Hi all. Am confusing myself! Am just putting together a submission for a client who has bi-polar disorder with manic episodes. Have identified various descriptors where I feel she should score points but also want to argue she should be treated as having ltd capability to wk under reg 29, exceptional circumstances, as there would be a substantial risk to the mental/physical health of any person if client found not to have ltd capability etc...

Now, here's where I get stuck. If the panel agree reg 29 applies then does client immediately go into the support group, or do I need to quote reg 35, which similarly states that there would be a substantial risk to the mental/physical health of any person if client found not to have ltd capability for WRA? Can also show which descriptors from LCWRA assessment apply to client so we can also argue for the support group based on these so that's all bases I covered I guess!!

Hard to know what to do about the support group really. Last time I saw client she was having a good day but according to her CPN her condition is severe and enduring. Client talks about possibly returning to work and is still employed be the local council so has seen oc. health etc, but returning to work just isn't realistic at the moment and may never be. Client tries to stay positive which is good but I feel sometimes it means she downplays her condition to others - incuding the EMP. If I do put all my eggs in one basket and request the support group, then even if the panel disagree, as long as she has passed the WCA then they can just put her in the work-related activity component group. Can't they?

Thanks.

My approach at ICB appeals has always been to outline, orally, at the hearing which descriptors I want the tribunal to look at and then, in an appropriate case, put forward the exceptional circumstances argument as a back up.

I have had tribunals make decisions to allow appeals on exceptional circumstances at the outset of the hearing. Fine by me, in and out in less than 5 minutes, minimum stress for client.

I haven’t done my first ESA appeal yet (although have a good few cases waiting for listing) but I have had 2 decisions revised prior to the hearing, one, funnily enough, on your exceptional circumstances argument. Client went straight into the support group. However, my approach at the hearing will be exactly the same for ICB but also to outline any LCFWRA descriptors that I thought applied.

Because the DWP have already determined that the claimant does not have LCFW and LCFWRA then If a tribunal finds as a fact that “there would be a substantial risk to the mental/physical health of any person if client found not to have ltd capability etc...” whether at the outset of the hearing or after going through the descriptors and failing to award 15 points then it has no option but to find that the claimant has LCFW and LCFWRA. That is all that the tribunal does. The decision then goes back to the DWP to put the claimant in the support group. The DWP will have no option but to do that.

The tribunal can go through the LCFW descriptors solely or the LCFW and the LCFWRA descriptors or not go through any of them at all but so long as it finds in fact that “there would be a substantial risk to the mental/physical health of any person if client found not to have ltd capability etc...” then the claimant goes straight into the support group.

I'm not sure I would agree. There is a difference between the tests at regulations 29 and 35 in that the former assesses risk if found not to have a limited capability for work, and the latter assesses risk if found not to have a limited capability for work related activity. I think that it is entirely possible that a decision maker or tribunal could find that there would be a substantial risk to the health of any person if the claimant were to be found as not having a limited capability for work, whilst deciding that there would be no such risk if s/he be found to not to have limited capability for work related activity

(Brian)

Just to say thanks for replies. Appeal on 22/10 so have just finished submission taking advice on board.

Sarah