Hello,

Can anyone point me in the direction of the relevant regulations that can help me out here.

If someone is permanently resident in a care home due to mental illness- does this mean they are automatically deemed to have limited capability for work AND limited capability for work related activity?

Is a residential care home 'a similar institution' to a hospital and therefore someone can be classed as a hospital in-patient? Although this just gives someone access to ESA they could potentially be placed in the WRAG, but it doesn't seem right to me that someone in a residential care home would be expected to go to WFIs.............

Any thoughts or experiences of how this kind of situation has been dealt with grately appeciated.

Thanks.

I guess I should clarify the reason I'm asking- I've had a query from someone who is in receipt of IB but is extremely anxious about the transition onto ESA and was wondering how clients in this position would be dealt with under the WCA rather than the PCA.

Cheers

Regulation 35 of the Employment and Support Allowance Regulations states the following categories of people as being automatically treated as having limited capability for work related activity. This is listed below:-

.—(1) A claimant is to be treated as having limited capability for work-related activity if—

(a) the claimant is terminally ill;
(b) the claimant is—
(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or
(ii) recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or
(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.
(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

(a) the claimant suffers from some specific disease or bodily or mental disablement; and
(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

Being in a care home isnt listed here but you client might still be deemd to have limited capability for work related activity if she meets any of the limited capability for work related activity descriptors or the exceptional circumstances criteria.