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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Reg 30 - this is getting silly

Andrew Dutton
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Welfare rights service - Derbyshire County Council

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Claimant in Support Group.

Fails to attend WCA as is at hospital with a sick relative.

Good cause not accepted – ESA stops and client thrown on to JSA and, naturally, struggles.

Makes new ESA claim – payment refused until new WCA as within 6 months of the WCA non-attendance decision.

‘Significant deterioration’ not accepted as at the last WCA client satisfied Sch3 and was in the Support Group and DWP say you can’t ‘deteriorate’ from that.

So stuck on JSA until 6 months have gone by – even though DWP accepts that claimant belongs in the Support Group.

This is silly.

[ Edited: 3 May 2017 at 10:57 am by Andrew Dutton ]
ClairemHodgson
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Solicitor, SC Law, Harrow

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indeed

what about appealing the good cause decision?  presumably you’ve tried that….

Andrew Dutton
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Welfare rights service - Derbyshire County Council

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Late appeal on good cause, MR request going in on the ‘worsening’ decision.

Andrew Dutton
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MR argument - any amendments/additions?

On the matter of significant deterioration, the decision appears to be paradoxical: I am advised that [claimant] was in the Support Group, and that it is not possible to ‘deteriorate’ from this, therefore you will not allow the claim.

In effect, you accept that [claimant] satisfies Sch3 and/or Regulation 35, but you refuse to pay ESA.

I see nothing in the relevant Regulation to support your interpretation that because [claimant] has already satisfied the test, there is no deterioration.

The requirement is that ‘a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened…’.

The test is whether the claimant would score 15 points or more on the WCA…There is no reference to restraining a claim because the claimant has exceeded this test.

Regulation 30(4) allows that: the Secretary of State may, if paragraph (5) applies, determine afresh whether the claimant has or is to be treated as having limited capability for work-related activity.

Key words – ‘determine afresh’.

Nothing in para 5 or the remainder of the Regulation prevents a fresh determination just because the claimant was previously in the Support Group. It refers to ‘a relevant change of circumstances in relation to the claimant’s physical or mental condition’.

It is possible to have a deterioration of condition whilst already satisfying Sch 3/Reg 35 – for example, a claimant may satisfy one head of Sch3 at one point, but then deteriorate so that s/he satisfies more than one head of Sch 3.

It makes no sense to refuse a claim because the claimant is already very unwell.

Peter Turville
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Welfare rights worker - Oxford Community Work Agency

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CE/4647/2013 addresses the issue of ‘significant worsening’ and whether there is a right of appeal against such a determination under Reg 30 http://www.rightsnet.org.uk/welfare-rights/caselaw/item/esa-regulation-30-cannot-apply-following-a-new-limited-capability-for-work

My reading of this is that your clients condition cannot be said to have ‘significantly worsened’ under Reg 30(4)(b)because they were already accepted as meeting a Sch. 3 (Or Reg 35) criteria at there previous assessment/decision. I would suggest that it is possible to argue ‘significant worsening’ if the previous decision was only WRAG under Sch. 2 or Reg 29. How easy it would be to get a DM to accept that in practice is another question.

The problem is that your client was treated as as not having limited capability for work under Reg 23 and the appropriate challenge is MR/appeal against the decision that they were so treated because they did not have ‘good cause’. They are caught by Reg 30(2)(b)(ii) unless (4) applies.

Reg 30(4)(a) provides the alternative of a ‘new condition’ - but in practice there may be similar issues about pursuading the DM that there is a ‘new condition’ and whether there is a right of MR/appeal if they do not.

Reg 19 only allows the SSWP to ‘determine afresh’ a decision that a person has or is treated as having LCFW - not to determine afresh the opposite that the do not have or are to be treted as not having LCFW.

Your client is caught by the familiar and very harsh effect of a failure to attend or to provide information (ESA50) under Reg. 22 & 23 where they usually have the stark choice of JSA or no money pending the outcome of an MR/appeal against a decision under those Regs. 

I am of course happy to be shown to be in error in my analysis!

SamW
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The approach I would take on it…

The relevant determination that is causing the problems is the decision to treat client as not having LCW after they missed the medical. So any deterioration needs to be from that point and compared to that determination rather than the historic decision placing client in support group.

Obviously this is a little difficult as client failed to attend assessment and so there is no yardstick (in terms of medical assessment) against which to compare. The most optimistic argument would be that the FTA decision is essentially saying that as client did not attend the assumption is that they are fit to work - and so any evidence provided to suggest that in fact this is not the case constitutes a significant deterioration from this assumed situation.

I’d be surprised to see any but the most sympathetic DM going with this and would expect that their argument will be that the client has to show a deterioration in fact between the missed assessment and the new claim. However even in this latter situation the historical support group decision is still irrelevant and the DWPs current argument that client cannot have deteriorated from this point holds no weight for me.

Practically, if the reasons for failing to attend are as strong as they sound and client is a comfortable Support Group claimant it might be quicker and less [painful] to try and resolve via your escalation routes.

[ Edited: 3 May 2017 at 03:31 pm by SamW ]
Jon (CANY)
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Welfare benefits - Craven CAB, North Yorkshire

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Reading into the definition of “significant worsening” extra words along the lines of ..“such that you would qualify for a different and higher ESA group than you did previously” would lead to some absurd results. If my condition has suddenly deteriorated to such an extent that I can now neither move, speak, eat, etc, could a DM still hold that because I was previously assessed for the Support Group, then I can’t possibly have got any worse?

See Memo DMG 10/15 and http://www.cpag.org.uk/content/esa-and-significant-worsening

The guidance also says that where the claimant states that her/his health condition has deteriorated since her/his last assessment, the decision maker should ‘consider whether this change would be likely to be sufficient to score 15 points or more.