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Treated as having LCW and day case patients
Our client was awaiting surgery to one of her arms when she was subjected to assessment and found not to have limited capability for work. She does have one fully functioning arm so there don’t appear to be any scoring descriptors, but she nonetheless appealed the decision before seeking advice.
Between the date of decision and hearing of her appeal she underwent surgery to her arm. We were hoping to use ESA Regs Reg 25 which treats a claimant as having LCW during the period when they are a hospital in-patient and when recovering from in-patient treatment. However it transpired that her surgery was undertaken as a day case and she was not admitted overnight. The Hospital In-patient Regs make clear that she cannot count as an in-patient.
Whether a patient receives day case surgery or is treated as an in-patient, for a specified procedure, appears to be something of a postcode lottery. It depends on whether day case facilities are available in a particular area, whether a bed is available in the day case unit on the day of surgery, and on the surgeon’s particular preferences.
This doesn’t seem to be very fair. (Whoever expects the social security system to be fair nowadays?) Does anybody have any comments about the situation?
CE/618/2011 I think answers your problem. What will be fun is argueing what is or what is not deemed to be a ‘bed.’ Does a client have to lie horizontal on sheets and have a sheet covering him/her or does it need a head board and pillow….....!
JM
Jon:
Many thanks for this. CE/618/2011 is exactly what I need. It’s clear that our client was “admitted” to the Day Case Unit, allocated a bed prior to surgery, had surgery under general anaesthetic and then woke up in a bed back on the ward.
R
The tribunal cannot take account of any change of circumstances after the date of the decision.
It thus seems your clients treatment cannot be taken into account, whether or not it was as an inpatient.
Victor
Of course not. We were hoping for a supercession by JC+.