Client has twice failed to attend medical (for his first WCA). First time it was accepted because he had told them to attend would mean a serious deterioration in his mental health. They sent out another appt letter which he says he didn't get.

He wants to appeal on two counts -

Firstly that he didn't receive the appt (which we're ok with) but it's the second count I'm struggling with -

He says if the Tribunal find he did receive the appointment letter then he is adamant he should be treated as having limited capability for work without an assessment. He has long standing mental health problems and having to attend would put his mental health at serious risk (he's already written to DWP to tell them that in his circumstances such sessments are in breach of the DDA).

I read and re-read the regs but could really do with some pointers please as I've got an absolute mental block on this one.

Would Reg 29 (as in the old reg 27 of the IB regs) come into play here?

If there was evidence that his condition is such that his working would lead to a serious threat to his or any other person's health etc then the rest of the WCA wouldn't apply and it would not seem very logical to require him to attend a medical as whatever concusions were reached as a result of the medical would have no effect on the decision.

I don't know if this is a solution to the problem of his not actually going to the medical but it may provide a place to start from.

You would have to have good medical evidence directly on point (re - reg 29) and about not being able to appear in person for a tribunal to find for him without being able to question him. I heave a big inward groan when I hear clients say things like " they're in breach of the DDA they are" or "its a breach of me human rights", particularly when the day has only just started.

Try reg 35 of the ESA regs, particularly para 2.

Certain claimants to be treated as having limited capability for work-related activity
35—(1) A claimant is to be treated as having limited capability for work-related activity if—
(a) the claimant is terminally ill;
(b) the claimant is—
(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or
(ii) recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or
(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.
(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—
(a) the claimant suffers from some specific disease or bodily or mental disablement; and
(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

I have already argued this point sucessfuly a few times at Tribunals and also had a few revised decisions prior to the hearing after sending in supporting evidence from the CMHN or consultant psychiatrist

(CMHN is the new term for a CPN)
Community Mental Health Nurse - CMHN
Community Psychiatric Nurse - CPN

Good afternoon Steve, by the way.

The only problem with regs 29 and 35(2) for this situation is that they have a pre-requirement that you do not have a limited capability for work, or a limited capability for work related activity respectively. If someone has not yet been assessed for the work capability assessment, I think it is unlikely that DWP would jump to apply either regulation. In your cases, where a decision has already been made, they can readily apply.

Just a thought

Brian

just a thought from me...

yes but technically they have decided he does not have LCFW because he failed to attend.

I would say they haven't, if you look at reg 19. The decision at reg 23 is to treat a person who fails to attend as not having a limited capability for work. Reg 29(1) says that -

A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

I do not think your client has had a "determination in accordance with the limited capability for work assessment"

The limited capability for work assessment is described at reg 19(2) -

The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

Up until the first application of the WCA, the client will only be treated as having limited capability for work under reg 30. If s/he is then treated as not having a limited capabiltiy for work under reg 23, I can't see how reg 29(2) can apply, the conditions of reg 29(1) not having been satisfied.

You cannot jump straight to reg 35 because that pre-supposes that the person has a limited capability for work. It is only limited capabilityfor work that is a condition of entitlement, not limited capability for work related activity.

If a person had passed the WCA, then failed to attend for the next WCA, s/he would have an existing determination that s/he had a limited capability for work. Reg 23 would operate so as to treat a person who did have a limited capability for work as if s/he didn't. I don't think that you could then argue that reg 29 applied (or 35) so as to defeat the reg 23 decision directly

Brian

This has all been very helpful.

Thanks very much indeed for taking so much time

With all due respects to Steve H I think that Reg 35 only applies to the decision as to whether the claimant is in the Work Related Activity group or the Support group but it does raise an additional point that anyone found to have LCFW under reg 29 would automatically go to the Support group, I'm sure everyone knows that already but I thought I would raise it anyway!

With regard to Brian's point I think I would argue that treating someone who doesn't attend as not having LCFW is synonymous with the actual medical etc, the outcome is the same in both cases, ESA stops. The medical is in any case not compulsory, reg 23 says that the claimant MAY be called for a medical, not that they MUST be. I'm probably clutching at straws but it seems to indicate that the decsion can be made without necessarily having a medical (the ESA 50 may be sufficient) and if a determination was made under reg 23 that may be enough to satisfy reg29(1).

Sorry Pete, I have to disagree with you on both counts.

Someone who satisfies reg 29(2) does not automatically satisfy reg 35, and so go into the support group. Reg 29(2) refers to there being a substantial risk to the mental or physical health of any person if the claimant were found not to have a limited capabilty for work, reg 35(2) applies where the risk can be shown if the person is found not to have limited capability for work related activity. "Work" and "work related activity" are not one and the same

On the second point, I would have to say it isn't the same. Yes, they do not have to call someone for a medical, but once they do, a person must not only attend but also submit to a medical, and a failure to do so without good cause will incur the sanction of being treated as not having a limited capability for work, whatever happened before.

Reg 29(1), in conjunction with reg 19, seems fairly clear on what is an assessment

You can have a situation where someone is treated as having limited capability for work under reg 29, then is called for another medical. Notwithstanding the fact that s/he was already treated as having a limited capability for work, s/he will be treated as not having limited capability for work under reg 23.