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Substantial risk to someone’s health
Hello everyone or anyone.
I was just wondering. Is anyone aware of a case where the dwp have found a claimant to have limited capability for work or work related activity for ESA, even though they do not fit the relevant descriptors, on the grounds that finding they do not have limited capability would pose a substantial risk to the claimant’s health? Or a case where the dwp have changed their own decision following a claimant’s appeal, on the grounds of substantial risk to the claimants health?
My experience is that although this regulation exists the dwp never seem to use it. I’m not even sure they genuinely consider it. It seems that claims or appeals on the basis of substantial risk to health are guarenteed to have to go to Tribunal.
Is this just my experience or does it seem to be this way across the board?
I have a client who had an ESA decison revised on the grounds of substantial risk if found fit for work- he suffers from severe anxiety and moderate depression.
For reasons best known to themselves they went down this route rather than awarding specific points for descriptors including being unable to get to unfamiliar places or reliably complete personal actions, even though the client has significant problems with both… and the lack of points on those descriptors is now being used by DLA as evidence to support a negative decision from them. *SIGH*
We agree that it’s very rare for a DM to invoke the exceptional circumstances provisions. We have had one case of a client suffering from systemic lupus erythematosus (SLE), and who was immuno-compromised, who scored zero points in the WCA but was eventually placed in the support group under Reg 35(2)(b). We did secure a very supportive letter from his hospital consultant.
I’ve seen where ATOS identified excep circs (the DM agreed with reg 29), for work pressure leading to increased suicide risk. This was seemingly on the claimant’s verbal account, not external evidence.
We’ve also had some appeals with decent evidence go in favour of the Support Group before hearing, for what we guessed were similar reasons, i.e. the DM was probably applying reg 35. These seem to work for severe and enduring mental health cases, rather than physical conditions.
Would be interesting to see the ratio of functional vs non-functional descriptor ESA awards, for tribunals compared to DWP…
We see loads of clients with alcohol issues and in the ESA 85 it is often recorded “drinks litre of vodka a day and a litre of strong cider” (or such like)
Then follows is a score of zero points and no application of regulation 29(2)(b) by the decision maker.
These types of cases are always successful at appeal tribunals.
I’ve just done an article summarising the caselaw on the exceptions in reg 29 and 35 (or at least the substantial risk exceptions) that points out the DWP Decision Maker’s inability to apply the reg 29 exception given no info is collected from claimant or ATOS about work a claimant could do etc.
It is fairly long by Welfare Rights Bulletin standards and is only online - the current edition has a note in News in Brief that it is on website and at least from today that is now true: http://www.cpag.org.uk/content/making-exception
It is intended to help advisers in preparing cases on reg 29 and reg 35 so hope it fulfills that purpose.
Martin
I’ve just done an article summarising the caselaw on the exceptions in reg 29 and 35 (or at least the substantial risk exceptions) that points out the DWP Decision Maker’s inability to apply the reg 29 exception given no info is collected from claimant or ATOS about work a claimant could do etc.
It is fairly long by Welfare Rights Bulletin standards and is only online - the current edition has a note in News in Brief that it is on website and at least from today that is now true: http://www.cpag.org.uk/content/making-exception
It is intended to help advisers in preparing cases on reg 29 and reg 35 so hope it fulfills that purpose.
Martin
This is a very good and helpful article. Thanks.
Thanks for the comments Garvey.
I see what you mean regarding the local programmes- however, I am not sure there should be anywhere where all that is required is a couple of chats a year (assume what is meant by this is Work Focussed Interviews which are not in fact a form of Work Related Activity at all).
The provider guidance on the Work Programme suggests groups of ESA claimants who will be required to participate in WRA: http://www.dwp.gov.uk/docs/wp-pg-chapter-2.pdf
The provider guidance is useful in general and can be found here: http://www.dwp.gov.uk/supplying-dwp/what-we-buy/welfare-to-work-services/provider-guidance/work-programme-provider.shtml
A4E and Ingeus appear to be the Derby providers.