Bit of an awkward one, this - or possibly I'm being a bit slow...

Client diagnosed with Personality Disorder. Has, surprisingly, had no problems having this accepted as a condition that makes her incapable of work. I'm not sure of the specific disorder/diagnosis, but it manifests itself in her becoming extremely verbally aggressive to those who she believes to be undermining her, behaving disrespectfully or trying to exercise authority.

After exhausting her 52 weeks "permitted work higher limit" she applied to be accepted for supported permitted work. She has a background in art/design/architecture and so, understandably, wishes to exercise these talents - something she believes, not unreasonably, she may be able to do eventually by going down the self-employed route.

She was lucky enough to find (via the Disability Employment Adviser at the Jobcentre) a charitable agency that could support her in this and they signed and returned the PW1 form. However, subsequent enquiries into the nature of the support led the DWP to decide that the support was neither of a nature nor of sufficient frequency to allow my client to be accepted for Supported Permitted Work.

Their objections seem to be two-fold (and taken more or less verbatim from the DM's guidance)

One - the nature of the support itself "the support worker must direct and oversee the performance of the (claimant) worker regularly". My client doesn't require direction or monitoring with the work itself. She requires direction and support in connection with the work - ie in finding strategies for chasing payment/invoices without losing her temper with customers/suppliers, in dealing with a business account or the Inland Revenue without becoming angry or rude.

Two - the frequency of contact. The DWP are claiming the support worker told them she would see my client once every three months. However, I suspect that what they were actually told was that most people were seen about every three months. And "seen" is the operative word here - it is fairly clear that telephone support was available several times a week.

Obviously, some of the above will need to be clarified with the support worker. However, at this stage I have a couple of questions;

1) Given that the guidance is only guidance, rather than something set down in statute, what weight does it carry, particularly before a tribunal who have to decide the matter according to law?

2) It seems to me to be unjust and to a degree, irrational that a situation can exist whereby someone can have a condition which is accepted as one that incapacitates them, which puts barriers between them and finding paid work, but that the provisions which are supposed to help remedy that situation (in this case, Supported Permitted Work) are ones which a priori exclude them. Of course, the law often is unjust - I don't pretend to know enough about discrimmination legislation to know whether there's any viable challenge here. Opinions?

Thanks for any thoughts.....

Hi,

I hope this isn't too late to be useless.

All the rules for permitted work are in reguation 17 of the incapacity for work regs. The rules are not particularly onerous and I wouldn't have thought they require that much interpretation.

Reg 17(a)(iii) " is supervised by a person employed by... organisation engaged in the provision or procurement of work for persons who have a disability"

The sticking point in your case is interpretation of the word supervised. The quote you give from the DM guide, in particular the use of the words 'regularly' and 'direct (as in being told what work to do)' introduce specific tests that don't exist in law and, in my opionion, unnecessarily limit the scope of the permitted work scheme.

Different people will need differing kinds of supervision and in some cases (concievably in yours even) excessive supervision could be counter-productive.Therefore, it is impossible to be able to specify the amount and type of supervision required. I would be arguing that it should be interpreted as 'meaningful' supervision. In other words, the support worker doesn't just 'sign and forget'.

It's also worth remembering too that, unlike the old 'therapeutic work' scheme, no permission is required to undertake the work, so long as the 'required notice' is given.

In answer to your specific question; the guidance carries no legal weight. It is simply the DWP's own interpretation of the law. There was a commissioners decision about using guidance sometime ago (there's probably been several) but I'm afraid I can't remember anything about it. Maybe someone else might know...?

No, not too late at all - I managed to get the initial hearing adjourned....

However, I've searched for the decision that you refer to and it eludes me (neither this site nor the OSSCSC's allow much by way of refining one's search) so a pointer would be greatly appreciated.

Sorry, PC, I can't give you any more.

It's like a lot of things, you read it somewhere and then it's just stored away as an 'I'm sure I've seen'.

The chances are, that it was probably comments by a commissioner in an appeal (most likely on IB or DLA I should think) on which a more substantive issue was at stake. Unfortunately, I don't do 'talking book' welfare rights... :-/

Nevertheless, it is absolutely true that the guidance carries no legal weight and is the writer's opinion of the interpretation of the law. The legally qualified panel member will agree, I'm sure.

Sorry I can't be more specific.

See the discussion on the disability related benefits forum titled "legal status of disability handbook" started on 15/1/05

Nah, it's fine mate - I'm just one of those who prefers to represent with, as far as is possible, all of my ducks in a row.

It's perhaps the particular nature of my client's disability, as much as anything else, that has caused me to wobble on this one. She's extremely well-educated, extremely articulate and entirely unable to grasp the salient points which might win her the case.

The fact that "everyone else" (apparently) was seen by the supporting organisation once every three months is, she believes, enough to win the case. Despite my best efforts to disabuse her of the notion, she is unable to grasp the fact that, far from making a discrimmination case, what she's actually doing is setting out reasons why "everyone else" should fall foul of the SPW guidance too - whilst simultaneously undermining her own case by putting paid to any idea that her programme of support was unique and tailored to her needs.

Should I beg to differ, then I'm siding with the DWP and she insists that she has the right to put the arguments that she thinks are germane to the tribunal herself. And if I'm honest, I've no reason to doubt that, on the day, she'll do just that - it's all I can do for the moment to dissuade her from firing off a statement without reference to me.

In any other circumstances, of course, such behaviour would result in a demand that she either spit or cough. But I'm fully aware that the behaviour is, itself, precisely a manifestation of her illness.

And she's got what I believe to be a very good case, so I feel obliged. Sorry, venting here....

Just a little update to say we won on this yesterday - the chair accepting the "meaningful" argument in regards to the supervision. Interestingly, when the PO argued that, whilst he accepted that supervision had taken place more frequently than quarterly, there were longish periods where there was no supervision at all, the chair was prepared to go with my counter argument - that this was a self-employed business, started from scratch and that the appellant (understandably) wasn't actually working every week. Therefore, in those periods, supervision wasn't required.

Many thanks to Tony for helping me see the wood for the trees on this one. Client was good as gold in the hearing too.