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Support Group and Reg.29
Saw client today who has appeal on Saturday. I will do a submission but wanted thoughts on how to frame the submission. Client has multiple serious health problems and gets HRM DLA indef. He lost his job last year, claimed ESA, went for medical , got 9 points on mobilising. On receipt of medical evidence the DM put him in WRAG under Reg.29. He has appealed to get into support group.
I think on evidence the DM should have awarded 15 points on mobilising, rather than used Reg.29.
For support group I think he should satisfy mobilising descriptor, possible a few others and there is always Reg.35.
My question is; as decision by ATOS to award 9 points on mobilising was untouched by DM who used Reg.29, If I want to argue mobilising descriptor for support group, will I have to attack original decision to use Reg.29 rather than 15 points on mobilising? Or can I still accept Reg.29 decision and still argue for support group mobiliser descriptor - it just seems odd to not challenge the 9 points if we are arguing for support group mobilising descriptor.
Many thanks!
Thanks for that. I would rather not get into challenging the basis for the DM’s decision unless I have too, its just that a decision under Reg.29 does not seem to sit well with an argument that the support group mobilising descriptor applies. If I have to open up the issue of why and how my client passed the WCA in the first place, the Tribunal might just say “Well let’s look at this more closely then, shall we?” and given some of the decisions I have seen recently, I just don’t trust them to make the right decision!
Well I would lodge the appeal anyway. Then see the reasoning as to why the DM applied reg 29 and not award points for mobility issues.
After considering that reasoning you could look to extend that argument to apply reg 35.
Have a very similar case shortly. 9 points on mobilising but put in WRAG on Reg 29.
The client has had a previous amputation of lower leg. He has recurring cysts on stump which have been bleeding for months hence Reg 29 as “a return to work would be detrimental to the customers physical health”.
My appeal for support group will be two pronged….that 15 points were relevant at time of decision…....and that the requirement for work related activity would also “be detrimental to the customers physical health”.
Surely a persons ability to get to and from such venues of work related activity must be considered????
Anyone got and thoughts advice in this area?
look at CES/22/2013 which says:
In Charlton v. Secretary of State for Work and Pensions [2009] EWCA Civ 42, the Court of Appeal at paragraph 34 of its decision said that regulation 29(2)(b) might be satisfied:
‘Where the very finding of capability might create a substantial risk to a claimant’s health or that of others, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused. Apart from that, probably rare, situation, the determination must be made in the context of the journey to or from work or in the work place itself’.
It follows that in the same way it is necessary, under regulation 35, to make the evaluation of substantial risk, not just an exercise limited to the ability to cope with the work related interview at the Job Centre, but also ‘in the context of the journey to or from’ such an interview. This point has particular relevance to a claimant arguing under activity 13 of Schedule 3. The tribunal therefore went wrong in applying too narrow a statutory test, saying only ‘he should be able to cope with a work related interview at the Jobcentre’.
just used it in a leave to appeal to the upper tribunal - so fingers crossed it works
One query I had when reading that decision, and I appreciate I haven’t really looked at everything as fully as I would like to, is that I think a work focused interview isn’t work related activity.
The potential requirement to undertake work related activity (under section 13 of the WRA) applies where someone is subject to the requirement under section 12(1) to take part in one or more work focused interviews.
There are separate regulations governing compliance and requirements in relation to work related activity to those about work focused interviews.
Now, regulation 35(2) may apply to a substantial risk to the person’s health (or anyone else’s) in the context of the trip to/from the interview or attending the interview itself. That interview is an obvious consequence of not having limited capability for work related activity. However, the WFI can take place at the person’s home (reg 56(2) ESA Regs) which probably limits this to cases where the risk arises out of the interview itself.
So, what work relativity is the claimant going to be expected to undertake, and which may or may not pose a substantial risk? The absence of any information in appeal submissions or ESA85s means that the tribunal does not really have any idea what activity it is to assess the risk against. That is why I have found that they seem to assess the risk solely in relation to the WFI.
In the guidance to HCPs, it says -
“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.”
Perhaps we should press for details of the WRA envisaged by the DWP in any paricular case.
look at CES/22/2013 which says:
In Charlton v. Secretary…........................
Would any kind person have a link to this decision????? Need it quick.
It’s CSE/22/2013.
It’s CSE/22/2013.
Many thanks :)
Just an update to my original post - the Tribunal allowed the appeal under Reg 35 - I think they preferred this option as the client had passed the WCA under Reg.29, so they did not want to go into the issue of Reg.29 should have been applied rather than the descriptors proper.
Update on my own case.
Tribunal accepted that client satisfied descritor 1a of Schedule 3 hence Support Group.
To “tidy things up” they awarded him 15 points for descriptor 1a of Schedule 2. [wca]
Good appeal win as client had not had any ESA payment for past year having had his 365 days expire under his previous WRAG entitlement. (wife in full time employment). Nice bit of backdating coming his way. :)