Wed 24-Feb-10 02:07 PM by Neil Bateman

Am looking at a case involving work done while on IB back to 1999 with a £49K OP.

Earnings and hours of work were always below the then therapeutic earnings and hours thresholds and it was supported by a doctor's letter issued before the work started.

Am I right in thinking that version of reg 17 SS Incap for Work General Regs in force at that time did not require claimants to notify DWP in order to be able to do therapeutic work? I can't find an old version of this legislation for that time and old CPAG book and DRH are mute on the question of whether the claimant had to notify DWP.

Obviously it would have been a good idea to notify and there are all the arguments about duty to notify under reg 32 C&P Regs , but am I right in thinking that there was no specific notice requirement for therapeutic work from 1999?

A copy of the old version of the legislation would be appreciated if anyone has a copy to hand.

Many thanks.

Wed 24-Feb-10 03:55 PM by shawn

Hi Neil

The original form of reg 17 was in the following terms:

Exempt work
17.—(1) The categories of exempt work referred to in regulation 16(1)(a) are—
(a) work undertaken on the advice of a doctor which—
(i) helps to improve, or to prevent or delay deterioration in, the disease or bodily or mental disablement which causes that person's incapacity for work; or
(ii) is part of a treatment programme and is done under medical supervision while that person is an in-patient or regularly attending as an out-patient of a hospital or similar institution; or
(iii) is done while that person is attending an institution which provides sheltered work for people with disabilities;
(b) work done as a volunteer;
(c) duties undertaken as a member of a disability appeal tribunal or the Disability Living Allowance Advisory Board.

(2) The weekly limits in relation to exempt work are—
(a) that earnings from work referred to in paragraph (1)(a) do not exceed £43;
(b) that, subject to paragraph (3), the combined total of the number of hours spent doing work referred to in paragraph (1)(a)(i) or (b) is less than 16;
(c) that work referred to in paragraph (1)(c) is not undertaken on more than one day.

(3) A person shall not be treated as capable of work because he has exceeded the limit referred to in paragraph (2)(b) in any week, if he has worked or would be expected to work, as the case may be, an average of less than 16 hours a week—
(a) in a case where a recognisable cycle in respect of that person's work has been established, in the period of that cycle in which the week in question falls; or
(b) in any other case, in the period which comprises that week and the 4 weeks preceding it.

The 2002 amendment version (relevant bits):

Amendment of regulation 17 of the principal Regulations
3. Subject to regulation 6(1) below, in regulation 17 of the principal Regulations (exempt work) -
(a) in paragraph (1) for sub-paragraph (a) there shall be substituted the following sub-paragraph: -
" (a) work in respect of which the required notice is given, and -
(i) in respect of which the earnings in any week do not exceed £20.00, or

(ii) which is part of a treatment programme and is done under medical supervision while the person doing it is an in-patient, or is regularly attending as an out-patient, of a hospital or similar institution, or

(iii) which is supervised by a person employed by a public or local authority or voluntary organisation engaged in the provision or procurement of work for persons who have disabilities, or

(iv) to which paragraph (1A) below applies;";

"the required notice" means, in relation to work referred to in any of heads (i) to (iv) of paragraph (1)(a), notice to the effect that the person is undertaking, or is about to undertake the work, given in writing to the Secretary of State by that person or another person acting on his behalf -
(a) in the case of work referred to in paragraph (1)(a)(i) to (iii), at any time before the person ceases to undertake the work;

(b) in the case of work referred to in paragraph (1)(a)(iv), no later than the end of the period of 42 days which begins with the day on which the work begins;

So no notice requirement in the original regs but the requirement was there by 2002. I have not been able to find any other regs which amended reg 17 before 1995 but tomorrow I will be in our other office where I keep the old law books and I think I have the 1999 books.

Regards
Paul

Thanks for tidying that up for me Shawn.

Neil, Have not got the law volume for the years 1999 or 2001 but I have got the 2000 volume and reg 17 was, as regards notice, unamended from its original form.

Brilliant - thank you very much.

Neil - 2002 volume - amended from 8.4.02 by Soc Sec (Incapacity) (Misc Amends) regs 2002 SI 491/2002.

Is this by chance a case where the claimant had undertaking therapeutic work for some years prior to introduction of permitted work and DWP failed to act at the end of the transitionally protected period? We have seen a number of cases (including very recent!) where DWP has only just picked up the issue and a large overpayment of IB and/or IS has therefore occured (and related HB/CTB) amounting to £50K+.

Neither of the legislation extracts cited covers the issue of the length of time for which the work can be done. Before 2006, under the 2002 reforms it was definitely 26 weeks, but I simply can't remember whether there was a time limit for therapeutic work. I do remember that there were a lot of difficulties around the "doctor's recommendation" point: did the doctor actually say to the client (in writing) I think you should try a bit of work, it would do you a world of good", or did he say in response to a patient saying he was thinking about it, "Well, if you think you can, I don't think it would do any harm", which is not the same thing.

I'm bang up to speed on the time limits bit because we've currently got a client who was doing what she seems to have thought was permitted work between 2005 and 2008, for all but four months of it earning far to much to be permitted work.

Until 2000 (at least) there were no time limits in reg 17.