MED 3 - ‘you may be fit for work…........’

Hi, all advice appreciated and urgently needed!

My client has been claiming ESA and failed WCA in 2010. She is appealing and we have requested payments be re-instated but their GP insisted on issuing a Med 3 ticking the ‘you may be fit for work taking account of a phased return to work and altered hours.

Client suffered a stroke hence claim for ESA. Now the BDC are refusing the Med 3 because the GP will not put a ‘to’ date on the Med 3 only a ‘from’ date. I have raised this with the GP and they are adamant that no ‘to’ date is required but we are now in a Catch22 situation as DWP won’t pay and GP won’t amend!! DWP are adamant they will not accept an undated Med 3 but I cannot locate any guidance to support this.

Consequently client has no money being paid - please advise!

Many thanks

Guidance to GPs is at http://www.dwp.gov.uk/docs/fitnote-gp-guide.pdf

Para 7, page 11 indicates that the doctor should specify how long their advice is for.

I think the DWP is wrong.  The provision is rule 13 of schedule 1 of The Social Security (Medical Evidence) Regulations 1976 which allows for the doctor to specify an open ended period after 6 months of the issue of the first sick note.  The first two sick notes must be for a maximum of three months each (rules 11 and 12).  After that it is up to the doctor.

The reg simply talks about advice about being not fit for work following assessment by the doctor (in practice the G.P.).  There is no mention of periods of limited capability for work or the life of benefit claims for the purposes of the ESA Regs so there is no justification for alleging that the claimant goes back to square one after failing the WCA, the supersession of the last operative decision or ESA assessment rate starting again while an appeal is pending.

The DM’s guide (42095) states “A doctor’s statement is a statement given in writing by a doctor. They are made on an approved form1.”
1 reg 2(1) & Sch 1, Pt 2

This appears to mean “medical evidence” means—
(a) evidence from a health care professional approved by the Secretary of State; and
(b) evidence (if any) from any health care professional or a hospital or similar institution.

As stated above there does not appear to be a requirement that the GP must state a date on it.

Has the BDC said why there must be a date and if so which regulation they are relying on?

The Medical Evidence Regs have been amended several times since they were first laid.  The most recent amendment was
The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010
SI 2010/137 (available on OPSI).

The amendments take into account the introduction of the concept of limited capability for work, which arrived with ESA.  The revised Schedule 1, Part 1 gives the Rules for completion of Med3s by doctors and states:

11.  Subject to rules 12 and 13, the doctor’s statement shall specify the minimum period for which, in the doctor’s opinion, the patient will not be fit for work or, as the case may be, for which they may be fit for work.

12.  The period specified shall begin on the date of the assessment on which the doctor’s statement is based and shall not exceed 3 months unless the patient has, on the advice of a doctor, refrained from work for at least 6 months immediately preceding that date.

13.  Where—

(a)the patient has been advised by a doctor that they are not fit for work and, in consequence, has refrained from work for at least 6 months immediately preceding the date of the assessment on which the doctor’s statement is based; and.
(b)in the doctor’s opinion, the patient will not be fit for work for the foreseeable future,.
instead of specifying a period, the doctor may, having regard to the circumstances of the particular case, enter, after the words “case for”, the words “an indefinite period”.

In other words, although the doctor MAY write ‘indefinite period’ on the certificate, they should specify some minimum period, and cannnot just leave that section blank.

Thanks for all the advice - so presumably then I should query again with my client’s GP why they are refusing to put a ‘to’ date on the original Med 3…............didn’t get very far yesterday with them….....

Thanks for all the advice everyone…..I am pleased to update my client’s ESA has now been awarded - and back-dated in full, following successful appeal.