My client's husband has just left her. She has osteoporosis but is managing to work for 3-4 hours per week earning £20 per week. She considers herself to be unable to work any more than this and is trying to claim IB and IS. Can work that a client is already doing at the outset of a claim be treated permitted work, or does the benefit have to be in payment before the work begins?

Inconveniently, the client is doing the work at her GPs surgery and he appears to be in a dilemma about issuing a Med3, the printed wording of which ('..I have advised you to refrain from work for...') does not lend itself to a situation in which the prospective recipient is doing a small amount of work. I have asked the GP to provide a Med3 amended to indicate that the client has been advised to refrain from work for more than 4 hours per week, but this seems a very cumbersome approach. Is there a more appropriate form of certification available to claimants doing permitted work who still have to submit med certs?

Peter,

I hope this reply isn't too late to be totally useless.

Reg 16(1)(a) SS(IFW)Regs 1995 allows any person to be treated as incapable of work if they fall into any category of exempt work in regulation 17(1)

Reg 17(1)(a)(i) provides for exempt work for which "the required notice" is given and earnings do not exceed £20 a week.

Reg 17(1E). Required notice means: "...notice to the effect that the person IS undertaking or OR IS ABOUT TO undertake the work..." <17(1E)(a)> "...at any time before the person ceases...the work".

Therefore, in your case, this work is exempt work. There is a lot of doubt in this area and I think this is a residual effect from the old therapeutic earnings rules where the notice of the work was required before starting the work.

This will not apply to everyone though. Take note that for the permitted work higher limit, the required notice must be given within 42 days of starting the work. I would still argue that the crossover can apply where the person is working before the claim, but if they have been doing the work for 42 days before the claim, it is much less clear cut. I suppose it could be argued that in this context the regulation could be read as "...42 days of starting the work or 42 following the claim for benefit, whichever is first". This could be justified by the inlcusion in 17(1E) of the words "the person IS undertaking". Alternatively, a short period of sick leave from the job should suffice before returning under the permitted work rules.

I have just advised someone who is self employed to try to claim ICB arguing that the remaining work he is doing should fit within the permitted work higher limit. He has motor neurone disease and has had to wind down his business. He is still managing do a little (less than 16 hours and £75 av a week for the last 42 days). He may not be able to continue for much more than 26 weeks.

It will be interesting to see what the decision is.