Exceptional circs LCWRA

My client failed the WCA but decision was changed by the DM as she was found to qualify under Reg 29 (substantial risk to physical or mental health if found capable of work).  She was placed in the WRA group but has appealed to get into the support group.  I think she may qualify under the support group “mobilising” descriptor anyway, but also wonder why she doesn’t qualify under reg 35 (substantial risk if found capable of work-related activity).  The decision was changed on the basis of her strong medication and its effects, so don’t see why it would affect capability for work, but not work-related activity.

The commentary in Bonner for reg 35 refers to that for reg 29, so the arguments would seem to be the same for both.  Any ideas?

According to my client she has not been asked to attend any WFIs but as she has memory and drowsiness problems as well as mobility difficulties it could well be that she would need someone to attend with her.  Thanks for that - will explore further.

The answer may lie in the revised WCA Handbook for Healthcare Professionals at page 111 -

“A second non-functional descriptor (relating to specific condition) is also listed in the ESA 85A.
•  The claimant is suffering from some form of specific disease or bodily or mental disablement and, by reasons of such a disease or disablement, there would be a substantial risk to the mental or physical health of any person if they were found not to have limited capability for work.

It should be noted that regulations specify that this NFD must be considered separately for LCW and LCWRA.  Therefore HCPs must give careful consideration as to whether it applies to both LCW and LCWRA or to LCW alone.  However, it is extremely unlikely that someone who is at substantial risk for work would not be at substantial risk for work related activity and therefore for all practical purposes it is likely that it will apply to both.”

Caries no force in law per se but I think it may be a useful document to refer to the DWP or Tribunal

Brilliant! Thank you!
Anne

I think one way to argue this is by highlighting the nature of the ESA scheme.

While there are separate descriptor schedules for assessing who should be placed in the work related activity group and the support group in reality both overlap.

The highest scoring15 point descriptors for both the physical and mental / cognitive/ intellectual descriptors “match” the support group descriptors.

The rationale for this is that someone cannot have a limited capability for work related activity unless they also have a limited capability for work.

Similarly, this explains why there is both a regulation 29 and regulation 35.

In order for someone to have a limited capability for work related activity due to “substantial risk” they must also be a means to determine that they have a limited capability for work on the grounds of “substantial risk”.

From this logic, regulation 29 and regulation 35 work in conjunction with each other as do the descriptors in Schedule 2 and Schedule 3.

As a result, if regulation 29 is ticked then regulation 35 must be ticked as well.