Wonder if anyone has come across this before.

Client has been refused IB following PCA medical examination. Client reports that he wasn't sent IB50 to complete and certainly the schedule of evidence doesn't contain one. The DM has noted in submission that IB50 was sent to client but not returned although no evidence has been offered to this effect and no suggestion that reminder was sent.

Looking at Reg 6. of the Incapacity for work (General) regs it appears to me that the SoS can only waive the requirement for a completed IB50 where he considers that he already has sufficient information to decide on capacity for work. Otherwise he should send reminder and then, if that's not returned, find claimant fit for work. In this case the SoS, according to DM submission anyway, sent out an IB50 and then, when this wasn't returned simply ordered a BAMS medical and forgot about the IB50. I don't think he can do this: either he has sufficient information to make a decision without the further information contained in an IB50, in which case he should simply make a decision, or he doesn't in which case he should send out an IB50, then a reminder, and then, if the claimant still doesn't provide a completed IB50, make a finding that the claimant is fit for work.

Am I reading this right or can it be the case that the SoS can simply waive the requirement for an IB50 at will and then request a BAMS medical?

The decision-maker would appear to have got this wrong.

Reg 6 provides the power to gather information by way of a questionnaire and where the DM has sufficient information the questionnaire is not required. In this case you could assume that that the DM has sufficient information, since he or she did not bother with the IB50. If that is the case, the person remains incapable of work.

If the DM wishes to proceed further, reg 7 becomes applicable. Reg 7 (2) states that a person shall not be treated as capable of work...unless at least 6 weeks have elapsed since the SoS sent that person the first request for that information, and the SoS has sent a further request 4 weeks later and at least 2 weeks have elapsed since the further request was sent.

As reg 7 (2) has not been satisfied the person should not be treated as capable of work.

Thanks Steve - you appear to be reading it the same as me.

My only concern is that I'm not convinced that the DM is explicitly prevented from gathering other information (such as a BAMS medical report) before considering whether an IB50 is necessary. Logically consideration of an IB50 should come first but do the regulations demand this?

I've just had a look at the DM Guide.

13702
A determination that a person is capable of work for non return of the questionnaire is not appropriate if a person fails to return the form but the Secretary of State has exercised the discretion to proceed without it.

This probably the reasoning behind the DM's actions, but the guidance falls somewhat short of the regulations. The Regs say that the SoS can continue without the IB50 where he is "satisfied that he has sufficient information for a determination whether a person is capable or incapable of work".

At that point he had no information at all, and so could not have been satisfied that he had sufficient information to come to a determination.

Reg 7 (2) therefore applies.