Reg 29 and Reg 35

Hi All

There have been some interesting UT decisions on these recently and how they interact. In particular there was the recent one where the appellant was placed in the WRAG by the DM on Reg. 29 and appealed to get into the support group. The Tribunal went into the Sch 2 descriptors at the appeal, even though she had already got through on Reg.29, and the UT said that was the proper way to do it before going on to consider Sch 3 and possibly Reg, 35. In that case the appellant was passed by the Tribunal on the Sch 2 descriptors rather than Reg.29 which the DM had used.

One interpretation may be that it is not possible to get through on Reg 29 and then get into the support group through Reg.35 - what do people think?

It was more like; you can only satisfy reg 29 if it’s established that sch 2 isn’t met. If sch 2 isn’t met you’ve not the proverbial cat’s chance of a sch 3 descriptor so the Tribunal was compelled to consider sch 2 in being asked to consider sch 3.

In other words as Sched 3 is so close to sched 2 in terms of activities assessed then it’s inevitable that you’ll be making findings material to sch 2 so it’s disingenuous not to consider sch 2 when looking at sch 3 (which the solicitors had asked the tribunal to do).

I couldn’t see anything in that decision that would prevent getting through on 29 & 35, more that you can’t get through on 29 & sch 3

DManville - 07 March 2014 10:43 AM

If sch 2 isn’t met you’ve not the proverbial cat’s chance of a sch 3 descriptor

A possible rare exception: someone once asked on this forum about a client who could not chew or swallow, i.e. they met a schedule 3 descriptor. But they did not appear to meet any of schedule 2. Is it possible to have LCWRA, but not have LCW?

Good point! But I don’t have an answer - anyone else?

Thanks for the response Dan, makes sense.

A person is treated as having limited capability for work under reg 20(1)(g) (inserted into the regs from 28/3/11) if any of the descriptors under paragraph 15 (conveying food or drink to the mouth) or 16 (chewing or swallowing food or drink) of schedule 3 apply to him.  I can’t envisage a situation now where a person has LCFWRA and does not have is not treated as having LCFW.  Craven’s example might have been prior to the amendment.

Ah, thank you nevip, I think it was a while ago. So, it is a pretty good rule of thumb that LCW via reg 29 implies that no schedule 3 activity will apply.