Regulation 30, therefore (as you say), seems to apply to claims prior to the WCA being applied for the first time or to situations where a person has made a fresh claim following a failed WCA, but, equally it could be argued that regulation 30(1)(a) has relevance as it is arguable in that it allows for a person to be treated as incapable (when if fact he is not so because of failing the WCA) until a tribunal makes a final determination of fact that he is or is not incapable.

However, regulation 6 seems to operate for the purpose of maintaining the assessment rate of ESA payable until the appeal is determined and on the face of it appears to do no more than that. And, if it operates as a stand alone provision in the way you say it does, then it certainly imposes no further conditions on a claimant who is pursuing an appeal, for instance, to provide sick notes. The question seems to be does regulation 6 stand alone or must it be read with regulation 30, or, is regulation 30 not relevant in the first place.

To be honest, I’m quite confused now. The regulations seem to be not well drafted. I think that there is merit to both views and it would be helpful if a view from the DWP solicitors office were known or a case could be got in front of a commissioner.

Regards
Paul

for common sense sake it really would be better if no sick lines were not needed. this will just lead to more work for us and them when they start going missing and clients are contacting us both because they have no money.

i wont hold my breath though.

cheers for the replies.

Nothing new - the same always applied to incapacity benefit/income support.

My view is that sick notes are required.

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=111&topic_id=3792&mesg_id=3792&page=2

They are required for PCA failures where the claimant claims income support so it's not surprise that this rule continues.

Besides which, it seems to me that there is a good reason. Suppose a person gets better whilst waiting for the appeal. Without the medical evidence provison for those appealing, then he would still get ESA even though he is no longer ill. I can't see the government agreeing to that - although if he is a sick MP I suppose he could claim it as an expense...

maybe its just the two benefit delivery centres i have dealt with but i have never had a client required to submit sick lines when claiming income support whilst appealing a pca decision.

this has always been my experience of the clyde and fyfe bdc and clydebank bdc.

".....but i have never had a client required to submit sick lines when claiming income support whilst appealing a pca decision".

Neither had I. And see wwr's post (above).

Ok, now i'm very confused! we have been advised by the DWP that under regulation 30 of the ESA regs an ESA appeal constitutes a NEW CLAIM for ESA and so the appellant has to produce a NEW sick note to cover themselves from the date of the disalloance onwards.

Even if a previous sicknote covered them for longer it is treated as being related to a different claim and cannot be considered to apply to the 'new' claim/ ongoing entitlement pending appeal. they still ahve to produce a new sick note from disallowance date.

has anyone else come across this? does it sound even vaguley correct to anyone ?

thanks!
Caroline

In the Lancashire Area which is administered by Barry House, they are insisting on sick notes whilst appealling. It is creating a huge amount of confusion. As soon as a claimant is found fit for work they are getting in touch with the GP and telling them not to issue any more sicknotes. After the GL24 is submitted the DWP then need to get back in touch with the GP to give them permission to issue sick notes again. This is not always happening quickly enough.

Absolute madness...................................

On this point, we have now received a copy of the IB65B letter that JCP send to GP's after someone fails a limited capability for work assessment. This clearly says:

"This means you do not have to give your patient any more medical certificates for Employment and Support Allowance purposes. But you may have to give your patient new medical certificates if
- they decide to appeal against our decision
- their condition gets significantly worse
- they have a new medical condition."

So I don't think GP's need permission to issue further sick notes although they may need reminding of the terms of this letter.

Richard Atkinson

it doesnt sound either legally correct or sensible to me.

is the insistence on a sick line even a decision which could be challenged though?

all this is going to lead to is administrative nightmares for both us as reps and the dwp when people cant get sick lines, they go missing etc etc i am sure we all know how that works by now.

so far i have only one esa client so my experience is limited.

We hadn't had any problems with JCP requiring sick notes pending the appeal until this week. Indeed, local Jobcentres seemed keen to advise people to appeal and stay on ESA (probably because the clients were difficult to place on a JSA regime). However, now it has raised its head as an issue, I'd have to say that continuing medical evidence is required. I don't buy the DWP position on the thread above that there is a new claim, requiring a new sick note, but it seems to me that all reg 6 does is to change the end date of the assessment phase. The client still has to satisfy conditions of entitlement and that includes having a limited capability for work. Under reg 30, that clearly requires evidence of limited capability for work to be provided by the client. There is a logic to this compared to income support/incapacity benefit - you could not get incapacity benefit pending the appeal, and income support was payable to those with insufficient income not because they showed that they could be treated as being incapable of work, but because there was a specific category of person who was allowed to claim pending an appeal against an AWT disallowance. Under ESA, you can continue to get your contributory based benefit pending the appeal, so some evidence of ongoing incapacity is reasonably to be expected. However, if anyone has a good argument against the requirement for medical evidence, we woud be very interested

(Brian)