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New claims on basis of deterioration
Client has psychotic disorder and has had her ESA stopped following 3 failures to attend a medical assessment (appears that good cause was accepted for the first 2 but that 3rd was the final straw).
She gets DLA MRC LRM, but her support worker is very worried about the effect on her condition of the stress of going through appeal process and in the meantime living on much less income or claiming JSA (support worker stated pretty categorically that client would be unable to maintain JSA claim).
If client’s doctor is prepared to state that the stress of her ESA stopping has caused her MH condition to deteriorate, does the DWP have any scope for refusing to pay on a new claim pending their own medical assessment that could establish whether this is the case? How severe does a deterioration have to be in order for the normal 6 month rule to be ignored?
There is a paragraph about this in Sweet & Maxwell Social Security Legislation Vol I p 818. It says there ‘significantly worsened’ must be related to the Work Capability Assessment,i.e if worsened to the extent that the claimant would now satisfy the test. And it says if there is evidence that that he would fail, this means that condition has not significantly worsened , referring to CIB/1959/1977 and CIB/2198/97 para 30.
So I suppose you would have to get some evidence that client now satisfies an additional descriptor they did not satisfy before, at the time of the assessment.
There is a paragraph about this in Sweet & Maxwell Social Security Legislation Vol I p 818. It says there ‘significantly worsened’ must be related to the Work Capability Assessment,i.e if worsened to the extent that the claimant would now satisfy the test. And it says if there is evidence that that he would fail, this means that condition has not significantly worsened , referring to CIB/1959/1977 and CIB/2198/97 para 30.
So I suppose you would have to get some evidence that client now satisfies an additional descriptor they did not satisfy before, at the time of the assessment.
First of all thanks for the reply.
The difficulty with the above is that client has never attended a medical and been assessed. If she had attended a medical in the first place she would clearly have passed it but her failure to attend means that she is being treated as fit for work.
I guess you’d argue that she has deteriorated since the last decision as that one found that she was well enough to work and now she clearly isn’t and would pass the test. You’d essentially be reversing the principle you highlighted (i.e that if it is clear that she would now be found to have LCW then her condition must have deteriorated)?
Sorry, I did not read that part about the missed assessments properly. Not sure how this will work then. Could you identify any additional problems to the problems stated on ESA50?
..If client’s doctor is prepared to state that the stress of her ESA stopping has caused her MH condition to deteriorate, does the DWP have any scope for refusing to pay on a new claim pending their own medical assessment that could establish whether this is the case?
The client’s doctor’s evidence is not conclusive. The DMG allows a DM to refer the question to ATOS. I had always regarded the question of worsening as one of fact not law but the caselaw that AndreaM quotes suggests otherwise. However, that caselaw has been doubted, albeit obiter, in SK v SSWP [2009] UKUT 121.
One mischief that Reg 30 tries to address is the claimant who would, if he could, stay on ESA indefinitely by simply refusing to attend medicals. However, an inherent problem for the draftsman is the fact that most claimants’ health is likely to worsen if, after failing to attend a medical, they cannot be paid ESA until they do attend. In that sense, Reg 30 has the potential to be self defeating: the ban on payment which it imposes creates the very condition (ie, worsening) which allows the ban to be lifted.
Reg 30 refers to either a worsening is a person’s disease or bodily or mental disablement. If CIB/1959/1997 etc were correct it would render otiose Reg 30(1) because, in holding that significant worsening = actual LCW, the claimant who was found to have significantly worsened would have “actual” LCW and have no need to rely on being treated as having LCW under Reg 30(1).
I think the policy intention behind Reg 30 is to draw a distinction between those claimants whose worsening would have happened anyway regardless of their earlier failure to attend and those whose worsening is directly caused by such failure (ie, they now have no money to live on). It would like to penalise the latter only. But it doesn’t achieve that intent in my view. I’ve not had many cases where a client is asserting significant worsening so don’t know the threshold the DM/ATOS use for significant worsening? Probably a high one though “significant” has been interpreted elsewhere as simply “more than minimal”.