Hello

My client didn't attend her ESA medical and insists that she did not get the letter. She's appealled on grounds of good cause.

My assumption has been that she cannot claim ESA assessment phase while awaiting the appeal (in an analogous manner to IB/IS failure to attend appeals), but I'm not sure that this is clear from the regs

Reg 6 states 'where claimant... is persuing an appeal against a decision... that that claimant does not have limited capacity for work'

The effect of failing to attend the medical seems to be that my client is treated as not having limited capacity for work. Is it the addition of the phrase 'treated as' in the decision that means she cannot claim ESA while appealing?

Has anyone got any ideas, or know the answer for certain? She's a severe agrophobic and there's no way she'll be able to claim JSA while awaiting the appeal so the only other alternative is reclaiming on the grounds that her condition has worsened

thanks

Here are my thoughts on the matter. I have a similar case and below is the conclusion I have drawn, though I too would welcome confirmation or clarification of my thinking on this.

To qualify under Reg 6, the claimant must be “pursuing an appeal against a decision which embodies a determination that that claimant does not have limited capability for work.” If the claimant undergoes the limited capability for work assessment (and has scored insufficient points) this clearly is a determination. However, if the claimant fails to attend the medical, she has not undergone the assessment, and thus a determination has not been made on her limited capability. Under Reg 19 (1) the determination in question is the limited capability for work assessment, and Reg 19 (7) makes a distinction between determination of limited capability for work in 19(7)(a), and being treated as having limited capability for work in 19 (7)(b).

Where someone has failed to attend a medical they are treated as not having limited capability for work under Reg 23 (2). Thus because the decision has not embodied a determination, she would not qualify under Reg 6, for ESA assessment phase, and instead would have to claim JSA, pending the appeal.

Obviously having to claim JSA won't help your client.

She can re-claim ESA if she has a 'new' condition or the condition has significantly worsened since the decision to treat her as not having limited capability for work (Reg 30(2)(b) ESA regs). Otherwise she has to wait 6mths from that decision to get any ESA, initially with med certs before medical assessment.

Thanks for that - similar to my thinking, but explained better

I've already told her she'll need to get her GP to confirm that her condition has significantly worsened - 'luckily' the stress of having her claim end and having a reduced income (only CTC CHB and DLA lm )has caused her a lot more stress and she has worsened...

Yes, there is a fundamental difference between actual and deemed incapacity and the effects of both are as you describe. Exactly the same as under ICB.