I have a client who didnt attend her medical and IB stopped

we have appealled, and in the meantime she has reclaimed and has asked for new claim to run from day after old claim stopped

in order to make the 2 claims concurrent it was nessecary to ask for a backdate on the new claim - it was within 3 months so I thought that it would be OK.

IB office want medical certificates for the backdate period - client has got a medical certificate that covers her for the whole backdate period, this is where I thought the issue ended, I was wrong!

IB office tell me that the certificate is no good because it was provided in connection with her old claim.

It was written by her doctor at the start of a 3 month period, and client sent it to IB office while her old claim was still live.

IB office have filed it in storage and have refused to retrieve it on the basis that it isn't valid anyway.

is the certificate no good?, or are the IB office taking me for a complete fool and fobbing me off with a python-esque wind up!

- I think it ought to be valid, after all, if she gets another one it will be from the same doctor confirming the same condition for the same period,

please advise, thanks

Jim Cook

I haven't read up on this, but I suspect the DWP are correct.

If the decision that the claimant is not incapable of work was made after the last certificate was submitted, then that certificate would be rendered useless by the decision. It follows that a new claim must be followed by a some new evidence of incapacity. Otherwise, a person who submitted an 'indefinite' sick-note would be able to rely on that for the rest of thier life regardless of how often they went to and fro from work (to take an extreme example).

I think your client needs a new med 3.

Assuming you're interpretation is the right one, would not obtaining a new Med 3 be the best solution anyway, rather than spending months going through complaints and appeals for an outcome that is not certain...?

I've had some helpful advie from Kate Smith a Citizens Advice SSU, and thought I wouls share it, (hope you dont mind Kate!) -

Hi Jim

I've had a look at the SS (Medical Evidence) Regulations 1976 and also REG 6 SS(Incapacity For Work) (General) Regulations 1995 and believe that the Med 3 certificate already submitted in connection with the first claim could be accepted by the DWP as evidence of incapacity for the new claim. Although REG 2 of the Medical Evidence Regulations (available via this link to the DWP law volumes http://www.dwp.gov.uk/advisers/docs/lawvols/bluevol/pdf/a3_5751.pdf) states that a claimant shall provide evidence of incapacity by means of a certificate in writing given by a doctor in accordance with the rules set out later in the regulations, REG 2(1)d) provides an exception. Where it would be unreasonable to require a person to provide a statement the DWP can accept "such other evidence as may be sufficient to show that he should refrain (or should have refrained) from work...". You could argue that in the circumstances of this case the DWP should accept the certificate submitted for the old claim and the client's own evidence that she was incapable of work.

If you client had been found fit for work following a medical then the DWP would easily be able to argue that the medical certificate submitted during the period of the last claim is now useless as they would have another lot of medical evidence stating she is fit. However, in this case your client is being treated as capable to penalise her for failing to attend a medical rather than having been found capable after an examination. There is no medical or other evidence to show that she is physically or mentally capable of working and a valid sick note stating that she was to refrain from work. Having said that the old certificate should be good enough, practically it would be easier for your client to obtain a backdated Med 5 sicknote from her new GP.

As we discussed, a claimant who has been treated as capable or found fit following a medical within the last 6 months cannot be treated as incapable before attending a medical. This does not mean that the claim should automaticaly be refused just that no benefit will be paid unless she passes a PCA. This means that your client is taking a risk because if she fails a PCA she will not be entitled to IS/IB and will have a gap in benefit from the date she failed to attend until the date she reclaims JSA/another benefit. Although she could claim reduced rate Income Support whilst waiting for the appeal against failure of the PCA this can only be done once an appeal has been made.

Unfortunately the rules do not allow a claimant in your client's position to claim reduced rate Income Support whilst waiting for the appeal against the decision that she had good cause for failing to attend a medical so there is no way other than passing a PCA that your client can secure income without signing on for JSA.

I hope the above answers your question. Please could you e-mail back to confirm this has reached you?

Thanks

Best wishes

Kate